SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
J.P. MORGAN CHASE & CO.
(Exact name of Registrant as specified in its charter)
Delaware 13-2624428
(State or other jurisdiction (IRS Employer Identification Number)
of incorporation or organization)
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J.P. Morgan Chase & Co.
270 Park Avenue
New York, New York 10017-2070
(212) 270-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Anthony J. Horan
Corporate Secretary
J.P. Morgan Chase & Co.
270 Park Avenue
New York, New York 10017-2070
(212) 270-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Neila B. Radin, Esq. Deanna L. Kirkpatrick
Senior Vice President and Associate General Counsel Davis Polk & Wardwell
J.P. Morgan Chase & Co. 450 Lexington Avenue
270 Park Avenue New York, New York 10017
New York, New York 10017-2070 (212) 450-4000
(212) 270-6000
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Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ]
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated June 13, 2001
Prospectus
[Logo] JPMorganChase
J.P. MORGAN CHASE & CO.
$1,000,000,000
Debt Securities
Warrants
Units
We will provide specific terms of these securities in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest.
These securities are not deposits or other obligations of a bank and are not insured by the Federal Deposit Insurance Corporation or any other federal agency.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
JPMorgan
This Prospectus is dated , 2001
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with the Securities and Exchange Commission utilizing a "shelf" registration process. Under this shelf process, we may, from time to time, sell any combination of the securities described in the prospectus in one or more offerings up to a total dollar amount of $1,000,000,000 or the equivalent of this amount in foreign currencies or foreign currency units.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading "Where You Can Find More Information" beginning on page 2 of this prospectus.
Following the initial distribution of an offering of securities, J.P. Morgan Securities Inc. and other affiliates of ours may offer and sell those securities in the course of their businesses as broker-dealers. J.P. Morgan Securities Inc. and other affiliates of ours may act as a principal or agent in these transactions. This prospectus and the applicable prospectus supplement will also be used in connection with those transactions. Sales in any of those transactions will be made at varying prices related to prevailing market prices and other circumstances at the time of sale.
No person is authorized to give any information or to make any representations other than those contained or incorporated by reference in this prospectus or the accompanying prospectus supplement, and, if given or made, such information or representations must not be relied upon as having been authorized. This prospectus and the accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in the accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. Neither the delivery of this prospectus or the accompanying prospectus supplement, nor any sale made hereunder and thereunder shall, under any circumstances, create any implication that there has been no change in the affairs of J.P. Morgan Chase & Co. since the date hereof or that the information contained or incorporated by reference herein or therein is correct as of any time subsequent to the date of such information.
TABLE OF CONTENTS
Page
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Where You Can Find More Information..........................................2
J.P. Morgan Chase & Co.......................................................3
Consolidated Ratios of Earnings to Fixed Charges.............................5
Use of Proceeds..............................................................6
Description of Debt Securities...............................................7
Description of Warrants.....................................................14
Description of Units........................................................19
Forms of Securities.........................................................21
Plan of Distribution........................................................25
Experts.....................................................................28
Legal Opinions..............................................................28
ERISA Matters for Pension Plans and Insurance Companies.....................28
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the Commission. You may read and copy these documents at the Commission's public reference room at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at Northeast Regional Office, Seven World Trade Center, Suite 1300, New York, New York 10048 and Midwest Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of this material can also be obtained from the Public Reference Room of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Please call the Commission at 1-800-SEC-0330 for further information about the Public Reference Room. The Commission also maintains an Internet website that contains reports, proxy and information statements and other materials that are filed through the Commission's Electronic Data Gathering, Analysis and Retrieval (EDGAR) System. This website can be accessed at http://www.sec.gov. You can find information we have filed with the Commission by reference to file number 1-5805. In addition, you may inspect our reports, proxy statements and other information at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement we filed with the Commission. This prospectus omits some information contained in the registration statement in accordance with Commission rules and regulations. You should review the information and exhibits in the registration statement for further information on us and our consolidated subsidiaries and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the Commission are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements.
The Commission allows us to incorporate by reference much of the information we file with them, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the Commission, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the Commission filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below and any future filings we make with the Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we complete our offering of the securities to be issued under the registration statement or, if later, the date on which any of our affiliates cease offering and selling these securities:
(a) our Annual Report on Form 10-K for the year ended December 31, 2000, filed on March 22, 2001;
(b) our Quarterly Report on Form 10-Q for the quarter ended March 31, 2001, filed on May 15, 2001; and
(c) our Reports on Form 8-K filed on April 5, 2001, April 27, 2001 and June 6, 2001.
You may request, at no cost to you, a copy of these documents (other than exhibits to such documents) by writing or telephoning us at: Office of the Secretary, J.P. Morgan Chase & Co., 270 Park Avenue, New York, New York 10017-2070 (Telephone: (212) 270-4040).
J.P. MORGAN CHASE & CO.
General
J.P. Morgan Chase & Co. is a financial holding company incorporated under Delaware law in 1968. As of December 31, 2000, after giving effect to the merger referred to below, we were the second largest banking institution in the United States, with $715 billion in assets and $42 billion in stockholders' equity.
On December 31, 2000, we merged with J.P. Morgan & Co. Incorporated. Upon completion of the merger, we changed our name from The Chase Manhattan Corporation to "J.P. Morgan Chase & Co." The merger was accounted for as a pooling of interests.
We are a global financial services firm with operations in over 60 countries. Our principal bank subsidiaries are:
o The Chase Manhattan Bank and Morgan Guaranty Trust Company of New York, each of which is a New York banking corporation headquartered in New York City, and
o Chase Manhattan Bank USA, National Association, headquartered in Delaware.
Our principal non-bank subsidiary is our investment bank subsidiary, J.P. Morgan Securities Inc. We expect The Chase Manhattan Bank to merge with Morgan Guaranty Trust Company of New York in mid-October 2001.
Our activities will be internally organized, for management reporting purposes, into five major businesses:
o Investment Banking;
o Investment Management and Private Banking;
o Treasury & Securities Services;
o J.P. Morgan Partners; and
o Retail and Middle Market Banking.
Below is a brief description of those businesses.
Investment Banking
Investment Banking includes our securities underwriting and financial advisory, trading, mergers and acquisitions advisory, and corporate lending and syndication businesses.
Investment Management and Private Banking
Investment Management and Private Banking includes our asset management businesses, including our mutual funds; our institutional money management and cash management businesses; and our private bank, which provides wealth management solutions for a global client base of high net worth individuals and families.
Treasury & Securities Services
Treasury & Securities Services is a recognized leader in information and transaction processing services, moving trillions of dollars daily in securities and cash for its wholesale clients. Treasury & Securities Services also includes our custody, cash management, trust and other fiduciary services businesses.
J.P. Morgan Partners
J.P. Morgan Partners is one of the world's largest and most diversified private equity investment firms, with total funds under management in excess of $20 billion.
Retail and Middle Market Banking
Retail and Middle Market Banking serves over 30 million consumer, small business and middle-market customers nationwide. Retail and Middle Market Banking offers a wide variety of financial products and services, including consumer banking, credit cards, mortgage services and consumer finance services, through a diverse array of distribution channels, including the internet and branch and ATM networks.
Our principal executive offices are at 270 Park Avenue, New York, New York 10017-2070 and our telephone number is (212) 270-6000.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Year ended December 31,
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2000 1999 1998 1997 1996
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Excluding Interest on Deposits........ 1.52 1.93 1.46 1.53 1.50
Including Interest on Deposits........ 1.31 1.54 1.29 1.33 1.29
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For purposes of computing the above ratios, earnings represent net income from continuing operations plus total taxes based on income and fixed charges. Fixed charges, excluding interest on deposits, include interest expense (other than on deposits), one-third (the proportion deemed representative of the interest factor) of rents, net of income from subleases, and capitalized interest. Fixed charges, including interest on deposits, include all interest expense, one-third (the proportion deemed representative of the interest factor) of rents, net of income from subleases, and capitalized interest.
The above ratios reflect the combined results of The Chase Manhattan Corporation and J.P. Morgan & Co. Incorporated as if the merger had been in effect for all periods presented.
USE OF PROCEEDS
We will use the net proceeds we receive from the sale of the securities offered by this prospectus and the accompanying prospectus supplement for general corporate purposes, in connection with hedging our obligations under the securities, or for any other purpose described in the applicable prospectus supplement. General corporate purposes may include additions to working capital, repayment of debt, investments in or extensions of credit to our subsidiaries, or redemptions or repurchases of our stock. We may temporarily invest the net proceeds or use them to repay short-term debt until they are used for their stated purpose.
DESCRIPTION OF DEBT SECURITIES
General
The following description of the terms of the debt securities contains certain general terms that may apply to the debt securities. The specific terms of any debt securities will be described in the prospectus supplement relating to those debt securities.
The debt securities will be issued under an Indenture, between J.P. Morgan Chase & Co. and Bankers Trust Company, as Trustee.
We have summarized below the material provisions of the Indenture and the debt securities, or indicated which material provisions will be described in the related prospectus supplement. These descriptions are only summaries, and each investor should refer to the Indenture, which describes completely the terms and definitions summarized below and contains additional information regarding the debt securities. Where appropriate, we use parentheses to refer you to the particular sections of the Indenture. Any reference to particular sections or defined terms of the Indenture in any statement under this heading qualifies the entire statement and incorporates by reference the applicable section or definition into that statement.
The debt securities will be our direct, unsecured general obligations. The debt securities will have the same rank in liquidation as all of our other unsecured and unsubordinated debt.
The Indenture does not limit the amount of debt securities that we may issue. The Indenture provides that debt securities may be issued up to the principal amount authorized by us from time to time (Section 2.03 of the Indenture). The Indenture allows us to reopen a previous issue of a series of debt securities and issue additional debt securities of that issue.
We are a holding company and conduct substantially all of our operations through subsidiaries. As a result, claims of holders of the debt securities will generally have a junior position to claims of creditors of our subsidiaries, except to the extent that we may be recognized as a creditor of those subsidiaries. In addition, our right to participate as a shareholder in any distribution of assets of any subsidiary (and thus the ability of holders of the debt securities to benefit as creditors of the Company from such distribution) is junior to creditors of that subsidiary. Claims of creditors of our subsidiaries include:
o substantial amounts of long-term debt;
o deposit liabilities;
o federal funds purchased;
o securities sold under repurchase agreements; and
o short-term borrowings.
In addition, various statutes and regulations restrict some of our subsidiaries from paying dividends or making loans or advances to us. These restrictions could prevent those subsidiaries from paying the cash to us that we need in order to pay you. These restrictions include:
o the net capital requirements under the Securities Exchange Act of 1934, as amended, and the rules of some exchanges and other regulatory bodies, which apply to J.P. Morgan Securities Inc. and other broker-dealer affiliates, and
o banking regulations, which apply to Morgan Guaranty Trust Company of New York, The Chase Manhattan Bank and Chase Manhattan Bank USA.
We may issue debt securities from time to time in one or more series. (Section 2.03 of the Indenture) The debt securities may be denominated and payable in U.S. dollars or foreign currencies. (Section 2.03 of the Indenture) We may also issue debt securities, from time to time, with the principal amount, interest or other amounts payable on any relevant payment date to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices, indices or any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance. All references in this prospectus, or any prospectus supplement to other amounts will include premium, if any, other cash amounts payable under the Indenture, and the delivery of securities or baskets of securities under the terms of the debt securities.
Debt securities may bear interest at a fixed rate, which may be zero, or a floating rate.
The prospectus supplement relating to the particular series of debt securities being offered will specify the particular terms of, and other information relating to, those debt securities. These terms may include:
o the specific designation;
o any limit on the aggregate principal amount and authorized denominations of the debt securities;
o the purchase price of the debt securities (expressed as a percentage of the principal amount thereof);
o the date or dates on which the principal of the debt securities will be payable;
o the interest rate or rates (including any interest rates applicable to overdue payments) on the debt securities, if any, or the method by which the calculation agent will determine those rates;
o if other than U.S. dollars, the currency or currencies (including composite currencies or currency units) in which the debt securities may be purchased and in which payments on the debt securities will be made (which currencies may be different for payments of principal, premium, if any, and/or interest, if any);
o the dates on which any interest or other amounts will be payable, if any;
o any repayment, redemption, prepayment or sinking fund provisions, including any redemption notice provisions;
o information as to the methods for determining the amount of principal, interest or other amounts payable on any date and/or any currencies, currency units, composite currencies, commodity prices, securities, baskets of securities, indices, baskets of indices, interest rates, swap rates, baskets of swap rates or any other factors or other financial, economic or other measure or instrument, including the occurrence or non- occurrence of any event or circumstance, to which the amount payable with respect to the principal, interest or other amounts, if any, of the debt securities on that date will be linked;
o any conversion or exchange provision relating to the conversion or exchange of the debt securities into or for securities of another entity;
o the terms on which holders of the debt securities may convert or exchange these securities into or for stock or other securities issued by another entity, any specific terms relating to the adjustment of the conversion or exchange feature and the period during which the holders may make the conversion or exchange;
o whether we will issue the debt securities in registered form or bearer form or both and, if we are offering debt securities in bearer form, any restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those debt securities in bearer form;
o the place or places for payment of the principal amount, interest or other amounts on the debt securities;
o whether we will issue the debt securities in definitive form and under what terms and conditions;
o any agents for the debt securities, including trustees, depositaries, authenticating or paying agents, transfer agents or registrars;
o any applicable United States federal income tax consequences, including, but not limited to:
o whether and under what circumstances we will pay additional amounts on debt securities held by a person who is not a U.S. person for any tax, assessment or governmental charge withheld or deducted and, if so, whether we will have the option to redeem those debt securities in order to avoid the obligation to pay future additional amounts; and
o tax considerations applicable to any debt securities denominated and payable in foreign currencies; and
o any other specific terms of the debt securities, including any additional events of default or covenants, and any terms required by or advisable under applicable laws or regulations.
Some of the debt securities may be issued as original issue discount debt securities (the "Original Issue Discount Securities"). Original Issue Discount Securities bear no interest or bear interest at below-market rates and will be sold at a discount below their stated principal amount. The prospectus supplement relating to an issue of Original Issue Discount Securities will contain information relating to United States federal income tax, accounting, and other special considerations applicable to Original Issue Discount Securities.
Holders may present debt securities for exchange or transfer, in the manner, at the places and subject to the restrictions stated in the debt securities and described in the applicable prospectus supplement. We will provide these services without charge except for any tax or other governmental charge payable in connection with these services and subject to any limitations provided in the Indenture. (Section 2.08 of the Indenture)
Holders may transfer debt securities in bearer form and the related coupons, if any, by delivery to the transferee. If any of the securities are held in global form, the procedures for transfer of interests in those securities will depend upon the procedures of the depositary for those global securities. See "Forms of Securities."
We will generally have no obligation to repurchase, redeem, or change the terms of debt securities upon any event (including a change in control) that might have an adverse effect on our credit quality.
Events of Default, Waiver, Debt Securities in Foreign Currencies
An "Event of Default" with respect to a series of debt securities is defined in the Indenture as:
o default for 30 days in the payment of interest on any debt securities of that series;
o default in payment of principal or other amounts payable on any debt securities of that series when due, at maturity, upon redemption, by declaration, or otherwise;
o failure by us for 90 days after notice to perform any other covenants or warranties contained in the Indenture applicable to that series;
o certain events of bankruptcy or reorganization of the Company; and
o any other event of default provided in the applicable supplemental indentures or form of security. (Section 5.01 of the Indenture)
If a default in the payment of principal, interest or other amounts
payable on the debt securities, or in the performance of any covenant or
agreement, or in a manner provided in the applicable supplemental indenture or
form of security, with respect to one or more series of debt securities occurs
and is continuing, either the Trustee or the holders of at least 25% in
principal amount of the debt securities of such series then outstanding,
treated as one class, may declare the principal of all outstanding debt
securities of such series and any interest accrued thereon, to be due and
payable immediately. In the case of Original Issue Discount Securities, only a
specified portion of the principal amount may be accelerated. If a default in
the performance of any covenant or agreement with respect to all series of debt
securities, or due to specified events of bankruptcy or insolvency of the
Company, occurs and is continuing, either the Trustee or the holders of at
least 25% in principal amount of all debt securities then outstanding, voting
as a single class, may declare the principal of all outstanding debt securities
and any interest accrued thereon, to be due and payable immediately. In the
case of Original Issue Discount Securities, only a specified portion of the
principal amount may be accelerated. Subject to certain conditions such
declarations may be annulled and past defaults, except for uncured payment
defaults on the debt securities, may be waived by the holders of a majority in
principal amount of the outstanding debt securities of the series affected.
(Sections 5.01 and 5.10 of the Indenture)
An Event of Default with respect to one series of debt securities does not necessarily constitute an Event of Default with respect to any other series of debt securities. The Indenture provides that the Trustee may withhold notice to the holders of the debt securities of any default if the Trustee considers it in the interest of the holders of the debt securities to do so. The Trustee may not withhold notice of a default in the payment of principal of, interest on or any other amounts due under, such debt securities. (Section 5.11 of the Indenture)
The Indenture provides that the holders of a majority in principal amount of outstanding debt securities of any series may direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or other power conferred on the Trustee. The Trustee may decline to act if the direction is contrary to law and in certain other circumstances set forth in the Indenture. (Section 5.09 of the Indenture) The Trustee is not obligated to exercise any of its rights or powers under the Indenture at the request or direction of the holders of debt securities unless the holders offer the Trustee reasonable indemnity against expenses and liabilities. (Section 6.02(d) of the Indenture)
No holder of any Debt Security of any series has the right to institute any action for remedy unless such holder has previously given to the Trustee written notice of default and the Trustee has failed to take action for 60 days after the holders of not less than 25% in principal amount of the debt securities of such series make written request upon the Trustee to institute such action. (Section 5.06 of the Indenture)
The Indenture requires us to file annually with the Trustee a written statement of no default, or specifying any default that exists. (Section 3.05 of the Indenture)
Whenever the Indenture provides for an action by, or the determination of any of the rights of, or any distribution to, holders of debt securities, in the absence of any provision to the contrary in the form of Debt Security, any amount in respect of any debt security denominated in a currency or currency unit other than U.S. dollars may be treated for any such action or distribution as the amount of U.S. dollars that could reasonably be exchanged for such non-U.S. dollar amount. This amount will be calculated as of a date that we specify to the Trustee or, if we fail to specify a date, on a date that the Trustee may determine. (Section 11.11 of the Indenture)
Discharge, Defeasance and Covenant Defeasance
Discharge of Indenture. The Indenture will cease to be of further effect with respect to debt securities of any series, except as to rights of registration of transfer and exchange, substitution of mutilated or defaced debt securities, rights of holders to receive principal, interest or other amounts payable under the debt securities, rights and immunities of the Trustee and rights of holders with respect to property deposited pursuant to the following provisions, if at any time:
o the Company has paid the principal, interest or other amounts payable under the debt securities of such series;
o the Company has delivered to the Trustee for cancellation all debt securities of such series; or
o the debt securities of such series not delivered to the Trustee for cancellation have become due and payable, or will become due and payable within one year, or are to be called for redemption within one year under arrangements satisfactory to the Trustee, and the Company has irrevocably deposited with the Trustee as trust funds the entire amount in cash or U.S. government obligations sufficient to pay all amounts due with respect to such debt securities on or after the date of such deposit, including at maturity or upon redemption of all such debt securities, including principal, interest and other amounts. (Section 10.01 of the Indenture)
The Trustee, on demand of the Company accompanied by an Officers' Certificate and an Opinion of Counsel and at the cost and expense of the Company, will execute proper instruments acknowledging such satisfaction of and discharging the Indenture with respect to such series.
Defeasance of a Series of Securities at Any Time. We may also discharge all of our obligations, other than as to transfers and exchanges, under any series of debt securities at any time, which we refer to as "defeasance".
We may be released with respect to any outstanding series of debt securities from the obligations imposed by Article 9, which contains the covenant described below limiting consolidations, mergers and asset sales, and elect not to comply with that provision without creating an event of default. Discharge under these procedures is called "covenant defeasance".
Defeasance or covenant defeasance may be effected only if, among other things:
o we irrevocably deposit with the Trustee cash or, in the case of debt securities payable only in U.S. dollars, U.S. government obligations, as trust funds in an amount certified to be sufficient to pay on each date that they become due and payable, the principal of , interest on, other amounts due under, and any mandatory sinking fund payments for, all outstanding debt securities of the series being defeased;
o we deliver to the Trustee an opinion of counsel to the effect that:
o the holders of the series of debt securities being defeased will not recognize income, gain or loss for United States federal income tax purposes as a result of the defeasance or covenant defeasance; and
o the defeasance or covenant defeasance will not otherwise alter those holders' United States federal income tax treatment of principal or interest payments or other amounts due under the series of debt securities being defeased;
in the case of a defeasance, this opinion must be based on a ruling of the Internal Revenue Service or a change in United States federal income tax law occurring after the date of this prospectus, since that result would not occur under current tax law; and
o such defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company is a party or by which it is bound. (Section 10.01 of the Indenture)
Modification of the Indenture; Waiver of Compliance
The Indenture contains provisions permitting us and the Trustee to modify the Indenture or the rights of the holders of debt securities with the consent of the holders of not less than a majority in principal amount of each outstanding series of debt securities affected by the modification. Each holder of an affected Debt Security must consent to a modification that would:
o change the stated maturity date of the principal of, or of any installment of principal of or interest on, any debt security;
o reduce the principal amount of, interest on, or any other amounts due under any debt security;
o change the currency or currency unit of payment of any debt security;
o change the method in which amounts of payments of principal, interest or other amounts are determined on any debt security;
o reduce the portion of the principal amount of an Original Issue Discount Security payable upon acceleration of the maturity thereof;
o reduce any amount payable upon redemption of any Debt Security;
o impair the right of a holder to institute suit for the payment of or, if the debt securities provide, any right of repayment at the option of the holder of a Debt Security; or
o reduce the percentage of debt securities of any series, the consent of the holders of which is required for any modification. (Section 8.02 of the Indenture)
The Indenture also permits us and the Trustee to amend the Indenture in certain circumstances without the consent of the holders of debt securities to evidence our merger, the replacement of the Trustee, to effect changes which do not affect any outstanding series of Debt Security, and for certain other purposes. (Section 8.01 of the Indenture)
Consolidations, Mergers and Sales of Assets
We may not merge or consolidate with any other corporation or sell or convey all or substantially all of our assets to any other corporation, unless either:
o we are the continuing corporation or the successor corporation is a United States corporation which expressly assumes the payment of the principal of, any interest on, or any other amounts due under the debt securities and the performance and observance of all the covenants and conditions of the Indenture binding upon us, and
o we or the successor corporation shall not, immediately after the merger or consolidation, sale or conveyance, be in default in the performance of any covenant or condition. (Article 9 of the Indenture)
There are no covenants or other provisions in the Indenture that would afford holders of debt securities additional protection in the event of a recapitalization transaction, a change of control of J.P. Morgan Chase & Co. or a highly leveraged transaction. The merger covenant described above would only apply if the recapitalization transaction, change of control or highly leveraged transaction were structured to include a merger or consolidation of J.P. Morgan Chase & Co. or a sale or conveyance of all or substantially all of our assets. However, we may provide specific protections, such as a put right or increased interest, for particular debt securities, which we would describe in the applicable prospectus supplement.
Concerning the Trustee, Paying Agent, Registrar and Transfer Agent
Our subsidiaries and we have normal banking relationships with the Trustee, Bankers Trust Company. Bankers Trust Company will also be the paying agent, registrar and transfer agent for the debt securities.
Governing Law and Judgments
The debt securities will be governed by and interpreted under the laws of the State of New York. (Section 11.8 of the Indenture) In an action involving debt securities denominated in a currency other than U.S. dollars, it is likely that any judgment granted by a U.S. court would be made only in U.S. dollars. However, a New York court should enter a judgment in the denominated currency. Such judgment should then be converted into U.S. dollars at the rate of exchange prevailing on the date of entry of the judgment.
DESCRIPTION OF WARRANTS
Offered Warrants
We may issue warrants that are debt warrants, index warrants, currency warrants, interest rate warrants or universal warrants. We may offer warrants separately or together with one or more additional warrants, or debt securities or any combination of those securities in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit, the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit prior to the warrants' expiration date. Universal warrants issued in the United States may not be so separated prior to the 91st day after the issuance of the unit, unless otherwise specified in the applicable prospectus supplement.
Debt Warrants. We may issue, together with debt securities or separately, warrants for the purchase of debt securities on terms to be determined at the time of sale. We refer to this type of warrant as a "debt warrant".
Index Warrants. We may issue warrants entitling the holders thereof to receive from us, upon exercise, an amount in cash determined by reference to decreases or increases in the level of a specific index or in the levels (or relative levels) of two or more indices or combinations of indices, which index or indices may be based on one or more stocks, bonds or other securities, one or more interest rates, one or more currencies or currency units, or any combination of the foregoing. We refer to this type of warrant as an "index warrant".
Currency Warrants. We may also issue warrants entitling the holders thereof to receive from us, upon exercise, an amount in cash determined by reference to the right to purchase or the right to sell a specified amount or specified amounts of one or more currencies or currency units or any combination of the foregoing for a specified amount or specified amounts of one or more different currencies or currency units or any combination of the foregoing. We refer to this type of warrant as a "currency warrant".
Interest Rate Warrants. We may issue warrants entitling the holders thereof to receive from us, upon exercise, an amount in cash determined by reference to decreases or increases in the yield or closing price of one or more specified debt instruments or in the interest rates, interest rate swap rates, or other rates established from time to time by one or more specified financial institutions, or any combination of the foregoing. We refer to this type of warrant as an "interest rate warrant".
Universal Warrants. We may also issue warrants:
o to purchase or sell securities issued by another entity, securities based on the performance of such entity, securities based on the performance of such entity but excluding the performance of a particular subsidiary or subsidiaries of such entity, a basket of securities, any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance, or any combination of the above;
o to purchase or sell commodities; or
o in such other form as shall be specified in the applicable prospectus supplement.
We refer to the property in the above clauses as "warrant property." We refer to this type of warrant as a "universal warrant." We may satisfy our obligations, if any, with respect to any universal warrants by delivering the warrant property or, in the case of warrants to purchase or sell securities or commodities, the cash value of the securities or commodities, as described in the applicable prospectus supplement.
Further Information in Prospectus Supplement
General Terms of Warrants. The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
o the specific designation and aggregate number of, and the price at which we will issue, the warrants;
o the currency with which the warrants may be purchased;
o the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;
o whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any Debt Security included in that unit;
o any applicable United States federal income tax consequences;
o the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars, determination, or other agents;
o the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
o whether the warrants are to be sold separately or with other securities as part of units; and
o any other terms of the warrants.
Additional Terms of Debt Warrants. The prospectus supplement will contain, where applicable, the following terms of and other terms and information relating to any debt warrants:
o the designation, aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the debt warrants;
o if applicable, the designation and terms of the debt securities with which the debt warrants are issued and the number of the debt warrants issued with each of the debt securities;
o if applicable, the date on and after which the debt warrants and the related debt securities will be separately transferable; and
o the principal amount of debt securities purchasable upon exercise of each debt warrant, the price at which and the currency in which the debt securities may be purchased and the method of exercise.
Additional Terms of Index, Currency and Interest Rate Warrants. The applicable prospectus supplement will contain, where applicable, the following terms of and other terms and information relating to any index, currency and interest rate warrants:
o the exercise price, if any;
o the currency or currency unit in which the exercise price, if any, and the cash settlement value of such warrants is payable;
o the index or indices for any index warrants, which index or indices may be based on one or more U.S. or foreign stocks, bonds, or other securities, one or more U.S. or foreign interest rates, one or more currencies or currency units, or any combination of the foregoing, and may be a preexisting U.S. or foreign index or an index based on one or more securities, interest rates or currencies selected by us solely in connection with the issuance of such index warrants, and certain information regarding such index or indices and the underlying securities, interest rates or currencies (including, to the extent possible, the policies of the publisher of the index with respect to additions, deletions and substitutions of such securities, interest rates or currencies);
o for index warrants, the method of providing for a substitute index or indices or otherwise determining the amount payable in connection with the exercise of such index warrants if the index changes or ceases to be made available by the publisher of the index;
o for index warrants, any provisions permitting a holder to condition any exercise notice on the absence of certain specified changes in the Spot Value or the Base Value or Spot Amount (as defined in the applicable prospectus supplement) after the exercise date;
o the base currency and the reference currency for any currency warrants;
o the debt instrument (which may be one or more debt instruments issued either by the United States government or by a foreign government), the rate (which may be one or more interest rates or interest rate swap rates established from time to time by one or more specified financial institutions) or the other yield or price utilized for any interest rate warrants, and certain information regarding such debt instrument, rate, yield or price;
o the strike amount, the method of determining the spot amount and the method of expressing movements in the yield or closing price of the debt instrument or in the level of the rate as a cash amount in the currency in which the interest rate cash settlement value of any interest rate warrants is payable;
o whether such warrants shall be put warrants, call warrants or otherwise;
o the formula for determining the cash settlement value of each warrant;
o the circumstances, if any, under which a minimum and/or maximum expiration value is applicable upon the expiration of such warrants;
o the effect or effects, if any, of the occurrence of an Exercise Limitation Event or Extraordinary Event (as defined in the applicable prospectus supplement) and the circumstances that constitute such events;
o any minimum number of warrants which must be exercised at any one time, other than upon automatic exercise;
o the maximum number, if any, of such warrants that may, subject to our election, be exercised by all holders on any day;
o any provisions for the automatic exercise of such warrants other than at expiration;
o whether and under what circumstances such warrants may be canceled by us prior to the expiration date; and
o any other procedures and conditions relating to the exercise of such warrants.
Additional Terms of Universal Warrants. The applicable prospectus supplement will contain, where applicable, the following terms of and other terms and information relating to any universal warrants:
o whether the universal warrants are put warrants or call warrants and whether you or we will be entitled to exercise the warrants;
o the specific warrant property, and the amount or the method for determining the amount of the warrant property, that may be purchased or sold upon exercise of each universal warrant;
o the price at which and the currency with which the underlying securities or commodities may be purchased or sold upon the exercise of each universal warrant, or the method of determining that price;
o whether the exercise price may be paid in cash, by the exchange of any other security offered with the universal warrants or both and the method of exercising the universal warrants; and
o whether the exercise of the universal warrants is to be settled in cash or by delivery of the underlying securities or commodities or both.
Significant Provisions of the Warrant Agreements
We will issue the warrants under one or more warrant agreements to be entered into between us and a bank or trust company, as warrant agent, in one or more series, which will be described in the prospectus supplement for the warrants. The forms of warrant agreements are filed as exhibits to the registration statement. The following summaries of significant provisions of the warrant agreements and the warrants are not intended to be comprehensive and holders of warrants should review the detailed provisions of the relevant warrant agreement for a full description and for other information regarding the warrants.
Modifications without Consent of Warrantholders. We and the warrant agent may amend the terms of the warrants and the warrant certificates without the consent of the holders to:
o cure any ambiguity,
o cure, correct or supplement any defective or inconsistent provision, or
o amend the terms in any other manner which we may deem necessary or desirable and which will not adversely affect the interests of the affected holders in any material respect.
Modifications with Consent of Warrantholders. We and the warrant agent, with the consent of the holders of not less than a majority in number of the then outstanding unexercised warrants affected, may modify or amend the warrant agreement. However, we and the warrant agent may not, without the consent of each affected warrantholder:
o change the exercise price of the warrants;
o reduce the amount receivable upon exercise, cancellation or expiration of the warrants other than in accordance with the antidilution provisions or other similar adjustment provisions included in the terms of the warrants;
o shorten the period of time during which the warrants may be exercised;
o materially and adversely affect the rights of the owners of the warrants; or
o reduce the percentage of outstanding warrants the consent of whose owners is required for the modification of the applicable warrant agreement.
Merger, Consolidation, Sale or Other Disposition. If at any time there will be a merger or consolidation of J.P. Morgan Chase & Co. or a transfer of substantially all of our assets, the successor corporation will succeed to and assume all of our obligations under each warrant agreement and the warrant certificates. We will then be relieved of
any further obligation under each of those warrant agreements and the warrants issued under those warrant agreements. See "Description of Debt Securities--Consolidations, Mergers and Sales of Assets."
Enforceability of Rights of Warrantholders. The warrant agents will act solely as our agents in connection with the warrant certificates and will not assume any obligation or relationship of agency or trust for or with any holders of warrant certificates or beneficial owners of warrants. Any holder of warrant certificates and any beneficial owner of warrants may, without the consent of any other person, enforce by appropriate legal action, on its own behalf, its right to exercise the warrants evidenced by the warrant certificates in the manner provided for in that series of warrants or pursuant to the applicable warrant agreement. No holder of any warrant certificate or beneficial owner of any warrants will be entitled to any of the rights of a holder of the debt securities or any other warrant property that may be purchased upon exercise of the warrants, including, without limitation, the right to receive the payments on those debt securities or other warrant property or to enforce any of the covenants or rights in the relevant indenture or any other similar agreement.
Registration and Transfer of Warrants. Subject to the terms of the applicable warrant agreement, warrants in definitive form may be presented for exchange and for registration of transfer, at the corporate trust office of the warrant agent for that series of warrants, or at any other office indicated in the prospectus supplement relating to that series of warrants, without service charge. However, the holder will be required to pay any taxes and other governmental charges as described in the warrant agreement. The transfer or exchange will be effected only if the warrant agent for the series of warrants is satisfied with the documents of title and identity of the person making the request.
New York Law to Govern. The warrants and each warrant agreement will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF UNITS
General
Units will consist of one or more debt securities and warrants or any combination of them. The applicable prospectus supplement will also describe:
o the designation and the terms of the units and of any combination of debt securities and warrants constituting the units, including whether and under what circumstances the debt securities or warrants may be traded separately;
o any additional terms of the applicable unit agreement;
o any additional provisions for the issuance, payment, settlement, transfer or exchange of the units or of the debt securities or warrants constituting the units; and
o any applicable United States federal income tax consequences.
The terms and conditions described under "Description of Debt Securities," and "Description of Warrants" will apply to each unit and to any debt security or warrant included in each unit, respectively, unless otherwise specified in the applicable prospectus supplement.
We will issue the units under one or more unit agreements, each referred to as a unit agreement, to be entered into between us and a bank or trust company, as unit agent. We may issue units in one or more series, which will be described in the applicable prospectus supplement. We have filed a form of unit agreement as an exhibit to the registration statement.
Significant Provisions of the Unit Agreement
Remedies. The unit agent will act solely as our agent in connection with the units governed by the unit agreement and will not assume any obligation or relationship of agency or trust for or with any holders of units or interests in those units. Any holder of units or interests in those units may, without the consent of the unit agent or any other holder or beneficial owner of units, enforce by appropriate legal action, on its own behalf, its rights under the unit agreement. However, the holders of units or interests in those units may only enforce their rights under the debt securities or warrants issued as parts of those units in accordance with the terms of the Indenture and the applicable warrant agreement.
Modification. We and the unit agent may amend the unit agreement without the consent of the holders to:
o cure any ambiguity;
o cure, correct or supplement any defective or inconsistent provision in the agreement; or
o amend the terms in any other manner which we may deem necessary or desirable and which will not adversely affect the interest of the affected holders of units in any material respect.
We and the unit agent, with the consent of the holders of not less than a majority of units at the time outstanding, may modify or amend the rights of the affected holders of the affected units and the terms of the unit agreement. However, we and the unit agent may not, without the consent of each affected holder of units, make any modifications or amendments that would:
o materially and adversely affect the exercise rights of the affected holders, or
o reduce the percentage of outstanding units the consent of whose owners is required to consent to a modification or amendment of the unit agreement.
Any debt securities issued as part of units governed by the unit agreement may be modified only in accordance with the Indenture, as described above under "Description of Debt Securities--Modification of the Indenture." Any warrants issued as part of units may be modified only in accordance with the terms of the applicable warrant agreement as described in "Description of Warrants--Significant Provisions of the Warrant Agreements."
Merger, Consolidation, Sale or Conveyance. The unit agreement provides that we will not merge or consolidate with any other person and will not sell or convey all or substantially all of our assets to any person unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially all of our assets:
o will be a corporation organized under the laws of the United States, a state of the United States or the District of Columbia; and
o will expressly assume all of our obligations under the unit agreement; and
o immediately after the merger, consolidation, sale or conveyance, we, that person or that successor corporation will not be in default in the performance of the covenants and conditions of the unit agreement applicable to us.
Replacement of Unit Certificates. We will replace any mutilated certificate evidencing a definitive unit at the expense of the holder upon surrender of that certificate to the unit agent. We will replace certificates that have been destroyed, lost or stolen at the expense of the holder upon delivery to us and the unit agent of evidence satisfactory to us and the unit agent of the destruction, loss or theft of the certificates. In the case of a destroyed, lost or stolen certificate, an indemnity satisfactory to the unit agent and to us may be required at the expense of the holder of the units or prepaid purchase contracts evidenced by that certificate before a replacement will be issued.
Title. We, the unit agent, the trustee, the warrant agent and any of their agents will treat the registered owner of any unit as its owner, notwithstanding any notice to the contrary, for all purposes.
New York Law to Govern. The unit agreement and the units will be governed by, and construed in accordance with, the laws of the State of New York.
FORMS OF SECURITIES
Each debt security, warrant and unit will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Both certificated securities in definitive form and global securities may be issued either (1) in registered form, where our obligation runs to the holder of the security named on the face of the security or (2) subject to the limitations explained below under "--Limitations on Issuance of Bearer Securities and Bearer Debt Warrants," in bearer form, where our obligation runs to the bearer of the security. Definitive securities name you or your nominee as the owner of the security (other than definitive bearer securities, which name the bearer as owner), and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, warrants or units represented by these global securities (other than global bearer securities, which name the bearer as owner). The depositary maintains a computerized system that will reflect each investor's beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Global Securities
Registered Global Securities. We may issue the registered debt securities, warrants and units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants' accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable indenture, warrant agreement or unit agreement. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement or unit agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement or unit
agreement. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement or unit agreement, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, interest payments on debt securities, other amounts due under debt securities and any payments to holders with respect to warrants or units, represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of J.P. Morgan Chase & Co., the trustees, the warrant agents, the unit agents or any other agent of J.P. Morgan Chase & Co., agent of the trustees or agent of the warrant agents or unit agents will have any responsibility or liability for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal, interest, other amounts or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants' accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor depositary registered as a clearing agency under the Securities Exchange Act of 1934 is not appointed by us within 90 days, we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. In addition, we may at any time and in our sole discretion decide not to have any of the securities represented by one or more registered global securities. If we make that decision, we will issue securities in definitive form in exchange for all of the registered global security or securities representing those securities. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary's instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
Bearer Global Securities. The securities may also be issued in the form of one or more bearer global securities that will be deposited with a common depositary for the Euroclear System and Clearstream Banking, societe anonyme or with a nominee for the depositary identified in the prospectus supplement relating to those securities. The specific terms and procedures, including the specific terms of the depositary arrangement, with respect to any securities to be represented by a bearer global security will be described in the prospectus supplement relating to those securities.
Limitations on Issuance of Bearer Securities and Bearer Debt Warrants
In compliance with United States federal income tax laws and regulations, bearer securities, including bearer securities in global form, and bearer debt warrants will not be offered, sold, resold or delivered, directly or indirectly, in the United States or its possessions or to United States persons, as defined below, except as otherwise permitted by United States Treasury Regulations Section 1.163-5(c)(2)(i)(D). Any underwriters, agents or dealers participating in the offerings of bearer securities or bearer debt warrants, directly or indirectly, must agree that:
o they will not, in connection with the original issuance of any bearer securities or during the restricted period, as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7), which we refer to as the "restricted period," offer, sell, resell or deliver, directly or indirectly, any bearer securities in the United States or its possessions or to United States persons, other than as permitted by the applicable Treasury Regulations described above, and
o they will not, at any time, offer, sell, resell or deliver, directly or indirectly, any bearer debt warrants in the United States or its possessions or to United States persons, other than as permitted by the applicable Treasury Regulations described above.
In addition, any underwriters, agents or dealers must have procedures reasonably designed to ensure that their employees or agents who are directly engaged in selling bearer securities or bearer debt warrants are aware of the above restrictions on the offering, sale, resale or delivery of bearer securities or bearer debt warrants.
Bearer securities, other than temporary global debt securities and bearer
securities that satisfy the requirements of United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(iii) and any coupons appertaining thereto will
not be delivered in definitive form, and no interest will be paid thereon,
unless J.P. Morgan Chase & Co. has received a signed certificate in writing, or
an electronic certificate described in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(ii), stating that on the date of that
certificate the bearer security:
o is owned by a person that is not a United States person;
o is owned by a United States person that (a) is a foreign branch of a United States financial institution, as defined in applicable United States Treasury Regulations, which we refer to as a "financial institution," purchasing for its own account or for resale, or (b) is acquiring the bearer security through a foreign branch of a United States financial institution and who holds the bearer security through that financial institution through that date, and in either case (a) or (b) above, each of those United States financial institutions agrees, on its own behalf or through its agent, that J.P. Morgan Chase & Co. may be advised that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the Treasury Regulations thereunder; or
o is owned by a United States or foreign financial institution for the purposes of resale during the restricted period and, whether or not also described in the first or second clause above, the financial institution certifies that it has not acquired the bearer security for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
We will not issue bearer debt warrants in definitive form.
We will make payments on bearer securities and bearer debt warrants only outside the United States and its possessions except as permitted by the above Treasury Regulations.
Bearer securities, other than temporary global securities, and any coupons issued with bearer securities will bear the following legend: "Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in sections 165(j) and 1287(a) of the Internal Revenue Code." The sections referred to in this legend provide that, with exceptions, a United States person will not be permitted to deduct any loss, and will not be eligible for capital gain treatment with respect to any gain realized on the sale, exchange or redemption of that bearer security or coupon.
As used in the preceding three paragraphs, the term bearer securities includes bearer securities that are part of units and the term bearer debt warrants includes bearer debt warrants that are part of units. As used herein, the term "United States person" means a citizen or resident of the United States for United States federal income tax purposes, a corporation or partnership, including an entity treated as a corporation or partnership for United States federal income tax purposes, created or organized in or under the laws of the United States, or any state of the United
States or the District of Columbia, or an estate or trust the income of which is subject to United States federal income taxation regardless of its source.
Form of Securities Included in Units
The form of any warrant included in a unit will correspond to the form of the unit and of any other security included in that unit.
PLAN OF DISTRIBUTION
We may sell the debt securities or warrants:
o through agents;
o through underwriters;
o through dealers; and
o directly to purchasers, any of whom may be customers of, engage in transactions with, or perform services for, the Company in the ordinary course of business.
If we offer and sell securities through an agent, that agent will be named, and any commissions payable to that agent by us, will be set forth in the prospectus supplement. Any agent will be acting on a best efforts basis for the period of its appointment which will usually be five business days or less. An agent may be deemed to be an underwriter under the federal securities laws.
If underwriters are used in the sale of the securities, we will sign an underwriting agreement with them. The underwriting agreement will provide that the obligations of the underwriters are subject to certain conditions and that the underwriters will be obligated to purchase all of the securities if any are purchased. Underwriters will buy the securities for their own account and may resell them from time to time in one or more transactions, including negotiated transactions, at fixed public offering prices or at varying prices determined at the time of sale. Securities may be offered to the public either through underwriting syndicates represented by managing underwriters, or directly by the managing underwriters. The name of the managing underwriter or underwriters, as well as any other underwriters, and the terms of the transaction, including compensation of the underwriters and dealers, if any, will be set forth in the prospectus supplement. The underwriters named in the prospectus supplement will be the only underwriters for the securities offered by that prospectus supplement.
If a dealer is utilized in the sale of securities, we will sell those securities to the dealer, as principal. The dealer may resell those securities to the public at varying prices to be determined by the dealer at the time of resale. A dealer may be deemed to be an underwriter of those securities under the securities laws. The name of the dealer and the terms of the transaction will be set forth in the prospectus supplement.
Our net proceeds will be the purchase price in the case of sales to a dealer, the public offering price less discount in the case of sales to an underwriter or the purchase price less commission in the case of sales through an agent -- in each case, less other expenses attributable to issuance and distribution.
In order to facilitate the offering of these securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of these securities or any other securities the prices of which may be used to determine payments on these securities. Specifically, the underwriters may sell more securities than they are obligated to purchase in connection with the offering, creating a short position for their own accounts. A short sale is covered if the short position is no greater than the number or amount of securities available for purchase by the underwriters under any overallotment option. The underwriters can close out a covered short sale by exercising the overallotment option or purchasing these securities in the open market. In determining the source of securities to close out a covered short sale, the underwriters will consider, among other things, the open market price of these securities compared to the price available under the overallotment option. The underwriters may also sell these securities or any other securities in excess of the overallotment option, creating a naked short position. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of these securities in the open market after pricing that could adversely affect investors who purchase in the offering. As an additional means of facilitating the offering, the underwriters may bid for, and purchase, these securities or any other securities in the open market to stabilize the price of these securities or of any other securities. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may also
reclaim selling concessions allowed to an underwriter or a dealer for distributing these securities in the offering, if the syndicate repurchases previously distributed securities to cover syndicate short positions or to stabilize the price of these securities. Any of these activities may raise or maintain the market price of these securities above independent market levels or prevent or retard a decline in the market price of these securities. The underwriters are not required to engage in these activities, and may end any of these activities at any time.
We may agree to indemnify agents, underwriters, or dealers against certain liabilities, including liabilities under the securities laws, or to contribute to payments that agents, underwriters, or dealers may be required to make. Agents, underwriters and dealers may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
We may directly solicit offers to purchase securities, and we may sell securities directly to institutional investors or others, who may be deemed to be underwriters within the meaning of the securities laws. The terms of any such sales will be described in the prospectus supplement.
We may authorize agents, underwriters, and dealers to solicit offers by certain institutions to purchase the securities from us at the public offering price stated in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future and on terms described in the prospectus supplement. These contracts will be subject to only those conditions described in the prospectus supplement, and the prospectus supplement will state the commission payable for solicitation of these offers. Institutions with whom delayed delivery contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions, and other institutions but shall in all cases be institutions which we have approved.
These contracts will be subject only to the conditions that:
o the underwriters purchase the securities at the time of the Contract; and
o the purchase is not prohibited under the laws of any jurisdiction in the United States to which the purchase is subject.
We will pay a commission, as indicated in the prospectus supplement, to agents and dealers soliciting purchases of securities pursuant to delayed delivery contracts that we have accepted.
This prospectus and related prospectus supplement may be used by direct or indirect wholly-owned subsidiaries of ours in connection with offers and sales related to secondary market transactions in the securities. Those subsidiaries may act as principal or agent in those transactions. Secondary market sales will be made at prices related to prevailing market prices at the time of sale.
The offer and sale of the securities by an affiliate of ours will comply with the requirements of Rule 2720 of the Rules of Conduct of the National Association of Securities Dealers, Inc. regarding underwriting of securities of an affiliate and will comply with any restrictions imposed on the underwriter by the Governors. Accordingly, an affiliate of ours that is a member of the NASD may participate in a public offering and sale of our debt securities if the offering is of a class of securities rated investment grade by a nationally recognized statistical rating organization. In addition, an affiliate of ours that is a member of the NASD may participate in any public offering and sale of the securities, including without limitation Warrants, if the price at which an equity issue is distributed to the public is no higher or the yield at which a debt issue is distributed to the public is no lower than that recommended by a "qualified independent underwriter" (determined to be so qualified by the NASD prior to commencement of such offering), in each case in compliance with the Conduct Rules of the NASD. Following the initial distribution of any of the securities, our affiliates may offer and sell these securities in the course of their business as broker-dealers. Our affiliates may act as principals or agents in these transactions and may make any sales at varying prices related to prevailing market prices at the time of sale or otherwise. Our affiliates may use this prospectus in connection with these transactions. None of our affiliates is obligated to make a market in any of these securities and may discontinue any market-making activities at any time without notice.
Any underwriter, agent or dealer utilized in the initial offering of securities will not confirm sales to accounts over which it exercises discretionary authority without the prior specific written approval of its customer.
EXPERTS
The audited financial statements of J.P. Morgan Chase & Co. contained in our Annual Report on Form 10-K for the year ended December 31, 2000, are incorporated by reference in this prospectus in reliance on the reports of PricewaterhouseCoopers LLP, independent accountants, given on the authority of that firm as experts in auditing and accounting.
LEGAL OPINIONS
The validity of the securities will be passed upon by Neila B. Radin, Senior Vice President and Associate General Counsel of J.P. Morgan Chase & Co. Davis Polk & Wardwell will pass upon some legal matters relating to these securities for the underwriters. Davis Polk & Wardwell has in the past represented J.P. Morgan Chase & Co. and continues to represent J.P. Morgan Chase & Co. on a regular basis and in a variety of matters.
ERISA MATTERS FOR PENSION PLANS AND INSURANCE COMPANIES
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") and Section 4975 of the Internal Revenue Code of 1986, as
amended, (the "Code") prohibit pension, profit-sharing or other employee
benefit plans, as well as individual retirement accounts and Keogh plans
subject to Section 4975 of the Code ("Plans"), from engaging in certain
transactions involving the "plan assets" with persons who are "parties in
interest" under ERISA or "disqualified persons" under the Code ("Parties in
Interest") with respect to such Plans. As a result of its business, the Company
is a Party in Interest with respect to many Plans. Where the Company is a Party
in Interest with respect to a Plan (either directly or by reason of its
ownership of its subsidiaries), the purchase and holding of the securities by
or on behalf of the Plan would be a prohibited lending transaction under
Section 406(a)(1) of ERISA and Section 4975(c)(1) of the Code, unless exemptive
relief were available under an applicable administrative exemption (as
described below) or there was some other basis on which the transaction was not
prohibited.
Accordingly, the securities may not be purchased or held by any Plan, any entity whose underlying assets include "plan assets" by reason of any Plan's investment in the entity (a "Plan Asset Entity") or any person investing "plan assets" of any Plan, unless such purchaser or holder is eligible for the exemptive relief available under Prohibited Transaction Class Exemption ("PTCE") 96-23, 95-60, 91-38, 90-1 or 84-14 issued by the U.S. Department of Labor or there was some other basis on which the purchase and holding of the securities by the Plan Asset Entity is not prohibited. Unless the applicable prospectus supplement explicitly provides otherwise, any purchaser or holder of the securities or any interest therein will be deemed to have represented by its purchase of the securities that (a) its purchase and holding of the securities is not made on behalf of or with "plan assets" of any Plan or (b) its purchase and holding of the securities is eligible for the exemptive relief available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or there is some other basis on which such purchase and holding is not prohibited.
Employee benefit plans that are governmental plans (as defined in Section 3(32) of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and foreign plans (as described in Section 4(b)(4) of ERISA) are not subject to these "prohibited transaction" rules of ERISA or Section 4975 of the Code, but may be subject to similar rules under other applicable laws or documents.
Due to the complexity of the applicable rules, it is particularly important that fiduciaries or other persons considering purchasing the securities on behalf of or with "plan assets" of any Plan consult with their counsel regarding the relevant provisions of ERISA and the Code and the availability of exemptive relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-1.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses in connection with the issuance and distribution of securities being registered, other than underwriting compensation and related hedging costs, are as follows:
Securities and Exchange Commission registration fee................. $ 250,000
Legal fees and expenses............................................. 225,000*
National Association of Securities Dealers Inc. filing fee.......... 30,500
Accounting fees and expenses........................................ 225,000*
Trustees fees and expenses (including counsel fees)................. 60,000*
Rating agency fees.................................................. 75,000*
Printing expenses................................................... 175,000*
Miscellaneous....................................................... 10,500*
----------
Total.......................................................... $1,051,000*
---------
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* Estimated
Item 15. Indemnification of Officers and Directors.
Pursuant to the Delaware General Corporation Law ("DGCL"), a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation) by reason of the fact that the person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also permits indemnification by a corporation under similar circumstances for expenses (including attorneys' fees) actually and reasonably incurred by such persons in connection with the defense or settlement of a derivative action, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to such corporation unless the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
The DGCL provides that the indemnification described above shall not be deemed exclusive of any other indemnification to which those seeking indemnification or advancement of expenses may be entitled pursuant to its By-Laws, disinterested directors' vote, stockholders' vote, agreement or otherwise.
The DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability as described above.
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The Restated Certificate of Incorporation of J.P. Morgan Chase & Co. (the "Registrant") provides that, to the fullest extent that the DGCL as from time to time in effect permits the limitation or elimination of the liability of directors, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director.
The Registrant's Restated Certificate of Incorporation empowers the Registrant to indemnify any director, officer, employee or agent of the Registrant or any other person who is serving at the Registrant's request in any such capacity with another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, an employee benefit plan) to the fullest extent permitted under the DGCL as from time to time in effect, and any such indemnification may continue as to any person who has ceased to be a director, officer, employee or agent and may inure to the benefit of the heirs, executors and administrators of such a person.
The Registrant's Restated Certificate of Incorporation also empowers the Registrant by action of its Board of Directors, notwithstanding any interest of the directors in the action, to purchase and maintain insurance in such amounts as the Board of Directors deems appropriate to protect any director, officer, employee or agent of the Registrant or any other person who is serving at the Registrant's request in any such capacity with another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, an employee benefit plan) against any liability asserted against him or her or incurred by him or her in any such capacity arising out of his or her status as such (including, without limitation, expenses, judgments, fines (including any excise taxes assessed on a person with respect to any employee benefit plan) and amounts paid in settlement) to the fullest extent permitted under the DGCL as from time to time in effect, whether or not the Registrant would have the power or be required to indemnify any such individual under the terms of any agreement or by-law or the DGCL.
In addition, the Registrant's By-laws require indemnification to the fullest extent permitted under applicable law, as from time to time in effect. The By-laws provide a clear and unconditional right to indemnification for expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by any person in connection with any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, administrative or investigative (including, to the extent permitted by law, any derivative action) by reason of the fact that such person is or was serving as a director, officer, employee or agent of the Registrant or, at the request of the Registrant, of another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, an employee benefit plan). The By-laws specify that the right to indemnification so provided is a contract right, set forth certain procedural and evidentiary standards applicable to the enforcement of a claim under the By- laws and entitle the persons to be indemnified to have all expenses incurred in advance of the final disposition of a proceeding paid by the Registrant. Such provisions, however, are intended to be in furtherance and not in limitation of the general right to indemnification provided in the By-laws, which right of indemnification and of advancement of expenses is not exclusive.
The Registrant's By-laws also provide that the Registrant may enter into contracts with any director, officer, employee or agent of the Registrant in furtherance of the indemnification provisions in the By-laws, as well as create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure payment of amounts indemnified.
The foregoing statements are subject to the detailed provisions of Section 145 of the Delaware Corporation Law and the By-laws of the Registrant.
Item 16. Exhibits.
1(a)(1) Underwriting Agreement Standard Provisions (including form of
Delayed Delivery Contract) dated as of June 12, 2001
4(a)(1) Indenture, dated as of May 25, 2001, between J.P. Morgan Chase & Co.
and Bankers Trust Company, as Trustee
4(b)(1) Form of Fixed Rate Note
II-2
|
4(b)(2) Form of Floating Rate Note
4(b)(3) Form of Permanent Global Fixed Rate Bearer Note
4(b)(4) Form of Temporary Global Fixed Rate Bearer Note
4(b)(5) Form of Permanent Global Floating Rate Bearer Note
4(b)(6) Form of Temporary Global Floating Rate Bearer Note
4(c) Form of Debt Warrant Agreement
4(d) Forms of Debt Warrant Certificates (included as Exhibits A and B to
form of Debt Warrant Agreement)
4(e) Form of Index Warrant Agreement
4(f) Forms of Index Warrant Certificates (included as Exhibits A and A-1
to form of Index Warrant Agreement)
4(g) Form of Currency Warrant Agreement
4(h) Forms of Currency Warrant Certificates (included as Exhibits A and
A-1 to form of Currency Warrant Agreement)
4(i) Form of Interest Rate Warrant Agreement
4(j) Forms of Interest Rate Warrant Certificates (included as Exhibits A
and A-1 to form of Interest Rate Warrant Agreement)
4(k) Form of Universal Warrant Agreement
4(l) Forms of Universal Warrant Certificates (included as Exhibits A and
B to form of Universal Warrant Agreement)
4(m) Form of Unit Agreement
4(n) Form of Unit Certificate (included as Exhibit A to form of Unit
Agreement)
5 Opinion of Neila B. Radin
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the year ended December 31, 2000 (incorporated herein by reference
to Exhibit 12.1 to J.P. Morgan Chase & Co.'s Annual Report on Form
10-K for the year ended December 31, 2000 (File No. 1-5805))
12.2 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the years ended December 31, 1999, 1998, 1997 and 1996
23(a) Consent of PricewaterhouseCoopers LLP, as auditors for J.P. Morgan
Chase & Co.
23(b) Consent of Neila B. Radin (included in Exhibit 5)
24 Powers of Attorney
25.1 Statement of Eligibility of Trustee on Form T-1
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II-3
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 15 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in such Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in The City of New York and State of New York, on this 13th day of June, 2001.
J.P. MORGAN CHASE & CO.
By: /s/ Anthony J. Horan ---------------------------------- Name: Anthony J. Horan Title: Corporate Secretary |
Pursuant to the requirements of the Securities Act of 1933, as amended, this amendment to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Director, Chairman of the Board June 13, 2001
----------------------------
Douglas A. Warner III
* Director, President and Chief June 13, 2001
---------------------------- Executive Officer (Principal
William B. Harrison, Jr. Executive Officer)
* Director June 13, 2001
----------------------------
Hans W. Becherer
* Director June 13, 2001
----------------------------
Riley P. Bechtel
* Director June 13, 2001
----------------------------
Frank A. Bennack, Jr.
* Director June 13, 2001
----------------------------
Lawrence A. Bossidy
* Director June 13, 2001
----------------------------
M. Anthony Burns
* Director June 13, 2001
----------------------------
H. Laurance Fuller
* Director June 13, 2001
----------------------------
Ellen V. Futter
* Director June 13, 2001
----------------------------
William H. Gray, III
* Director June 13, 2001
----------------------------
Helene L. Kaplan
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II-5
Signature Title Date
--------- ----- ----
* Director June 13, 2001
----------------------------
Lee R. Raymond
* Director June 13, 2001
----------------------------
John R. Stafford
* Director June 13, 2001
----------------------------
Lloyd D. Ward
* Director June 13, 2001
----------------------------
Marina v.N. Whitman
* Vice Chairman Finance, Risk June 13, 2001
---------------------------- Management and Administration
Marc J. Shapiro (Principal Financial Officer)
* Executive Vice President and June 13, 2001
---------------------------- Controller (Principal Accounting
Joseph L. Sclafani Officer)
-------------------
*By: /s/ Anthony J. Horan
------------------------------------
(Anthony J. Horan, Attorney-in-Fact)
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EXHIBIT INDEX
Exhibit
Number Description
------- -----------
1(a)(1) Underwriting Agreement Standard Provisions (including form of
Delayed Delivery Contract) dated as of June 12, 2001
4(a)(1) Indenture, dated as of May 25, 2001, between J.P. Morgan Chase & Co.
and Bankers Trust Company, as Trustee
4(b)(1) Form of Fixed Rate Note
4(b)(2) Form of Floating Rate Note
4(b)(3) Form of Permanent Global Fixed Rate Bearer Note
4(b)(4) Form of Temporary Global Fixed Rate Bearer Note
4(b)(5) Form of Permanent Global Floating Rate Bearer Note
4(b)(6) Form of Temporary Global Floating Rate Bearer Note
4(c) Form of Debt Warrant Agreement
4(d) Forms of Debt Warrant Certificates (included as Exhibits A and B to
form of Debt Warrant Agreement)
4(e) Form of Index Warrant Agreement
4(f) Forms of Index Warrant Certificates (included as Exhibits A and A-1
to form of Index Warrant Agreement)
4(g) Form of Currency Warrant Agreement
4(h) Forms of Currency Warrant Certificates (included as Exhibits A and
A-1 to form of Currency Warrant Agreement)
4(i) Form of Interest Rate Warrant Agreement
4(j) Forms of Interest Rate Warrant Certificates (included as Exhibits A
and A-1 to form of Interest Rate Warrant Agreement)
4(k) Form of Universal Warrant Agreement
4(l) Forms of Universal Warrant Certificates (included as Exhibits A and
B to form of Universal Warrant Agreement)
4(m) Form of Unit Agreement
4(n) Form of Unit Certificate (included as Exhibit A to form of Unit
Agreement)
5 Opinion of Neila B. Radin
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the year ended December 31, 2000 (incorporated herein by reference
to Exhibit 12.1 to J.P. Morgan Chase & Co.'s Annual Report on Form
10-K for the year ended December 31, 2000 (File No. 1-5805))
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Exhibit
Number Description
------- -----------
12.2 Computation of Consolidated Ratio of Earnings to Fixed Charges for
the years ended December 31, 1999, 1998, 1997 and 1996
23(a) Consent of PricewaterhouseCoopers LLP, as auditors for J.P. Morgan
Chase & Co.
23(b) Consent of Neila B. Radin (included in Exhibit 5)
24 Powers of Attorney
25.1 Statement of Eligibility of Trustee on Form T-1
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EXHIBIT 1(a)(1)
J.P. MORGAN CHASE & CO.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS AND UNITS
COMPRISED OF DEBT SECURITIES AND WARRANTS)
June 12, 2001
From time to time, J.P. Morgan Chase & Co., a Delaware corporation (the "Company"), may enter into one or more underwriting agreements that provide for the sale of designated securities to the several underwriters named therein (each an "Underwriter"). The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement". Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time senior debt securities to
be issued pursuant to the provisions of the Indenture dated as of May 25, 2001
and any indentures supplemental thereto (collectively referred to as the
"Indenture") between the Company and Bankers Trust Company, as Trustee. Such
senior debt securities will have varying designations, maturities, rates and
times of payment of interest, selling prices, redemption terms and other terms.
The Company also proposes to issue from time to time warrants (A) to purchase
debt securities registered by the Registration Statement (as hereinafter
defined), (B) to receive cash determined by reference to an index or indices,
(C) to receive cash determined by reference to currencies, (D) to receive cash
determined by reference to interest rates, or (E) (i) to purchase or sell
securities of an entity other than the Company, a basket of such securities or
commodities, or (ii) to receive cash determined by reference to any other
financial, economic or other measure or instrument including the occurrence or
non-occurrence of any other event or circumstance, or any combination of the
above, such warrants to be issued pursuant to the provisions of a warrant
agreement (the "Warrant Agreement") between the Company and the warrant agent
indicated in the Underwriting Agreement. Such warrants will have varying
designations, exercise prices, expiration dates and other terms. Such senior
debt securities and warrants may be issued separately or as part of a unit. Any
such senior debt securities, any such warrants and any such units are herein
sometimes collectively referred to as the "Securities".
The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement including a prospectus relating to the Securities and has filed with, or mailed for filing to, the Commission a prospectus supplement or supplements specifically relating to the Offered Securities (as defined in the Underwriting Agreement), pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"). The term "Registration Statement" means the registration statement as amended to the date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means the Basic Prospectus together with the prospectus supplement (other than a preliminary prospectus supplement) specifically relating to the Offered Securities, as filed with, or mailed for filing to, the Commission pursuant to Rule 424. The term "preliminary prospectus" means a preliminary prospectus supplement specifically relating to the Offered Securities, together with the Basic Prospectus. As used herein the terms "Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in each case the material, if any, incorporated by reference therein.
The term "Offered Securities" means the Offered Securities to be purchased by the Underwriters herein. The term "Contract Securities" means the Offered Securities, if any, to be purchased pursuant to the delayed delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to delayed delivery contracts, the Company hereby authorizes the Underwriters to solicit offers to purchase Contract Securities on the terms and subject to the conditions set forth in the Prospectus pursuant to delayed delivery contracts substantially in the form of Schedule I attached hereto ("Delayed Delivery Contracts") but with such changes therein as the Company may authorize or approve. Delayed Delivery Contracts are to be with institutional investors approved by the Company and of the types set forth in the Prospectus. On the Closing Date (as hereinafter defined) the Company will pay the Manager (as defined in the Underwriting Agreement) as compensation, for the accounts of the Underwriters, the fee set forth in the Underwriting Agreement in respect of the Contract Securities. The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with institutional investors, the Securities comprising the Contract Securities shall be deducted from the Securities comprising the Offered Securities to be purchased by the several Underwriters; and the aggregate principal amount of Securities comprising the Offered Securities to be purchased by each Underwriter shall be reduced pro rata in proportion to the principal amount of Securities comprising the Offered Securities set forth opposite each Underwriter's name in the Underwriting Agreement, except to the extent that the Manager determines that such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to make a public offering of their respective portions of the Offered Securities as soon after this Agreement is entered into as in the Manager's judgment is advisable. The terms of the public offering of the Offered Securities are set forth in the Prospectus.
IV.
Payment for the Offered Securities shall be made by payment in full of the requisite amount of funds determined in the Underwriting Agreement and in accordance with the procedures set forth in the Underwriting Agreement, upon delivery to the Manager for the respective accounts of the several Underwriters of the Offered Securities registered in such names and in such denominations as the Manager shall request in writing not less than two full business days prior to the date of delivery. The time and date of such payment and delivery with respect to the Offered Securities are herein referred to as the "Closing Date".
V.
The several obligations of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or, to the knowledge of the Company, threatened by the Commission and there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement and the Prospectus; and the Manager shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by an executive officer of the Company, to the foregoing effect. The officer making such certificate may rely upon the best of his knowledge as to proceedings pending or threatened.
(b) The Manager shall have received on the Closing Date an opinion of Simpson, Thacher & Bartlett, counsel to the Company, dated the Closing Date, in form and scope satisfactory to the Manager.
(c) The Manager shall have received on the Closing Date an opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the Closing Date, in form and scope satisfactory to the Manager.
(d) The Manager shall have received on the Closing Date a letter dated the Closing Date, in form and substance satisfactory to the Manager, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, a copy of the Registration Statement including exhibits and materials, if any, incorporated by reference therein and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto as the Manager may reasonably request. The terms "supplement" and "amendment" or "amend" as used in this Agreement with respect to the Registration Statement, Prospectus or preliminary prospectus shall include all documents filed by the Company with the Commission subsequent to the date of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") which are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or the Prospectus, in each case with respect to the Offered Securities, to furnish the Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the commencement of the public offering of the Offered Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered with respect thereto, any event shall occur as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary to make the state ments therein, in the light of the circumstances then existing, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with law, forthwith at its own expense, to amend or to supplement the Prospectus and to furnish such amendment or supplement to the Underwriters, so as to correct such statement or omission or effect such compliance.
(d) To qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Manager shall reasonably request and to pay all expenses (including fees and disburse ments of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions as the Manager may designate; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction.
(e) To make generally available to the Company's securityholders as soon as practicable an earnings statement covering a twelve month period beginning after the date of the Underwriting Agreement, which shall satisfy the provisions of Section 11(a) of the Securities Act of 1933, as amended, and Rule 158 thereunder.
(f) Whether or not any sale of Offered Securities is consummated, to
pay all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the Registration
statement and the Prospectus and all amendments and supplements thereto,
(ii) the preparation, issuance and delivery of the Offered Securities,
(iii) the fees and disbursements of the Company's counsel and accountants
and of the Trustees and their counsel, (iv) the qualification of the
Offered Securities under securities or blue sky laws in accordance with
the provisions of Section VI(d), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of any blue sky or Legal Investment
Memoranda, (v) the printing and delivery to the Underwriters in quantities
as hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of
any blue sky or Legal Investment Memoranda, (vii) any fees charged by
rating agencies for the rating of the Offered Securities, (viii) all
document production charges of counsel to the Underwriters (but not
including their fees for professional services in connection with the
preparation of this Agreement), (ix) all costs and expenses, if any,
incident to listing the Offered Securities on any national securities
exchange and (x) any filing fees in connection with any review of the
offering of the Offered Securities by the National Association of
Securities Dealers, Inc.
VII.
The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the Commission under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, threatened by the Commission; and the Registration Statement and Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) comply, or will comply, as the case may be, in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the "Trust Indenture Act"), and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the date of the Prospectus and any amendment or supplement thereto, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Prospectus, as amended or supplemented at the Closing Date, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing repre sentations and warranties shall not apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee, and (ii) statements or omissions in the Registration Statement or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable.
The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus or the Prospectus (if used within the period set forth in paragraph (c) of Article VI hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent that such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Company by any Underwriter expressly for use therein; provided, however, that the foregoing indemnity with respect to preliminary prospectuses shall not inure to the benefit of any Underwriter (or to the benefit of any person controlling such Underwriter) to the extent that any such loss, claim, damage or liability of such Underwriter or such controlling person results from the fact that a copy of the Prospectus was not sent or given to any person at or prior to the written confirmation of the sale of such Offered Securities to such person. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
Each Underwriter agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and any person controlling the Company to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to information relating to such Underwriter furnished in writing by such Underwriter expressly for use in the Registration Statement, any preliminary prospectus or the Prospectus. The Company acknowledges that the statements set forth under the heading "Underwriting" constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity and the Underwriters confirm that such statements are correct.
If any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by the Manager in the case of parties indemnified pursuant to the second preceding paragraph and by the Company in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VII is unavailable to
an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other in connection with
the offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters in
respect thereof. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Article VII were determined by pro rata allocation or by any other method of allocation which does not take account of the considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VII, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten and distributed to the public by such Underwriter were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriter's obligations to contribute pursuant to this Article VII are several, in proportion to the respective principal amounts of Offered Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VII and the representations and warranties of the Company in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by any Underwriter or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its directors or officers or any person controlling the Company and (iii) acceptance of and payment for any of the Offered Securities.
VIII.
This Agreement shall be subject to termination in the absolute discretion
of the Manager, by notice given to the Company, if prior to the Closing Date
(i) trading in securities generally on the New York Stock Exchange shall have
been suspended or materially limited, (ii) a general moratorium on commercial
banking activities in the State of New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude and severity in its effect
on the financial markets of the United States as, in the reasonable judgment of
the Manager, to prevent or materially to impair the marketing, or enforcement
of contracts for sale, of the Offered Securities on the terms and in the manner
contemplated by the Prospectus.
IX.
If any one or more of the Underwriters shall fail or refuse to purchase Offered Securities which it or they have agreed to purchase hereunder, and the aggregate offering price of the Offered Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate offering price of all Offered Securities, the other Underwriters shall be obligated severally in the proportions which the aggregate offering price of the Offered Securities set forth opposite their names in the Underwriting Agreement bear to the aggregate offering price of the Offered Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Manager may specify, to purchase the Offered Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase. If any Underwriter or Underwriters shall fail or refuse to purchase Offered Securities and the offering price of the Offered Securities with respect to which such default occurs is more than one-tenth of the offering price of all Offered Securities and arrangements satisfactory to the Manager and the Company for the purchase of such Offered Securities are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
X.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
SCHEDULE I
DELAYED DELIVERY CONTRACT
200_
J.P. Morgan Chase & Co.
270 Park Avenue
New York, New York 10017
Dear Sirs:
The undersigned hereby agrees to purchase from J.P. Morgan Chase & Co., a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned [$ principal amount of the Company's [title of issue]
(the "Senior Debt Securities")] [together with] [warrants (the "Warrants") to
[ ],] ([collectively] the "Offered Securities") offered by the
Company's Prospectus dated , 200_ and Prospectus Supplement dated
, 200_, receipt of copies of which is hereby acknowledged, at a
purchase price of % of the principal amount of such securities plus accrued
interest from , 200_ to the delivery date or dates thereof [and]
[amortization of original issue discount from , 200_ to the
delivery date or dates thereof] and on the further terms and conditions set
forth in this contract.
The undersigned does not contemplate selling Offered Securities prior to making payment there for.
The undersigned will purchase from the Company the principal amounts of Senior Debt Securities [with Warrants] on the delivery dates set forth blow:
[Plus Accrued
Interest From:]
[Principal [and] [Amortization
Amount] of Original Issue
----------------- ----------------- --------------------
$
----------------- ----------------- ------------------
$
----------------- ----------------- ------------------
$
----------------- ----------------- ------------------
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Each such date on which Offered Securities are to be purchased hereunder is hereinafter referred to as a "Delivery Date".
Payment for the Offered Securities which the undersigned has agreed to purchase on each Delivery Date shall be made in U.S. dollars or the equivalent thereof in a foreign denominated coin or currency or units based on or relating to currencies by bank wire transfer in immediately available funds at the office of , New York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon delivery to the undersigned of the Offered Securities to be purchased by the undersigned on the Delivery Date, in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. The obligation of the undersigned to take delivery of and make payment for the Offered Securities on the Delivery Date shall be subject to the conditions that (1) the purchase of Offered Securities to be made by the undersigned shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the undersigned is subject and (2) the Company shall have sold, and delivery shall have taken place to the underwriters (the "Underwriters") named in the Prospectus Supplement referred to above of, such part of the Offered Securities as is to be sold to them. Promptly after completion of sale and delivery to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Offered Securities by any purchaser under any other Delayed Delivery Contract shall not relieve the undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without written consent of the other.
If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract, as of the date first above written, between the Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the laws of the State of New York.
Yours very truly,
Accepted:
J.P. MORGAN CHASE & CO.
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representatives of the Purchaser with whom details of delivery on the Delivery Date may be discussed are as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
-------- --------------------------- --------------
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Exhibit 4(a)(1)
J.P. MORGAN CHASE & CO.
AND
BANKERS TRUST COMPANY, Trustee
Indenture
dated as of May 25, 2001
CROSS REFERENCE SHEET*
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of May 25, 2001 between J.P. MORGAN CHASE & CO. and BANKERS TRUST COMPANY, Trustee:
Section of the Act Section of Indenture ------------------ -------------------- 310(a)(1) and (2)............................... 6.09 310(a)(3) and (4)............................... Inapplicable 310(b).......................................... 6.08 and 6.10(a), (b) and (d) 310(c).......................................... Inapplicable 312(a).......................................... 4.01 and 4.02(a) 312(b).......................................... 4.02 312(c).......................................... 4.02(b) 313(a).......................................... 4.04(a) 313(b)(1)....................................... Inapplicable 313(b)(2)....................................... 4.04 313(c).......................................... 4.04 313(d).......................................... 4.04 314(a).......................................... 4.03 314(b).......................................... Inapplicable 314(c)(1) and (2)............................... 11.05 314(c)(3)....................................... Inapplicable 314(d).......................................... Inapplicable 314(e).......................................... 11.05 314(f).......................................... Inapplicable 315(a), (c) and (d)............................. 6.01 315(b).......................................... 5.11 315(e).......................................... 5.12 316(a)(1)....................................... 5.09 316(a)(2)....................................... Not required 316(a) (last sentence).......................... 7.04 316(b).......................................... 5.07 317(a).......................................... 5.02 317(b).......................................... 3.04(a) and (b) 318(a).......................................... 11.07 --------- |
* This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
----------------------
PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined........................................1
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally..............................................7
SECTION 2.02. Form of Trustee's Certificate of Authentication..............8
SECTION 2.03. Amount Unlimited; Issuable in Series.........................8
SECTION 2.04. Authentication and Delivery of Securities...................11
SECTION 2.05. Execution of Securities.....................................15
SECTION 2.06. Certificate of Authentication...............................15
SECTION 2.07. Denomination and Date of Securities; Payments of Interest...15
SECTION 2.08. Registration, Transfer and Exchange.........................17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities...21
SECTION 2.10. Cancellation of Securities; Destruction Thereof.............22
SECTION 2.11. Temporary Securities........................................22
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest...........................23
SECTION 3.02. Offices for Payments, etc...................................24
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee..........25
SECTION 3.04. Paying Agents...............................................25
SECTION 3.05. Written Statement to Trustee................................26
SECTION 3.06. Luxembourg Publications.....................................26
ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders................................26
SECTION 4.02. Preservation and Disclosure of Securityholders Lists........27
SECTION 4.03. Reports by the Issuer.......................................27
SECTION 4.04. Reports by the Trustee......................................27
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PAGE
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ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default..........................................28
SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May
Prove Debt ................................................30
SECTION 5.03. Application of Proceeds....................................33
SECTION 5.04. Suits for Enforcement......................................34
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings........34
SECTION 5.06. Limitations on Suits by Securityholders....................34
SECTION 5.07. Unconditional Right of Securityholders to Institute
Certain Suits..............................................35
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default..........................................35
SECTION 5.09. Control by Securityholders.................................36
SECTION 5.10. Waiver of Past Defaults....................................36
SECTION 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances......................................37
SECTION 5.12. Right of Court to Require Filing of Undertaking to
Pay Costs..................................................37
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default...........................................38
SECTION 6.02. Certain Rights of the Trustee..............................39
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof..............41
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons;
Collections, Etc...........................................41
SECTION 6.05. Monies Held by Trustee.....................................41
SECTION 6.06. Compensation and Indemnification of Trustee and Its Prior
Claim......................................................41
SECTION 6.07. Right of Trustee to Rely on Officers' Certificate, Etc.....42
SECTION 6.08. Conflicting Interests......................................42
SECTION 6.09. Persons Eligible for Appointment as Trustee................43
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee..44
SECTION 6.11. Acceptance of Appointment by Successor Trustee.............45
ii
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PAGE
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SECTION 6.12. Merger, Conversion, Consolidation or Succession of
Business of Trustee........................................47
SECTION 6.13. Appointment of Authenticating Agent........................47
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders................48
SECTION 7.02. Proof of Execution of Instruments and of Holding
of Securities..............................................49
SECTION 7.03. Holders to Be Treated as Owners............................49
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding..........49
SECTION 7.05. Right of Revocation of Action Taken........................50
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Securityholders.51
SECTION 8.02. Supplemental Indentures With Consent of Securityholders....52
SECTION 8.03. Effect of Supplemental Indenture...........................54
SECTION 8.04. Documents to Be Given to Trustee...........................54
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures.................................................54
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Issuer May Consolidate, Etc., on Certain Terms.............55
SECTION 9.02. Successor Corporation to be Substituted....................55
SECTION 9.03. Opinion of Counsel to Trustee..............................56
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES
SECTION 10.01. Satisfaction and Discharge of Indenture...................56
SECTION 10.02. Application by Trustee of Funds Deposited for Payment of
Securities................................................60
SECTION 10.03. Repayment of Monies Held by Paying Agent..................61
SECTION 10.04. Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years...................................61
SECTION 10.05. Indemnity for U.S. Government Obligations.................62
iii
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PAGE
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ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability...................62
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons.....................62
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture.......62
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons....................................62
SECTION 11.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein........................64
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays...........65
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.....................................65
SECTION 11.08. New York Law to Govern....................................65
SECTION 11.09. Counterparts..............................................65
SECTION 11.10. Effect of Headings........................................65
SECTION 11.11. Securities in a Foreign Currency..........................65
SECTION 11.12. Judgment Currency.........................................66
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article..................................67
SECTION 12.02. Notice of Redemption; Partial Redemptions.................67
SECTION 12.03. Payment of Securities Called for Redemption...............69
SECTION 12.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption..................................70
SECTION 12.05. Mandatory and Optional Sinking Funds......................70
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THIS INDENTURE, dated as of May 25, 2001 between J.P. MORGAN CHASE & CO., a Delaware corporation (the "Issuer"), and BANKERS TRUST COMPANY, a New York corporation (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities and of the Coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933 (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term "generally accepted accounting principles" means such accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth in Section 6.13.
"Authorized Newspaper" means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall Street Journal (Eastern Edition), in the case of the United Kingdom, will, if practicable, be the Financial Times (London Edition) and, in the case of Luxembourg, will, if practicable, be the Luxemburger Wort) published in an official language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in The City of New York, the United Kingdom or in Luxembourg, as applicable.
"Board of Directors" means either the Board of Directors of the Issuer or any duly constituted committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified by the secretary or an assistant secretary of the Issuer to have been duly adopted or consented to by the Board of Directors and to be in full force and effect, and delivered to the Trustee.
"Business Day" means, unless otherwise specified pursuant to Section 2.03, with respect to any Security, a day that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized or required by law or regulation to close or a day on which transactions in the currency in which the Securities are payable are not conducted.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, at the date as of which this Indenture is dated, located at Four Albany Street, New York, New York 10006, Attn: Corporate Trust and Agency Services - Corporate Market Services.
"Coupon" means any interest coupon appertaining to an Unregistered Security.
"covenant defeasance" shall have the meaning set forth in Section 10.01(c).
"Depositary" means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
"Event of Default" means any event or condition specified as such in
Section 5.01.
"Foreign Currency" means a currency issued by the government of a country other than the United States (or any currency unit comprised of any such currencies).
"Holder", "holder of Securities", "Securityholder" or other similar terms mean (a) in the case of any Registered Security, the Person in whose name such Security is registered in the security register kept by the Issuer for that purpose in accordance with the terms hereof, and (b) in the case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
"interest" means when used with respect to non-interest bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article 6) J.P. Morgan Chase & Co., a Delaware corporation, and, subject to Article 9, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer signed in its name by any one of the following: the chairman of the Board of Directors, the president, a vice chairman of the Board of Directors, the chief financial officer or the treasurer or any other person certified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Issuer or authorized by the Board of Directors to execute any such written statement, request or order.
"Judgment Currency" shall have the meaning set forth in Section 11.12.
"Officers' Certificate" means a certificate signed by the chairman of the Board of Directors, the president, a vice chairman of the Board of Directors, the chief financial officer or the treasurer of the Issuer (or any other officer identified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Issuer) and the secretary, an assistant secretary or the controller of the Issuer and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 11.05.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.05.
"original issue date" of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"Outstanding" when used with reference to Securities, shall, subject to the provisions of Section 7.04, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which monies or U.S. Government Obligations (as provided for in Section 10.01) in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.09 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"Periodic Offering" means an offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include premium, if any, any other cash amounts payable under the Indenture, and the delivery of Securities or baskets or Securities under the terms of the debt securities.
"record date" shall have the meaning set forth in Section 2.07.
"Redemption Notice Period" shall have the meaning set forth in Section 12.02.
"Registered Global Security", means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with Section 2.04, and bearing the legend prescribed in Section 2.04.
"Registered Security" means any Security registered on the Security register of the Issuer.
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer" when used with respect to the Trustee means the chairman of the Board of Directors, any vice chairman of the board of directors, the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the president, any vice president, the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections 8.01 and 8.02) means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph hereof and, subject to the provisions of Article 6, shall also include any successor trustee.
"Unregistered Security" means any Security other than a Registered Security.
"U.S. Government Obligations" shall have the meaning set forth in Section 10.01(a).
"U.S. Person" means a citizen or resident of the United States for United States federal income tax purposes, a corporation or partnership, including an entity treated as a corporation or partnership for United States federal income tax purposes, created or organized in or under the laws of the United States, or any state of the United States or the District of Columbia, an estate or trust the income of which is subject to United States federal income taxation regardless of its source.
"vice president" when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of Securities, calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally. The Securities of each series and the Coupons, if any, to be attached thereto shall be substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to rather than set forth in a Board Resolution, an Officers' Certificate detailing such establishment) or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities and Coupons, if any, as evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The Trustee's certificate of authentication on all Securities shall be in substantially the following form:
"This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
If at any time there shall be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee's Certificate of Authentication to be borne by the Securities of each such series shall be substantially as follows:
"This is one of the Securities referred to in the within-mentioned Indenture.
as Authenticating Agent
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each such series shall rank equally and pari passu with all other unsecured and unsubordinated debt of the Issuer. There shall be established in or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in a Board Resolution, in an Officers' Certificate detailing such establishment) or established in one or more indentures supplemental hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series (which shall distinguish the Securities of the series from the Securities of all other series);
(2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11, 8.05 or 12.03);
(3) if other than Dollars, the coin or currency in which the Securities of that series are denominated (including, but not limited to, any Foreign Currency);
(4) the date or dates on which the principal of or other amounts due under the Securities of the series is payable or the method by which such date or dates shall be determined;
(5) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and (in the case of Registered Securities) the record dates for the determination of Holders to whom interest is payable;
(6) the place or places where the principal of, any interest on or other amounts due under the Securities or delivery of any Securities or basket of Securities, as the case may be, of the series shall be payable (if other than as provided in Section 3.02);
(7) the right, if any, of the Issuer to redeem Securities, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions, including the Redemption Notice Period, upon which Securities of the series may be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof in the case of Registered Securities, or $1,000 and $5,000 in the case of Unregistered Securities, the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 5.01 or provable in bankruptcy pursuant to Section 5.02;
(11) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the Securities of such series;
(12) if other than the coin or currency in which the Securities of that series are denominated, the coin or currency in which payment of the principal of or interest on the Securities of such series shall be payable;
(13) if the principal of, interest on, or other amounts payable under, if any, the Securities of such series are to be payable, at the election of the Issuer or a holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of and/or interest on, or other amounts payable under, the Securities of the series may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series are denominated, or with reference to any currencies, currency units, composite currencies, commodity prices, securities, baskets of securities, indices, baskets of indices, interest rates, swap rates, baskets of swap rates or any other factors or other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance, the manner in which such amounts shall be determined;
(15) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable as Registered Global Securities) or Unregistered Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Unregistered Securities or Registered Securities or the payment of interest thereon and, if other than as provided in Section 2.08, the terms upon which Unregistered Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a Person who is not a U.S. Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities in order to avoid the obligation to pay future additional amounts;
(17) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;
(18) the terms and conditions, if any, upon which the Securities of such series may or shall be convertible into or exchangeable or exercisable for or payable in, among other things, other securities (whether or not issued by, or the obligation of, the Issuer), instruments, contracts, currencies, commodities or other forms of property, rights or interests or any combination of the foregoing;
(19) any other events of default or covenants with respect to the Securities of such series; and
(20) any other terms of the series, including provisions for payment by wire transfers if any, or modifications of the definition of Business Day, (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining thereto, shall be substantially identical, except in the case of Registered Securities as to denomination and except as may otherwise be provided by or pursuant to the Board Resolution or Officer's Certificate referred to above or as set forth in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to such Board Resolution, such Officer's Certificate or in any such indenture supplemental hereto.
SECTION 2.04. Authentication and Delivery of Securities. The Issuer may deliver Securities of any series having attached thereto appropriate Coupons, if any, executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the order of the Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such series and
Coupons, if any, appertaining thereto (including Redemption Notice Periods)
shall be determined by or pursuant to such Issuer Order and procedures. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (in the case of subparagraphs 2.04(a)(ii), 2.04(a)(iii) and
2.04(a)(iv) below only at or before the time of the first request of the Issuer
to the Trustee to authenticate Securities of such series) and (subject to
Section 6.01) shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked:
(i) an Issuer Order requesting such authentication and setting forth delivery instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by an Issuer Order, (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series (including Redemption Notice Periods) shall be determined by an Issuer Order or pursuant to such procedures and (d) if provided for in such procedures, such Issuer Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing;
(ii) any Board Resolution, Officer's Certificate and/or executed supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and terms of the Securities and Coupons, if any, were established;
(iii) an Officer's Certificate setting forth the form or forms and terms of the Securities and Coupons, if any, stating that the form or forms and terms of the Securities and Coupons, if any, have been established pursuant to Sections 2.01 and 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(iv) at the option of the Issuer, either an Opinion of Counsel, or a letter addressed to the Trustee permitting it to rely on an Opinion of Counsel, substantially to the effect that:
(A) the forms of the Securities and Coupons, if any, have been duly authorized and established in conformity with the provisions of this Indenture;
(B) in the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to a Board Resolution, an Officer's Certificate or a supplemental indenture in accordance with this Indenture, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the Issuer and will have been established in conformity with the provisions of this Indenture;
(C) when the Securities and Coupons, if any, have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for by the purchasers thereof, they will have been duly issued under this Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms, and will be entitled to the benefits of this Indenture; and
(D) the execution and delivery by the Issuer of, and the performance by the Issuer of its obligations under, the Securities and Coupons, if any, will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Issuer or any agreement or other instrument binding upon the Issuer or any of its consolidated subsidiaries that is material to the Issuer and its subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any U.S. governmental body, agency or court having jurisdiction over the Issuer or any of its consolidated subsidiaries, and no consent, approval or authorization of any U.S. governmental body or agency is required for the performance by the Issuer of its obligations under the Securities and Coupons, if any, except such as are specified and have been obtained and such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Such counsel may rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Trustee), who shall be counsel reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel believes he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has relied, to the extent he deems proper, upon certificates of officers of the Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustee's own rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.03 that the Securities
of a series are to be issued in the form of one or more Registered Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and not yet
cancelled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.03 must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 2.05. Execution of Securities. The Securities and, if applicable, each Coupon appertaining thereto shall be signed on behalf of the Issuer by the chairman of its Board of Directors, its president, the chairman of its executive committee, any vice chairman of its Board of Directors, the General Counsel, any Managing Director or any vice president under its corporate seal attested by its secretary or any assistant secretary. Such signatures may be the manual or facsimile signatures of the present or any future such officers. The seal of the Issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities and, if applicable, each Coupon appertaining thereto. 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 any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities or Coupons, if any, shall cease to be such officer before the Security so signed (or the Security to which the Coupon so signed appertains) shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security or Coupon nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security or Coupon had not ceased to be such officer of the Issuer; and any Security or Coupon may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security or Coupon, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
SECTION 2.06. Certificate of Authentication. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. No Coupon shall be entitled to the benefits of this Indenture or shall be valid or obligatory for any purpose until the certificate of authentication on the Security to which such Coupon appertains shall have been duly executed by the Trustee. The execution of such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.07. Denomination and Date of Securities; Payments of Interest. The Securities of each series shall be issuable as Registered Securities or Unregistered Securities in such denominations as shall be specified as
contemplated by Section 2.03. In the absence of any such specifications with respect to the Registered Securities of any series, Registered Securities shall be issued in denomination of $1,000 and any integral multiples thereof. In the absence of any such specifications with respect to the Unregistered Securities of any series, Unregistered Securities shall be issued in denomination of $1,000 and $5,000. The Securities of each series shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication. Each Unregistered Security shall be dated as provided in the resolution or resolutions of the Board of Directors of the Issuer or the supplemental indenture referred to in Section 2.03. The Securities of each series shall bear interest, if any, from the date, and such interest shall be payable on the dates, established as contemplated by Section 2.03.
The Person in whose name any Registered Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid to the Persons in whose names Outstanding Registered Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than ten business days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the holders of Registered Securities not less than 15 days preceding such subsequent record date. The term "record date" as used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified as such in the terms of the Registered Securities of such series as contemplated by Section 2.03, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day.
Any defaulted interest payable in respect of any Unregistered Security shall be payable pursuant to such procedures as may be satisfactory to the Trustee in such manner that there is no discrimination as between the holders of Registered Securities and Unregistered Securities of the same series and notice of the payment date therefor shall be given by the Trustee in the name and at the
expense of the Issuer by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.06, at least once in an Authorized Newspaper in Luxembourg). In case an Unregistered Security is surrendered for exchange for a Registered Security after the close of business on any record date for the payment of defaulted interest and before the opening of business on the proposed date of payment of such defaulted interest, the Coupon appertaining to such surrendered Unregistered Security and due for payment on such proposed date of payment will not be surrendered with such surrendered Unregistered Security and interest payable on such proposed date of payment will be made only to the holder of such Coupon on such proposed date.
SECTION 2.08. Registration, Transfer and Exchange. The Issuer will keep or cause to be kept at an office or agency to be maintained for the purpose as provided in Section 3.02 for each series of Securities a register or registers in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of, or cause the registration of the transfer of, Registered Securities as in this Article provided. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Registered Security or Registered Securities of the same series, maturity date, interest rate and original issue date in authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons (except for Coupons attached to any temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series in
other authorized denominations, in an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the office or agency
of the Issuer that shall be maintained for such purpose in accordance with
Section 3.02 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be
exchanged for Registered Securities of such series, maturity date and interest rate of any authorized denominations and of a like aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.02, with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured Coupons in default appertaining thereto, and upon payment, if the Issuer shall so require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and original issue date are issued in more than one authorized denomination, except as otherwise specified pursuant to Section 2.03, such Unregistered Securities may be exchanged for Unregistered Securities of such series, maturity date, interest rate and original issue date of other authorized denominations and of a like aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.02 or as specified pursuant to Section 2.03, with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the charges hereinafter provided. Unless otherwise specified pursuant to Section 2.03, Registered Securities of any series may not be exchanged for Unregistered Securities of such series. Whenever any Securities and the Coupons appertaining thereto, if any, are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities and the Coupons appertaining thereto, if any, which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, in case an Unregistered Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series after the close of business at such office or agency on any record date and before the opening of business at such office or agency on the relevant interest payment date, such Unregistered Security shall be surrendered without the Coupon relating to such interest payment date or proposed date of payment, as the case may be.
All Registered Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed,
(b) any Securities selected, called or being called for redemption in whole or
in part, except, in the case of any Security where public notice has been given
that such Security is to be redeemed in part, the portion thereof not so to be
redeemed and except that an Unregistered Security may be exchanged for a
Registered Security of the same series if such Registered Security is
immediately surrendered for redemption or (c) any Securities if the Holder
thereof has exercised any right to require the Issuer to repurchase such
Securities, in whole or in part, except, in the case of any Security to be
repurchased in part, the portion thereof not so to be repurchased.
Notwithstanding any other provision of this Section 2.08, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series represented by one or more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as Depositary for such Registered Securities or if at any time the Depositary for such Registered Securities shall no longer be eligible under Section 2.04, the Issuer shall appoint a successor Depositary eligible under Section 2.04 with respect to such Registered Securities. If a successor Depositary eligible under Section 2.04 for such Registered Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer's election pursuant to Section 2.03 that such Registered Securities be represented by one or more Registered Global Securities shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Officer's Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Registered Global Securities shall no longer be represented by a Registered Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon receipt
of an Officer's Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered Securities, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.03 with respect to Securities represented by a Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered Global Security in exchange in whole or in part for Securities of the same series in definitive registered form on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered Security or Securities of the same series, of any authorized denominations as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Registered Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause 2.08(a)(i) above.
Upon the exchange of a Registered Global Security for Securities in definitive registered form without coupons, in authorized denominations, such Registered Global Security shall be cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form without coupons issued in exchange for a Registered Global Security pursuant to this Section 2.08 shall be registered in such names and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities to the contrary, neither the Issuer nor the Trustee (which shall rely on an Officers' Certificate and an Opinion of Counsel) shall be required to exchange any Unregistered Security for a Registered Security if such exchange would result in adverse Federal income tax consequences to the Issuer (including, without limitation, the inability of the Issuer to deduct from its income, as computed for Federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United States Federal income tax laws.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security or any Coupon appertaining to any Security shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same series, maturity date, interest rate and original issue date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen with Coupons corresponding to the Coupons appertaining to the Security so mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to which such mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the applicant for a substitute Security or Coupon shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security or Coupon and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. In case any Security or Coupon which has matured or is about to mature or has been called for redemption in full, as the case may be, shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Security or Coupon, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security or Coupon), if the applicant for such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security or Coupon shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities or Coupons of such series duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and Coupons and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
SECTION 2.10. Cancellation of Securities; Destruction Thereof. All Securities and Coupons surrendered for payment, retirement, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no Securities or Coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall destroy cancelled Securities and Coupons held by it and deliver a certificate of destruction to the Issuer. If the Issuer shall acquire any of the Securities or Coupons, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities or Coupons unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as Registered Securities without Coupons, or as Unregistered Securities with or without Coupons attached thereto, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Registered Securities, all as may be determined by the Issuer with the concurrence of the Trustee. Temporary Securities may contain such references to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02 and in the case of Unregistered Securities together with any unmatured Coupons and any matured Coupons in default appertaining thereto, at any agency maintained by the Issuer for such purpose as specified pursuant to Section 2.03, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series having authorized denominations and, in the case of Unregistered Securities, having attached thereto any appropriate Coupons. Until so exchanged, the temporary Securities of any series and any unmatured Coupons appertaining thereto shall be entitled to the same benefits under this Indenture as definitive Securities of such series and any unmatured Coupons appertaining thereto unless otherwise established pursuant to Section 2.03. The provisions of this Section are subject to any restrictions or limitations on the issue and delivery of temporary Unregistered Securities of any series that may be established pursuant to Section 2.03 (including any provision that Unregistered Securities of such series initially be issued in the form of a single global Unregistered Security to be delivered to a depositary or agency located outside the United States and the procedures pursuant to which definitive or global Unregistered Securities of such series would be issued in exchange for such temporary global Unregistered Security).
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the manner provided in such Securities and in the Coupons, if any, appertaining thereto and in this Indenture. The interest on Unregistered Securities with Coupons attached (together with any additional amounts payable pursuant to the terms of such Unregistered Securities) shall be payable only upon presentation and surrender of the several Coupons for such interest installments as are evidenced thereby as they severally mature. Except as specified as contemplated in Section 2.03, the interest on any temporary Unregistered Securities (together with any additional amounts payable pursuant to the terms of such temporary Unregistered Securities) shall be paid, as to the installments of interest evidenced by Coupons attached thereto, if any, only upon presentation and surrender thereof, and, as to the other installments of interest, if any, only upon presentation of such Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant to Section 2.03. The interest on Registered Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the registry books of the Issuer.
SECTION 3.02. Offices for Payments, etc. So long as any Registered Securities are authorized for issuance pursuant to this Indenture or are outstanding hereunder, the Issuer will maintain in the Borough of Manhattan, The City of New York, the following for each series: an office or agency (a) where the Registered Securities may be presented for payment and (b) where the Registered Securities may be presented for registration of transfer and for exchange as in this Indenture provided.
The Issuer will maintain one or more offices or agencies in a city or cities located outside the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which the Securities of such series are listed) where the Unregistered Securities, if any, of each series and Coupons, if any, appertaining thereto may be presented and surrendered for payment. No payment on any Unregistered Security or Coupon will be made upon presentation of such Unregistered Security or Coupon at an agency of the Issuer within the United States nor will any payment be made by transfer to an account in, or by mail to an address in, the United States unless pursuant to applicable United States laws and regulations then in effect, such payment can be made without adverse tax consequences to the Issuer. Notwithstanding the foregoing, payments in Dollars on Unregistered Securities of any series and Coupons appertaining thereto which are payable in Dollars may be made at an agency of the Issuer maintained in the Borough of Manhattan, The City of New York if such payment in Dollars at each agency maintained by the Issuer outside the United States for payment on such Unregistered Securities is illegal or effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the Issuer in respect of the Securities of any series, the Coupons appertaining thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. In case the Issuer shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Corporate Trust Office.
The Issuer may from time to time designate one or more additional offices or agencies where the Securities of a series and any Coupons appertaining thereto may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.03 and where the Registered Securities of that series may be presented for registration of transfer as in this Indenture provided, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain the agencies provided for in this Section. The Issuer will give to the Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
SECTION 3.04. Paying Agents. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series or the Coupons appertaining thereto, if any, or of the Trustee, and
(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable.
The Issuer will, on or prior to each due date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum or sums in the required currencies sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of
the Holders of the Securities of such series or the Coupons appertaining thereto a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.01, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 10.03 and 10.04.
SECTION 3.05. Written Statement to Trustee. The Issuer will deliver to the
Trustee on or before May 1 in each year (beginning with May 1, 2002) a
written statement, signed by two of its officers (which need not comply with
Section 11.05) stating that in the course of the performance of their duties as
officers of the Issuer they would normally have knowledge of any default by the
Issuer in the performance of any covenants contained in this Indenture, stating
whether or not they have knowledge of any such default and, if so specifying
each such default of which the signers have knowledge and the nature thereof.
SECTION 3.06. Luxembourg Publications. In the event of the publication of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.02, 10.04, 12.02 or 12.05, the party making such publication in the Borough of Manhattan, The City of New York and London shall also, to the extent that notice is required to be given to Holders of Securities of any series by applicable Luxembourg law or stock exchange regulation, as evidenced by an Officers' Certificate delivered to such party, make a similar publication in Luxembourg.
ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders. The Issuer covenants and agrees that it will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of the Registered Securities of such series pursuant to Section 312 of the Trust Indenture Act of 1939:
(a) not more than 15 days after each record date for the payment of interest on such Registered Securities, as herein above specified, as of such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing Registered Securities in each year, and
(b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request as of a date not more than 15 days prior to the time such information is furnished,
provided that if and so long as the Trustee shall be the Security registrar for such series and all of the Securities of any series are Registered Securities, such list shall not be required to be furnished.
SECTION 4.02. Preservation and Disclosure of Securityholders Lists. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the holders of each series of
Securities contained in the most recent list furnished to it as provided in
Section 4.01. The Trustee may destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to the Indenture or the Securities are as provided by the Trust Indenture Act of 1939.
(c) Neither the Company nor the Trustee will be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act of 1939.
SECTION 4.03. Reports by the Issuer. The Issuer covenants to file with the Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the Issuer may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.
SECTION 4.04. Reports by the Trustee. Any Trustee's report required under
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or
before January 15 in each year beginning January 15, 2002, as provided in
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities
are Outstanding hereunder, and shall be dated as of a date convenient to the
Trustee no more than 60 days prior thereto.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity; Waiver of Default. "Event of Default" with respect to Securities of any series wherever used herein, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal or other amounts on any of the Securities of such series as and when the same shall become due and payable either at maturity, upon any redemption, by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty of the Issuer in respect of the Securities of such series (other than a covenant or warranty in respect of the Securities of such series a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the holders of at least 25% in aggregate principal amount of the Outstanding Securities of all series affected thereby, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer 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
(e) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property, or make any general assignment for the benefit of creditors; or
(f) any other Event of Default provided in the supplemental indenture under which such series of Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (f) above (if the Event of Default under clauses (c) or (f) is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case, except for any series the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of all series affected thereby then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such affected series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event of Default described in clauses (c), (f) (if the Event of Default under clauses (c) or (f) is with respect to all series of Securities at the time Outstanding), (d) or (e) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series (or of all the Securities, as the case may be) and the principal of any and all Securities of each such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of each such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Holders of a majority in aggregate principal amount of all the Securities of each such series (or of all the Securities, as the case may be) then Outstanding (in each case treated as one class), by written notice to the Issuer and to the Trustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series, and such Coupons, if any, for principal or interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered holders, whether or not the principal of, and interest on, if any, the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon the Securities and collect in the manner provided by law out of the property of the Issuer or other obligor upon the Securities, wherever situated, the monies adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any other obligor upon the Securities of any series under Title 11 of the United States Code or any other applicable Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of any Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or Person performing similar functions in comparable proceedings, and
(c) to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and all other amounts due the Trustee and each predecessor Trustee pursuant to Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or Coupons appertaining to such Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or under any of the Securities of any series or Coupons appertaining to such Securities, may be enforced by the Trustee without the possession of any of the Securities of such series or Coupons appertaining to such Securities or the production thereof on any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities or Coupons appertaining to such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities in respect of which such action was taken, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
SECTION 5.03. Application of Proceeds. Any monies collected by the Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such monies on account of principal or interest, upon presentation of the several Securities and Coupons appertaining to such Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 6.06;
SECOND: In case the principal of the Securities in respect of which monies have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which monies have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such monies shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any other Person lawfully entitled thereto.
SECTION 5.04. Suits for Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.06. Limitations on Suits by Securityholders. No Holder of any Security of any series or of any Coupon appertaining thereto shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of each affected series then Outstanding (treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 5.09; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security or Coupon with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series or Coupons appertaining to such Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities of that or any other series or Coupons appertaining to such Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series and Coupons appertaining to such Securities.
For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
SECTION 5.07. Unconditional Right of Securityholders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any Security or Coupon, the right of any Holder of any Security or Coupon to receive payment of the principal of and interest on such Security or Coupon on or after the respective due dates expressed in such Security or Coupon, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 5.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.06, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.09. Control by Securityholders. The Holders of a majority in aggregate principal amount of the Securities of each series affected (with all such series voting as a single class) at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 6.01) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forebearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 6.01) the Trustee shall have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
SECTION 5.10. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 5.01, the Holders of a majority in aggregate principal amount of the
Securities of all series at the time Outstanding with respect to which an Event
of Default shall have occurred and be continuing (voting as a single class) may
on behalf of the Holders of all such Securities waive any past default or Event
of Default described in Section 5.01 and its consequences except a default in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of any
such waiver, the Issuer, the Trustee and the Holders of all such Securities
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
SECTION 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within 90 days after the occurrence
of a default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (i) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, (A) by mail to such Holders who have filed their names and
addresses with the Trustee within the two years preceding the notice at such
addresses as were so furnished to the Trustee and (B) either through the
customary notice provisions of the clearing system or systems through which
beneficial interests in such Unregistered Securities are owned if such
Unregistered Securities are held only in global form or by publication at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York, and at least once in an Authorized Newspaper in London (and, if required
by Section 3.06, at least once in an Authorized Newspaper in Luxembourg), and
(ii) if any Registered Securities of a series affected are then Outstanding, by
mailing notice to the Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books,
unless in each case such defaults shall have been cured before the mailing or
publication of such notice (the term "defaults" for the purpose of this Section
being hereby defined to mean any event or condition which is, or with notice or
lapse of time or both would become, an Event of Default); provided that, except
in the case of default in the payment of the principal of, interest on or any
other amounts due under any of the Securities of such series, or in the payment
of any sinking fund installment on such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series or in the case of
any suit relating to or arising under clauses (c) or (f) of Section 5.01 (if
the suit relates to Securities of more than one but less than all series), 10%
in aggregate principal amount of Securities then Outstanding and affected
thereby, or, in the case of any suit relating to or arising under clauses (c),
(f) (if the suit under clauses (c) or (f) relates to all the Securities then
Outstanding), (d) or (e) of Section 5.01, 10% in aggregate principal amount of
all Securities Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or interest on any Security
or Coupon on or after the due date expressed in such Security or Coupon.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise with respect to such series of Securities such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own wilful misconduct except that
(a) prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of any series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 5.09 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or indemnity satisfactory to it against such liability is not reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject to
Section 315 of the Trust Indenture Act of 1939.
SECTION 6.02. Certain Rights of the Trustee. In furtherance of and subject to the Trust Indenture Act of 1939, and subject to Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, Officers' Certificate, Issuer Order or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer to have been duly adopted by the Board of Directors and to be in full force and effect on the date thereof;
(c) the Trustee may consult with counsel and any advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee 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, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then Outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
(h) In no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon. The Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investments prior to its stated maturity or failure to provide timely written direction.
(i) The Trustee shall not be charged with knowledge of an Event of Default unless a Responsible Officer of the Trustee has actual knowledge or the Trustee has received written notice thereof.
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities or Coupons, except the Trustee's certificate of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or Coupons. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons; Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities or Coupons with the same rights it would have if it were not the Trustee or such agent and, subject to Sections 6.08 and 6.13, if operative, may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent.
SECTION 6.05. Monies Held by Trustee. Subject to the provisions of Section 10.04 hereof, all monies received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on any monies received by it hereunder except such as it may agree with the Issuer to pay thereon.
SECTION 6.06. Compensation and Indemnification of Trustee and Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in the premises. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities or Coupons upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities or Coupons, and the Securities or Coupons are hereby subordinated to such senior claim. The Issuer's obligations pursuant to this Section 6.06 shall survive the earlier termination of this Indenture or resignation or removal of the Trustee.
SECTION 6.07. Right of Trustee to Rely on Officers' Certificate, Etc.. Subject to Sections 6.01 and 6.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action 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 Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interests. The following indentures are hereby
specifically described for the purposes of excluding such indentures and this
Indenture with respect to Securities of any other series from the operation of
Section 310(b)(1) of the Trust Indenture Act of 1939: (i) the Indenture dated
as of July 1, 1986, as amended or supplemented, between the Issuer and the
Trustee, (ii) the Indenture dated as of December 1, 1989 between the Issuer and
the Trustee (as supplemented by the Agreement of Resignation, Appointment and
Acceptance, dated as of March 29, 1996) and (iii) this Indenture with respect
to the Securities of any o ther series, and there shall also be so excluded any
other indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of the Issuer are outstanding if (i) this Indenture, with respect to Securities of such series, and, if applicable, this Indenture with respect to such other series issued pursuant to this Indenture and such other indenture or indentures are wholly unsecured, and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Commission shall have found and declared by order pursuant to Section 305(b) or Section 307(c) of such Trust Indenture Act of 1939 that differences exist between the provisions of this Indenture with respect to Securities of such series and one or more other series, or the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of such series and such other series, or under this Indenture or such other indenture or indentures, or (ii) the Issuer shall have sustained the burden of proving, on application to the Commission and after opportunity for hearing thereon, that trusteeship under this Indenture with respect to Securities of such series and such other series, or under this Indenture and such other indenture or indentures is not so likely to involve material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of such series and such other series, or under this Indenture and such other indentures.
SECTION 6.09. Persons Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia having a combined capital and surplus of at least $5,000,000, and which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal, State or District of Columbia authority. Such corporation shall have its principal place of business in the Borough of Manhattan, The City of New York, if there be such a corporation in such location willing to act upon reasonable and customary terms and conditions. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.09 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof (A) by mail to such Holders who have filed
their names and addresses with the Trustee within the two years preceding the
notice at such addresses as were so furnished to the Trustee and (B) either
through the customary notice provisions of the clearing system or systems
through which beneficial interests in such Unregistered Securities are owned if
such Unregistered Securities are held only in global form or by publication at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York, and at least once in an Authorized Newspaper in London (and, if
required by Section 3.06, at least once in an Authorized Newspaper in
Luxembourg), and (ii) if any Registered Securities of a series affected are
then Outstanding, by mailing notice of such resignation to the Holders of then
Outstanding Registered Securities of each series affected at their addresses as
they shall appear on the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 5.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 6.09 and Section 310(a) of the Trust Indenture Act of 1939 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Securities of each series at the time outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence provided for in Section 7.01 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11. Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 6.10 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 10.04, pay over to the successor
trustee all monies at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 6.06.
If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor Trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall accept appointment as provided in this Section 6.11 unless at the time of such acceptance such successor trustee shall be qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of Section 6.09.
Upon acceptance of appointment by any successor trustee as provided in this Section, the Issuer shall mail notice thereof (a) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof, (A) by mail to such Holders who have filed their names and addresses with the Trustee within the two years preceding the notice at such addresses as were so furnished to the Trustee and (B) either through the customary notice provisions of the clearing system or systems through which beneficial interests in such Unregistered Securities are owned if such Unregistered Securities are held only in global form or by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if required by Section 3.06, at least once in an Authorized Newspaper in Luxembourg), and (b) if any Registered Securities of a series affected are then Outstanding, by mailing notice to the Holders of then Outstanding Registered Securities of each series affected at their addresses as they shall appear on the registry books. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by
the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12. Merger, Conversion, Consolidation or Succession of Business of Trustee. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of Section 6.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13. Appointment of Authenticating Agent. As long as any Securities of a series remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the Issuer an authenticating agent (the "Authenticating Agent") which shall be authorized to act on behalf of the Trustee to authenticate Securities, including Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.09. Securities of each such series authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee or to the Trustee's Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and a Certificate of Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United States of America or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $5,000,000 (determined as provided in Section 6.09 with respect to the Trustee) and subject to supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to all series of Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.13 with respect to one or more series of Securities, the Trustee shall upon receipt of an Issuer Order appoint a successor Authenticating Agent and the Issuer shall provide notice of such appointment to all Holders of Securities of such series in the manner and to the extent provided in Section 11.04. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation. The Authenticating Agent for the Securities of any series shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee.
Sections 6.02, 6.03, 6.04, 6.06, 6.09 and 7.03 shall be applicable to any Authenticating Agent.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.02. Proof of Execution of Instruments and of Holding of Securities. Subject to Sections 6.01 and 6.02, the fact and date of the execution of any instrument by a Securityholder or his agent or proxy and the amount and numbers of Securities of any series held by the person so executing any instrument by a Securityholder or his agent or proxy and the amount and numbers of any Security or Securities for such series may also be proven in accordance with such reasonable rules and regulations as may be prescribed by the Trustee for such series or in any other manner which the Trustee for such series may deem sufficient.
SECTION 7.03. Holders to Be Treated as Owners. The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the Person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Holder of any Unregistered Security and the Holder of any Coupon as the absolute owner of such Unregistered Security or Coupon (whether or not such Unregistered Security or Coupon shall be overdue), for the purpose of receiving payment thereof or on account thereof and for all other purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Unregistered Security or Coupon.
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is
being made or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities which the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above described Persons; and, subject to Sections 6.01 and 6.02, the Trustee shall be entitled to accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
SECTION 7.05. Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Outstanding Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration or transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Securityholders. The Issuer, when authorized by a resolution of its Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Issuer pursuant to Article 9;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of Securities or Coupons, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Issuer may deem necessary or desirable and which shall not materially and adversely affect the interests of the holders of the Securities;
(e) to establish the form or terms of Securities of any series or of the Coupons appertaining to such Securities as permitted by Sections 2.01 and 2.03; and
(f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 7) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the
time Outstanding of all series affected by such supplemental indenture (voting
as one class), the Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each
such series or the Coupons appertaining to such Securities; provided, that no
such supplemental indenture shall (a)(i) extend the final maturity of any
Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or
extend the time of payment of interest thereon or other amounts due thereunder,
(iv) change the method in which amounts of payments of principal, interest or
other amounts due thereon are determined, (v) reduce any amount payable on
redemption thereof, (vi) make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that provided in the Securities and Coupons or in
accordance
with the terms thereof, (vii) modify or amend any provisions for converting any
currency into any other currency as provided in the Securities or Coupons or in
accordance with the terms thereof, (viii) reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.01 or the amount
thereof provable in bankruptcy pursuant to Section 5.02, (ix) modify or amend
any provisions so as to adversely affect the terms or conditions upon which
such Securities are convertible into or exchangeable or exercisable for or
payable in, among other things, other securities, instruments, contracts,
currencies, commodities or other forms of property, rights or interests or any
combination of the foregoing, including the determination of the amount of
securities or other property (or cash) into which the Securities shall be
converted or exchanged, other than as provided in the antidilution provisions
or other similar adjustment provisions of the Securities or Coupons or
otherwise in accordance with the terms thereof, (x) alter the provisions of
Section 11.11 or 11.12 or impair or affect the right of any Securityholder to
institute suit for the payment thereof or, if the Securities provide therefor,
any right of repayment at the option of the Securityholder, in each case
without the consent of the Holder of each Security so affected, or (b) reduce
the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the holders of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order) certified by the secretary or an assistant secretary of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 7.01, the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice thereof (i) if any Unregistered Securities of a series affected are then Outstanding, to the Holders thereof, (A) by mail to such Holders who have filed their names and addresses with the Trustee within the two years preceding the notice at such addresses as were so furnished to the Trustee and (B) either through the customary notice provisions of the clearing system or systems through which beneficial interests in such Unregistered Securities are owned if such Unregistered Securities are held only in global form or by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.06, at least once in an Authorized Newspaper in Luxembourg), (ii) if any Registered Securities of a series affected are then Outstanding, by mailing notice thereof by first class mail to the Holders of then Outstanding Registered Securities of each series affected at their addresses as they shall appear on the registry books, and in each case such notice shall set forth in general terms the substance of such supplemental indenture. Any failure of the Trustee to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 8.03. Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 8.04. Documents to Be Given to Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article 8 complies with the applicable provisions of this Indenture.
SECTION 8.05. Notation on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article
may bear a notation for such series as to any matter provided for by such supplemental indenture or as to any action taken by Securityholders. If the Issuer shall so determine, new Securities of any series so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Issuer May Consolidate, Etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other Person or sell
or convey all or substantially all of its assets to any other Person, unless
(i) either the Issuer shall be the continuing corporation, or the successor
corporation (if other than the Issuer) shall be a corporation organized under
the laws of the United States of America or any State thereof or the District
of Columbia and shall expressly assume the due and punctual payment of the
principal of, interest on and other amounts due under all the Securities and
Coupons, if any, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Issuer, by supplemental indenture satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation, and
(ii) the Issuer, such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition.
SECTION 9.02. Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale or conveyance, and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein as the Issuer. Such successor corporation may cause to be signed, and may issue either in its own name or in the name of J.P. Morgan Chase & Co. any or all of the Securities issuable hereunder, together with any Coupons appertaining thereto, which theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor corporation instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities, together with any Coupons appertaining thereto, which previously shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities, together with any Coupons appertaining thereto, which such successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued, together with any Coupons appertaining thereto shall in all respects have the same legal rank and benefit under this Indenture as the Securities and Coupons theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities and Coupons had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance the Issuer or any successor corporation which shall theretofore have become such in the manner described in this Article shall be discharged from all obligations and covenants under this Indenture and the Securities and may be liquidated and dissolved.
SECTION 9.03. Opinion of Counsel to Trustee. The Trustee, subject to the provisions of Sections 6.01 and 6.02, may receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale or conveyance, and any such assumption, and any such liquidation or dissolution complies with the applicable provisions of Article 9.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES
SECTION 10.01. Satisfaction and Discharge of Indenture. (a) If at any time
(i) the Issuer shall have paid or caused to be paid the principal of, interest
on and any other amounts due under all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than Securities
of such series and Coupons appertaining thereto which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.09 and
other than Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by any paying agent and thereafter repaid
to the Issuer or discharged from such trust, as provided in Section 10.04), as
and when the same shall have become due and payable, or (ii) the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities of such series and all unmatured Coupons appertaining
thereto which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.09) or (iii) in the case of any
series of Securities where the exact amount (including the currency of payment)
of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (B) below, (A) all the Securities of
such series and all unmatured
Coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (B) the Issuer shall have irrevocably deposited or caused to be
deposited with the Trustee as trust funds the entire amount in cash (other than
monies repaid by the Trustee or any paying agent to the Issuer in accordance
with Section 10.04) or, in the case of any series of Securities the payments on
which may only be made in Dollars, direct obligations of the United States of
America, backed by its full faith and credit ("U.S. Government Obligations"),
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(1) the principal, interest and other amounts on all Securities of such series
and Coupons appertaining thereto on each date that such principal or interest
is due and payable and (2) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series; and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer, then this Indenture shall cease to be of further effect (except as
to (i) rights of registration of transfer and exchange of Securities of such
Series and of Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities or Coupons, (iii) rights of holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, and
(vi) the obligations of the Issuer under Section 3.02) and the Trustee, on
demand of the Issuer accompanied by an Officer's Certificate and an Opinion of
Counsel and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture;
provided, that the rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities and Coupons
held by them shall not be delayed longer than required by then applicable
mandatory rules or policies of any securities exchange upon which the
Securities and Coupons are listed. The Issuer agrees to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series and Coupons appertaining thereto.
(b) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.03.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (i) below,
the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such a series and the Coupons appertaining thereto on
the 91st day after the date of the deposit referred to in clause (i) below, and
the provisions of this Indenture with respect to the Securities of such series
and Coupons appertaining thereto shall no longer be in effect (except as to (1)
rights of registration of transfer and exchange of Securities of such series
and of Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or
stolen Securities or Coupons, (3) rights of holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (4) the rights, obligations, duties and immunities of
the Trustee hereunder, (5) the rights of the holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them and
(6) the obligations of the Issuer under Section 3.02) and the Trustee, at the
expense of the Issuer, shall at the Issuer's request, execute proper
instruments acknowledging the same, if
(i) with reference to this provision the Issuer has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series and Coupons appertaining thereto (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (1) the principal, interest and other amounts due on all Securities of such series and Coupons appertaining thereto on each date that such principal, interest or other amounts is due and payable and (2) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;
(ii) such deposit will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Issuer is a party or by which it is bound;
(iii) the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable Federal income tax law, in either case to the effect that, and such opinion shall confirm that, the holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and
(iv) the Issuer has delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
(c) The Issuer shall be released from its obligations under Section 9.01
with respect to the Securities of any Series, and any Coupons appertaining
thereto, Outstanding on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of any
Series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such Section, whether
directly or indirectly by reason of any reference elsewhere herein to such
Section or by reason of any reference in such Section to any other provision
herein or in any other document and such omission to comply shall not
constitute an Event of Default under Section 5.01, but the remainder of this
Indenture and such Securities and Coupons shall be unaffected thereby. The
following shall be the conditions to application of this subsection (c) of this
Section 10.01:
(i) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series and Coupons appertaining thereto, (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (1) the principal, interest and other amounts due on all Securities of such series and Coupons appertaining thereto and (2) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series.
(ii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or, insofar as subsections 5.01(d) and 5.01(e) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such covenant defeasance shall not cause the Trustee to have a conflicting interest for purposes of the Trust Indenture Act of 1939 with respect to any securities of the Issuer.
(iv) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer is a party or by which it is bound.
(v) Such covenant defeasance shall not cause any Securities then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted.
(vi) The Issuer shall have delivered to the Trustee an Officer's Certificate and Opinion of Counsel to the effect that the holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(vii) The Issuer shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.
SECTION 10.02. Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 10.04, all monies deposited with the Trustee
pursuant to Section 10.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series and of Coupons appertaining thereto for the payment or redemption of which such monies have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
SECTION 10.03. Repayment of Monies Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all monies then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such monies.
SECTION 10.04. Return of Monies Held by Trustee and Paying Agent Unclaimed
for Two Years. Any monies deposited with or paid to the Trustee or any paying
agent for the payment of the principal of or interest on any Security of any
series or Coupons attached thereto and not applied but remaining unclaimed for
two years after the date upon which such principal or interest shall have
become due and payable, shall, upon the written request of the Issuer and
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities of such
series and of any Coupons appertaining thereto shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such monies shall thereupon cease; provided,
however, that the Trustee or such paying agent, before being required to make
any such repayment, with respect to monies deposited with it for any payment
(a) in respect of Registered Securities of any series, shall at the expense of
the Issuer, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any series, shall at the expense of the Issuer
either give (A) by mail to Holders of such Securities who have filed their
names and addresses with the Trustee within the two years preceding the notice
at such addresses as were so furnished to the Trustee and (B) either through
the customary notice provisions of the clearing system or systems through which
beneficial interests in such Unregistered Securities are owned if such
Unregistered Securities are held only in global form or cause to be published
once, in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and once in an Authorized Newspaper in London (and if required by Section
3.06, once in an Authorized Newspaper in Luxembourg), notice, that such monies
remain and that, after a date specified therein, which shall not be less than thirty days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
SECTION 10.05. Indemnity for U.S. Government Obligations. The Issuer shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.01 or the principal or interest received in respect of such
obligations.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer or director, as such, of the Issuer or of any successor, either directly or through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities and the Coupons appertaining thereto by the Holders thereof and as part of the consideration for the issue of the Securities and the Coupons appertaining thereto.
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities and Coupons. Nothing in this Indenture or in the Securities or in the Coupons appertaining thereto, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the holders of the Securities or Coupons, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the holders of the Securities.
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities or Coupons to or on the Issuer may be given or served by being deposited postage prepaid, first class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to J.P. Morgan Chase & Co., 270 Park Avenue, New York, New York 10017-2070, Attention: Corporate Secretary. Any notice, direction, request or demand by the Issuer or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made at the Corporate Trust Office marked to the attention of the Corporate Trust Department.
Where this Indenture provides for notice to Holders of Registered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security register. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Where this Indenture provides for notice to Holders of Unregistered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if given by the following methods: (A) by mail to such Holders who have filed their names and addresses with the Trustee within the two years preceding the notice at such addresses as were so furnished to the Trustee and (B) either through the customary notice provisions of the clearing system or systems through which beneficial interests in such Unregistered Securities are owned if such Unregistered Securities are held only in global form or by publication at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, and at least once in an Authorized Newspaper in London (and, if required by Section 3.06, at least once in an Authorized Newspaper in Luxembourg).
In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer and holders of Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.05. Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein. Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm is independent.
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays. If the date of maturity of interest on or principal of the Securities of any series or any Coupons appertaining thereto or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
SECTION 11.07. Conflict of Any Provision of Indenture with Trust Indenture Act of 1939. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision (an "incorporated provision") included in this Indenture by operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939, such imposed duties or incorporated provision shall control.
SECTION 11.08. New York Law to Govern. This Indenture and each Security and Coupon shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.09. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 11.10. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 11.11. Securities in a Foreign Currency. Unless otherwise specified in an Officers' Certificate delivered pursuant to Section 2.03 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities of any series which are denominated in a coin or currency other than
Dollars, then the principal amount of Securities of such series which shall be deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of such date as the Issuer may specify in a written notice to the Trustee or in the absence of such written notice, as the Trustee shall so determine. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 11.12. Judgment Currency. The Issuer agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest on the Securities of any series (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by judgment
being obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
SECTION 12.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Registered Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, to such Holders of Securities of such series at their last addresses as they shall appear upon the registry books at least 30 days and not more than 60 days prior to the date fixed for redemption, or within such other redemption notice period as has been designated for any Securities of such series pursuant to Section 2.03 or 2.04 (the "Redemption Notice Period"). Notice of redemption to the Holders of Unregistered Securities to be redeemed as a whole or in part, who have filed their names and addresses with the Trustee within two years preceding such notice of redemption, shall be given by mailing notice of such redemption, by first class mail, postage prepaid, at least 30 and not more than 60 days prior to the date fixed for redemption or within any applicable Redemption Notice Period to such Holders at such addresses as were so furnished to the Trustee (and, in the case of any such notice given by the Issuer, the Trustee shall make such information available to the Issuer for such purpose). Notice of redemption to all other Holders of Unregistered Securities shall be published in an Authorized Newspaper in the Borough of Manhattan, The City of New York and in an Authorized Newspaper in London (and, if required by Section 3.06, in an Authorized Newspaper in Luxembourg), in each case, once in each of three successive calendar weeks, the first publication to be not less than 30 nor more than 60 days prior to the date fixed for redemption or within any applicable Redemption Notice Period; provided that notice to Holders of Unregistered Securities held only in global form may be made, at the option of the Issuer, through the customary notice provisions of the clearing system or systems through which beneficial interests in such Unregistered Securities are owned. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price (or if not then ascertainable, the manner of calculation thereof), the place or places of payment, that payment will be made upon presentation and surrender of such Securities and, in the case of Securities with Coupons attached thereto, of all Coupons appertaining thereto maturing after the date fixed for redemption, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security and, in the case of Securities with Coupons attached thereto, of all Coupons appertaining thereto maturing after the date fixed for redemption, a new Security or Securities or Coupons, as the case may be, of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer, or at the Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money or other property sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all the Outstanding Securities of a series are to be redeemed, the Issuer will deliver to the trustee at least 60 days prior to the date fixed for redemption an Officers' Certificate stating the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any
series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
SECTION 12.03. Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue, and the unmatured Coupons, if any, appertaining thereto shall be void, and, except as provided in Sections 6.05 and 10.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, together with all Coupons, if any, appertaining thereto maturing after the date fixed for redemption, said Securities with, in the case of any Unregistered Securities that have Coupons attached, all matured Coupons in default appertaining thereto or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that any payment of interest becoming due on or prior to the date fixed for redemption shall be payable in the case of Securities with Coupons attached thereto, to the Holders of the Coupons for such interest upon surrender thereof, and in the case of Registered Securities, to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Section 2.04 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by the Security.
If any Security with Coupons attached thereto is surrendered for redemption and is not accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be furnished to each of them such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security or Coupons appertaining thereto redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series together with all Coupons, if any, appertaining thereto, of authorized denominations, in principal amount equal to the unredeemed portion of the Security or Coupons appertaining thereto so presented.
SECTION 12.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officers' Certificate delivered to the Trustee at least 30 days prior to the last date on which notice of redemption may be given as being owned of record and/or beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
SECTION 12.05. Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of the Securities of any series is herein referred to as an "optional sinking fund payment". The date on which a sinking fund payment is to be made is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit
for Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of such
series. Securities so delivered or credited shall be received or credited by
the Trustee at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date or the 30th day next preceding the last day of any applicable Redemption Notice Period relating to a sinking fund payment date for any series, the Issuer will deliver to the Trustee an Officers' Certificate (which need not contain the
statements required by Section 11.05) (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series and the basis
for such credit, (b) stating that none of the Securities of such series has
theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series have occurred (which
have not been waived or cured) and are continuing and (d) stating whether or
not the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.10 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its delivery the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such sixtieth day or thirtieth
day, if applicable, to deliver such Officers' Certificate and Securities
specified in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Issuer (i)
that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect thereof and
(ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency) or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall so request with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000 (or the equivalent thereof in any Foreign Currency) or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available. The Trustee shall select, in the manner provided in Section 12.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration and certificate number in an Officer's Certificate delivered to the Trustee at least 60 days prior to the sinking fund payment date or at least 30 days prior to the last day of any applicable Redemption Notice Period relating to a sinking fund payment date as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such Officer's Certificate as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 12.02 (and with the effect provided in Section 12.03) for the redemption of Securities of such series in part at the option of the Issuer. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking fund monies held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied, together with other monies, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund monies or provide notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption. Except as aforesaid, any monies in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any monies thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article 5 and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 5.10 or the default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such monies shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
IN WITNESS WHEREOF the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all dated as of May 25, 2001.
J.P. MORGAN CHASE & CO.
By /s/ John C. Wilmot
----------------------------
Name: John C. Wilmot
Title: Managing Director
[CORPORATE SEAL]
Attest:
By /s/ Jean E. Rugani
-----------------------------
|
BANKERS TRUST COMPANY
By /s/ Carol Ng
----------------------------
Name: Carol Ng
Title: Vice President
[CORPORATE SEAL]
Attest:
By /s/ Rodney Gunghan
------------------------------
Trust Officer
|
STATE OF New York )
) ss.:
COUNTY OF New York )
|
On this 25th day of May, before me personally came John C. Wilmot, to me personally known, who, being by me duly sworn, did depose and say that he resides at New York, New York; that he is a Managing Director of J.P. Morgan Chase & Co., one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Heather L. Baley
-------------------------
Notary Public
|
STATE OF New York )
) ss.:
COUNTY OF New York )
|
On this 31st day of May, 2001, before me personally came Carol Ng, to me personally known, who, being by me duly sworn, did depose and say that she resides at 246-23 Van Zanat Avenue, Dougliston, NY 11362; that she is a Vice President of Bankers Trust Company, one of the corporations described in and which executed the above instrument; that she knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that she signed her name thereto by like authority.
[NOTARIAL SEAL]
/s/ Tracy A. Salzman
--------------------------------
Notary Public
|
EXHIBIT 4(b)(1)
[FORM OF FACE OF SECURITY]
FIXED RATE NOTE
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP:
Unless this certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.1
1 Applies only if this Note is a Registered Global Security.
J.P. MORGAN CHASE & CO.
MEDIUM-TERM NOTE, SERIES B
(Fixed Rate)
===================================================================================================================
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
-------------------------------------------------------------------------------------------------------------------
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL
DATE: PERCENTAGE: DATE(S): REPAYMENT
DATE(S):
-------------------------------------------------------------------------------------------------------------------
SPECIFIED CURRENCY: ANNUAL REDEMPTION INTEREST PAYMENT APPLICABILITY OF
PERCENTAGE PERIOD: MODIFIED
REDUCTION: PAYMENT UPON
ACCELERATION:
-------------------------------------------------------------------------------------------------------------------
IF SPECIFIED REDEMPTION NOTICE APPLICABILITY OF If yes, state Issue Price:
CURRENCY PERIOD:3 ANNUAL INTEREST
OTHER THAN U.S. PAYMENTS:
DOLLARS, OPTION
TO ELECT
PAYMENT IN U.S.
DOLLARS: [YES]2
-------------------------------------------------------------------------------------------------------------------
EXCHANGE RATE ORIGINAL YIELD TO
AGENT: MATURITY:
-------------------------------------------------------------------------------------------------------------------
OTHER PROVISIONS:
===================================================================================================================
|
J.P. Morgan Chase & Co., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to , or registered assignees, the principal [sum of ]4
[amount specified in Schedule A hereto]5 on the Maturity Date specified above
(except to the extent redeemed or repaid prior to maturity) and to pay interest
thereon at the Interest Rate per annum specified above, from and including the
Interest Accrual Date specified above until the principal hereof is paid or
duly made available for payment weekly, monthly, quarterly, semiannually or
annually in arrears as specified above as the Interest Payment Period on each
Interest Payment Date (as specified above), commencing on the first Interest
Payment Date next succeeding the Interest Accrual Date specified above, and at
maturity (or on any redemption or repayment date); provided, however, that if
the Interest Accrual Date occurs between
2 Applies if this is a Registered Global Security, unless new arrangements are made with DTC outside of existing Letters of Representations.
3 Applicable if other than 30-60 days. If this is a Registered Global Security, minimum notice period is [20] days.
4 Applies if this Note is not issued as part of, or in relation to, a Unit.
5 Applies if this Note is issued as part of, or in relation to, a Unit.
a Record Date, as defined below, and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date to the registered holder of this Note on the Record Date with respect to such second Interest Payment Date; and provided, further, that if this Note is subject to "Annual Interest Payments," interest payments shall be made annually in arrears and the term "Interest Payment Date" shall be deemed to mean the first day of March in each year.
Interest on this Note will accrue from and including the most recent date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including the Interest Accrual Date, until but excluding the date the principal hereof has been paid or duly made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the date 15 calendar days prior to such Interest Payment Date (whether or not a Business Day (as defined below)) (each such date a "Record Date"); provided, however, that interest payable at maturity (or any redemption or repayment date) will be payable to the person to whom the principal hereof shall be payable. As used herein, "Business Day" means any day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close (x) in The City of New York or (y) if this Note is denominated in a Specified Currency other than U.S. dollars, Australian dollars or euro, in the principal financial center of the country of the Specified Currency, or (z) if this Note is denominated in Australian dollars, in Sydney and (b) if this Note is denominated in euro, that is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a "TARGET Settlement Day").
Payment of the principal of this Note, any premium and the interest due at maturity (or any redemption or repayment date), unless this Note is denominated in a Specified Currency other than U.S. dollars and is to be paid in whole or in part in such Specified Currency, will be made in immediately available funds upon surrender of this Note at the office or agency of the Paying Agent, as defined on the reverse hereof, maintained for that purpose in the Borough of Manhattan, The City of New York, or at such other paying agency as the Issuer may determine, in U.S. dollars. U.S. dollar payments of interest, other than interest due at maturity or on any date of redemption or repayment, will be made by U.S. dollar check mailed to the address of the person entitled thereto as such address shall appear in the Note register. A holder of U.S. $10,000,000 (or the equivalent in a Specified Currency) or more in aggregate principal amount of Notes having the same Interest Payment Date, the interest on which is payable in U.S. dollars, shall be entitled to receive payments of interest, other than interest due at maturity or on any date of redemption or repayment, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received by the Paying Agent in writing not less than 15 calendar days prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S. dollars, and the holder does not elect (in whole or in part) to receive payment in U.S. dollars pursuant to the next succeeding
paragraph, payments of interest, principal or any premium with regard to this Note will be made by wire transfer of immediately available funds to an account maintained by the holder hereof with a bank located outside the United States if appropriate wire transfer instructions have been received by the Paying Agent in writing [not less than 15 calendar days prior to the applicable payment date]6 [, with respect to payments of interest, on or prior to the fifth Business Day after the applicable Record Date and, with respect to payments of principal or any premium, at least ten Business Days prior to the Maturity Date or any redemption or repayment date, as the case may be]7; provided that, if payment of interest, principal or any premium with regard to this Note is payable in euro, the account must be a euro account in a country for which the euro is the lawful currency, provided, further, that if such wire transfer instructions are not received, such payments will be made by check payable in such Specified Currency mailed to the address of the person entitled thereto as such address shall appear in the Note register; and provided, further, that payment of the principal of this Note, any premium and the interest due at maturity (or on any redemption or repayment date) will be made upon surrender of this Note at the office or agency referred to in the preceding paragraph.
If so indicated on the face hereof, the holder of this Note, if denominated in a Specified Currency other than U.S. dollars, may elect to receive all or a portion of payments on this Note in U.S. dollars by transmitting a written request to the Paying Agent, on or prior to the fifth Business Day after such Record Date or at least ten Business Days prior to the Maturity Date or any redemption or repayment date, as the case may be. Such election shall remain in effect unless such request is revoked by written notice to the Paying Agent as to all or a portion of payments on this Note at least five Business Days prior to such Record Date, for payments of interest, or at least ten days prior to the Maturity Date or any redemption or repayment date, for payments of principal, as the case may be.
If the holder elects to receive all or a portion of payments of principal of and any premium and interest on this Note, if denominated in a Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate Agent (as defined on the reverse hereof) will convert such payments into U.S. dollars. In the event of such an election, payment in respect of this Note will be based upon the exchange rate as determined by the Exchange Rate Agent based on the highest bid quotation in The City of New York received by such Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date from three recognized foreign exchange dealers (one of which may be the Exchange Rate Agent unless such Exchange Rate Agent is an affiliate of the Issuer) for the purchase by the quoting dealer of U.S. dollars for the Specified Currency for settlement on such payment date in the amount of the Specified Currency payable in the absence of such an election to such holder and at which the applicable dealer commits to execute a contract. If such bid quotations are not available, such payment will be made in the Specified Currency. All currency exchange costs will be borne by the holder of this Note by deductions from such payments.
7 Applies only for a Registered Global Security.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: J.P. MORGAN CHASE & CO.
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY
as Trustee
By:
------------------------------------
Authorized Officer
|
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes, Series B, having maturities more than nine months from the date of issue (the "Notes") of the Issuer. The Notes are issuable under an Indenture, dated as of [ ], 2001, between the Issuer and Bankers Trust Company, as Trustee (the "Trustee," which term includes any successor trustee under the Indenture) (as may be amended or supplemented from time to time, the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed Bankers Trust Company at its corporate trust office in The City of New York as the paying agent (the "Paying Agent," which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
Unless otherwise indicated on the face hereof, this Note will not be subject to any sinking fund and, unless otherwise provided on the face hereof in accordance with the provisions of the following two paragraphs, will not be redeemable or subject to repayment at the option of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption. If this Note is subject to "Annual Redemption Percentage Reduction," the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption. Notice of redemption shall be mailed to the registered holders of the Notes designated for redemption at their addresses as the same shall appear on the Note register not less than 30 nor more than 60 days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this Note will be subject to repayment at the option of the holder on the Optional Repayment Date or Dates specified on the face hereof on the terms set forth herein. On any Optional Repayment Date, this Note will be repayable in whole or in part in increments of $1,000 or, if this Note is denominated in a Specified Currency other than U.S. dollars, in increments of 1,000 units of such Specified Currency (provided that any remaining principal amount hereof shall not be less than the minimum authorized denomination hereof) at the option of
the holder hereof at a price equal to 100% of the principal amount to be repaid, together with interest accrued and unpaid hereon to the date of repayment. For this Note to be repaid at the option of the holder hereof, the Paying Agent must receive at its corporate trust office in the Borough of Manhattan, The City of New York, at least 15 but not more than 30 days prior to the date of repayment, (i) this Note with the form entitled "Option to Elect Repayment" below duly completed or (ii) a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or a trust company in the United States setting forth the name of the holder of this Note, the principal amount hereof, the certificate number of this Note or a description of this Note's tenor and terms, the principal amount hereof to be repaid, a statement that the option to elect repayment is being exercised thereby and a guarantee that this Note, together with the form entitled "Option to Elect Repayment" duly completed, will be received by the Paying Agent not later than the fifth Business Day after the date of such telegram, telex, facsimile transmission or letter; provided, that such telegram, telex, facsimile transmission or letter shall only be effective if this Note and form duly completed are received by the Paying Agent by such fifth Business Day. Exercise of such repayment option by the holder hereof shall be irrevocable. In the event of repayment of this Note in part only, a new Note or Notes for the amount of the unpaid portion hereof shall be issued in the name of the holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Dates or the Maturity Date (or any earlier redemption or repayment date), as the case may be. Unless otherwise provided on the face hereof, interest payments for this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or any redemption or repayment date) does not fall on a Business Day, payment of interest, premium, if any, or principal otherwise payable on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or on the Maturity Date (or any redemption or repayment date), and no interest on such payment shall accrue for the period from and after the Interest Payment Date or the Maturity Date (or any redemption or repayment date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct, unsecured obligations of the Issuer and rank without preference or priority among themselves and pari passu with all other existing and future unsecured and unsubordinated indebtedness of the Issuer, subject to certain statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and, if denominated in U.S. dollars, unless otherwise stated above, is issuable only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this Note is denominated in a Specified Currency other than U.S. dollars, then, unless a higher minimum denomination is required by applicable law, it is issuable only in denominations of the equivalent of U.S. $1,000 (rounded to an integral multiple of 1,000 units of
such Specified Currency), or any amount in excess thereof which is an integral multiple of 1,000 units of such Specified Currency, as determined by reference to the noon dollar buying rate in The City of New York for cable transfers of such Specified Currency published by the Federal Reserve Bank of New York (the "Market Exchange Rate") on the Business Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the Trustee will maintain at its office in The City of New York a register for the registration and transfer of Notes. This Note may be transferred at the aforesaid office of the Trustee by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Trustee and duly executed by the registered holder hereof in person or by the holder's attorney duly authorized in writing, and thereupon the Trustee shall issue in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided, however, that the Trustee will not be required (i) to register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part, (ii) to register the transfer of or exchange any Note if the holder thereof has exercised his right, if any, to require the Issuer to repurchase such Note in whole or in part, except the portion of such Note not required to be repurchased, or (iii) to register the transfer of or exchange Notes to the extent and during the period so provided in the Indenture with respect to the redemption of Notes. Notes are exchangeable at said office for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such exchanges and transfers of Notes will be free of charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trustee and executed by the registered holder in person or by the holder's attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, if this Note is destroyed, lost or stolen, only upon receipt of evidence satisfactory to the Trustee and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that (a) if an Event of Default (as defined in the Indenture) due to the default in payment of principal of, premium, if any, or interest on, any series of debt securities issued under the Indenture, including the series of Medium-Term Notes of which this Note forms a part,
or due to the default in the performance or breach of any other covenant or warranty of the Issuer applicable to the debt securities of such series but not applicable to all outstanding debt securities issued under the Indenture, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of the debt securities of each affected series (voting as a single class) may then declare the principal of all debt securities of all such series and interest accrued thereon to be due and payable immediately and (b) if an Event of Default due to a default in the performance of any other of the covenants or agreements in the Indenture applicable to all outstanding debt securities issued thereunder, including this Note, or due to certain events of bankruptcy or insolvency of the Issuer, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of all debt securities issued under the Indenture then outstanding (treated as one class) may declare the principal of all such debt securities and interest accrued thereon to be due and payable immediately, but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal (or premium, if any) or interest on such debt securities) by the holders of a majority in principal amount of the debt securities of all affected series then outstanding.
If the face hereof indicates that this Note is subject to "Modified Payment upon Acceleration," then (i) if the principal hereof is declared to be due and payable as described in the preceding paragraph, the amount of principal due and payable with respect to this Note shall be limited to the aggregate principal amount hereof multiplied by the sum of the Issue Price specified on the face hereof (expressed as a percentage of the aggregate principal amount) plus the original issue discount amortized from the Interest Accrual Date to the date of declaration, which amortization shall be calculated using the "interest method" (computed in accordance with generally accepted accounting principles in effect on the date of declaration), (ii) for the purpose of any vote of securityholders taken pursuant to the Indenture prior to the acceleration of payment of this Note, the principal amount hereof shall equal the amount that would be due and payable hereon, calculated as set forth in clause (i) above, if this Note were declared to be due and payable on the date of any such vote and (iii) for the purpose of any vote of securityholders taken pursuant to the Indenture following the acceleration of payment of this Note, the principal amount hereof shall equal the amount of principal due and payable with respect to this Note, calculated as set forth in clause (i) above.
The Indenture permits the Issuer and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of the debt
securities of all series issued under the Indenture then outstanding and
affected (voting as one class), to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each
series so affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption or repayment
thereof, or change the currency of payment thereof, or modify or amend the
provisions for conversion of any currency into any other currency, or modify or
amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other
similar adjustment provisions of the debt securities or otherwise in accordance with the terms thereof), or impair or affect the rights of any holder to institute suit for the payment thereof without the consent of the holder of each debt security so affected or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the holders of which is required for any such supplemental indenture.
Except as set forth below, if the principal of, premium, if any, or interest on, this Note is payable in a Specified Currency other than U.S. dollars and such Specified Currency is not available to the Issuer for making payments hereon due to the imposition of exchange controls or other circumstances beyond the control of the Issuer or is no longer used by the government of the country issuing such currency or for the settlement of transactions by public institutions within the international banking community, then the Issuer will be entitled to satisfy its obligations to the holder of this Note by making such payments in U.S. dollars on the basis of the Market Exchange Rate on the date of such payment or, if the Market Exchange Rate is not available on such date, as of the most recent practicable date; provided, however, that if the euro has been substituted for such Specified Currency, the Issuer may at its option (or shall, if so required by applicable law) without the consent of the holder of this Note effect the payment of principal of, premium, if any, or interest on, any Note denominated in such Specified Currency in euro in lieu of such Specified Currency in conformity with legally applicable measures taken pursuant to, or by virtue of, the treaty establishing the European Community (the "EC"), as amended by the treaty on European Union (as so amended, the "Treaty"). Any payment made under such circumstances in U.S. dollars or euro where the required payment is in an unavailable Specified Currency will not constitute an Event of Default. If such Market Exchange Rate is not then available to the Issuer or is not published for a particular Specified Currency, the Market Exchange Rate will be based on the highest bid quotation in The City of New York received by the Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the second Business Day preceding the date of such payment from three recognized foreign exchange dealers (the "Exchange Dealers") for the purchase by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for settlement on the payment date, in the aggregate amount of the Specified Currency payable to those holders or beneficial owners of Notes and at which the applicable Exchange Dealer commits to execute a contract. One of the Exchange Dealers providing quotations may be the Exchange Rate Agent unless the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are not available, the Exchange Rate Agent shall determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be [ ], unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest on this Note as herein
provided in the Borough of Manhattan, The City of New York, and an office or agency in said Borough of Manhattan for the registration, transfer and exchange as aforesaid of the Notes. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
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UNIF GIFT MIN ACT - _______________________ Custodian _____________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act ____________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such note on the books of the Issuer, with full power of substitution in the premises.
Dated:___________________________
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the Optional Repayment Date, to the undersigned at
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
__________; and specify the denomination or denominations (which shall not be
less than the minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not being
repaid): __________.
Dated:___________________________ ________________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of the
within instrument in every particular
without alteration or enlargement.
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[SCHEDULE A]8
NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In accordance with the Unit Agreement dated _____________ ___, 2000 among the Issuer, [ ], as Unit Agent, as Collateral Agent and as Trustee under the Indenture referred to therein and the Holders from time to time of the Units described therein, the following (A) reductions of the principal amount of this Note by cancellation upon the application of such amount to the exercise of Warrants or for any other reason or (B) exchanges of portions of this Note for an interest in a Note that has been separated from a Unit (a "Separated Note") have been made:]9 [The following (A) reductions of the principal amount of this Note by cancellation upon the application of such amount to the exercise of Warrants or for any other reason or (B) exchanges of an interest in a Note that is part of a Unit (an "Attached Unit Note") for an interest in this Note have been made:]10
Principal Reduced Principal Principal Amount Increased Principal
Amount Amount Outstanding of Attached Unit Amount of this Note
Date of Principal Exchanged for Following Such Note Exchanged Outstanding Notation Made by
Exchange or Amount Separated Exchange or for Interest in this Following Such or on Behalf of
Cancellation Canceled Note(10) Cancellation Note(11) Exchange(11) Paying Agent
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
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------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
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------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
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9 Applies only if this Note remains part of a Unit.
10 Applies only if this Note has been separated from a Unit.
EXHIBIT 4(b)(2)
[FORM OF FACE OF SECURITY]
FLOATING RATE NOTE
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP:
Unless this certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.1
1 Applies only if this Note is a Registered Global Security.
J.P. MORGAN CHASE & CO.
MEDIUM-TERM NOTE, SERIES B
(Floating Rate)
=======================================================================================================
BASE RATE:
-------------------------------------------------------------------------------------------------------
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
-------------------------------------------------------------------------------------------------------
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
-------------------------------------------------------------------------------------------------------
SPREAD MULTIPLIER: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
-------------------------------------------------------------------------------------------------------
REPORTING SERVICE: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
-------------------------------------------------------------------------------------------------------
INDEX CURRENCY: MINIMUM INTEREST RATE: CALCULATION AGENT:
-------------------------------------------------------------------------------------------------------
EXCHANGE RATE AGENT: INITIAL REDEMPTION DATE:
-------------------------------------------------------------------------------------------------------
ORIGINAL ISSUE DATE: INITIAL REDEMPTION
PERCENTAGE:
-------------------------------------------------------------------------------------------------------
MATURITY DATE: ANNUAL REDEMPTION OTHER PROVISIONS:
PERCENTAGE REDUCTION:
-------------------------------------------------------------------------------------------------------
SPECIFIED CURRENCY: OPTIONAL REPAYMENT
DATE(S):
-------------------------------------------------------------------------------------------------------
IF SPECIFIED CURRENCY REDEMPTION NOTICE PERIOD:3
OTHER THAN U.S. DOLLARS,
OPTION TO ELECT PAYMENT
IN U.S. DOLLARS: [YES]2
=======================================================================================================
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J.P. Morgan Chase & Co., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to , or registered assignees, the principal [sum of ]4
[amount specified in Schedule A hereto]5 on the Maturity Date specified above
(except to the extent redeemed or repaid prior to maturity) and to pay interest
thereon from and including the Interest Accrual Date specified above at a rate
per annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the
2 Applies if this is a Registered Global Security, unless new arrangements are made with DTC outside of existing Letters of Representations.
3 Applicable if other than 30-60 days. If this is a Registered Global Security, minimum notice period is [20] days.
4 Applies if this Note is not issued as part of, or in relation to, a Unit.
5 Applies if this Note is issued as part of, or in relation to, a Unit.
reverse hereof until the principal hereof is paid or duly made available for payment. The Issuer will pay interest in arrears weekly, monthly, quarterly, semiannually or annually as specified above as the Interest Payment Period on each Interest Payment Date (as specified above), commencing with the first Interest Payment Date next succeeding the Interest Accrual Date specified above, and on the Maturity Date (or any redemption or repayment date); provided, however, that if the Interest Accrual Date occurs between a Record Date, as defined below, and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date to the registered holder of this Note on the Record Date with respect to such second Interest Payment Date; and provided, further, that if an Interest Payment Date (other than the Maturity Date or redemption or repayment date) would fall on a day that is not a Business Day, as defined on the reverse hereof, such Interest Payment Date shall be the following day that is a Business Day, except that if the Base Rate specified above is LIBOR and such next Business Day falls in the next calendar month, such Interest Payment Date shall be the immediately preceding day that is a Business Day; and provided, further, that if the Maturity Date or redemption or repayment date would fall on a day that is not a Business Day, such payment shall be made on the following day that is a Business Day and no interest shall accrue for the period from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most recent date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including the Interest Accrual Date, until but excluding the date the principal hereof has been paid or duly made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the date 15 calendar days prior to such Interest Payment Date (whether or not a Business Day) (each such date a "Record Date"); provided, however, that interest payable at maturity (or any redemption or repayment date) will be payable to the person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the interest due at maturity (or any redemption or repayment date), unless this Note is denominated in a Specified Currency other than U.S. dollars and is to be paid in whole or in part in such Specified Currency, will be made in immediately available funds upon surrender of this Note at the office or agency of the Paying Agent, as defined on the reverse hereof, maintained for that purpose in the Borough of Manhattan, The City of New York, or at such other paying agency as the Issuer may determine, in U.S. dollars. U.S. dollar payments of interest, other than interest due at maturity or on any date of redemption or repayment, will be made by U.S. dollar check mailed to the address of the person entitled thereto as such address shall appear in the Note register. A holder of U.S. $10,000,000 (or the equivalent in a Specified Currency) or more in aggregate principal amount of Notes having the same Interest Payment Date, the interest on which is payable in U.S. dollars, shall be entitled to receive payments of interest, other than interest due at maturity or on any date of redemption or repayment, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received
by the Paying Agent in writing not less than 15 calendar days prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S. dollars, and the holder does not elect (in whole or in part) to receive payment in U.S. dollars pursuant to the next succeeding paragraph, payments of interest, principal or any premium with regard to this Note will be made by wire transfer of immediately available funds to an account maintained by the holder hereof with a bank located outside the United States if appropriate wire transfer instructions have been received by the Paying Agent in writing [not less than 15 calendar days prior to the applicable payment date]6 [, with respect to payments of interest, on or prior to the fifth Business Day after the applicable Record Date and, with respect to payments of principal or any premium, at least ten Business Days prior to the Maturity Date or any redemption or repayment date, as the case may be]7; provided that, if payment of interest, principal or any premium with regard to this Note is payable in euro, the account must be a euro account in a country for which the euro is the lawful currency, provided, further, that if such wire transfer instructions are not received, such payments will be made by check payable in such Specified Currency mailed to the address of the person entitled thereto as such address shall appear in the Note register; and provided, further, that payment of the principal of this Note, any premium and the interest due at maturity (or on any redemption or repayment date) will be made upon surrender of this Note at the office or agency referred to in the preceding paragraph.
If so indicated on the face hereof, the holder of this Note, if denominated in a Specified Currency other than U.S. dollars, may elect to receive all or a portion of payments on this Note in U.S. dollars by transmitting a written request to the Paying Agent, on or prior to the fifth Business Day after such Record Date or at least ten Business Days prior to the Maturity Date or any redemption or repayment date, as the case may be. Such election shall remain in effect unless such request is revoked by written notice to the Paying Agent as to all or a portion of payments on this Note at least five Business Days prior to such Record Date, for payments of interest, or at least ten days prior to the Maturity Date or any redemption or repayment date, for payments of principal, as the case may be.
If the holder elects to receive all or a portion of payments of principal of and any premium and interest on this Note, if denominated in a Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate Agent (as defined on the reverse hereof) will convert such payments into U.S. dollars. In the event of such an election, payment in respect of this Note will be based upon the exchange rate as determined by the Exchange Rate Agent based on the highest bid quotation in The City of New York received by such Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date from three recognized foreign exchange dealers (one of which may be the Exchange Rate Agent unless such Exchange Rate Agent is an affiliate of the Issuer) for the purchase by the quoting dealer of U.S. dollars for the
7 Applies only for a Registered Global Security.
Specified Currency for settlement on such payment date in the amount of the Specified Currency payable in the absence of such an election to such holder and at which the applicable dealer commits to execute a contract. If such bid quotations are not available, such payment will be made in the Specified Currency. All currency exchange costs will be borne by the holder of this Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: J.P. MORGAN CHASE & CO.
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY
as Trustee
By:
------------------------------------
Authorized Officer
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[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes, Series B, having maturities more than nine months from the date of issue (the "Notes") of the Issuer. The Notes are issuable under an Indenture, dated as of [ ], 2001, between the Issuer and Bankers Trust Company, as Trustee (the "Trustee," which term includes any successor trustee under the Indenture) (as may be amended or supplemented from time to time, the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed Bankers Trust Company at its corporate trust office in The City of New York as the paying agent (the "Paying Agent," which term includes any additional or successor Paying Agent appointed by the Issuer) with respect to the Notes. The terms of individual Notes may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein.
Unless otherwise indicated on the face hereof, this Note will not be subject to any sinking fund and, unless otherwise provided on the face hereof in accordance with the provisions of the following two paragraphs, will not be redeemable or subject to repayment at the option of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption. If this Note is subject to "Annual Redemption Percentage Reduction," the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption. Notice of redemption shall be mailed to the registered holders of the Notes designated for redemption at their addresses as the same shall appear on the Note register not less than 30 nor more than 60 days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this Note will be subject to repayment at the option of the holder on the Optional Repayment Date or Dates specified on the face hereof on the terms set forth herein. On any Optional Repayment Date, this Note will be repayable in whole or in part in increments of $1,000 or, if this Note is denominated in a Specified Currency other than U.S. dollars, in increments of 1,000 units of such Specified Currency (provided that any remaining principal amount hereof shall not be less than the minimum authorized denomination hereof) at the option of
the holder hereof at a price equal to 100% of the principal amount to be repaid, together with interest accrued and unpaid hereon to the date of repayment. For this Note to be repaid at the option of the holder hereof, the Paying Agent must receive at its corporate trust office in the Borough of Manhattan, The City of New York, at least 15 but not more than 30 days prior to the date of repayment, (i) this Note with the form entitled "Option to Elect Repayment" below duly completed or (ii) a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or a trust company in the United States setting forth the name of the holder of this Note, the principal amount hereof, the certificate number of this Note or a description of this Note's tenor and terms, the principal amount hereof to be repaid, a statement that the option to elect repayment is being exercised thereby and a guarantee that this Note, together with the form entitled "Option to Elect Repayment" duly completed, will be received by the Paying Agent not later than the fifth Business Day after the date of such telegram, telex, facsimile transmission or letter; provided, that such telegram, telex, facsimile transmission or letter shall only be effective if this Note and form duly completed are received by the Paying Agent by such fifth Business Day. Exercise of such repayment option by the holder hereof shall be irrevocable. In the event of repayment of this Note in part only, a new Note or Notes for the amount of the unpaid portion hereof shall be issued in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in accordance with the
applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus
or minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier,
if any, specified on the face hereof. Commencing with the Initial Interest
Reset Date specified on the face hereof, the rate at which interest on this
Note is payable shall be reset as of each Interest Reset Date specified on the
face hereof (as used herein, the term "Interest Reset Date" shall include the
Initial Interest Reset Date). The determination of the rate of interest at
which this Note will be reset on any Interest Reset Date shall be made on the
Interest Determination Date (as defined below) pertaining to such Interest
Reset Dates. The Interest Reset Dates will be the Interest Reset Dates
specified on the face hereof; provided, however, that (a) the interest rate in
effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate and (b) unless otherwise specified
on the face hereof, the interest rate in effect for the ten calendar days
immediately prior to maturity, redemption or repayment will be that in effect
on the tenth calendar day preceding such maturity, redemption or repayment
date. If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if the Base Rate specified
on the face hereof is LIBOR and such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Business Day. As used herein, "Business Day" means any day, other than a
Saturday or Sunday, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close
(x) in The City of New York or (y) if this Note is denominated in a Specified
Currency other than U.S. dollars, Australian dollars or euro, in the principal
financial center of the country of the Specified Currency, or (z) if this Note
is denominated in Australian dollars, in Sydney and (b) if this Note is
denominated in euro, that is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a "TARGET Settlement Day").
The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to the CD Rate, Commercial Paper Rate, Federal Funds Rate, and Prime Rate will be the second Business Day next preceding such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to LIBOR when the Index Currency is euros shall be the second TARGET Settlement Day preceding such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to LIBOR (other than for LIBOR Notes for which the Index Currency is euros) shall be the second London Banking Day preceding such Interest Reset Date, except that the Interest Determination Date pertaining to an Interest Reset Date for a LIBOR Note for which the Index Currency is pounds sterling will be such Interest Reset Date. As used herein, "London Banking Day" means any day on which dealings in deposits in the Index Currency (as defined herein) are transacted in the London interbank market. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to the Treasury Rate shall be the day of the week in which such Interest Reset Date falls on which Treasury bills normally would be auctioned; provided, however, that if as a result of a legal holiday an auction is held on the Friday of the week preceding such Interest Reset Date, the related Interest Determination Date shall be such preceding Friday; and provided, further, that if an auction shall fall on any Interest Reset Date, then the Interest Reset Date shall instead be the first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the "Calculation Date" pertaining to an Interest Determination Date will be the earlier of (i) the tenth calendar day after such Interest Determination Date or, if such day is not a Business Day, the next succeeding Business Day, or (ii) the Business Day preceding the applicable Interest Payment Date or Maturity Date (or, with respect to any principal amount to be redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of Commercial Paper Rate. If the Base Rate specified on the face hereof is the "Commercial Paper Rate," for any Interest Determination Date, the Commercial Paper Rate with respect to this Note shall be the Money Market Yield (as defined herein), calculated as described below, of the rate on that date for commercial paper having the Index Maturity specified on the face hereof, as that rate is published in H.15(519), under the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City time, on the Calculation Date, then the Commercial Paper Rate shall be the Money Market Yield of the rate on that Interest
Determination Date for commercial paper of the Index Maturity specified on the face hereof as published in the H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation Date the rate is not yet published in either H.15(519) or the H.15 Daily Update, then the Calculation Agent shall determine the Commercial Paper Rate to be the Money Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New York City time, on that Interest Determination Date of three leading dealers of commercial paper in The City of New York selected by the Calculation Agent (after consultation with the Issuer) for commercial paper of the Index Maturity specified on the face hereof, placed for an industrial issuer whose bond rating is "AA," or the equivalent, from a nationally recognized statistical rating agency.
(iii) If the dealers selected by the Calculation Agent are not quoting as mentioned above, the Commercial Paper Rate for that Interest Determination Date shall remain the Commercial Paper Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
"H.15 (519)" means the publication entitled "Statistical Release H.15
(519), Selected Interest Rates," or any successor publication, published by the
Board of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15 (519), available through the worldwide website of the Board of Governors of the Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any successor site or publication.
The "Money Market Yield" shall be a yield calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per year rate for commercial paper quoted on a bank discount basis and expressed as a decimal and "M" refers to the actual number of days in the interest period for which interest is being calculated.
Determination of the Federal Funds Rates. If the Base Rate specified on the face hereof is the "Federal Funds Rate," for any Interest Determination Date, the Federal Funds Rate with respect to this Note shall be the rate on that date for federal funds as published in H.15(519) under the heading "Federal Funds (Effective [Rate])" as displayed on Bridge Telerate, Inc., or any successor service, on page 120 or any other page as may replace page 120 on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City time, on the Calculation Date, the Federal Funds Rate shall be the rate on that Interest Determination Date as published in the H.15 Daily Update under the heading "Federal Funds (Effective Rate)."
(ii) If that rate is not yet published in either H.15(519) or the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the Calculation Agent shall determine the Federal Funds Rate to be the arithmetic mean of the rates for the last transaction in overnight federal funds by each of three leading brokers of federal funds transactions in The City of New York selected by the Calculation Agent (after consultation with the Issuer) prior to 9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not quoting as mentioned above, the Federal Funds Rate relating to that Interest Determination Date shall remain the Federal Funds Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
Determination of LIBOR. If the Base Rate specified on the face hereof is "LIBOR," LIBOR with respect to this Note shall be based on London interbank offered rate. The Calculation Agent shall determine "LIBOR" for each Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either (a) if "LIBOR Reuters" is specified as the Reporting Service on the face hereof, the arithmetic mean of the offered rates for deposits in the Index Currency having the Index Maturity designated on the face hereof, commencing on the second London Banking Day immediately following that Interest Determination Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00 a.m., London time, on that Interest Determination Date, if at least two offered rates appear on the Designated LIBOR Page; except that if the specified Designated LIBOR Page, by its terms provides only for a single rate, that single rate shall be used; or (b) if "LIBOR Telerate" is specified as the Reporting Service on the face hereof, the rate for deposits in the Index Currency having the Index Maturity designated on the face hereof, commencing on the second London Banking Day immediately following that Interest Determination Date or, if pounds sterling is the Index Currency, commencing on that Interest Determination Date, that appears on the Designated LIBOR Page at approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is specified on the face hereof, and the Desginated LIBOR Page by its terms does not provide only for a single rate, or (b) no rate appears and the face hereof specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated LIBOR Page by its terms provides only for a single rate, then the Calculation Agent shall request the principal London offices of each of four major reference banks in the London interbank market, as selected by the Calculation Agent (after consultation with the Issuer) to provide
the Calculation Agent with its offered quotation for deposits in the Index Currency for the period of the Index Maturity specified on the face hereof commencing on the second London Banking Day immediately following the Interest Determination Date or, if pounds sterling is the Index Currency, commencing on that Interest Determination Date, to prime banks in the London interbank market at approximately 11:00 a.m., London time, on that Interest Determination Date and in a principal amount that is representative of a single transaction in that Index Currency in that market at that time.
(iii) If at least two quotations are provided, LIBOR determined on that Interest Determination Date shall be the arithmetic mean of those quotations. If fewer than two quotations are provided, LIBOR shall be determined for the applicable Interest Reset Date as the arithmetic mean of the rates quoted at approximately 11:00 a.m., London time, or some other time specified on the face hereof, in the applicable principal financial center for the country of the Index Currency on that Interest Reset Date, by three major banks in that principal financial center selected by the Calculation Agent (after consultation with the Issuer) for loans in the Index Currency to leading European banks, having the Index Maturity specified on the face hereof and in a principal amount that is representative of a single transaction in that Index Currency in that market at that time.
(iv) If the banks so selected by the Calculation Agent are not quoting as described in (iii) above, LIBOR in effect for the applicable period shall be the same as LIBOR for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
The "Index Currency" means the currency specified on the face hereof as the currency for which LIBOR shall be calculated, or, if the euro is substituted for that currency, the Index Currency shall be the euro. If that currency is not specified on the face hereof, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either: (a) if LIBOR Reuters is designated
as the Reporting Service on the face hereof, the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency or its designated successor, or
(b) if LIBOR Telerate is designated as the Reporting Service on the face
hereof, the display on Bridge Telerate Inc., or any successor service, on the
page specified on the face hereof, or any other page as may replace that page
on that service, for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency, as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the face hereof is "Prime Rate," for any Interest Determination Date, the Prime Rate with respect to this Note shall be the rate on that date as published in H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York City time, on the Calculation Date, then the Prime Rate shall be the rate on that Interest Determination Date as published in H.15 Daily Update under the heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York City time, on the Calculation Date in either H.15(519) or the H.15 Daily Update, then the Calculation Agent shall determine the Prime Rate to be the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen USPRIME 1 Page for that Interest Determination Date, the Calculation Agent shall determine the Prime Rate to be the arithmetic mean of the Prime Rates quoted on the basis of the actual number of days in the year divided by 360 as of the close of business on that Interest Determination Date by at least three major banks in The City of New York selected by the Calculation Agent (after consultation with the Issuer).
(iv) If fewer than two banks selected by the calculation agent are quoting as mentioned in the previous bullet point, the calculation agent will determine the prime rate to be the arithmetic mean of the prime rates in New York City quoted by substitute banks or trust companies selected by the calculation agent. The substitute banks or trust companies must be organized and doing business under the laws of the United States and must have a total equity capital of at least U.S. $500 million and be subject to supervision or examination by federal or state authority.
(v) If the substitute banks or trust companies selected are not quoting as described in (iii) above, the Prime Rate shall remain the Prime Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor service, or any other page as may replace the USPRIME 1 Page on that service for the purpose of displaying prime rates or base lending rates of major United States banks.
Determination of Treasury Rate. If the Base Rate specified on the face hereof is "Treasury Rate," the Treasury Rate with respect to this Note shall be
(i) the rate from the Auction held on the applicable Interest Determination Date (the "Auction") of direct obligations of the United States ("Treasury Bills") having the Index Maturity specified on the face hereof as that rate appears under the caption "INVESTMENT RATE" on the display on Bridge Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00 p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of the rate for the applicable Treasury Bills as published in the H.15 Daily Update, or other recognized electronic source used for the purpose of displaying the applicable rate, under the caption "U.S. Government Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by 3:00 p.m., New York City time, on the related Calculation Date, the Bond Equivalent Yield of the Auction rate of the applicable Treasury Bills, announced by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not announced by the United States Department of the Treasury, or if the Auction is not held, the Bond Equivalent Yield of the rate on the applicable Interest Determination Date of Treasury Bills having the Index Maturity specified on the face hereof published in H.15(519) under the caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by 3:00 p.m., New York City time, on the related Calculation Date, the rate on the applicable Interest Determination Date of the applicable Treasury Bills as published in H.15 Daily Update, or other recognized electronic source used for the purpose of displaying the applicable rate, under the caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by 3:00 p.m., New York City time, on the related Calculation Date, the rate on the applicable Interest Determination Date calculated by the Calculation Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 p.m., New York City time, on the applicable Interest Determination Date, of three primary United States government securities dealers, which may include the agent or its affiliates, selected by the Calculation Agent, for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity specified on the face hereof; or
(vii) if the dealers selected by the Calculation Agent are not quoting as described in (vi), the Treasury Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M" refers to the actual number of days in the interest period for which interest is being calculated.
Notwithstanding the foregoing, the interest rate hereon shall not be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any, specified on the face hereof. The Calculation Agent shall calculate the interest rate hereon in accordance with the foregoing on or before each Calculation Date. The interest rate on this Note will in no event be higher than the maximum rate permitted by New York law, as the same may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will provide to the holder hereof the interest rate hereon then in effect and, if determined, the interest rate that will become effective as of the next Interest Reset Date.
Unless otherwise indicated on the face hereof, interest payments on this
Note shall be the amount of interest accrued from and including the Interest
Accrual Date or from and including the last date to which interest has been
paid or duly provided for to, but excluding the Interest Payment Dates or the
Maturity Date (or any earlier redemption or repayment date), as the case may
be. Accrued interest hereon shall be an amount calculated by multiplying the
face amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day in the
period for which interest is being paid. The interest factor for each such date
shall be computed by dividing the interest rate applicable to such day (i) by
360 if the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate,
Prime Rate or LIBOR (except if the Index Currency is pounds sterling); (ii) by
365 if the Base Rate is LIBOR and the Index Currency is pounds sterling; or
(iii) by the actual number of days in the year if the Base Rate is the Treasury
Rate. All percentages resulting from any calculation of the rate of interest on
this Note will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point (.0000001), with five one-millionths of a percentage
point rounded upward, and all dollar amounts used in or resulting from such
calculation on this Note will be rounded to the nearest cent (with one-half
cent rounded upward). The interest rate in effect on any Interest Reset Date
will be the applicable rate as reset on such date. The interest rate applicable
to any other day is the interest rate from the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder are direct, unsecured obligations of the Issuer and rank without preference or priority among themselves and pari passu with all other existing and future unsecured and unsubordinated indebtedness of the Issuer, subject to certain statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form, without coupons, and, if denominated in U.S. dollars, unless otherwise stated above, is issuable only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this Note is denominated in a Specified Currency other than U.S. dollars,
then, unless a higher minimum denomination is required by applicable law, it is issuable only in denominations of the equivalent of U.S. $1,000 (rounded to an integral multiple of 1,000 units of such Specified Currency), or any amount in excess thereof which is an integral multiple of 1,000 units of such Specified Currency, as determined by reference to the noon dollar buying rate in The City of New York for cable transfers of such Specified Currency published by the Federal Reserve Bank of New York (the "Market Exchange Rate") on the Business Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the Trustee will maintain at its office in The City of New York a register for the registration and transfer of Notes. This Note may be transferred at the aforesaid office of the Trustee by surrendering this Note for cancellation, accompanied by a written instrument of transfer in form satisfactory to the Trustee and duly executed by the registered holder hereof in person or by the holder's attorney duly authorized in writing, and thereupon the Trustee shall issue in the name of the transferee or transferees, in exchange herefor, a new Note or Notes having identical terms and provisions and having a like aggregate principal amount in authorized denominations, subject to the terms and conditions set forth herein; provided, however, that the Trustee will not be required (i) to register the transfer of or exchange any Note that has been called for redemption in whole or in part, except the unredeemed portion of Notes being redeemed in part, (ii) to register the transfer of or exchange any Note if the holder thereof has exercised his right, if any, to require the Issuer to repurchase such Note in whole or in part, except the portion of such Note not required to be repurchased, or (iii) to register the transfer of or exchange Notes to the extent and during the period so provided in the Indenture with respect to the redemption of Notes. Notes are exchangeable at said office for other Notes of other authorized denominations of equal aggregate principal amount having identical terms and provisions. All such exchanges and transfers of Notes will be free of charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge in connection therewith. All Notes surrendered for exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trustee and executed by the registered holder in person or by the holder's attorney duly authorized in writing. The date of registration of any Note delivered upon any exchange or transfer of Notes shall be such that no gain or loss of interest results from such exchange or transfer.
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, if this Note is destroyed, lost or stolen, only upon receipt of evidence satisfactory to the Trustee and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that (a) if an Event of Default (as defined in the Indenture) due to the default in payment of principal of, premium, if any, or interest on, any series of debt securities issued under the Indenture, including the series of Medium-Term Notes of which this Note forms a part, or due to the default in the performance or breach of any other covenant or warranty of the Issuer applicable to the debt securities of such series but not applicable to all outstanding debt securities issued under the Indenture, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of the debt securities of each affected series (voting as a single class) may then declare the principal of all debt securities of all such series and interest accrued thereon to be due and payable immediately and (b) if an Event of Default due to a default in the performance of any other of the covenants or agreements in the Indenture applicable to all outstanding debt securities issued thereunder, including this Note, or due to certain events of bankruptcy or insolvency of the Issuer, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of all debt securities issued under the Indenture then outstanding (treated as one class) may declare the principal of all such debt securities and interest accrued thereon to be due and payable immediately, but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal (or premium, if any) or interest on such debt securities) by the holders of a majority in principal amount of the debt securities of all affected series then outstanding.
The Indenture permits the Issuer and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of the debt
securities of all series issued under the Indenture then outstanding and
affected (voting as one class), to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each
series so affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption or repayment
thereof, or change the currency of payment thereof, or modify or amend the
provisions for conversion of any currency into any other currency, or modify or
amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms thereof), or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture.
Except as set forth below, if the principal of, premium, if any, or interest on, this Note is payable in a Specified Currency other than U.S. dollars and such Specified Currency is not available to the Issuer for making payments hereon due to the imposition of exchange controls or other circumstances beyond the control of the Issuer or is no longer used by the government of the country issuing such currency or for the settlement of transactions by public institutions within the international banking community, then the Issuer will be entitled to satisfy its obligations to the holder of this Note by making such payments in U.S. dollars on the basis of the Market Exchange
Rate on the date of such payment or, if the Market Exchange Rate is not available on such date, as of the most recent practicable date; provided, however, that if the euro has been substituted for such Specified Currency, the Issuer may at its option (or shall, if so required by applicable law) without the consent of the holder of this Note effect the payment of principal of, premium, if any, or interest on, any Note denominated in such Specified Currency in euro in lieu of such Specified Currency in conformity with legally applicable measures taken pursuant to, or by virtue of, the treaty establishing the European Community (the "EC"), as amended by the treaty on European Union (as so amended, the "Treaty"). Any payment made under such circumstances in U.S. dollars or euro where the required payment is in an unavailable Specified Currency will not constitute an Event of Default. If such Market Exchange Rate is not then available to the Issuer or is not published for a particular Specified Currency, the Market Exchange Rate will be based on the highest bid quotation in The City of New York received by the Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the second Business Day preceding the date of such payment from three recognized foreign exchange dealers (the "Exchange Dealers") for the purchase by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for settlement on the payment date, in the aggregate amount of the Specified Currency payable to those holders or beneficial owners of Notes and at which the applicable Exchange Dealer commits to execute a contract. One of the Exchange Dealers providing quotations may be the Exchange Rate Agent unless the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are not available, the Exchange Rate Agent shall determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be [ ], unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest on this Note as herein provided in the Borough of Manhattan, The City of New York, and an office or agency in said Borough of Manhattan for the registration, transfer and exchange as aforesaid of the Notes. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such
moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
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UNIF GIFT MIN ACT - _______________________ Custodian _____________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act ____________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorney to transfer such note on the books of the Issuer, with full power of substitution in the premises.
Dated:___________________________
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the Optional Repayment Date, to the undersigned at
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
_________; and specify the denomination or denominations (which shall not be
less than the minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not being
repaid): ____________.
Dated:___________________________ ________________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of the
within instrument in every particular
without alteration or enlargement.
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[SCHEDULE A]9
NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In accordance with the Unit Agreement dated _________ __, 2000 among the Issuer, [ ], as Unit Agent, as Collateral Agent and as Trustee under the Indenture referred to therein and the Holders from time to time of the Units described therein, the following (A) reductions of the principal amount of this Note by cancellation upon the application of such amount to the exercise of Warrants or for any other reason or (B) exchanges of portions of this Note for an interest in a Note that has been separated from a Unit (a "Separated Note") have been made:]10 [The following (A) reductions of the principal amount of this Note by cancellation upon the application of such amount to the exercise of Warrants or for any other reason or (B) exchanges of an interest in a Note that is part of a Unit (an "Attached Unit Note") for an interest in this Note have been made:]11
Principal Reduced Principal Principal Amount Increased Principal
Amount Amount Outstanding of Attached Unit Amount of this Note
Date of Principal Exchanged for Following Such Note Exchanged Outstanding Notation Made by
Exchange or Amount Separated Exchange or for Interest in this Following Such or on Behalf of
Cancellation Canceled Note(10) Cancellation Note(11) Exchange(11) Paying Agent
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
------------ --------- ------------- ------------------ -------------------- ------------------- ----------------
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10 Applies only if this Note remains part of a Unit.
11 Applies only if this Note has been separated from a Unit.
EXHIBIT 4(b)(3)
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL FIXED RATE BEARER NOTE
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION
4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE WITH
REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]2
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN
2 Applies only if this Note is denominated in pounds sterling and matures more than one year from and including the Original Issue Date.
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
J.P. MORGAN CHASE & CO.
GLOBAL MEDIUM-TERM NOTE, SERIES B
(Fixed Rate)
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ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
-------------------------------------------------------------------------------------------------------------------
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE(S): MENT DATE(S):
-------------------------------------------------------------------------------------------------------------------
ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA
PERCENTAGE TIONS:
REDUCTION:
-------------------------------------------------------------------------------------------------------------------
EXCHANGE RATE REDEMPTION NOTICE CLEARSTREAM NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERA-
TION OR
REDEMPTION
-------------------------------------------------------------------------------------------------------------------
EXCHANGE FOR COMMON CODE: If yes, state issue Price:
REGISTERED NOTES:
[NO]
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OTHER PROVISIONS: ISIN: ORIGINAL YIELD TO
MATURITY:
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J.P. Morgan Chase & Co., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to bearer, upon surrender hereof, the principal amount specified in
[Schedule A hereto]4 [Schedule A-1 hereto]5, on the Maturity Date specified
above (except to the extent previously redeemed or repaid) and to pay interest
thereon at the Interest Rate per annum specified above from and including the
Interest Accrual Date specified above until but excluding the date the
principal amount is paid or duly made available for payment (except as provided
below) weekly, monthly, quarterly, semi-annually or annually in arrears on the
Interest Payment Dates specified above in each year commencing on the Interest
Payment Date next succeeding the Interest Accrual Date specified above, and at
maturity (or on any redemption or repayment date); provided, however, that if
the Interest Accrual Date occurs fifteen days or less prior
4 Applies if this Note is not issued as part of, or in relation to, a Unit.
5 Applies if this Note is issued as part of, or in relation to, a Unit.
to the first Interest Payment Date occurring after the Interest Accrual Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including the Interest Accrual Date, until but excluding the date the principal hereof has been paid or duly made available for payment (except as provided below). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the holder of this Note at the office or agency of the Principal Paying Agent (this and certain other capitalized terms used herein are defined on the reverse of this Note) or at the office or agency of such other paying agents outside the United States as the Issuer may determine for that purpose (each, a "Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest due at maturity (or on any redemption or repayment date) will be made upon presentation and surrender of this Note at the office or agency of the Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this Note will be made in the Specified Currency indicated above, except as provided on the reverse hereof. If this Note is denominated in U.S. dollars, any payment of the principal of, premium, if any, and interest on this Note will be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Such payments on this Note will be made either by a check mailed to an address outside the United States furnished by the payee or, at the option of the payee and subject to applicable laws and regulations and the procedures of the Paying Agent, by wire transfer of immediately available funds to an account maintained by the payee with a bank located outside the United States if appropriate wire transfer instructions have been received by the Paying Agent not less than 15 calendar days prior to the applicable payment date. Notwithstanding the foregoing, in the event that payment in U.S. dollars of the full amount payable on this Note at the offices of all Paying Agents would be illegal or effectively precluded as a result of exchange controls or similar restrictions, payment on this Note will be made by a paying agency in the United States, if such paying agency, under applicable law and regulations, would be able to make such payment. If this Note is denominated in a Specified Currency other than U.S. dollars, then, except as provided on the reverse hereof, payment of the principal of and premium, if any, and interest on this Note will be made in such Specified Currency either by a check drawn on a bank outside the United States or, at the option of the payee and subject to applicable laws and regulations and the procedures of the Paying Agent, by wire transfer of immediately available funds to an account maintained by the payee with a bank located outside the United States.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: J.P. MORGAN CHASE & CO.
By:
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Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY
as Trustee
By:
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Authorized Officer
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[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Global Medium-Term Notes,
Series B, having maturities more than nine months from the date of issue (the
"Notes") of the Issuer. The Notes are issuable under an Indenture, dated as of
[ ], 2001, between the Issuer and Bankers Trust Company, as Trustee
(the "Trustee," which term includes any successor trustee under the Indenture)
(as may be amended or supplemented from time to time, the "Indenture"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities of the Issuer, the Trustee and holders of the Notes and the
terms upon which the Notes are, and are to be, authenticated and delivered. The
Issuer has appointed Bankers Trust Company, as its principal paying agent for
the Notes (the "Principal Paying Agent," which term includes any additional or
successor Principal Paying Agent appointed by the Issuer). The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Indenture. To the extent not inconsistent herewith, the terms of the Indenture
are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents that it is not an authorized institution (for purposes of the United Kingdom Banking Act 1987) nor a European authorized institution as defined by Regulation 3 of the Banking Co-ordination (Second Council Directive) Regulations 1992 and repayment of the principal of, and payment of any interest or premium on, this Note has not been guaranteed, that it has complied with its obligations under the listing rules of the London Stock Exchange Limited (the "Rules") and that, since the last publication in compliance with the Rules of information about it, it, having made all reasonable inquiries, has not become aware of any change in circumstances which could reasonably be regarded as significantly and adversely affecting its ability to meet its obligations in respect of the Notes as they fall due.
Unless otherwise indicated on the face hereof, this Note will not be subject to any sinking fund and, unless otherwise indicated on the face hereof in accordance with the provisions of the following two paragraphs and except as set forth below, will not be redeemable or subject to repayment at the option of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption (except as indicated below). If this Note is subject to "Annual Redemption Percentage Reduction," the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption (except as provided below). Notice of redemption shall be mailed to the holders of the Notes designated for redemption who have filed their names and addresses with the Principal Paying Agent, not less than 30 nor more than 60 days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. Notice of redemption to all others holders of Notes shall be given in the manner set forth in "Notices" as defined below, and, if by publication, shall be given once in each of the three successive calendar weeks, the first publication to be not less than 30 nor more than 60 days prior to the date set for redemption or within the Redemption Notice Period specified on the face hereof. In the event of redemption of this Note in part only, the Principal Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of this Note so redeemed, whereupon the principal amount hereof shall be reduced for all purposes by the amount so redeemed and noted.
If so indicated on the face of this Note, this Note will be subject to repayment at the option of the holder on the Optional Repayment Date or Dates specified on the face hereof on the terms set forth herein. On any Optional Repayment Date, this Note will be repayable in whole or in part in increments of $1,000 or, if this Note is denominated in a Specified Currency other than U.S. dollars, in increments of 1,000 units of such Specified Currency (provided that any remaining principal amount hereof shall not be less than the minimum authorized denomination hereof) at the option of the holder hereof at a price equal to 100% of the principal amount to be repaid, together with interest accrued and unpaid hereon to the date of repayment (except as provided below). For this Note to be repaid at the option of the holder hereof, the Principal Paying Agent must receive at its office in London, at least 15 but not more than 30 days prior to the date of repayment, this Note with the form entitled "Option to Elect Repayment" below duly completed, or a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange, or the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States, Western Europe or Japan setting forth the principal amount of the Note, the principal amount of the Note to be repaid, the certificate number or a description of the tenor and terms of this Note, a statement that the Option to Elect Repayment is being exercised and a guarantee that this Note to be repaid, together with the duly completed form entitled Option to Elect Repayment, will be received by the principal paying agent not later than the fifth Business Day (as defined below) after the date of that telegram, telex, facsimile transmission or letter. However, the telegram, telex, facsimile transmission or letter shall only be effective if this Note and an Option to Elect Repayment form duly completed are received by the Paying Agent by the fifth Business Day after the date of such telegram, telex, facsimile transmission or letter. Exercise of such repayment option by the holder hereof shall be irrevocable. In the event of repayment of this Note in part only, the Principal Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of this Note so repaid, whereupon the principal amount hereof shall be reduced for all purposes by the amount so repaid and noted.
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Dates or the Maturity Date (or any earlier redemption or repayment date), as the case may be. Unless otherwise specified on the face hereof, interest payments for this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or any redemption or repayment date) does not fall on a Business Day, payment of interest, premium, if any, or principal otherwise payable on such date need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or on the Maturity Date (or any redemption or repayment date), and no interest on such payment shall accrue for the period from and after the Interest Payment Date or the Maturity Date (or any redemption or repayment date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct, unsecured obligations of the Issuer and rank without preference or priority among themselves and pari passu with all other existing and future unsecured and unsubordinated indebtedness of the Issuer, subject to certain statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without interest coupons attached (a "Global Bearer Note"). The beneficial owner of all or a portion of this Note may exchange its interest in this Note upon not less than 30 days' written notice to the Principal Paying Agent through the relevant clearing system, in whole, for Notes in bearer form with interest coupons, if any, attached (the "Definitive Bearer Notes," and, together with the Global Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this Note, at the beneficial owner's option, in whole or from time to time in part, for Notes in fully registered form without coupons (the "Registered Notes"), in each case, in the minimum denominations set forth on the face hereof or any amount in excess thereof which is an integral multiple of 1,000 units of the Specified Currency set forth on the face hereof. Interests in this Note shall also be exchanged by the Issuer in whole, but not in part, for Definitive Bearer Notes, which shall be serially numbered, with coupons, if any, attached (or, if indicated on the face of this Note, at the beneficial owner's option, for Registered Notes), of any authorized denominations if (i) this Note is accelerated following an Event of Default or (ii) either Euroclear or Clearstream or any other relevant clearing system is closed for business for a continuous period of fourteen days (other than by reason of public holidays) or announces an intention to cease business permanently or in fact does so. The Issuer shall give notice to the Principal Paying Agent promptly following any such acceleration or upon learning of any such closure. Any exchanges referred to above shall be made at the office of the Principal Paying Agent, or, in the case of Registered Notes, at the office of the transfer agent for the Registered Notes in London, which transfer agent will initially be Bankers Trust Company, upon compliance with any procedures set forth in, or established pursuant to, the Indenture; provided, however, that the Issuer shall not be required (i) to exchange this Note for a period of fifteen calendar days preceding the first publication or other transmission, if applicable, of a notice of redemption of all or any portion hereof or (ii) to exchange any portion of this Note selected for redemption or surrendered for optional repayment, except that such portion of this Note may be exchanged for a Registered Note of like tenor; provided that such Registered Note shall be simultaneously surrendered for redemption or repayment, as the case may be; and provided, further, that if a Registered Note is issued in exchange for any portion of this Note after the close of business at the office of the Principal Paying Agent on any record date (whether or not a Business Day) for the payment of interest on such Registered Note and before the opening of business at such office on the relevant Interest Payment Date, any interest will not be
payable on such Interest Payment Date in respect of such Registered Note, but will be payable on such Interest Payment Date only to the holder of this Note. Upon exchange of this Note in whole for a Definitive Bearer Note or Definitive Bearer Notes, or in whole or in part for a Registered Note or Registered Notes, the Principal Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the reduction of the principal amount hereof by an amount equal to the aggregate principal amount of such Definitive Bearer Note or Definitive Bearer Notes, or such Registered Note or Registered Notes, whereupon the principal amount hereof shall be reduced for all purposes by the amount so exchanged and noted. All such exchanges of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The date of any Note delivered upon any exchange of this Note shall be such that no gain or loss of interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged for Definitive Bearer Notes in accordance with the procedures set forth in the following two sentences as soon as practicable after (i) the first beneficial owner of an interest in this Note exchanges its interest for a Definitive Bearer Note, (ii) the Issuer gives notice to the Principal Paying Agent of an acceleration of the Note or (iii) either Euroclear or Clearstream or any other relevant clearing system is closed for business for a continuous period of fourteen days (other than by reason of public holidays) or announces an intention to cease business permanently or in fact does so. In the event of any exchange of interests in this Note for a Definitive Bearer Note, a common depositary located outside the United States (the "common depositary") holding this Note for Euroclear Bank, as operator of the Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe anonyme ("Clearstream, Luxembourg"), and/or any other relevant clearing system (including Societe Interprofessionelle pour la Compensation des Valeurs Mobilieres ("SICOVAM")) shall instruct the Principal Paying Agent regarding the aggregate principal amount of Definitive Bearer Notes and the denominations of such Definitive Bearer Notes that must be authenticated and delivered to each relevant clearing system in exchange for this Note. Thereafter, the Principal Paying Agent, acting solely in reliance on such instructions, shall, upon surrender to it of this Note and subject to the conditions in the preceding paragraph, authenticate and deliver Definitive Bearer Notes in exchange for this Note in accordance with such instructions and shall cause Schedule A of this Note to be endorsed to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of this Note. Nothing in this paragraph shall prevent the further exchange of Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that this Note may be transferred only to a common depositary outside the United States for the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant clearing system or to a nominee of such a depositary.
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall be delivered to the Trustee, the Issuer in its discretion may execute a new Note of like tenor in
exchange for this Note, but, in the case of any destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee and the Issuer that this Note was destroyed or lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
If the face hereof indicates that this Note is subject to "Modified Payment upon Acceleration or Redemption," then (i) if the principal hereof is declared to be due and payable as described in the preceding paragraph, the amount of principal due and payable with respect to this Note shall be limited to the aggregate principal amount hereof multiplied by the sum of the Issue Price specified on the face hereof (expressed as a percentage of the aggregate principal amount) plus the original issue discount amortized from the Interest Accrual Date to the date of declaration, which amortization shall be calculated using the "interest method" (computed in accordance with generally accepted accounting principles in effect on the date of declaration), (ii) for the purpose of any vote of securityholders taken pursuant to the Indenture prior to the acceleration of payment of this Note, the principal amount hereof shall equal the amount that would be due and payable hereon, calculated as set forth in clause (i) above, if this Note were declared to be due and payable on the date of any such vote and (iii) for the purpose of any vote of securityholders taken pursuant to the Indenture following the acceleration of payment of this Note, the principal amount hereof shall equal the amount of principal due and payable with respect to this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the Issuer at any time prior to maturity, upon the giving of a notice of redemption as described below, at a redemption price equal to 100% of the principal amount hereof, together with accrued interest to the date fixed for redemption (except that if this Note is subject to "Modified Payment upon Acceleration or Redemption," such redemption price would be limited to the aggregate principal amount hereof multiplied by the sum of the Issue Price specified on the face hereof (expressed as a percentage of the aggregate principal amount) plus the original issue discount amortized from the Interest Accrual Date to the date of redemption, which amortization shall be calculated using the "interest method" (computed in accordance with generally accepted accounting principles in effect on the date of redemption) (the "Amortized Amount")), if the Issuer determines that, as a result of any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of the United States or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment becomes effective on or after the Original Issue Date hereof, the Issuer has or will become obligated to pay Additional Amounts (as defined below) with respect to this Note as described below. Prior to the giving of any Notice of redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a certificate stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred, and (ii) an opinion of independent counsel satisfactory to the Trustee to such effect based on such statement of facts; provided that no such notice of
redemption shall be given earlier than 60 days prior to the earliest date on which the Issuer would be obligated to pay such Additional Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60 days prior to the date fixed for redemption or within the Redemption Notice Period specified on face hereof, which date and the applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United States by the Issuer or any Paying Agent of principal, premium or interest due in respect of this Note would, under any present or future laws or regulations of the United States, be subject to any certification, identification or other information reporting requirement of any kind, the effect of which is the disclosure to the Issuer, any Paying Agent or any governmental authority of the nationality, residence or identity of a beneficial owner of this Note who is a United States Alien (as defined below) (other than such a requirement (a) that would not be applicable to a payment made by the Issuer or any Paying Agent (i) directly to the beneficial owner or (ii) to a custodian, nominee or other agent of the beneficial owner, or (b) that can be satisfied by such custodian, nominee or other agent certifying to the effect that such beneficial owner is a United States Alien; provided that in each case referred to in clauses (a)(ii) and (b) payment by such custodian, nominee or agent to such beneficial owner is not otherwise subject to any such requirement), the Issuer shall redeem this Note, as a whole, at a redemption price equal to 100% of the principal amount thereof (except that if this Note is subject to "Modified Payment upon Acceleration or Redemption," such redemption price would be limited to the aggregate principal amount hereof multiplied by the sum of the Issue Price specified on the face hereof (expressed as a percentage of the aggregate principal amount) plus the Amortized Amount), together with accrued interest to the date fixed for redemption, or, at the election of the Issuer if the conditions of the next succeeding paragraph are satisfied, pay the additional amounts specified in such paragraph. The Issuer shall make such determination and election as soon as practicable, shall promptly notify the Trustee thereof and shall publish (or transmit, as applicable) prompt notice thereof (the "Determination Notice") stating the effective date of such certification, identification or other information reporting requirements, whether the Issuer will redeem this Note or has elected to pay the additional amounts specified in the next succeeding paragraph, and (if applicable) the last date by which the redemption of this Note must take place, as provided in the next succeeding sentence. If the Issuer redeems this Note, such redemption shall take place on such date, not later than one year after the publication of the Determination Notice, as the Issuer shall elect by notice to the Trustee at least 60 days prior to the date fixed for redemption or at least 30 days prior to the last day of the Redemption Notice Period specified on the face hereof. Notice of such redemption of this Note will be given to the holder of this Note not more than 60 nor less than 30 days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof. Such redemption notice shall include a statement as to the last date by which this Note to be redeemed may be exchanged for Registered Notes. Notwithstanding the foregoing, the Issuer shall not so redeem this Note if the Issuer shall subsequently determine, not less than 30 days prior to the date fixed for redemption or prior to the last day of the Redemption Notice Period specified on the face hereof, that subsequent payments would not be subject to any such certification, identification or other information reporting requirement, in which case the Issuer shall publish (or
transmit, as applicable) prompt notice of such determination and any earlier redemption notice shall be revoked and of no further effect. The right of the holder of this Note to exchange this Note for Registered Notes pursuant to the provisions of this paragraph will terminate at the close of business of the Principal Paying Agent on the fifteenth day prior to the date fixed for redemption, and no further exchanges of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other information reporting requirements referred to in the preceding paragraph would be fully satisfied by payment of a backup withholding tax or similar charge, the Issuer may elect by notice to the Trustee to pay as additional amounts such amounts as may be necessary so that every net payment made outside the United States following the effective date of such requirements by the Issuer or any Paying Agent of principal, premium or interest due in respect of this Note of which the beneficial owner is a United States Alien (but without any requirement that the nationality, residence or identity of such beneficial owner be disclosed to the Issuer, any Paying Agent or any governmental authority, with respect to the payment of such additional amounts), after deduction or withholding for or on account of such backup withholding tax or similar charge (other than a backup withholding tax or similar charge that (i) would not be applicable in the circumstances referred to in the second parenthetical clause of the first sentence of the preceding paragraph, or (ii) is imposed as a result of presentation of this Note for payment more than 15 days after the date on which such payment becomes due and payable or on which payment thereof is duly provided for, whichever occurs later), will not be less than the amount provided for in this Note to be then due and payable. In the event the Issuer elects to pay any additional amounts pursuant to this paragraph, the Issuer shall have the right to redeem this Note as a whole at any time pursuant to the applicable provisions of the immediately preceding paragraph and the redemption price of this Note will not be reduced for applicable withholding taxes. If the Issuer elects to pay additional amounts pursuant to this paragraph and the condition specified in the first sentence of this paragraph should no longer be satisfied, then the Issuer will redeem this Note as a whole, pursuant to the applicable provisions of the immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set forth below, pay such additional amounts (the "Additional Amounts") to the holder of this Note who is a United States Alien as may be necessary in order that every net payment of the principal of and interest on this Note and any other amounts payable on this Note, after withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the United States (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided for in this Note to be then due and payable. The Issuer will not, however, be required to make any payment of Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge that would not have been so imposed but for (i) the existence of any present or former connection between such holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder, if such holder is an estate, a trust, a partnership or a corporation) and the United States and its possessions, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or
being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein or (ii) the presentation by the holder of this Note for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason of such holder's past or present status as a personal holding company or foreign personal holding company or controlled foreign corporation or passive foreign investment company with respect to the United States or as a corporation which accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is payable otherwise than by withholding from payments on or in respect of this Note;
(e) any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of, or interest on, this Note, if such payment can be made without such withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of this Note, if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by reason of such holder's past or present status as the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock entitled to vote of the Issuer or as a direct or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note to a United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of this Note.
The Indenture provides that (a) if an Event of Default (as defined in the Indenture) due to the default in payment of principal of, premium, if any, or interest on, any series of debt securities issued under the Indenture, including the series of Global Medium-Term Notes of which this Note forms a part, or due to the default in the performance or breach of any other covenant or warranty of the Issuer applicable to the debt securities of such series but not applicable to all outstanding debt securities issued under the Indenture, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of the debt securities of each affected series (voting as a single class) may then declare the principal of all debt securities of all such series and interest accrued thereon to be due and payable immediately and (b) if an Event of Default due to a default in the performance of any other of the covenants or agreements in the Indenture applicable to all outstanding debt securities issued thereunder, including this Note, or due to certain events of bankruptcy or insolvency of the Issuer, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of all debt securities issued under the Indenture then outstanding (treated as one class) may declare the principal of all such debt securities and interest accrued thereon to be due and payable immediately, but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal (or premium, if any) or interest on such debt securities) by the holders of a majority in principal amount of the debt securities of all affected series then outstanding.
The Indenture permits the Issuer and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of the debt
securities of all series issued under the Indenture then outstanding and
affected (voting as one class), to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each
series so affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption or repayment
thereof, or change the currency of payment thereof, or modify or amend the
provisions for conversion of any currency into any other currency, or modify or
amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms thereof), or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected; or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture.
Except as set forth below, if the principal of, premium, if any, or interest on, this Note is payable in a Specified Currency other than U.S. dollars and such Specified Currency is not available to the Issuer for making payments hereon due to the imposition of exchange controls or other circumstances beyond the control of the Issuer or is no longer used by the government of the country issuing such currency or for the settlement of transactions by public institutions within the international banking community, then the Issuer will be entitled to satisfy its obligations to the holder of this Note by making such payments in U.S. dollars on the basis of the Market Exchange
Rate (as defined below) on the date of such payment or, if the Market Exchange Rate is not available on such date, as of the most recent practicable date provided, however, that if the euro has been substituted for such Specified Currency, the Issuer may at its option (or shall, if so required by applicable law) without the consent of the holder of this Note effect the payment of principal of, premium, if any, or interest on, any Note denominated in such Specified Currency in euro in lieu of such Specified Currency in conformity with legally applicable measures taken pursuant to, or by virtue of, the treaty establishing the European Community (the "EC"), as amended by the treaty on European Union (as so amended, the "Treaty"). Any payment made under such circumstances in U.S. dollars or euro where the required payment is in an unavailable Specified Currency will not constitute an Event of Default. If such Market Exchange Rate is not then available to the Issuer or is not published for a particular Specified Currency, the Market Exchange Rate will be based on the highest bid quotation in The City of New York received by the Exchange Rate Agent (as defined below) at approximately 11:00 a.m., New York City time, on the second Business Day preceding the date of such payment from three recognized foreign exchange dealers (the "Exchange Dealers") for the purchase by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for settlement on the payment date, in the aggregate amount of the Specified Currency payable to those holders or beneficial owners of Notes and at which the applicable Exchange Dealer commits to execute a contract. One of the Exchange Dealers providing quotations may be the Exchange Rate Agent unless the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are not available, the Exchange Rate Agent shall determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be [ ], unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest on this Note as herein provided. If this Note is listed on the London Stock Exchange Limited and such Exchange so requires, the Issuer shall maintain a Paying Agent in London. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such
moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the holder of this Note as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this Note for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close (x) in The City of New York or in The City of London or (y) if this Note is denominated in a Specified Currency other than U.S. dollars, Australian dollars or euro, in the principal financial center of the country of the Specified Currency, or (z) if this Note is denominated in Australian dollars, in Sydney and (b) if this Note is denominated in euro, that is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a "TARGET Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar buying rate in The City of New York for cable transfers of the Specified Currency indicated on the face hereof published by the Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to the holders of the Notes to be given by publication in an authorized newspaper in the English language and of general circulation in the Borough of Manhattan, The City of New York, and London or, if publication in London is not practical, in an English language newspaper with general circulation in Western Europe; provided that notice may be made, at the option of the Issuer, through the customary notice provisions of the clearing system or systems through which beneficial interests in this Note are owned. Such Notices will be deemed to have been given on the date of such publication (or other transmission, as applicable) or, if published in such newspapers on different dates, on the date of the first such publication;
(d) the term "United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the Optional Repayment Date, to the undersigned at
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
_________; and specify the denomination or denominations (which shall not be
less than the minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not being
repaid): ________.
Dated:__________________________ _______________________________________
[SCHEDULE A6]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is ______________. The following (A) exchanges of (i) portions of this Note for Definitive Bearer Notes or Registered Notes and (ii) portions of a Temporary Global Bearer Note for an interest in this Note or (B) (x) redemptions at the option of the Issuer or (y) repayments at the option of the holder have been made:
Principal Amount Principal Amount Principal Amount
Date of Exchange, Exchanged Exchanged For Exchanged for
Redemption or From Temporary Definitive Definitive
Payment Global Notes Bearer Notes Registered Notes
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[table continued]
Remaining Principal
Amount Outstanding
Principal Amount Principal Amount Following Such
Redeemed at the Repaid at the Exchange, Notation Made by or
Option of the Option of the Redemption or on Behalf of
Issuer Holder Repayment Paying Agent
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6 Applies if this Note is not issued as part of, or in relation to, a Unit.
[SCHEDULE A-1]7
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The following
(A) exchanges of the principal amount of Notes indicated below for the same
principal amount of Notes to be represented by (i) Definitive Bearer Notes or
(ii) Definitive Registered Notes or [(iii) a Global Bearer Note that has been
separated from a Unit (a "Separated Note")]8, (B) exchanges of the principal
amount of Notes that had been represented by (i) a Temporary Global Bearer Note
[or (ii) a Global Bearer Note that is part of a Unit (an "Attached Unit
Note")]9 for an interest in this Note and (C) reductions of the principal
amount of this Note as a result of (i) cancellation upon the application of
such amount to the settlement of Purchase Contracts or the exercise of
Universal Warrants (ii) redemption at the option of the Issuer or (iii)
repayments at the option of the Holder have been made:
Principal Principal
Date of Amount [Principal [Principal Amount
Exchange, Exchanged Amount Amount Exchanged
Cancellation From Exchanged Exchanged For
Redemption, Temporary from an for Definitive
or Global Attached Separated Bearer
Repayment Notes Unit Note]10 Note]9 Notes
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[table continued]
Remaining
Principal
Principal Amount
Amount Principal Principal Outstanding Notation
Exchanged Amount Amount Following such Made by
For Redeemed Repaid Exchange, or on
Definitive at the at the Principal Cancellation behalf of
Registered option of option of Amount Redemption or Paying
Notes the Issuer the Holder Cancelled Repayment Agent
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8 Applies only if this Note is attached to a Unit.
9 Applies only if this Note has been separated from a Unit.
EXHIBIT 4(b)(4)
[FORM OF FACE OF SECURITY]
TEMPORARY GLOBAL FIXED RATE BEARER NOTE
BEARER BEARER
No. TGFX [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION
4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE WITH
REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]2
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR AN INTEREST IN A PERMANENT GLOBAL BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN
2 Applies only if this Note is denominated in pounds sterling and matures more than one year from and including the Original Issue Date.
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
J.P. MORGAN CHASE & CO.
GLOBAL MEDIUM-TERM NOTE, SERIES B
(Fixed Rate)
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ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
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INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE(S): MENT DATE(S):
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SPECIFIED CURRENCY: ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA
PERCENTAGE TIONS:
REDUCTION:
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EXCHANGE RATE REDEMPTION NOTICE CLEARSTREAM NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON
ACCELERATION OR
REDEMPTION
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EXCHANGE FOR COMMON CODE: If yes, state issue Price:
REGISTERED NOTES:
[NO]
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OTHER PROVISIONS: ORIGINAL YIELD TO ISIN: ORIGINAL YIELD TO
MATURITY: MATURITY:
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|
J.P. Morgan Chase & Co., a Delaware corporation (together with its successors and assigns, the "Issuer"), for value received, hereby promises to pay to bearer, upon surrender hereof, the principal amount specified in Schedule A hereto, on the Maturity Date specified above (except to the extent previously redeemed or repaid) and to pay interest thereon at the Interest Rate per annum specified above from and including the Interest Accrual Date specified above until but excluding the date the principal amount is paid or duly made available for payment (except as provided below), weekly, monthly, quarterly, semi-annually or annually in arrears on the Interest Payment Dates specified above in each year commencing on the Interest Payment Date next succeeding the Interest Accrual Date specified above, and at maturity (or on any redemption or repayment date); provided, however, that if the Interest Accrual Date occurs fifteen days or less prior to the first Interest Payment Date occurring after the Interest Accrual Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including the Interest Accrual Date, until but excluding the date the principal amount hereof has been paid or duly made available for payment. Upon any payment of interest on this Note, the Principal Paying Agent (as defined below) shall cause Schedule A of this Note to be endorsed to reflect such payment. No payment on this Note will be made at any office or agency of the Issuer in the United States or by check mailed to an address in the United States (as defined below) or by wire transfer to an account maintained by the holder of this Note with a bank in the United States except as may be permitted under United States federal tax laws and regulations then in effect without adverse tax consequences to the Issuer. Notwithstanding the foregoing, in the event that payment in U.S. dollars of the full amount payable on this Note at the offices of all Paying Agents (as defined below) would be illegal or effectively precluded as a result of exchange controls or similar restrictions, payment on this Note will be made by a paying agency in the United States, if such paying agency, under applicable law and regulations, would be able to make such payment. Notwithstanding any other provision of this Note, no payment of principal or interest shall be made on any portion of this Note unless there shall have been delivered to the Principal Paying Agent a certificate substantially in the form of Exhibit A hereto with respect to the portion of this Note with respect to which such principal or interest is to be paid. Such certificate shall have been delivered to the Principal Paying Agent by Euroclear Bank, as operator of the Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe anonyme ("Clearstream, Luxembourg"), and/or any other relevant clearing system (including Societe Interprofessionelle pour la Compensation des Valeurs Mobilieres and the Intermediaires financiers habilites authorized to maintain accounts therein ("SICOVAM")) as the case may be, and shall be based on a certificate substantially in the form of Exhibit B hereto provided to the Euroclear Operator, Cedelbank and/or any other relevant clearing system, as the case may be, by those of its account holders who are to receive such payment of principal or interest.
This Note is issued in temporary global bearer form and represents all or a portion of a duly authorized issue of Global Medium-Term Notes, Series B (the "Notes"), issued under an Indenture, dated as of [ ], 2001, between the Issuer and Bankers Trust Company, as Trustee (the "Trustee," which term includes any successor trustee under the Indenture) (as may be amended or supplemented from time to time, the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed Bankers Trust Company, as its principal paying agent for the Notes (the "Principal Paying Agent," which term includes any additional or successor Principal Paying Agent appointed by the Issuer).
Except as otherwise provided herein, this Note is governed by the terms and conditions of the Permanent Global Fixed Rate Bearer Note (the "Permanent Global Bearer Note") to be issued in exchange for this Note, which terms and conditions are hereby incorporated by reference herein mutatis mutandis and shall be binding on the Issuer and the holder hereof as if fully set forth herein. The form of the Permanent Global Bearer Note is attached hereto.
This Note is exchangeable in whole or from time to time in part on or after the Exchange Date (as defined below) for an interest (equal to the principal amount of the portion of this Note being exchanged) in a single Permanent Global Bearer Note upon the request of the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant clearing system, acting on behalf of the owner of a beneficial interest in this Note, to the Principal Paying Agent upon delivery to the Principal Paying Agent of a certificate substantially in the form of Exhibit A hereto with respect to the portion of this Note to be exchanged. Such certificate shall have been delivered to the Principal Paying Agent by the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant clearing system, as the case may be, and shall be based on a certificate substantially in the form of Exhibit B hereto provided to the Euroclear Operator, Clearstream and/or any other relevant clearing system, as the case may be, by those of its account holders having an interest in the portion hereof to be exchanged. Notwithstanding the foregoing, if this Note is subject to a tax redemption as described on the reverse of the Permanent Global Bearer Note attached hereto, interests in this Note may be exchanged for interests in a permanent Global Bearer Note on and after such redemption date as if such redemption date had been the Exchange Date, subject to receipt of the certificates described in the preceding sentence. Upon exchange of any portion of this Note for an interest in a Permanent Global Bearer Note, the Principal Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount being so exchanged. Except as otherwise provided herein, until exchanged for a Permanent Global Bearer Note, this Note shall in all respects be entitled to the same benefits under the Indenture as a duly authenticated and delivered Permanent Global Bearer Note.
As used herein:
(a) the term "Exchange Date" means the date that is 40 days after the date on which the Issuer receives the proceeds of the sale of this Note (the "Closing Date"), provided that if an interest represented by this Note is held by a manager participating in the distribution of the tranche of Notes of which this Note forms a part, as part of an unsold allotment or subscription more than 40 days after the Closing Date for this Note, the Exchange Date with respect to such interest shall be the day after the date such interest is sold by such manager, all as determined and notified to the Trustee by the Issuer.
(b) the term "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: J.P. MORGAN CHASE & CO.
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY
as Trustee
By:
------------------------------------
Authorized Officer
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SCHEDULE A
SCHEDULE OF EXCHANGES
The Initial Principal Amount of this Note is ______________. The following payments of interest and exchanges of a part of this Note for an interest in a single Permanent Global Bearer Note have been made:
Principal Amount Remaining Principal
Exchanged for Amount Outstanding Notation Made
Date of Exchange Permanent Following by or on Behalf of
or Interest Payment Payment of Interest Global Bearer Note Such Exchange Principal Paying Agent
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EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CLEARSTREAM, LUXEMBOURG
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
J.P. Morgan Chase & Co.
Global Medium-Term Notes, Series B
Represented by Temporary Global Note No __.
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our "Member Organizations") substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro Distribution Agreement relating to such Notes, as of the date hereof, __________ principal amount of the above-captioned Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations, an estate the income of which is subject to United States Federal income taxation regardless of its source or a trust if both (a) a court within the United States is able to exercise primary supervision over the administration of the trust and (b) one or more United States persons have the authority to control all substantial decisions of the trust ("United States persons"), (ii) is owned by United States persons that are (a) foreign branches of United States financial institutions (as defined in the applicable U.S. Treasury Regulations) ("financial institutions") purchasing for their own account or for resale, or (b) United States persons who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and such United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, seeking to collect principal or interest with respect to) any portion of the temporary global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith (or, if relevant, with respect to which principal or interest is being requested) are no longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated: _______________, 20__
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
EUROCLEAR BANK,
as Operator of the Euroclear System
[CLEARSTREAM BANKING, SOCIETE ANONYME]
[OTHER]
Title:
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CLEARSTREAM, LUXEMBOURG
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
J.P. Morgan Chase & Co.
Global Medium-Term Notes, Series B
Represented by Temporary Global Note No __.
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (as
defined in the applicable U.S. Treasury Regulations) ("financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the Issuer or the Issuer's agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S.
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in the applicable
U.S. Treasury Regulations), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) such financial
institution has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to $___________ of such interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated: _______________, 20__
[To be dated no earlier than the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[NAME OF ACCOUNT HOLDER]
EXHIBIT 4(b)(5)
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL FLOATING RATE BEARER NOTE
BEARER BEARER
No. PGFL _________
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION
4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE WITH
REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]2
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN
2 Applies only if this Note is denominated in pounds sterling and matures more than one year from and including the Original Issue Date.
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
J.P. MORGAN CHASE & CO.
GLOBAL MEDIUM-TERM NOTE, SERIES B
(Floating Rate)
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ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
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MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
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BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
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INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
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SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
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SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
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EUROCLEAR NO: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
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CLEARSTREAM NO: ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
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COMMON CODE: OPTIONAL REPAYMENT
DATE(S):
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ISIN: REDEMPTION NOTICE PERIOD:3 MINIMUM DENOMINATIONS:
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REPORTING SERVICE: EXCHANGE FOR REGISTERED
NOTES: [NO]
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OTHER PROVISIONS:
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J.P. Morgan Chase & Co., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to bearer, upon surrender hereof, the principal amount specified in
[Schedule A hereto]4 [Schedule A-1 hereto]5, on the Maturity Date specified
above (except to the extent previously redeemed or repaid) and to pay interest
thereon, from and including the Interest Accrual Date specified above at a rate
per annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and on and after
4 Applies if this Note is not issued as part of, or in relation to, a Unit.
5 Applies if this Note is issued as part of, or in relation to, a Unit.
at a rate per annum determined in accordance with the provisions specified on the reverse hereof until but excluding the date such principal amount is paid or duly made available for payment. The Issuer will pay interest in arrears monthly, quarterly, semiannually or annually as specified above as the Interest Payment Period on each Interest Payment Date (as specified above), commencing with the first Interest Payment Date next succeeding the Interest Accrual Date specified above, and on the Maturity Date specified above (or any redemption or repayment date); provided, however, that if the Interest Accrual Date occurs fifteen days or less prior to the first Interest Payment Date occurring after the Interest Accrual Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date; and provided, further, that if an Interest Payment Date (other than the Maturity Date or redemption or repayment date) would fall on a day that is not a Business Day, as defined on the reverse hereof, such Interest Payment Date shall be the following day that is a Business Day, except that if the Base Rate specified above is LIBOR and such next Business Day falls in the next calendar month, such Interest Payment Date shall be the immediately preceding day that is a Business Day; and provided, further, that if the Maturity Date or redemption or repayment date would fall on a day that is not a Business Day, the payment of principal, premium, if any, and interest shall be made on the next succeeding Business Day and no interest shall accrue for the period from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including the Interest Accrual Date, until but excluding the date the principal hereof has been paid or duly made available for payment (except as provided below). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions described herein, be paid to the holder of this Note at the office or agency of the Principal Paying Agent (this and certain other capitalized terms used herein are defined on the reverse of this Note) or at the office or agency of such other paying agents outside the United States as the Issuer may determine for that purpose (each, a "Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest due at maturity (or on any redemption or repayment date) will be made upon presentation and surrender of this Note at the office or agency of the Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this Note will be made in the Specified Currency indicated above, except as provided on the reverse hereof. If this Note is denominated in U.S. dollars, any payment of the principal of, premium, if any, and interest on this Note will be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Such payments on this Note will be made either by a check mailed to an address outside the United States furnished by the payee or, at the option of the payee and subject to applicable laws and regulations and the procedures of the Paying Agent, by wire transfer of immediately available funds to an account maintained by the payee with a bank located outside the United States if appropriate wire transfer instructions have been received by the Paying Agent not less than 15 calendar days prior to the applicable payment date.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of the full amount payable on this Note at the offices of all Paying Agents would be illegal or effectively precluded as a result of exchange controls or similar restrictions, payment on this Note will be made by a paying agency in the United States, if such paying agency, under applicable law and regulations, would be able to make such payment. If this Note is denominated in a Specified Currency other than U.S. dollars, then, except as provided on the reverse hereof, payment of the principal of and premium, if any, and interest on this Note will be made in such Specified Currency either by a check drawn on a bank outside the United States or, at the option of the payee and subject to applicable laws and regulations and the procedures of the Paying Agent, by wire transfer of immediately available funds to an account maintained by the payee with a bank located outside the United States.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: J.P. MORGAN CHASE & CO.
By:
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Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY
as Trustee
By:
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Authorized Officer
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[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Global Medium-Term Notes,
Series B, having maturities more than nine months from the date of issue (the
"Notes") of the Issuer. The Notes are issuable under an Indenture, dated as of
[ ], 2001, between the Issuer and Bankers Trust Company, as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture) (as
may be amended or supplemented from time to time, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered. The
Issuer has appointed Bankers Trust Company, as its principal paying agent for
the Notes (the "Principal Paying Agent," which term includes any additional or
successor Principal Paying Agent appointed by the Issuer). The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Indenture. To the extent not inconsistent herewith, the terms of the Indenture
are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents that it is not an authorized institution (for purposes of the United Kingdom Banking Act 1987) nor a European authorized institution as defined by Regulation 3 of the Banking Co-ordination (Second Council Directive) Regulations 1992 and repayment of the principal of, and payment of any interest or premium on, this Note has not been guaranteed, that it has complied with its obligations under the listing rules of the London Stock Exchange Limited (the "Rules") and that, since the last publication in compliance with the Rules of information about it, it, having made all reasonable inquiries, has not become aware of any change in circumstances which could reasonably be regarded as significantly and adversely affecting its ability to meet its obligations in respect of the Notes as they fall due.
Unless otherwise indicated on the face hereof, this Note will not be subject to any sinking fund and, unless otherwise indicated on the face hereof in accordance with the provisions of the following two paragraphs and except as set forth below, will not be redeemable or subject to repayment at the option of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or in part at the option of the Issuer on or after the Initial Redemption Date specified on the face hereof on the terms set forth on the face hereof, together with interest accrued and unpaid hereon to the date of redemption (except as indicated below). If this Note is subject to "Annual Redemption Percentage Reduction," the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date by the Annual Redemption Percentage Reduction specified on the face hereof until the redemption price of this Note is 100% of the principal amount hereof, together with interest accrued and unpaid hereon to the date of redemption (except as provided below). Notice of redemption shall be mailed to the holders of the Notes designated for redemption who have filed their names and addresses with the Principal Paying Agent, not less than 30 nor more than 60 days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, subject to all the conditions and provisions of the Indenture. Notice of redemption to all other holders of Notes shall be given in the manner set forth in "Notices" as defined below, and, if by publication, shall be given once in each of the three successive calendar weeks, the first publication to be not less than 30 nor more than 60 days prior to the date set for redemption or within the Redemption Notice Period specified on the face hereof. In the event of redemption of this Note in part only, the Principal Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of this Note so redeemed, whereupon the principal amount hereof shall be reduced for all purposes by the amount so redeemed and noted.
If so indicated on the face of this Note, this Note will be subject to repayment at the option of the holder on the Optional Repayment Date or Dates specified on the face hereof on the terms set forth herein. On any Optional Repayment Date, this Note will be repayable in whole or in part in increments of $1,000 or, if this Note is denominated in a Specified Currency other than U.S. dollars, in increments of 1,000 units of such Specified Currency (provided that any remaining principal amount hereof shall not be less than the minimum authorized denomination hereof) at the option of the holder hereof at a price equal to 100% of the principal amount to be repaid, together with interest accrued and unpaid hereon to the date of repayment (except as provided below). For this Note to be repaid at the option of the holder hereof, the Principal Paying Agent must receive at its office in London, at least 15 but not more than 30 days prior to the date of repayment, this Note with the form entitled "Option to Elect Repayment" below duly completed, or a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange, or the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States, Western Europe or Japan setting forth the principal amount of the Note, the principal amount of the Note to be repaid, the certificate number or a description of the tenor and terms of this Note, a statement that the Option to Elect Repayment is being exercised and a guarantee that this Note to be repaid, together with the duly completed form entitled Option to Elect Repayment, will be received by the principal paying agent not later than the fifth Business Day after the date of that telegram, telex, facsimile transmission or letter. However, the telegram, telex, facsimile transmission or letter shall only be effective if this Note and an Option to Elect Repayment form duly completed are received by the Paying Agent by the fifth Business Day after the date of such telegram, telex, facsimile transmission or letter. Exercise of such repayment option by the holder hereof shall be irrevocable. In the event of repayment of this Note in part only, the Principal Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of this Note so repaid, whereupon the principal amount hereof shall be reduced for all purposes by the amount so repaid and noted.
This Note will bear interest at the rate determined in accordance with the applicable provisions below by reference to the Base Rate shown on the face hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or minus the Spread, if any, or (ii) multiplied by the Spread Multiplier, if any, specified on the face hereof. Commencing with the Initial Interest Reset Date specified on the face hereof, the rate at which interest on this Note is payable shall be reset as of each Interest Reset Date specified on the face hereof (as used herein, the term "Interest
Reset Date" shall include the Initial Interest Reset Date). The determination of the rate of interest at which this Note will be reset on any Interest Reset Date shall be made on the Interest Determination Date (as defined below) pertaining to such Interest Reset Date. The Interest Reset Dates will be the Interest Reset Dates specified on the face hereof; provided, however, that the interest rate in effect for the period from the Interest Accrual Date to the Initial Interest Reset Date will be the Initial Interest Rate. If any Interest Reset Date would otherwise be a day that is not a Business Day (as defined below), such Interest Reset Date shall be postponed to the next succeeding day that is a Business Day, except that if the Base Rate specified on the face hereof is LIBOR and such Business Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to the CD Rate, Commercial Paper Rate, Federal Funds Rate and Prime Rate will be the second Business Day next preceding such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to LIBOR when the Index Currency is euros shall be the second TARGET Settlement Day preceding such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to LIBOR (other than for LIBOR Notes for which the Index Currency is euros) shall be the second London Banking Day preceding such Interest Reset Date except that the Interest Determination Date pertaining to an Interest Reset Date for a LIBOR Note for which the Index Currency is pounds sterling will be such Interest Reset Date. As used herein, "London Banking Day" means any day on which dealings in deposits in the Index Currency (as defined herein) are transacted in the London interbank market. The Interest Determination Date pertaining to an Interest Reset Date for Notes bearing interest calculated by reference to the Treasury Rate shall be the day of the week in which such Interest Reset Date falls on which Treasury bills normally would be auctioned; provided, however, that if as a result of a legal holiday an auction is held on the Friday of the week preceding such Interest Reset Date, the related Interest Determination Date shall be such preceding Friday; and provided, further, that if an auction shall fall on any Interest Reset Date, then the Interest Reset Date shall instead be the first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the "Calculation Date" pertaining to an Interest Determination Date will be the earlier of (i) the tenth calendar day after such Interest Determination Date or, if such day is not a Business Day, the next succeeding Business Day, or (ii) the Business Day preceding the applicable Interest Payment Date or Maturity Date (or, with respect to any principal amount to be redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face hereof is the "CD Rate," for any Interest Determination Date, the CD Rate with respect to this Note shall be the rate on that date for negotiable certificates of deposit having the Index Maturity specified on the face hereof as published by the Board of Governors of the Federal Reserve System in "Statistical Release H.15(519), Selected Interest Rates," or any successor publication of the Board of Governors of the Federal Reserve System ("H.15(519)") under the heading "CDs (Secondary Market)."
The following procedures shall be followed if the CD Rate cannot be determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m., New York City time, on the Calculation Date, the CD Rate shall be the rate on that Interest Determination Date set forth in the daily update of H.15(519), available through the world wide website of the Board of Governors of the Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any successor site or publication ("H.15 Daily Update") for the Interest Determination Date for certificates of deposit having the Index Maturity specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519) or the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the Calculation Agent shall determine the CD Rate to be the arithmetic mean of the secondary market offered rates as of 10:00 a.m., New York City time, on that Interest Determination Date of three leading nonbank dealers in negotiable U.S. dollar certificates of deposit in The City of New York selected by the Calculation Agent (after consultation with the Issuer) for negotiable certificates of deposit of major United States money center banks of the highest credit standing in the market for negotiable certificates of deposit with a remaining maturity closest to the Index Maturity specified on the face hereof in an amount that is representative for a single transaction in that market at that time.
(iii) If the dealers selected by the Calculation Agent are not quoting as described in (ii) above, the CD Rate shall remain the CD Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
Determination of Commercial Paper Rate. If the Base Rate specified on the face hereof is the "Commercial Paper Rate," for any Interest Determination Date, the Commercial Paper Rate with respect to this Note shall be the Money Market Yield (as defined herein), calculated as described below, of the rate on that date for commercial paper having the Index Maturity specified on the face hereof, as that rate is published in H.15(519), under the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City time, on the Calculation Date, then the Commercial Paper Rate shall be the Money Market Yield of the rate on that Interest Determination Date for commercial paper of the Index Maturity specified on the face hereof as published in the H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation Date the rate is not yet published in either H.15(519) or the H.15 Daily Update, then the Calculation Agent shall determine the Commercial Paper Rate to be the Money Market Yield of the arithmetic mean of the offered rates
as of 11:00 a.m., New York City time, on that Interest Determination Date of three leading dealers of commercial paper in The City of New York selected by the Calculation Agent (after consultation with the Issuer) for commercial paper of the Index Maturity specified on the face hereof, placed for an industrial issuer whose bond rating is "AA," or the equivalent, from a nationally recognized statistical rating agency.
(iii) If the dealers selected by the Calculation Agent are not quoting as mentioned above, the Commercial Paper Rate for that Interest Determination Date shall remain the Commercial Paper Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a yield calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
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where "D" refers to the applicable per year rate for commercial paper quoted on a bank discount basis and expressed as a decimal and "M" refers to the actual number of days in the interest period for which interest is being calculated.
Determination of the Federal Funds Rates. If the Base Rate specified on the face hereof is the "Federal Funds Rate," for any Interest Determination Date, the Federal Funds Rate with respect to this Note shall be the rate on that date for federal funds as published in H.15(519) under the heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or any successor service, on page 120 or any other page as may replace page 120 on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City time, on the Calculation Date, the Federal Funds Rate shall be the rate on that Interest Determination Date as published in the H.15 Daily Update under the heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the Calculation Agent shall determine the Federal Funds Rate to be the arithmetic mean of the rates for the last transaction in overnight federal funds by each of three leading brokers of federal funds transactions in The City of New York selected by the Calculation Agent (after consultation with the Issuer) prior to 9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not quoting as mentioned above, the Federal Funds Rate relating to that Interest Determination Date shall remain the Federal Funds
Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
Determination of LIBOR. If the Base Rate specified on the face hereof is "LIBOR," LIBOR with respect to this Note shall be based on London interbank offered rate. The Calculation Agent shall determine "LIBOR" for each Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either: (a) if "LIBOR Reuters" is specified as the Reporting Service on the face hereof, the arithmetic mean of the offered rates for deposits in the Index Currency having the Index Maturity designated on the face hereof, commencing on the second London Banking Day immediately following that Interest Determination Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00 a.m., London time, on that Interest Determination Date, if at least two offered rates appear on the Designated LIBOR Page; except that if the specified Designated LIBOR Page, by its terms provides only for a single rate, that single rate shall be used; or (b) if "LIBOR Telerate" is specified as the Reporting Service on the face hereof, the rate for deposits in the Index Currency having the Index Maturity designated on the face hereof, commencing on the second London Banking Day immediately following that Interest Determination Date or, if pounds sterling is the Index Currency, commencing on that Interest Determination Date, that appears on the Designated LIBOR Page at approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is specified on the face hereof, or (b) no rate appears and the face hereof specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated LIBOR Page by its terms provides only for a single rate, then the Calculation Agent shall request the principal London offices of each of four major reference banks in the London interbank market, as selected by the Calculation Agent (after consultation with the Issuer) to provide the Calculation Agent with its offered quotation for deposits in the Index Currency for the period of the Index Maturity specified on the face hereof commencing on the second London Banking Day immediately following the Interest Determination Date or, if pounds sterling is the Index Currency, commencing on that Interest Determination Date, to prime banks in the London interbank market at approximately 11:00 a.m., London time, on that Interest Determination Date and in a principal amount that is representative of a single transaction in that Index Currency in that market at that time.
(iii) If at least two quotations are provided, LIBOR determined on that Interest Determination Date shall be the arithmetic mean of those quotations. If fewer than two quotations are provided, LIBOR shall be determined for the applicable Interest Reset Date as the arithmetic mean of the rates quoted at approximately 11:00 a.m., London time, or some other time specified on the face hereof, in the applicable principal financial center for the country of the Index Currency on that Interest Reset Date, by three major banks in that principal financial center selected by the Calculation Agent (after consultation with the Issuer) for loans in the Index Currency to leading European banks, having the Index Maturity specified on the face hereof and in a principal amount that is representative of a single transaction in that Index Currency in that market at that time.
(iv) If the banks so selected by the Calculation Agent are not quoting as described in (iii) above, LIBOR in effect for the applicable period shall be the same as LIBOR for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
The "Index Currency" means the currency specified on the face hereof as the currency for which LIBOR shall be calculated, or, if the euro is substituted for that currency, the Index Currency shall be the euro. If that currency is not specified on the face hereof, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either: (a) if LIBOR Reuters is designated
as the Reporting Service on the face hereof, the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency or its designated successor, or
(b) if LIBOR Telerate is designated as the Reporting Service on the face
hereof, the display on Bridge Telerate Inc., or any successor service, on the
page specified on the face hereof, or any other page as may replace that page
on that service, for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency, as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the face hereof is "Prime Rate," for any Interest Determination Date, the Prime Rate with respect to this Note shall be the rate on that date as published in H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York City time, on the Calculation Date, then the Prime Rate shall be the rate on that Interest Determination Date as published in H.15 Daily Update under the heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York City time, on the Calculation Date in either H.15(519) or the H.15 Daily Update, then the Calculation Agent shall determine the Prime Rate to be the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen USPRIME 1 Page for that Interest Determination Date, the Calculation Agent shall determine the Prime Rate to be the arithmetic mean of the Prime Rates quoted on the basis of the actual number of days in the year divided by 360 as of
the close of business on that Interest Determination Date by at least three major banks in The City of New York selected by the Calculation Agent (after consultation with the Issuer).
(iv) If the banks selected are not quoting as described in (iii) above, the Prime Rate shall remain the Prime Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor service, or any other page as may replace the USPRIME 1 Page on that service for the purpose of displaying prime rates or base lending rates of major United States banks.
Determination of Treasury Rate. If the Base Rate specified on the face hereof is "Treasury Rate," the Treasury Rate with respect to this Note shall be
(i) the rate from the Auction held on the applicable Interest Determination Date (the "Auction") of direct obligations of the United States ("Treasury Bills") having the Index Maturity specified on the face hereof as that rate appears under the caption "INVESTMENT RATE" on the display on Bridge Telerate, Inc., or any successor service, on page 56 or any other page as may replace page 56 on that service ( "Telerate Page 56") or page 57 or any other page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00 p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of the rate for the applicable Treasury Bills as published in the H.15 Daily Update, or other recognized electronic source used for the purpose of displaying the applicable rate, under the caption "U.S. Government Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by 3:00 p.m., New York City time, on the related Calculation Date, the Bond Equivalent Yield of the Auction rate of the applicable Treasury Bills, announced by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not announced by the United States Department of the Treasury, or if the Auction is not held, the Bond Equivalent Yield of the rate on the applicable Interest Determination Date of Treasury Bills having the Index Maturity specified on the face hereof published in H.15(519) under the caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by 3:00 p.m., New York City time, on the related Calculation Date, the rate on the applicable Interest Determination Date of the applicable Treasury Bills as published in H.15 Daily Update, or other recognized electronic source used for the purpose of displaying the applicable rate, under the caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by 3:00 p.m., New York City time, on the related Calculation Date, the rate on the applicable Interest Determination Date calculated by the Calculation Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 p.m., New York City time, on the applicable Interest Determination Date, of three primary United States government securities dealers, which may include the agent or its affiliates, selected by the Calculation Agent, for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity specified on the face hereof; or
(vii) if the dealers selected by the Calculation Agent are not quoting as described in (vi), the Treasury Rate for the immediately preceding Interest Reset Period, or, if there was no Interest Reset Period, the rate of interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = ------------- x 100
360 - (D x M)
|
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M" refers to the actual number of days in the interest period for which interest is being calculated.
Notwithstanding the foregoing, the interest rate hereon shall not be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any, specified on the face hereof. The Calculation Agent shall calculate the interest rate hereon in accordance with the foregoing on or before each Calculation Date. The interest rate on this Note will in no event be higher than the maximum rate permitted by New York law, as the same may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will provide to the holder hereof the interest rate hereon then in effect and, if determined, the interest rate that will become effective as of the next Interest Reset Date.
Interest payments on this Note will include interest accrued to but excluding the Interest Payment Dates or the Maturity Date (or any earlier redemption or repayment date), as the case may be. Accrued interest hereon shall be an amount calculated by multiplying the principal amount hereof shown on Schedule A hereto by an accrued interest factor. Such accrued interest factor shall be computed by adding the interest factor calculated for each day in the period for which interest is being paid. Unless otherwise specified on the face hereof, the interest factor for each such date shall be computed by dividing the interest rate applicable to such day (i) by 360 if the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate or LIBOR (except if the Index Currency is pounds sterling); (ii) by 365 if the Base Rate is LIBOR and the Index Currency is pounds
sterling; or (iii) by the actual number of days in the year if the Base Rate is the Treasury Rate. All percentages resulting from any calculation of the rate of interest on this Note will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (.0000001), with five one-millionths of a percentage point rounded upward, and all dollar amounts used in or resulting from such calculation on this Note will be rounded to the nearest cent (with one-half cent rounded upward). The interest rate in effect on any Interest Reset Date will be the applicable rate as reset on such date. The interest rate applicable to any other day is the interest rate from the immediately preceding Interest Reset Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder are direct, unsecured obligations of the Issuer and rank without preference or priority among themselves and pari passu with all other existing and future unsecured and unsubordinated indebtedness of the Issuer, subject to certain statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without interest coupons attached (a "Global Bearer Note"). The beneficial owner of all or a portion of this Note may exchange its interest in this Note upon not less than 30 days' written notice to the Principal Paying Agent through the relevant clearing system, in whole, for Notes in bearer form with interest coupons, if any, attached (the "Definitive Bearer Notes," and, together with the Global Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this Note, at the beneficial owner's option, in whole or from time to time in part, for Notes in fully registered form without coupons (the "Registered Notes"), in each case, in the minimum denominations set forth on the face hereof or any amount in excess thereof which is an integral multiple of 1,000 units of the Specified Currency set forth on the face hereof. Interests in this Note shall also be exchanged by the Issuer in whole, but not in part, for Definitive Bearer Notes, which shall be serially numbered, with coupons, if any, attached (or, if indicated on the face of this Note, at the beneficial owner's option, for Registered Notes) of any authorized denominations if (i) this Note is accelerated following an Event of Default or (ii) either Euroclear or Clearstream, Luxembourg or any other relevant clearing system is closed for business for a continuous period of fourteen days (other than by reason of public holidays) or announces an intention to cease business permanently or in fact does so. The Issuer shall give notice to the Principal Paying Agent promptly following any such acceleration or upon learning of any such closure. Any exchanges referred to above shall be made at the office of the Principal Paying Agent, or, in the case of Registered Notes, at the office of the transfer agent for the Registered Notes in London, which transfer agent will initially be Bankers Trust Company, upon compliance with any procedures set forth in, or established pursuant to, the Indenture; provided, however, that the Issuer shall not be required (i) to exchange this Note for a period of fifteen calendar days preceding the first publication or other transmission, if applicable, of a notice of redemption of all or any portion hereof or (ii) to exchange any portion of this Note selected for redemption or surrendered for optional repayment, except that such portion of this Note may be exchanged for a Registered Note of like tenor; provided that such Registered Note shall be simultaneously surrendered for redemption or repayment, as the case may be; and provided, further, that if a Registered Note is issued in exchange for any portion of this Note after the close of business at the office of the Principal Paying Agent on any record date (whether or not a Business Day) for the payment of interest on such Registered Note
and before the opening of business at such office on the relevant Interest Payment Date, any interest will not be payable on such Interest Payment Date in respect of such Registered Note, but will be payable on such Interest Payment Date only to the holder of this Note. Upon exchange of this Note in whole for a Definitive Bearer Note or Definitive Bearer Notes, or in whole or in part for a Registered Note or Registered Notes, the Principal Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the reduction of the principal amount hereof by an amount equal to the aggregate principal amount of such Definitive Bearer Note or Definitive Bearer Notes, or such Registered Note or Registered Notes, whereupon the principal amount hereof shall be reduced for all purposes by the amount so exchanged and noted. All such exchanges of Notes will be free of service charge, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. The date of any Note delivered upon any exchange of this Note shall be such that no gain or loss of interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged for Definitive Bearer Notes in accordance with the procedures set forth in the following two sentences as soon as practicable after (i) the first beneficial owner of an interest in this Note exchanges its interest for a Definitive Bearer Note, (ii) the Issuer gives notice to the Principal Paying Agent of an acceleration of the Note or (iii) either Euroclear or Clearstream, Luxembourg or any other relevant clearing system is closed for business for a continuous period of fourteen days (other than by reason of public holidays) or announces an intention to cease business permanently or in fact does so. In the event of any exchange of interests in this Note for a Definitive Bearer Note, a common depositary located outside the United States (the "common depositary") holding this Note for Euroclear Bank, as operator of the Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe anonyme ("Clearstream, Luxembourg"), and/or any other relevant clearing system (including Societe Interprofessionelle pour la Compensation des Valeurs Mobilieres ("SICOVAM")) shall instruct the Principal Paying Agent regarding the aggregate principal amount of Definitive Bearer Notes and the denominations of such Definitive Bearer Notes that must be authenticated and delivered to each relevant clearing system in exchange for this Note. Thereafter, the Principal Paying Agent, acting solely in reliance on such instructions, shall, upon surrender to it of this Note and subject to the conditions in the preceding paragraph, authenticate and deliver Definitive Bearer Notes in exchange for this Note in accordance with such instructions and shall cause Schedule A of this Note to be endorsed to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount of this Note. Nothing in this paragraph shall prevent the further exchange of Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that this Note may be transferred only to a common depositary outside the United States for the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant clearing system or to a nominee of such a depositary.
In case this Note shall at any time become mutilated, defaced or be destroyed, lost or stolen and this Note or evidence of the loss, theft or destruction thereof (together with the indemnity hereinafter referred to and such other documents or proof as may be required in the premises) shall
be delivered to the Trustee, the Issuer in its discretion may execute a new Note of like tenor in exchange for this Note, but, in the case of any destroyed, lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee and the Issuer that this Note was destroyed, lost or stolen and, if required, upon receipt also of indemnity satisfactory to each of them. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
This Note may be redeemed, as a whole, at the option of the Issuer at any
time prior to maturity, upon the giving of a notice of redemption as described
below, at a redemption price equal to 100% of the principal amount hereof,
together with accrued interest to the date fixed for redemption, if the Issuer
determines that, as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of the United States or of any
political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
becomes effective on or after the Original Issue Date hereof, the Issuer has or
will become obligated to pay Additional Amounts (as defined below) with respect
to this Note as described below. Prior to the giving of any Notice of
redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee
(i) a certificate stating that the Issuer is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions precedent to
the right of the Issuer to so redeem have occurred, and (ii) an opinion of
independent counsel satisfactory to the Trustee to such effect based on such
statement of facts; provided that no such notice of redemption shall be given
earlier than 60 days prior to the earliest date on which the Issuer would be
obligated to pay such Additional Amounts if a payment in respect of this Note
were then due.
Notice of redemption will be given not less than 30 nor more than 60 days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof, which date and the applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United States by the Issuer or any Paying Agent of principal, premium or interest due in respect of this Note would, under any present or future laws or regulations of the United States, be subject to any certification, identification or other information reporting requirement of any kind, the effect of which is the disclosure to the Issuer, any Paying Agent or any governmental authority of the nationality, residence or identity of a beneficial owner of this Note who is a United States Alien (as defined below) (other than such a requirement (a) that would not be applicable to a payment made by the Issuer or any Paying Agent (i) directly to the beneficial owner or (ii) to a custodian, nominee or other agent of the beneficial owner, or (b) that can be satisfied by such custodian, nominee or other agent certifying to the effect that such beneficial owner is a United States Alien; provided that in each case referred to in clauses (a)(ii) and (b) payment by such custodian, nominee or agent to such beneficial owner is not otherwise subject to any such requirement), the Issuer shall redeem this Note, as a whole, at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date fixed for redemption, or, at the election of the Issuer if the conditions of the next succeeding
paragraph are satisfied, pay the additional amounts specified in such paragraph. The Issuer shall make such determination and election as soon as practicable, shall promptly notify the Trustee thereof and shall publish (or transmit, as applicable) prompt notice thereof (the "Determination Notice") stating the effective date of such certification, identification or other information reporting requirements, whether the Issuer will redeem this Note or has elected to pay the additional amounts specified in the next succeeding paragraph, and (if applicable) the last date by which the redemption of this Note must take place, as provided in the next succeeding sentence. If the Issuer redeems this Note, such redemption shall take place on such date, not later than one year after the publication of the Determination Notice, as the Issuer shall elect by notice to the Trustee at least 60 days prior to the date fixed for redemption or at least 30 days prior to the last day of the Redemption Notice Period specified on the face hereof. Notice of such redemption of this Note will be given to the holder of this Note not more than 60 nor less than 30 days prior to the date fixed for redemption or within the Redemption Notice Period specified on the face hereof. Such redemption notice shall include a statement as to the last date by which this Note to be redeemed may be exchanged for Registered Notes. Notwithstanding the foregoing, the Issuer shall not so redeem this Note if the Issuer shall subsequently determine, not less than 30 days prior to the date fixed for redemption or prior to the last day of the Redemption Notice Period specified on the face hereof, that subsequent payments would not be subject to any such certification, identification or other information reporting requirement, in which case the Issuer shall publish (or transmit, as applicable) prompt notice of such determination and any earlier redemption notice shall be revoked and of no further effect. The right of the holder of this Note to exchange this Note for Registered Notes pursuant to the provisions of this paragraph will terminate at the close of business of the Principal Paying Agent on the fifteenth day prior to the date fixed for redemption, and no further exchanges of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other information reporting requirements referred to in the preceding paragraph would be fully satisfied by payment of a backup withholding tax or similar charge, the Issuer may elect by notice to the Trustee to pay as additional amounts such amounts as may be necessary so that every net payment made outside the United States following the effective date of such requirements by the Issuer or any Paying Agent of principal, premium or interest due in respect of this Note of which the beneficial owner is a United States Alien (but without any requirement that the nationality, residence or identity of such beneficial owner be disclosed to the Issuer, any Paying Agent or any governmental authority, with respect to the payment of such additional amounts), after deduction or withholding for or on account of such backup withholding tax or similar charge (other than a backup withholding tax or similar charge that (i) would not be applicable in the circumstances referred to in the second parenthetical clause of the first sentence of the preceding paragraph, or (ii) is imposed as a result of presentation of this Note for payment more than 15 days after the date on which such payment becomes due and payable or on which payment thereof is duly provided for, whichever occurs later), will not be less than the amount provided for in this Note to be then due and payable. In the event the Issuer elects to pay any additional amounts pursuant to this paragraph, the Issuer shall have the right to redeem this Note as a whole at any time pursuant to the applicable provisions of the immediately preceding paragraph and the redemption price of this Note will not be reduced for applicable withholding taxes. If the
Issuer elects to pay additional amounts pursuant to this paragraph and the condition specified in the first sentence of this paragraph should no longer be satisfied, then the Issuer will redeem this Note as a whole, pursuant to the applicable provisions of the immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set forth below, pay such additional amounts (the "Additional Amounts") to the holder of this Note who is a United States Alien as may be necessary in order that every net payment of the principal of and interest on this Note and any other amounts payable on this Note, after withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the United States (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided for in this Note to be then due and payable. The Issuer will not, however, be required to make any payment of Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge that would not have been so imposed but for (i) the existence of any present or former connection between such holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder, if such holder is an estate, a trust, a partnership or a corporation) and the United States and its possessions, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein or (ii) the presentation by the holder of this Note for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason of such holder's past or present status as a personal holding company or foreign personal holding company or controlled foreign corporation or passive foreign investment company with respect to the United States or as a corporation which accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is payable otherwise than by withholding from payments on or in respect of this Note;
(e) any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of, or interest on, this Note, if such payment can be made without such withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would not have been imposed but for the failure to comply with certification, information or other reporting
requirements concerning the nationality, residence or identity of the holder or beneficial owner of this Note, if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by reason of such holder's past or present status as the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock entitled to vote of the Issuer or as a direct or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note to a United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of this Note.
The Indenture provides that (a) if an Event of Default (as defined in the Indenture) due to the default in payment of principal of, premium, if any, or interest on, any series of debt securities issued under the Indenture, including the series of Medium-Term Notes of which this Note forms a part, or due to the default in the performance or breach of any other covenant or warranty of the Issuer applicable to the debt securities of such series but not applicable to all outstanding debt securities issued under the Indenture, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of the debt securities of each affected series (voting as a single class) may then declare the principal of all debt securities of all such series and interest accrued thereon to be due and payable immediately and (b) if an Event of Default due to a default in the performance of any other of the covenants or agreements in the Indenture applicable to all outstanding debt securities issued thereunder, including this Note, or due to certain events of bankruptcy or insolvency of the Issuer, shall have occurred and be continuing, either the Trustee or the holders of not less than 25% in principal amount of all debt securities issued under the Indenture then outstanding (treated as one class) may declare the principal of all such debt securities and interest accrued thereon to be due and payable immediately, but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal (or premium, if any) or interest on such debt securities) by the holders of a majority in principal amount of the debt securities of all affected series then outstanding.
The Indenture permits the Issuer and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the debt securities of all series issued under the Indenture then outstanding and affected (voting as one class), to execute supplemental indentures adding any provisions to or changing in any manner the rights of the holders of each series so
affected; provided that the Issuer and the Trustee may not, without the consent of the holder of each outstanding debt security affected thereby, (a) extend the final maturity of any such debt security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption or repayment thereof, or change the currency of payment thereof, or modify or amend the provisions for conversion of any currency into any other currency, or modify or amend the provisions for conversion or exchange of the debt security for securities of the Issuer or other entities (other than as provided in the antidilution provisions or other similar adjustment provisions of the debt securities or otherwise in accordance with the terms thereof), or impair or affect the rights of any holder to institute suit for the payment thereof without the consent of the holder of each debt security so affected; or (b) reduce the aforesaid percentage in principal amount of debt securities the consent of the holders of which is required for any such supplemental indenture.
Except as set forth below, if the principal of, premium, if any, or interest on, this Note is payable in a Specified Currency other than U.S. dollars and such Specified Currency is not available to the Issuer for making payments hereon due to the imposition of exchange controls or other circumstances beyond the control of the Issuer or is no longer used by the government of the country issuing such currency or for the settlement of transactions by public institutions within the international banking community, then the Issuer will be entitled to satisfy its obligations to the holder of this Note by making such payments in U.S. dollars on the basis of the Market Exchange Rate (as defined below) on the date of such payment or, if the Market Exchange Rate is not available on such date, as of the most recent practicable date; provided, however, that if the euro has been substituted for such Specified Currency, the Issuer may at its option (or shall, if so required by applicable law) without the consent of the holder of this Note effect the payment of principal of, premium, if any, or interest on, any Note denominated in such Specified Currency in euro in lieu of such Specified Currency in conformity with legally applicable measures taken pursuant to, or by virtue of, the treaty establishing the EC, as amended by the Treaty. Any payment made under such circumstances in U.S. dollars or euro where the required payment is in an unavailable Specified Currency will not constitute an Event of Default. If such Market Exchange Rate is not then available to the Issuer or is not published for a particular Specified Currency, the Market Exchange Rate will be based on the highest bid quotation in The City of New York received by the Exchange Rate Agent (as defined below) at approximately 11:00 a.m., The City of New York time, on the second Business Day preceding the date of such payment from three recognized foreign exchange dealers (the "Exchange Dealers") for the purchase by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for settlement on the payment date, in the aggregate amount of the Specified Currency payable to those holders or beneficial owners of Notes and at which the applicable Exchange Dealer commits to execute a contract. One of the Exchange Dealers providing quotations may be the Exchange Rate Agent unless the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are not available, the Exchange Rate Agent shall determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be [ ], unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be maintained an office or agency for the payment of the principal of and premium, if any, and interest on this Note as herein provided. If this Note is listed on the London Stock Exchange Limited and such Exchange so requires, the Issuer shall maintain a Paying Agent in London. The Issuer may designate other agencies for the payment of said principal, premium and interest at such place or places outside the United States (subject to applicable laws and regulations) as the Issuer may decide. So long as there shall be such an agency, the Issuer shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any Paying Agent for payment of the principal of or interest or premium, if any, on any Notes that remain unclaimed at the end of two years after such principal, interest or premium shall have become due and payable (whether at maturity or upon call for redemption or otherwise), (i) the Trustee or such Paying Agent shall notify the holders of such Notes that such moneys shall be repaid to the Issuer and any person claiming such moneys shall thereafter look only to the Issuer for payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon such repayment all liability of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease, without, however, limiting in any way any obligation that the Issuer may have to pay the principal of or interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed unless otherwise agreed between the Issuer and the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the holder of this Note as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this Note for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, either directly or through the Issuer or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
As used herein:
(a) As used herein, "Business Day" means any day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close (x) in The City of New York or in The City of London or (y) if this Note is denominated in a Specified Currency other than U.S. dollars, Australian dollars or euro, in the principal financial center of the country of the Specified Currency, or (z) if this Note is denominated in Australian dollars, in Sydney and (b) if this Note is denominated in euro, that is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a "TARGET Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar buying rate in The City of New York for cable transfers of the Specified Currency indicated on the face hereof published by the Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to the holders of the Notes to be given by publication in an authorized newspaper in the English language and of general circulation in the Borough of Manhattan, The City of New York, and London or, if publication in London is not practical, in an English language newspaper with general circulation in Western Europe; provided that notice may be made at the option of the Issuer through the customary notice provisions of the clearing system or systems through which beneficial interests in this Note are owned. Such Notices will be deemed to have been given on the date of such publication (or other transmission, as applicable) or, if published in such newspapers on different dates, on the date of the first such publication;
(d) the term "United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the Optional Repayment Date, to the undersigned at
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
_________; and specify the denomination or denominations (which shall not be
less than the minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not being
repaid): _______.
Dated:____________________________ _______________________________________
[SCHEDULE A6]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is ____________. The following (A) exchanges of (i) portions of this Note for Definitive Bearer Notes or Registered Notes and (ii) portions of a Temporary Global Bearer Note for an interest in this Note or (B) (x) redemptions at the option of the Issuer or (y) repayments at the option of the holder have been made:
Principal Amount Principal Amount Principal Amount
Date of Exchange, Exchanged Exchanged For Exchanged for
Redemption or From Temporary Definitive Definitive
Payment Global Notes Bearer Notes Registered Notes
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[Table continued]
Remaining Principal
Amount Outstanding
Principal Amount Principal Amount Following Such
Redeemed at the Repaid at the Exchange, Notation Made by or
Option of the Option of the Redemption or on Behalf of
Issuer Holder Repayment Paying Agent
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6 Applies if this Note is not issued as part of, or in relation to, a Unit.
[SCHEDULE A-1]7
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The following
(A) exchanges of the principal amount of Notes indicated below for the same
principal amount of Notes to be represented by (i) Definitive Bearer Notes or
(ii) Definitive Registered Notes or [(iii) a Global Bearer Note that has been
separated from a Unit (a "Separated Note")]8, (B) exchanges of the principal
amount of Notes that had been represented by (i) a Temporary Global Bearer Note
[or (ii) a Global Bearer Note that is part of a Unit (an "Attached Unit
Note")]9 for an interest in this Note and (C) reductions of the principal
amount of this Note as a result of (i) cancellation upon the application of
such amount to the settlement of Purchase Contracts or the exercise of
Universal Warrants (ii) redemption at the option of the Issuer or (iii)
repayments at the option of the Holder have been made:
Principal Principal Principal
Date of Amount [Principal [Principal Amount Amount
Exchange, Exchanged Amount Amount Exchanged Exchanged
Cancellation From Exchanged Exchanged For For
Redemption, Temporary from an for Definitive Definitive
or Global Attached Separated Bearer Registered
Repayment Notes Unit Note](10) Note](9) Notes Notes
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[Table continued]
Remaining
Principal
Amount
Principal Principal Outstanding Notation
Amount Amount Following such Made by
Redeemed Repaid Exchange, or on
at the at the Principal Cancellation behalf of
option of option of Amount Redemption or Paying
the Issuer the Holder Cancelled Repayment Agent
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-------------------------------------------------------------------
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7 This Schedule A-1 needed only if this Note is issued as part of, or in relation to, a Unit.
8 Applies only if this Note is attached to a Unit.
9 Applies only if this Note has been separated from a Unit.
EXHIBIT 4(b)(6)
[FORM OF FACE OF SECURITY]
TEMPORARY GLOBAL FLOATING RATE BEARER NOTE
BEARER BEARER
No. TGFL _____
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER SECTION
4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE WITH
REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]2
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR AN INTEREST IN A PERMANENT GLOBAL BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY
2 Applies only if this Note is denominated in pounds sterling and matures more than one year from and including the Original Issue Date.
OR INDIRECTLY, IN JAPAN OR TO A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
J.P. MORGAN CHASE & CO.
GLOBAL MEDIUM-TERM NOTE, SERIES B
(Floating Rate)
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ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
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MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
---------------------------------------------------------------------------------------------------------
BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
---------------------------------------------------------------------------------------------------------
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
---------------------------------------------------------------------------------------------------------
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
---------------------------------------------------------------------------------------------------------
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
---------------------------------------------------------------------------------------------------------
EUROCLEAR NO: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
---------------------------------------------------------------------------------------------------------
CLEARSTREAM NO: ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
---------------------------------------------------------------------------------------------------------
COMMON CODE: OPTIONAL REPAYMENT
DATE(S):
---------------------------------------------------------------------------------------------------------
ISIN: REDEMPTION NOTICE PERIOD:3 MINIMUM DENOMINATIONS:
---------------------------------------------------------------------------------------------------------
REPORTING SERVICE: EXCHANGE FOR REGISTERED
NOTES: [NO]
---------------------------------------------------------------------------------------------------------
OTHER PROVISIONS:
---------------------------------------------------------------------------------------------------------
|
J.P. Morgan Chase & Co., a Delaware corporation (together with its successors and assigns, the "Issuer"), for value received, hereby promises to pay to bearer, upon surrender hereof, the principal amount specified in Schedule A hereto, on the Maturity Date specified above (except to the extent previously redeemed or repaid) and to pay interest thereon, from and including the Interest Accrual Date specified above at a rate per annum equal to the Initial Interest Rate specified above until but excluding the Initial Interest Reset Date specified above, and on and after at a rate per annum determined in accordance with the provisions specified in the Permanent Global Bearer Note (as defined below) until but excluding the date such principal amount is paid or duly made available for payment (except as provided below). The Issuer will pay interest in arrears monthly, quarterly, semiannually or annually as specified above as the Interest Payment Period on each Interest Payment Date (as specified above), commencing with the first Interest Payment Date next succeeding the Interest Accrual Date specified above, and at maturity (or on any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs fifteen days or less prior to the first Interest Payment Date occurring after the Interest Accrual Date, interest payments will commence on the second Interest Payment Date succeeding the Interest Accrual Date; and provided, further, that if an Interest Payment Date (other than the Maturity Date (as specified above) or redemption or repayment date) would fall on a day that is not a Business Day, as defined below, such Interest Payment Date shall be the following day that is a Business Day, except that if the Base Rate specified above is LIBOR and such next Business Day falls in the next calendar month, such Interest Payment Date shall be the immediately preceding day that is a Business Day; and provided, further, that if the Maturity Date or redemption or repayment date would fall on a day that is not a Business Day, the payment of principal, premium, if any, and interest will be made on the next succeeding Business Day and no interest shall accrue for the period from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including the Interest Accrual Date, until but excluding the date the principal amount hereof has been paid or duly made available for payment. Upon any payment of interest on this Note, the Principal Paying Agent (as defined below) shall cause Schedule A of this Note to be endorsed to reflect such payment. No payment on this Note will be made at any office or agency of the Issuer in the United States or by check mailed to an address in the United States (as defined below) or by wire transfer to an account maintained by the holder of this Note with a bank in the United States except as may be permitted under United States federal tax laws and regulations then in effect without adverse tax consequences to the Issuer. Notwithstanding the foregoing, in the event that payment in U.S. dollars of the full amount payable on this Note at the offices of all Paying Agents (as defined below) would be illegal or effectively precluded as a result of exchange controls or similar restrictions, payment on this Note will be made by a paying agency in the United States, if such paying agency, under applicable law and regulations, would be able to make such payment. Notwithstanding any other provision of this Note, no payment of principal or interest shall be made on any portion of this Note unless there shall have been delivered to the Principal Paying Agent a certificate substantially in the form of Exhibit A hereto with respect to the portion of this Note with respect to which such principal or interest is to be paid. Such certificate shall have been delivered to the Principal Paying Agent by Euroclear Bank, as operator of the Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe anonyme ("Clearstream, Luxembourg"), and/or any other relevant clearing system (including Societe Interprofessionelle pour la Compensation des Valeurs Mobilieres and the Intermediaires financiers habilites authorized to maintain accounts therein (SICOVAM")), as the case may be, and shall be based on a certificate substantially in the form of Exhibit B hereto provided to the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant clearing system, as the case may be, by those of its account holders who are to receive such payment of principal or interest.
This Note is issued in temporary global bearer form and represents all or
a portion of a duly authorized issue of Global Medium-Term Notes, Series B (the
"Notes") of the Issuer. The Notes are issuable under an Indenture, dated as of
[ ], 200_, between the Issuer and Bankers Trust
Company, as Trustee (the "Trustee", which term includes any successor trustee under the Indenture) (as may be amended or supplemented from time to time, the "Indenture") to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Issuer, the Trustee and holders of the Notes and the terms upon which the Notes are, and are to be, authenticated and delivered. The Issuer has appointed Bankers Trust Company, as its principal paying agent for the Notes (the "Principal Paying Agent," which term includes any additional or successor Principal Paying Agent appointed by the Issuer).
Except as otherwise provided herein, this Note is governed by the terms and conditions of the Permanent Global Floating Rate Bearer Note (the "Permanent Global Bearer Note") to be issued in exchange for this Note, which terms and conditions are hereby incorporated by reference herein mutatis mutandis and shall be binding on the Issuer and the holder hereof as if fully set forth herein. The form of the Permanent Global Bearer Note is attached hereto.
This Note is exchangeable in whole or from time to time in part on or after the Exchange Date (as defined below) for an interest (equal to the principal amount of the portion of this Note being exchanged) in a single Permanent Global Bearer Note upon the request of the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant clearing system, acting on behalf of the owner of a beneficial interest in this Note, to the Principal Paying Agent upon delivery to the Principal Paying Agent of a certificate substantially in the form of Exhibit A hereto with respect to the portion of this Note to be exchanged. Such certificate shall have been delivered to the Principal Paying Agent by the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant clearing system, as the case may be, and shall be based on a certificate substantially in the form of Exhibit B hereto provided to the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant clearing system, as the case may be, by those of its account holders having an interest in the portion hereof to be exchanged. Notwithstanding the foregoing, if this Note is subject to a tax redemption as described on the reverse of the Permanent Global Bearer Note attached hereto, interests in this Note may be exchanged for interests in a permanent Global Bearer Note on and after such redemption date as if such redemption date had been the Exchange Date, subject to receipt of the certificates described in the preceding sentence. Upon exchange of any portion of this Note for an interest in a Permanent Global Bearer Note, the Principal Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the reduction of its principal amount by an amount equal to the aggregate principal amount being so exchanged. Except as otherwise provided herein, until exchanged for a Permanent Global Bearer Note, this Note shall in all respects be entitled to the same benefits under the Indenture as a duly authenticated and delivered Permanent Global Bearer Note.
As used herein:
(a) As used herein, "Business Day" means any day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close (x) in The City of New York or in The City of London or (y) if this Note is denominated in a Specified Currency other than U.S.
dollars, Australian dollars or euro, in the principal financial center of the country of the Specified Currency, or (z) if this Note is denominated in Australian dollars, in Sydney and (b) if this Note is denominated in euro, that is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a "TARGET Settlement Day").
(b) the term "Exchange Date" means the date that is 40 days after the date on which the Issuer receives the proceeds of the sale of this Note (the "Closing Date"), provided that if an interest represented by this Note is held by a manager participating in the distribution of the tranche of Notes of which this Note forms a part, as part of an unsold allotment or subscription more than 40 days after the Closing Date for this Note, the Exchange Date with respect to such interest shall be the day after the date such interest is sold by such a manager, all as determined and notified to the Trustee by the Issuer.
(c) the term "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
All other terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture, as defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: J.P. MORGAN CHASE & CO.
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
------------------------------------
Authorized Officer
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SCHEDULE A
SCHEDULE OF EXCHANGES
The Initial Principal Amount of this Note is ______________. The following payments of interest and exchanges of a part of this Note for an interest in a single Permanent Global Bearer Note have been made:
Principal Amount Remaining Principal
Exchanged for Amount Outstanding Notation Made
Date of Exchange Permanent Following by or on Behalf of
or Interest Payment Payment of Interest Global Bearer Note Such Exchange Principal Paying Agent
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EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CLEARSTREAM, LUXEMBOURG
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
J.P. Morgan Chase & Co.
Global Medium-Term Notes, Series B
Represented by Temporary Global Note No ____.
This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our "Member Organizations") substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro Distribution Agreement relating to such Notes, as of the date hereof, __________ principal amount of the above-captioned Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations, an estate the income of which is subject to United States Federal income taxation regardless of its source or a trust if both (a) a court within the United States is able to exercise primary supervision over the administration of the trust and (b) one or more United States persons have the authority to control all substantial decisions of the trust ("United States persons"), (ii) is owned by United States persons that are (a) foreign branches of United States financial institutions (as defined in the applicable U.S. Treasury Regulations) ("financial institutions") purchasing for their own account or for resale, or (b) United States persons who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and such United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange (or, if relevant, seeking to collect principal or interest with respect to) any portion of the temporary global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith (or, if relevant, with respect to which principal or interest is being requested) are no longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated: _______________, 200_
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
EUROCLEAR BANK,
as Operator of the Euroclear System
[CLEARSTREAM BANKING, SOCIETE ANONYME]
[OTHER]
Title:
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CLEARSTREAM, LUXEMBOURG
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
J.P. Morgan Chase & Co.
Global Medium-Term Notes, Series B
Represented by Temporary Global Note No __.
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (as
defined in the applicable U.S. Treasury Regulations) ("financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the Issuer or the Issuer's agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S.
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in the applicable
U.S. Treasury Regulations), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) such financial
institution has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its "possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance
with your Operating Procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to $___________ of such interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated: _______________, 200_
[To be dated no earlier than the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[NAME OF ACCOUNT HOLDER]
Exhibit 4(c)
J.P. MORGAN CHASE & CO.
and
[_________________________________], as Warrant Agent
DEBT WARRANT AGREEMENT
dated as of [_____________________]
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY] AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants..........................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates................2
SECTION 1.03. Issuance of Warrant Certificates..............................4
SECTION 1.04. Temporary Global Security.....................................6
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price.................................................6
SECTION 2.02. Duration of Warrants..........................................6
SECTION 2.03. Exercise of Warrants..........................................7
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates.............................11
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates...12
SECTION 3.03. Enforcement of Rights........................................12
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer................13
--------
1 The Table of Contents is not a part of the Agreement.
|
PAGE
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ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer........................................13
SECTION 4.02. Treatment of Holders of Warrant Certificates.................15
SECTION 4.03. Cancellation of Warrant Certificates.........................15
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent................................................17
SECTION 5.02. Conditions of Warrant Agent's Obligations....................17
SECTION 5.03. Resignation and Appointment of Successor.....................19
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment....................................................21
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.........21
SECTION 6.03. Addresses....................................................22
SECTION 6.04. Applicable Law...............................................22
SECTION 6.05. Delivery of Prospectus.......................................22
SECTION 6.06. Obtaining of Governmental Approval...........................22
SECTION 6.07. Persons Having Rights under Warrant Agreement................22
SECTION 6.08. Headings.....................................................22
SECTION 6.09. Counterparts.................................................23
SECTION 6.10. Inspection of Agreement......................................23
SECTION 6.11. Notices to Holders of Warrants...............................23
TESTIMONIUM.................................................................24
SIGNATURES..................................................................24
|
EXHIBIT A - Form of Warrant Certificate [in Registered Form]
[EXHIBIT B - Form of Global Warrant Certificate in Bearer Form]
[EXHIBIT C - Form of Certificate to be Delivered to the Warrant Agent by the
Euroclear Operator or Clearstream]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to Purchasers of Warrant
Securities in Bearer Form]
DEBT WARRANT AGREEMENT2
THIS AGREEMENT dated as of [ ] between J.P. MORGAN CHASE & CO., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), and [_____________], a [bank] [trust company] duly incorporated and existing under the laws of [Delaware], as Warrant Agent (the "Warrant Agent"),
W I T N E S S E T H :
WHEREAS, the Company has entered into an Indenture dated as of [ ], 2001 (the "Indenture") between the Company and Bankers Trust Company, as Trustee (the "Trustee"), providing for the issuance from time to time of its unsecured and unsubordinated debt securities to be issued in one or more series as provided in the Indenture; and
WHEREAS, the Company proposes to sell [[Title of any debt securities being offered] (the "Offered Securities") with] one or more warrants (the "Warrants") representing the right to purchase [title of debt securities purchasable through exercise of Warrants] (the "Warrant Securities"), the Warrants to be evidenced by warrant certificates issued pursuant to this Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company in connection with the issuance, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form[s] and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, transferred, exchanged, exercised and replaced;
For Warrants sold attached to Offered Securities which are detachable bracketed
language here and throughout this Agreement should be inserted as follows:
1. If Warrants are immediately detachable from the Offered Securities;
and
2. If Warrants are detachable from the Offered Securities only after the
Detachable Date.
NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS [AND TEMPORARY GLOBAL SECURITY]3 AND
EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. The Warrants shall be evidenced by one or more Warrant Certificates. Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase a Warrant Security in the principal amount of [______] [and shall be initially issued in connection with the issuance of the Offered Securities]4 [1: and shall be separately transferable immediately thereafter] [2: but shall not be separately transferable until on and after [ ], 20[ ] (the "Detachable Date")]5. The Warrants shall be initially issued [in units] with the Offered Securities.]6
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each Warrant, whenever issued, shall be evidenced by a Warrant Certificate in registered form [or a global Warrant Certificate in bearer form (the "Global Warrant Certificate")] [the form to be the same as that of the Warrant Security in connection with which the Warrant Certificate is issued], substantially in the form[s] set forth in Exhibit A [and Exhibit B, respectively,] hereto, shall be dated [ ] and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to
4 For Warrants sold attached to Offered Securities.
5 For detachable Warrants sold attached to Offered Securities which are detachable.
6 For Warrants sold attached to Offered Securities.
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 to conform to usage. The Warrant Certificates shall be signed on behalf of the Company by any of the chairman of its Board of Directors, its president, any vice chairman of its Board of Directors, the chief financial officer (or any other officer certified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Issuer), in each case under its corporate seal, which may but need not be, attested by its secretary or one of its assistant secretaries [, except that the Global Warrant Certificate may be executed by any such officer without any necessity that such signature be under seal as aforesaid]. Such signatures may be manual or facsimile signatures of such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The corporate seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned by the Warrant Agent by manual signature. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence, and the only evidence, that the Warrant Certificate so countersigned has been duly issued hereunder.
[The Global Warrant Certificate shall be and remain subject to the provisions of this Agreement until such time as all of the Warrants evidenced thereby shall have been duly exercised or shall have expired or been cancelled in accordance with the terms thereof.]
In case any officer of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent as provided herein, such Warrant Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of such 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.
The term "Holder", when used with respect to any Warrant Certificate [in registered form], shall mean any person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose [[2: or, prior to the Detachable Date, any person in whose
name at the time the Offered Security to which such Warrant Certificate is attached is registered upon the register of the Offered Securities. Prior to the Detachable Date, the Company will, or will cause the registrar of the Offered Securities to, make available at all times to the Warrant Agent such information as to holders of the Offered Securities with Warrants as may be necessary to keep the Warrant Agent's records up to date]]7.
[The term "Holder", when used with respect to the Global Warrant Certificate, shall mean [2:, prior to the Detachable Date, the bearer of the Temporary Global Security (as defined in Section 1.04) evidencing the Offered Securities to which the Warrants evidenced by the Global Warrant Certificate were initially attached and, after the Detachable Date, the bearer of the Global Warrant Certificate.]8 [the bearer thereof.]9
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
[ ] aggregate principal amount of Warrant Securities (except as provided
in Sections 2.03, 3.02 and 4.01) may be executed by the Company and delivered
to the Warrant Agent upon the execution of this Warrant Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing [ ] Warrants representing the right to purchase up
to [ ] aggregate principal amount of Warrant Securities and shall[, in the
case of Warrant Certificates in registered form,] deliver such Warrant
Certificates to or upon the order of the Company [and, in the case of the
Global Warrant Certificate, upon the order of the Company, deposit the Global
Warrant Certificate with [ ], as common depositary (the "Common Depositary")
for Euroclear Bank, as operator of the Euroclear System (the "Euroclear
Operator"), and for Clearstream Banking S.A. ("Clearstream") for credit to the
accounts of persons appearing from time to time on the records of the Euroclear
Operator or of
8 For Warrants sold attached to Offered Securities that are detachable.
9 For Warrants sold attached to Offered Securities that are not detachable and for Warrants sold alone.
Clearstream as being entitled to any portion thereof. [2: The Temporary Global
Security, as defined in Section 1.04, will at the same time be deposited with
the Common Depositary.]10 The Global Warrant Certificate shall be held by the
Common Depositary outside the United Kingdom.] Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or
[, with respect to Warrant Certificates in registered form, in connection with
their transfer as hereinafter provided or as provided in the antepenultimate
paragraph of Section 2.03].
Pending the preparation of definitive Warrant Certificates [in registered form] evidencing Warrants, the Company may execute and the Warrant Agent shall countersign and deliver temporary Warrant Certificates [in registered form] evidencing such Warrants (printed, lithographed, typewritten or otherwise produced, in each case in form satisfactory to the Warrant Agent). Such temporary Warrant Certificates shall be issuable substantially in the form of the definitive Warrant Certificates [in registered form] but with such omissions, insertions and variations as may be appropriate for temporary Warrant Certificates, all as may be determined by the Company with the concurrence of the Warrant Agent. Such temporary Warrant Certificates may contain such reference to any provisions of this Warrant Agreement as may be appropriate. Every such temporary Warrant Certificate shall be executed by the Company and shall be countersigned by the Warrant Agent upon the same conditions and in substantially the same manner, and with like effect, as the definitive Warrant Certificates [in registered form]. Without unreasonable delay, the Company shall execute and shall furnish definitive Warrant Certificates [in registered form] and thereupon such temporary Warrant Certificates may be surrendered in exchange therefor without charge pursuant to and subject to the provisions of Section 4.01, and the Warrant Agent shall countersign and deliver in exchange for such temporary Warrant Certificates definitive Warrant Certificates [in registered form] of authorized denominations evidencing a like aggregate number of Warrants evidenced by such temporary Warrant Certificates. Until so exchanged, such temporary Warrant Certificates shall be entitled to the same benefits under this Warrant Agreement as definitive Warrant Certificates [in registered form].
[SECTION 1.04. Temporary Global Security. Prior to the Detachable Date, each Offered Security to be issued with Warrants evidenced by the Global Warrant Certificate shall, whenever issued, be evidenced by a single temporary Global Offered Security in bearer form without interest coupons (the "Temporary Global Security") to be issued by the Company as provided in the Indenture.]11
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On [ ], 20[ ] the exercise price of each
Warrant will be [ ]. During the period from [ ], 20[ ] through
and including [ ], 20[ ], the exercise price of each Warrant will be
[ ] plus [accrued amortization of the original issue discount] [accrued
interest] from [ ], 20[ ]. On [ ], 20[ ] the exercise price of
each Warrant will be [ ]. During the period from [ ], 20[ ]
through and including [ ], 20[ ], the exercise price of each Warrant
will be [ ] plus [accrued amortization of the original issue discount]
[accrued interest] from [ ], 20[ ]. [In each case, the original issue
discount will be amortized at a [ ]% annual rate, computed on an annual basis
using the "interest" method and using a 360-day year consisting of twelve
30-day months]. Such exercise price of Warrant Securities is referred to in
this Agreement as the "Warrant Price". [The original issue discount for each
principal amount of Warrant Securities is [ ]].
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each Warrant may be exercised [in whole but not in part] [in whole or in part] [at any time, as specified herein, on or after [the date thereof] [ ], 20[ ] and at or before [time, location] on [ ], 20[ ] (each day during such period may hereinafter be referred to as an "Exercise Date")] [on [list of specific dates] (each, an "Exercise Date")], or such later date as the Company may designate by notice to the Warrant Agent and the Holders of Warrant Certificates [in registered form and to the beneficial owners of the Global Warrant Certificate] (the "Expiration Date"). Each Warrant not exercised at or before [time, location] on the
Expiration Date shall become void, and all rights of the Holder [and any beneficial owners] of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. [With respect to Warrants evidenced by Warrant Certificates in registered form, during] [During] the period specified in Section 2.02, any whole number of Warrants may be exercised by providing certain information as set forth on the reverse side of the Warrant Certificates evidencing such Warrants and by paying in full [in lawful money of the United States of America] [in applicable currency] [in cash] [by certified check or official bank check or by bank wire transfer, in each case,] [by bank wire transfer] [in immediately available funds,] the Warrant Price for each Warrant exercised (plus accrued interest, if any, on the Warrant Securities to be issued upon exercise of such Warrant from and including the interest payment date, if any, in respect of such Warrant Securities immediately preceding the Exercise Date to and including the Exercise Date (unless the Exercise Date is after the regular record date in respect of such Warrant Securities, if any, for such interest payment date, but on or before the immediately succeeding interest payment date for such Warrant Securities, in which event no such accrued interest shall be payable [in respect of Warrant Securities to be issued in registered form]) to the Warrant Agent at its corporate trust office at [___________________], provided that such exercise is subject to receipt within five business days of such [payment] [wire transfer] by the Warrant Agent of the Warrant Certificate evidencing each Warrant exercised with the form of election to purchase Warrant Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed.
[With respect to Warrants evidenced by the Global Warrant Certificate, during the period specified in Section 2.02, any whole number of Warrants may be exercised by the Holder by presentation to the Warrant Agent at its office at [address located outside the United States [and the United Kingdom]], at or prior to [time], on any day on which the Warrants are exercisable, of (i) the Global Warrant Certificate [[2: together with, if prior to the Detachable Date, the Temporary Global Security]]12 (or written confirmation reasonably satisfactory to
the Warrant Agent that the Global Warrant Certificate [is]13 [and, if prior to
the Detachable Date, the Temporary Global Security are]14 held by the Euroclear
Operator and Clearstream and will be duly endorsed to reflect the exercise of
Warrants [[2: and, if prior to the Detachable Date, the surrender to the
Warrant Agent of the Offered Securities to which the Warrants are attached]]15
by the Euroclear Operator and Clearstream), (ii) a duly executed certification
from the Euroclear Operator or Clearstream, as the case may be, substantially
in the form set forth in Exhibit C hereto and (iii) payment in full [in lawful
money of the United States of America] [in applicable currency] [in cash] [by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds,] of the Warrant Price
for each Warrant exercised (plus accrued interest, if any, on the Warrant
Securities to be issued upon exercise of such Warrant from and including the
Interest Payment Date, if any, in respect of such Warrant Securities
immediately preceding the Exercise Date to and including the Exercise Date
(unless the Exercise Date is after the Regular Record Date, if any, for such
Interest Payment Date, but on or before the immediately succeeding Interest
Payment Date for such Warrant Securities, in which event no such accrued
interest shall be payable in respect of Warrant Securities to be issued in
registered form)). Notwithstanding the foregoing, the Holder may exercise
Warrants as aforesaid on the Expiration Date at any time prior to [time] in
[city of Warrant Agent's office]. Any Warrants exercised as set forth in this
paragraph shall be deemed exercised at the [country] office of the Warrant
Agent.]
[The Warrant Agent shall retain each certificate received by it from the Euroclear Operator or Clearstream through the Expiration Date (or such earlier date by which all of the Warrants may have been exercised or cancelled) and thereafter shall dispose of them or deliver them to the Company pursuant to the instructions of the Company.]
14 For Warrants sold attached to Offered Securities that are not immediately detachable.
15 For Warrants sold attached to Offered Securities that are not immediately detachable.
[The delivery to the Warrant Agent by the Euroclear Operator or Clearstream of any certification referred to above may be relied upon by the Company, the Warrant Agent and the Trustee as conclusive evidence that a corresponding certificate or certificates substantially in the form of Exhibit D hereto has or have been delivered to the Euroclear Operator or Clearstream, as the case may be.]
[The Company will maintain in [location] (or in such other city [in western Europe] as the Company may deem advisable), until the right to exercise the Warrants shall expire or be earlier cancelled as hereinafter provided, an agency where the Global Warrant Certificate [[2: and, if prior to the Detachable Date, the Temporary Global Security]]16 may be presented for exercise of the Warrants represented thereby [[2: and, if prior to the Detachable Date, for surrender for cancellation of the Offered Securities to which such Warrants are attached]]17 and notices and demands to or upon the Company in respect of the Warrants or of this Agreement may be made.]
The date on which payment in full of the Warrant Price (plus any such accrued interest) is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate [in registered form or, as the case may be, the Global Warrant Certificate [[2: and, if required, the Temporary Global Security]]18 and the certification of Euroclear Operator or Clearstream] as aforesaid, be deemed to be the date on which the Warrant is exercised. The Warrant Agent shall deposit all funds received by it in payment for the exercise of Warrants in an account of the Company maintained with it (or in such other account as may be designated by the Company) and shall advise the Company, by telephone or by facsimile transmission or other form of electronic communication available to both parties, at the end of each day on which a payment for the exercise of Warrants is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such advice to the Company in writing.
17 For Warrants sold attached to Offered Securities that are not immediately detachable.
18 For Warrants sold attached to Offered Securities that are not immediately detachable.
If a day on which Warrants may be exercised in the city in which such Warrants are to be exercised shall be a Saturday or Sunday or a day on which banking institutions in such city are authorized or required to be closed, then, notwithstanding any other provision of this Agreement or the Warrant Certificate evidencing such Warrants, but subject to the limitation that no Warrant may be exercised after the Expiration Date, the Warrants shall be exercisable on the next succeeding day which in such city is not a Saturday or Sunday or a day on which banking institutions in such city are authorized or required to be closed.
The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company [and][,] the Trustee [and the Common Depositary at [both] its London and [location] office[s]] in writing [(which, in the case of exercised Warrants represented by the Global Warrant Certificate, shall be tested telex with appropriate answerback received,)] of (i) the number of Warrants exercised, (ii) the instructions of each Holder of the Warrant Certificates [in registered form] evidencing such Warrants [or of the Euroclear Operator or Clearstream, as the case may be,] with respect to delivery of the Warrant Securities to be issued upon such exercise, (iii) delivery of any Warrant Certificates [in registered form] evidencing the balance, if any, of the Warrants remaining after such exercise, and (iv) such other information as the Company or the Trustee shall reasonably require. [In addition, in the case of exercised Warrants evidenced by the Global Warrant Certificate, the Warrant Agent shall, as promptly as practicable, endorse, or cause the Common Depositary, [location] office, or one of the Warrant Agent's agents to endorse, Schedule A annexed to the Global Warrant Certificate to reflect the exercise of such Warrants [[2: and the Temporary Global Security to reflect the surrender for cancellation of the Offered Securities to which such Warrants are attached]]19 and, if applicable, return the Global Warrant Certificate [[2: and the Temporary Global Security]]20 to the Common Depositary or to its order.]
As soon as practicable after the exercise of any Warrant [evidenced by a Warrant Certificate in registered form], but subject to receipt by the Warrant Agent of the Warrant Certificate evidencing such Warrant as provided in this Section, the Company shall issue, pursuant to the Indenture, in authorized
20 For Warrants sold attached to Offered Securities that are not immediately detachable.
denominations to or upon the order of the Holder of the Warrant Certificate evidencing each Warrant, the Warrant Securities to which such Holder is entitled, in fully registered form, registered in such name or names as may be directed by such Holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate [in registered form] evidencing the number of such Warrants remaining unexercised.
[As soon as practicable after the exercise of any Warrant evidenced by the
Global Warrant Certificate, the Company shall issue, pursuant to the Indenture,
the Warrant Securities issuable upon such exercise, in authorized denominations
(i) in fully registered form, registered in such name or names as may be
directed by the Euroclear Operator or Clearstream, as the case may be, to or
upon order of the Euroclear Operator or Clearstream, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euroclear Operator or Clearstream, as the case may be, together with a written
confirmation substantially in form of Exhibit E hereto; provided, however, that
no Warrant Security in bearer form shall be mailed or otherwise delivered to
any location in the United States of America, its territories or possessions or
areas subject to its jurisdiction or the Commonwealth of Puerto Rico.]
The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issuance of the Warrant Securities, and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established to the Company's satisfaction that no such tax or other charge is due.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle the Holder or any beneficial owner thereof to any of the rights of a holder or beneficial owner of Warrant Securities, including, without limitation, the right to receive the payment of principal of (premium, if any) or interest, if any, on Warrant Securities or to enforce any of the covenants in the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, mutilation, theft or destruction
of any Warrant Certificate and of such security or indemnity as may be required
by the Company and the Warrant Agent to hold each of them and any agent of them
harmless and, in the case of mutilation of a Warrant Certificate, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence
of 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 an
authorized officer of the Warrant Agent shall manually countersign and deliver,
in exchange for or in lieu of the lost, mutilated, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants[; provided, however, that any Global Warrant Certificate
shall be so delivered only to the Common Depositary.] Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and delivered pursuant to this
Section in lieu of any lost, mutilated, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of lost, mutilated, stolen or destroyed Warrant
Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the provisions
of this Agreement, any Holder of a Warrant Certificate [in registered form or
the beneficial owner of any Warrant evidenced by the Global Warrant
Certificate], without the consent of [the Common Depositary,] the Warrant
Agent, the Trustee, the holder of any Offered Securities or the Holder of any
other Warrant Certificate, may, in its own behalf and for its own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce, or otherwise in respect of, its right to
exercise its Warrants in the manner provided in its Warrant Certificate [or the
Global Warrant Certificate, as the case may be,] and in this Agreement.
[Neither the Company nor the Warrant Agent shall be required to treat any
person as a beneficial owner of any Warrant evidenced by the Global Warrant
Certificate unless such person is so certified as such a beneficial owner by
the Euroclear Operator or Clearstream.]
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If at any time the Company merges or consolidates with any other person or sells or conveys all or substantially all of its assets to any other person as permitted under the Indenture, then in any such event the successor or assuming corporation referred to therein shall succeed to and be substituted for the Company, with the same effect, subject to the Indenture, as if it had been named herein and in the Warrant Certificates as the Company; the Company shall thereupon, except in the case of a transfer by way of lease, be relieved of any further obligation hereunder and under the Warrants and the Warrant Certificates, and the Company as the predecessor corporation, except in the case of a transfer by way of lease, may thereupon or at any time thereafter be dissolved, wound up or liquidated. Such successor or assuming corporation may thereupon cause to be signed, and may issue either in its own name or in the name of the Company, Warrant Certificates evidencing any or all of the Warrants issuable hereunder which theretofore shall not have been signed by the Company, and may execute and deliver Warrant Securities in its own name pursuant to the Indenture, in fulfillment of its obligations to deliver Warrant Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Warrants had been issued at the date of the execution hereof. In any case of any such merger, consolidation, conveyance or transfer, such changes in phraseology and form (but not in substance) may be made in the Warrant Certificates representing the Warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel (who shall be acceptable to the Warrant Agent) as conclusive evidence that any such merger, consolidation, conveyance or transfer complies with the provisions of this Section and the Indenture.
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [[1: Upon] [2: Prior to the Detachable Date, a Warrant Certificate [in registered form] may be exchanged or transferred only together with the Offered Security to which such Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Prior to the Detachable Date, the transfer of the beneficial ownership of any Warrant evidenced by the Global Warrant Certificate shall effect and shall be deemed to effect the transfer of the beneficial ownership of any Offered Securities evidenced
by the Temporary Global Security that are attached to such Warrants. Prior to any Detachable Date, each transfer of the Offered Security [on the register maintained with respect to the Offered Securities, in the case of an Offered Security that is in registered form], shall operate also to transfer the related Warrant Certificates. Similarly, prior to the Detachable Date, the transfer of the beneficial ownership of any Offered Security evidenced by the Temporary Global Security shall be deemed to be the transfer of the beneficial ownership of any Warrants evidenced by the Global Warrant Certificate that are attached to such Offered Securities. The transfer of the beneficial ownership of Warrants and Warrant Securities hereunder shall be effected only as provided in Section 4.01. On or after the Detachable Date, upon]]21 [Upon]22 surrender at the corporate trust office of the Warrant Agent at [address] [or ], Warrant Certificates [in registered form] evidencing Warrants may be exchanged for Warrant Certificates [in registered form] in other authorized denominations evidencing such Warrants or the transfer thereof may be registered in whole or in part; provided, however, that such other Warrant Certificates shall evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[_____________], books in which, subject to such reasonable regulations as it
may prescribe, it shall register Warrant Certificates [in registered form] and
exchanges and transfers of outstanding Warrant Certificates [in registered
form] upon surrender of such Warrant Certificates to the Warrant Agent at its
corporate trust office at [______________] for exchange or registration of
transfer, properly endorsed [or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.]
(c) No service charge shall be made for any exchange or registration of transfer of Warrant Certificates [in registered form], but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such exchange or registration of transfer.
22 For Warrants sold alone or attached to Offered Securities that are not detachable.
(d) Whenever any Warrant Certificates [in registered form], are so surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates [in registered form], duly authorized and executed by the Company, as so requested. The Warrant Agent shall not effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate [in registered form], evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant.
(e) All Warrant Certificates [in registered form], issued upon any exchange or registration of transfer of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations, and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [With respect to the Global Warrant Certificate, the Holder thereof may be treated by the Company, the Warrant Agent and all other persons dealing with such Holder as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding.] [Each] [With respect to Warrant Certificates in registered form, each] Holder of a Warrant Certificate, by accepting the same, consents and agrees with the Company, the Warrant Agent and every subsequent Holder of such Warrant Certificate that until the transfer of such Warrant Certificate is registered on the books of such Warrant Agent [[2: or, prior to the Detachable Date, until the transfer of the Offered Security to which such Warrant Certificate is attached, is registered in the register of the Offered Securities]]23, the Company and the Warrant Agent may treat the registered Holder of such Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. (a) Any Warrant Certificate surrendered for exchange or registration of transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall cause all cancelled Warrant Certificates to be destroyed and shall deliver a certificate of such destruction to the Company.
(b) If the Company notifies the Trustee of its election to redeem [[2:
prior to the Detachable Date]]24 [, as a whole but not in part,] [[2: the
Offered Securities [or] [and]]]25 the Warrant Securities pursuant to the
Indenture or the terms thereof, the Company may elect, and shall give notice to
the Warrant Agent of its election, to cancel the unexercised Warrants, the
Warrant Certificates and the rights evidenced thereby. Promptly after receipt
of such notice by the Warrant Agent, the Company shall, or, at the Company's
request, the Warrant Agent shall in the name of and at the expense of the
Company, give notice of such cancellation to the Holders of the Warrant
Certificates [in registered form and to the beneficial owners of the Global
Warrant Certificate (except that such notice shall be required to be published
only once)], such notice to be so given not less than 30 nor more than 60 days
prior to the date fixed for the redemption of [[2: the Offered Securities [or]
[and]]]26 the Warrant Securities pursuant to the Indenture or the terms
thereof. The unexercised Warrants, the Warrant Certificates and the rights
evidenced thereby shall be cancelled and become void on the 15th day prior to
such date fixed for redemption.
24 For Warrants sold attached to Offered Securities that are not immediately detachable.
25 For Warrants sold attached to Offered Securities that are not immediately detachable.
26 For Warrants sold attached to Offered Securities that are not immediately detachable.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
[_____________________] as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein and in the Warrant Certificates set forth; and
[_____________________] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and herein and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates 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, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders from time to time of the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable attorneys' fees) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as Warrant Agent hereunder, as well as the reasonable costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in connection with the Warrants and the Warrant Certificates, 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 Holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to it in its reasonable judgment, and the advice of such counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants, 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 depositary, trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. 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 authorization to execute this Agreement and the due execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of any Warrant Certificates (except its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall be taken as the statements of the Company and the Warrant Agent assumes no liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates. 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 Warrant Certificates or in the case of the receipt of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.02, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company agrees, for the benefit of the Holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving written notice of its resignation to the Company, specifying the desired date on which its resignation shall become effective; provided, however, that such date shall be not less than 90 days after the date on which such notice is given unless the Company agrees to accept shorter notice. Upon receiving such notice of resignation, the Company shall promptly appoint a successor Warrant Agent (which shall be a bank or trust company in good standing, authorized under the laws of the jurisdiction of its organization to exercise corporate trust powers) by written instrument in duplicate signed on behalf of the Company, one copy of which shall be delivered to the resigning Warrant Agent and one copy to the successor Warrant Agent. The Company may, at any time and for any reason, remove the Warrant Agent and appoint a successor Warrant Agent (qualified as aforesaid) by written instrument in duplicate signed on behalf of the Company and specifying such removal and the date when it is intended to become effective, one copy of which shall be delivered to the Warrant Agent being removed and one copy to the successor Warrant Agent. Any resignation or removal of the Warrant Agent and any appointment of a successor Warrant Agent shall become effective upon acceptance of appointment by the successor Warrant Agent as provided in this subsection (b). 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, the Warrant Agent may apply to any court of competent jurisdiction for the designation of a successor Warrant Agent. Upon its resignation or removal, the Warrant Agent shall be entitled to the payment by the Company of
the compensation and to the reimbursement of all reasonable out-of-pocket expenses (including reasonable attorneys' fees) incurred by it hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a successor Warrant Agent if the Warrant Agent (i) shall become incapable of acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, (iv) shall consent to, or shall have had entered against it a court order for, any such relief or to the appointment of or taking possession by any such official in any involuntary case or other proceedings commenced against it, (v) shall make a general assignment for the benefit of creditors or (vi) shall fail generally to pay its debts as they become due. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by it of such appointment, the predecessor Warrant Agent shall, if not previously disqualified by operation of law, cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and 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 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.
(e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and 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.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the terms of the Warrants and the Warrant Certificates may be amended by the parties hereto, without the consent of the Holder of any Warrant Certificate or the beneficial owner of any Warrant, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or in the Warrant Certificates, or making any other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary or desirable, provided that such action shall not affect adversely the interests of the Holders of the Warrant Certificates or the beneficial owners of Warrants in any material respect.
(b) The Company and the Warrant Agent may modify or amend this Agreement (by means of an agreement supplemental hereto or otherwise) with the consent of Warrantholders holding not less than a majority in number of the then outstanding Warrants of all series affected by such modification or amendment, for any purpose; provided, however, that no such modification or amendment that changes the exercise price of the Warrants of any series, reduces the amount receivable upon exercise, cancellation or expiration of the Warrants other than in accordance with the antidilution provisions or other similar adjustment provisions included in the terms of the Warrants, shortens the period of time during which the Warrants of such series may be exercised, or otherwise materially and adversely affects the exercise rights of the affected Warrantholders or reduces the percentage of the number of outstanding Warrants of such series, the consent of whose holders is required for modification or amendment of this Agreement, may be made without the consent of each Warrantholder affected thereby. In the case of Warrants evidenced by one or more Global Warrant Certificates, the Company and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from holders of beneficial ownership interests in the relevant Global Warrant Certificate. Such certification may be provided by participants of the Depositary acting on behalf of such beneficial owners of Warrants, provided that any such certification is accompanied by a certification from the Depositary as to the Warrant holdings of such participants.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company by the Holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to [____________],
Attention: [_____________________], and any communication from the Warrant
Agent to the Company with respect to this Agreement shall be addressed to J.P.
Morgan Chase & Co., 270 Park Avenue, New York, New York 10017-2070, Attention:
Corporate Secretary (or such other address as shall be specified in writing by
the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and performance of this Agreement and each Warrant Certificate issued hereunder and of the respective terms and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the Warrant Agent sufficient copies of a prospectus relating to the Warrant Securities deliverable upon exercise of Warrants (the "Prospectus"), and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the Holder of the Warrant Certificate evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities acts filings under United States federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities under the Securities Act of 1933), which may be or become requisite in connection with the issuance, sale, transfer and delivery of the Warrant Certificates, the exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrant Securities issued upon exercise of the Warrants or upon the expiration of the period during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. [Except as otherwise provided in Section 3.03, nothing] [Nothing] in this Agreement shall give to any person other than the Company, the Warrant Agent and the Holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
SECTION 6.08. 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 6.09. Counterparts. This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but such counterparts shall together constitute but one and the same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent for inspection by the Holder of any Warrant Certificate. The Warrant Agent may require such Holder to submit his Warrant Certificate for inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders of Warrants evidenced by Warrant Certificates [in registered form] which by any provisions of this Warrant Agreement is required or permitted to be given shall be given by first class mail prepaid at such Holder's address as it appears on the books of the Warrant Agent. [Any notice to beneficial owners of Warrants evidenced by the Global Warrant Certificate which by any provisions of this Warrant Agreement is required or permitted to be given shall be given in the manner provided with respect to Warrant Securities in bearer form in Section 11.04 of the Indenture].
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and their respective corporate seals to be hereunto affixed and attested, all as of the date first above written.
J.P. MORGAN CHASE & CO.
[SEAL] By:
-------------------------------------
Name:
Title:
Attest:
By:
------------------------------------
Name:
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Title:
[SEAL] By:
-------------------------------------
Name:
Title:
Attest:
By:
-----------------------------------
Name:
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Title:
Exhibit A
FORM OF WARRANT CERTIFICATE [IN REGISTERED FORM]
[Face of Warrant Certificate]
[[1: This] [2: Prior to this] Warrant Certificate cannot be transferred unless attached to a [Title of Offered Securities].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
J. P. MORGAN CHASE & CO.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON , 20
No. __________ __________ Warrants
This certifies that or registered assigns (the "Registered
Holder") is the registered owner of the above indicated number of Warrants,
each Warrant entitling such owner to purchase, at any time [after 5:00 P.M.,
New York City time, on 20 and] on or before 5:00 P.M., New York
City time, on , 20 , principal amount of [Title of Warrant
Securities] (the principal amount of [Title of Warrant Securities] (the "Warrant
Securities") of J.P. Morgan Chase & Co. (the "Company") issued and to be issued
under the Indenture (as hereinafter defined), on the following basis:
[on 20 exercise price of each Warrant will be during
the period 20 through and including 20 the exercise price of
each Warrant will be plus [accrued amortization of the original issue
discount] [accrued interest] from 20 [; in each case, the original
issue discount will be amortized at a annual rate, computed on an annual basis
using the "interest" method and using a 360-day year consisting of twelve
30-day months] (the "Warrant Price"). [The original issue discount for each
principal amount of Warrant Securities is .] the Registered Holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full, [in lawful money of the United
States of America] [in applicable currency] [in cash] [by certified check or
official bank check or by bank wire transfer, in each case,] [by
bank wire transfer] [in immediately available funds,] the Warrant Price for each Warrant exercised (plus accrued interest, if any, on the Warrant Securities to be issued upon exercise of such Warrant from and including the interest payment date, if any, in respect of such Warrant Securities immediately preceding the Exercise Date to and including the Exercise Date (unless the Exercise Date is after the regular record date in respect of such Warrant Securities, if any, for such interest payment date, but on or before the immediately succeeding interest payment date for such Warrant Securities, in which event no such accrued interest shall be payable)) to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate, with the form of election to purchase on the reverse hereof completed and duly executed, at the corporate trust office of [name of Warrant Agent], or its successor, as warrant agent (the "Warrant Agent"), [or currently at the address specified on the reverse hereof, and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may be exercised to purchase Warrant Securities in fully registered form in denominations of and any integral multiples thereof. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Registered Holder hereof a new Warrant Certificate in registered form evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of 20 (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 the Registered Holder consents by acceptance hereof. Copies of the Warrant Agreement and the form of the Warrant Securities are on file at the above-mentioned office of the Warrant Agent [and at .
[The Warrant Securities to be issued and delivered upon the exercise of the Warrants evidenced by this Warrant Certificate will be issued under and in accordance with an Indenture dated as of [ ], 2001 (the "Indenture") between the Company and Bankers Trust Company, as Trustee (the "Trustee"), and will be subject to the terms and provisions contained in the Indentures. Copies of the Indenture and the form of the Warrant Securities are on file at the corporate trust office of the Trustee [and at .]
[1: This] [2: Prior to 20 this] Warrant Certificate may be transferred [2: only together with the [Title of Offered Securities] (the "Offered Securities") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, a transfer of such Offered
Securities,] at the corporate trust office of the Warrant Agent [or by the Registered Holder or its assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement.
[1: After] [2: Except as otherwise provided in the immediately preceding paragraph, after] countersignature by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent [or for Warrant Certificates in registered form representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the Registered Holder hereof to any of the rights of a holder of the Warrant Securities, including, without limitation, the right to receive payments of principal of (premium, if any) or interest, if any, on the Warrant Securities or to enforce any of the covenants of the Indenture.
This Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
Dated as of , 20 .
J.P. MORGAN CHASE & CO.
[SEAL]
By
---------------------------------
Attest:
----------------------------------
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Countersigned:
[Reverse of Warrant Certificate] Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the Registered Holder must pay
in full [in lawful money of the United States of America] [in applicable
currency] [in cash] [by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds,] the Warrant Price for Warrants exercised (plus any accrued interest as
specified in this Warrant Certificate) to [insert name of Warrant Agent]
[corporate trust department] [insert address of Warrant Agent], Attn:
[or , which [payment] [wire transfer] must specify the name of the
Registered Holder and the number of Warrants exercised by such Registered
Holder. In addition, the Registered Holder must complete the information
required below and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _____ Warrants, evidenced by this Warrant Certificate, to purchase _____ principal amount of the [Title of Warrant Securities] (the "Warrant Securities") of J.P. Morgan Chase & Co. and represents that he has tendered payment for such Warrant Securities [in lawful money of the United States of America] [in applicable currency] [in cash] [by certified check or official bank check or by bank wire transfer, in each case,] [by bank wire transfer] [in immediately available funds] to the order of J.P. Morgan Chase & Co., c/o [insert name and address of Warrant Agent], in the amount of _______ in accordance with the terms hereof. The undersigned requests that said principal amount of Warrant Securities be in registered form in the authorized denominations, registered in such names and delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants exercised is fewer than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate representing the remaining Warrants evidenced hereby be issued in registered form and delivered either to the undersigned or as otherwise specified in the instructions below.
Dated_________________________ Name____________________________________
(Please Print)
______________________________ Address_________________________________
(Insert Social Security or
Other Identifying Number of ________________________________________
Holder)
Signature_______________________________
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The Warrants evidenced hereby may be exercised at the following addresses:
[Instructions as to delivery of Warrant Securities and, if applicable, Warrant Certificates evidencing unexercised Warrants - complete as appropriate.]
Assignment
(Form of Assignment to be Executed if Holder Desires to Transfer Warrants Evidenced Hereby)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
Please insert social security
or other identifying number
-----------------------------
-----------------------------
-------------------------------------------------------------------------------
(Please print name and address including zip code)
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the Warrants represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint _______________ Attorney, to transfer said Warrant Certificate on the books of the Warrant Agent with full power of substitution in the premises.
Dated: -----------------------------------------
Signature
(Signature must conform in all
respects to name of Registered
Holder as specified on the face of
this Warrant Certificate and must
bear a signature guarantee by a
bank, trust company or member
broker of the New York, Midwest or
Pacific Stock Exchange).
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Signature Guaranteed
Exhibit B
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF GLOBAL WARRANT CERTIFICATE IN BEARER FORM]
[Face of Global Warrant Certificate]
[[1: The] [2: Prior to , the] beneficial ownership of any Warrants evidenced by this Global Warrant Certificate may be transferred only together with the beneficial ownership of the Temporary Global Security referred to herein to which this Global Warrant Certificate was initially attached.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
J.P. MORGAN CHASE & CO.
GLOBAL WARRANT CERTIFICATE REPRESENTING __________
WARRANTS TO PURCHASE OF UP TO __________
PRINCIPAL AMOUNT OF [Title of Warrant Securities]
VOID AFTER [TIME], ON 20 .
This Global Warrant Certificate evidences warrants (the "Warrants") representing the right to purchase, subject to the terms and conditions hereof and of the Debt Warrant Agreement referred to below, at any time [after [time] on 20 and] on or before the [time] in [location] on 20 up to aggregate principal amount of [Title of Warrant Securities] (the "Warrant Securities") of J.P. Morgan Chase & Co. (the "Company") issued and to be issued under the Indenture (as hereinafter defined), on the following basis: on 20 the exercise price of each Warrant will be ; during the period from 20 through and including 20 the exercise price of each Warrant will be plus [accrued amortization of the original issue discount] [accrued interest] from 20 on 20 the exercise price of each Warrant will be during the period from 20 through and including 20 the exercise price of each Warrant will
be plus [accrued amortization of the original issue discount] [accrued interest] from 19 [; in each case, the original issue discount will be amortized at a % annual rate, computed on an annual basis using the "interest" method and using a 360-day year consisting of twelve 30-day months] (the "Warrant Price"). [The original issue discount of each principal amount of Warrant Securities is .] Beneficial owners of Warrants represented by this Global Warrant Certificate may cause such Warrants to be exercised only by transmitting by tested telex or by delivering or causing to be delivered to Euroclear Bank, as operator of the Euro-clear System (the "Euro-clear Operator"), in Brussels, Belgium, or to Clearstream Banking S.A. ("Clearstream") in [Luxembourg], a warrant exercise notice, substantially in the form attached as Exhibit D to the Debt Warrant Agreement referred to below (the "Warrant Exercise Notice"), copies of which will be available from the Euro-clear Operator or Clearstream or from [name or Warrant Agent], or its successor as warrant agent (the "Warrant Agent") under the Debt Warrant Agreement (the "Debt Warrant Agreement") dated as of 20 between the Company and the Warrant Agent. The Warrant Exercise Notice shall specify, among other things, the aggregate principal amount of Warrant Securities to be purchased on exercise of the Warrants, the account number or numbers on the records of the Euro-clear Operator or Clearstream to which the Warrants being exercised [2: and, if prior to 20 the Offered Securities (as defined below)] to which such Warrants are attached are credited, the account number to be debited for the Warrant Price of each Warrant being exercised (plus accrued interest, if any, on the Warrant Securities to be issued upon exercise of such Warrant from and including the interest payment date, if any, in respect of such Warrant Securities immediately preceding the Exercise Date to and including the Exercise Date (unless the Exercise Date is after the regular record date in respect of such Warrant Securities, if any, for such interest payment date, but on or before the immediately succeeding interest payment date for such Warrant Securities, in which event no such accrued interest shall be payable in respect of Warrant Securities to be issued in registered form)), the account number to which the Warrant Securities issued on exercise of the Warrants are to be credited and the form in which Warrant Securities are to be issued. A Warrant Exercise Notice must be received by the Euro-clear Operator or Clearstream prior to [time] (Brussels or [Luxembourg] time, as the case may be) on the business day next preceding the Exercise Date (as defined in such Warrant Exercise Notice). The delivery to the Euro-clear Operator or Clearstream, as the case may be, of a Warrant Exercise Notice shall constitute an irrevocable election to purchase the aggregate principal amount of Warrant Securities specified therein.
Any whole number of Warrants evidenced by this Global Warrant Certificate may be exercised to purchase Warrant Securities in bearer or registered form in denominations of [ or , in the case of Warrant Securities in bearer form, and of and any integral multiple thereof, in the case of Warrant Securities in registered
form; provided, however, that no Warrant Security in bearer form shall be mailed or otherwise delivered to any location in the United States of America, its territories or possessions or areas subject to its jurisdiction or the Commonwealth of Puerto Rico (the "United States").
The Warrants evidenced by this Global Warrant Certificate, this Global Warrant Certificate and the rights evidenced hereby may be cancelled in the manner and under the circumstances described in the Debt Warrant Agreement. Notice of cancellation of the Warrants evidenced by this Global Warrant Certificate, this Global Warrant Certificate and the rights evidenced hereby shall be given by publication in the manner described in the Debt Warrant Agreement.
This Global Warrant Certificate is issued under and in accordance with the Debt Warrant Agreement between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Debt Warrant Agreement, to all of which terms and provisions the holder hereof consents by acceptance hereof. Copies of the Debt Warrant Agreement and the form of Warrant Securities are on file at the above-mentioned office of the Warrant Agent [and at ].
[The Warrant Securities to be issued and delivered upon the exercise of the Warrants evidenced by this Global Warrant Certificate will be issued under and in accordance with an Indenture dated as of [ ], 2001 (the "Indenture") between the Company and Bankers Trust Company, as Trustee (the "Trustee"), and will be subject to the terms and provisions contained in the Indenture. Copies of the Indenture and the form of the Warrant Securities are on file at the corporate trust office of the Trustee [and at .]
[1: The] [2: Prior to 19 the] beneficial ownership of any Warrants evidenced by this Global Warrant Certificate may be transferred only together with the beneficial ownership of the Temporary Global Security (as defined in the Debt Warrant Agreement) evidencing the [Title of Offered Securities] (the "Offered Securities") to which this Global Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, a transfer of such Temporary Global Security. After such date, the Global Warrant Certificate, and all rights hereunder, may be transferred by delivery, and the Company and the Warrant Agent may treat the holder hereof as the owner for all purposes.
This Global Warrant Certificate shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without limitation, the right to receive payments of principal of, premium, if any, or interest, if any, on the Warrant Securities or to enforce any of the covenants of the Indenture.
This Global Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
Dated as of , 20 .
J.P. MORGAN CHASE & CO.
[SEAL]
By
----------------------------
Attest:
---------------------------------
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Countersigned:
Schedule A
(additional continuation sheets may be attached if required)
Exercises of Warrants
The following exercises of a portion of this Global Warrant Certificate or Warrant Securities have been made:
Date of Number of Warrants Remaining Number of Notation
Exercise Exercised for Warrants Following Made By:
Warrant Securities such Exercise
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Exhibit C
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF CERTIFICATE TO BE DELIVERED TO WARRANT AGENT
BY THE EURO-CLEAR OPERATOR OR CLEARSTREAM]
J.P. MORGAN CHASE & CO.
Warrants (the "Warrants") to Purchase
[Title of Warrant Securities]
[Name of Warrant Agent]
[Address]
Dear Sirs:
The undersigned hereby irrevocably elects to exercise __________ Warrants to purchase as of (the "Exercise Date") _____ principal amount of the [title of Warrant Securities] (the "Warrant Securities") of J.P. Morgan Chase & Co. and represents that it has tendered payment for such Warrant Securities [in lawful money of the United States of America] [in applicable currency] [in cash] [by certified check or official bank check or by bank wire transfer, in each case,] [by bank wire transfer] [in immediately available funds] to the order of J.P. Morgan Chase & Co., c/o [insert name and address of Warrant Agent], in the amount of _____ in accordance with the terms hereof and the Debt Warrant Agreement dated as of 20 between J. P. Morgan Chase & Co. and you (the "Debt Warrant Agreement").
In connection with the Undersigned's request that you deliver to us any
Warrant Securities in bearer form, the undersigned hereby certifies that as of
the date hereof the Warrant Securities in bearer form which are to be delivered
to the Common Depositary referred to below for our account are not being
acquired, directly or indirectly, by or on behalf of a United States person (as
defined below) or for offer to resell or for resale to a United States person
or any person inside the United States (as defined below) or, if a beneficial
interest in any such Warrant Securities is being acquired by or on behalf of a
United States person, that such United States person is either a financial
institution within the meaning of Section 1.165-12(c)(1)(v) of the United
States Treasury regulations or is acquiring through such a financial
institution and that such Warrant Securities are held by a financial
institution that has agreed to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder and that is not purchasing for offer to resell or for resale inside the United States.
As a clearing organization within the meaning of Section 1.163-5(c)(2)(i)(B)(4) of the regulations promulgated under the Internal Revenue Code of 1986, as amended, the undersigned further certifies that (a) the above certification is based solely on statements received from member organizations appearing in our records (our "Account Holders") in certificates in the form set forth in Exhibit D to the Debt Warrant Agreement and (b) as of the date hereof we have not received any notification from any of our Account Holders to the effect that the statements made by such Account Holders in such certificates are no longer true.
"United States person" means any citizen, national or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, or any estate or trust the income of which is subject to United States federal income taxation regardless of its source. "United States" means the United States of America, its territories and possessions and areas subject to its jurisdiction and the Commonwealth of Puerto Rico.
We hereby undertake to notify you immediately by telex if any of the statements of our Account Holders referred to above is not correct at any time on or before the Warrant Securities in bearer form are delivered. We further agree to cause a confirmation substantially in the form of Exhibit E to the Debt Warrant Agreement and a copy of the prospectus relating to the Warrant Securities delivered to us as contemplated by Section 6.05 of the Debt Warrant Agreement to be delivered to our Account Holders entitled to such Warrant Securities prior to or contemporaneously with our transfer of such Warrant Securities to or to the account of such Account Holders.
We understand that this certificate is required in connection with United States laws, tax laws and regulations. We irrevocably authorize you to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceedings with respect to the matters covered by this Certificate.
The undersigned requests that said principal amount of Warrant Securities be [in registered form in the authorized denominations, registered in such names and delivered all as specified in accordance with the instructions set forth below] [bearer form in the authorized denominations and delivered to as Common Depositary under the Debt Warrant Agreement, to be held for our account]* [Instructions as to delivery of Warrant Securities to be issued in registered form].
Dated: ______________, 20__
Very truly yours,
EUROCLEAR BANK,
as operator of the Euro-clear
System
[CLEARSTREAM BANKING S.A.]*
* Delete inapplicable reference
Exhibit D
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF WARRANT EXERCISE NOTICE]
Euroclear Bank,
as operator of the Euro-clear
System
(the "Euro-clear Operator")*
[Address]
Clearstream Banking S.A.*
[Address]
J.P. MORGAN CHASE & CO.
WARRANTS (THE "WARRANTS") TO PURCHASE
[Title of Warrant Securities]
(the "Warrant Securities")
Dear Sirs:
We hereby irrevocably elect to exercise __________ Warrants to purchase _________ (being _______________ or an integral multiple thereof) aggregate principal amount of Warrant Securities of J.P. Morgan Chase & Co. (the "Company") on ____________, 20 __ (the "Exercise Date"). The account number(s) on your books in which the Warrants being exercised [and the [Title of Offered Securities] to which such Warrants are attached]** are held is (are) ________________________. The Warrant Securities to be issued to us on exercise of the Warrants are to be credited to such account, unless otherwise indicated below and shall be in [registered] [bearer] form in the following authorized denominations: _______________________.
We hereby request that you complete a certification in the form required by the Debt Warrant Agreement hereinafter referred to and make payment directly to [ ], as Warrant Agent (the "Warrant Agent", which term shall include its successors as such Warrant Agent), under the Debt Warrant Agreement dated as of [ ] between the Company and the Warrant Agent (the "Debt Warrant Agreement") at or prior to [time] on the Exercise Date, or if the Exercise Date is
the last day on which Warrants may be exercised under the Debt Warrant
Agreement, prior to [time] in [location] on the Exercise Date, [in lawful money
of the United States of America] [in applicable currency] [in cash] [by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds] of ____________, such
amount being the Warrant Price (as defined in the Global Warrant Certificate
representing the Warrants, as provided in Section 1.02 of the Debt Warrant
Agreement) for Warrants exercised (plus any accrued interest as specified in
such Global Warrant Certificate) on the Exercise Date, and debit account number
___________ for said amount.
The undersigned hereby certifies that as of the date hereof, the Warrant
Securities which are to be delivered in bearer form are not being acquired,
directly or indirectly, by or on behalf of a United States person or for offer
to resell or for resale to a United States person or any person inside the
United States (as defined below) or, if a beneficial interest in such Warrant
Securities is being acquired by or on behalf of a United States person, that
such United States person is either a financial institution within the meaning
of Section 1.165-12(c)(1)(v) of the United States Treasury regulations or is
acquiring such beneficial interest through such financial institution and that
such beneficial interest is held by a financial institution which agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder and
which is not purchasing for offer to resell or for resale inside the United
States. If the undersigned is a dealer, the undersigned agrees to obtain a
similar certificate from each person entitled to delivery of any Warrant
Securities in bearer form purchased from it; provided, however, that if the
undersigned has actual knowledge that the information contained in such a
certificate is false, the undersigned will not deliver a Warrant Security in
temporary or definitive bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the undersigned. The
undersigned will be deemed to have actual knowledge if, inter alia, the
undersigned has a United States address for the beneficial owner of such
Warrant Security (other than a financial institution as defined in Section
1.165-12(c)(1)(v) that represents that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), unless the undersigned has
documentary evidence (as described in A-5 of Section 35a.9999-4T of the
regulations promulgated under the Internal Revenue Code of 1986, as amended)
that the beneficial owner of such Warrant Security is not a United States
person. If this certificate is being provided by a clearing organization, it is
based on statements provided to it by its member organizations. As used herein,
a "clearing organization" is an entity which is in the business of holding
obligations for member organizations and transferring obligations among such
members by credit
or debit to the account of a member without the necessity of physical delivery of the obligation.
We undertake to advise you immediately by telex if the foregoing statement as to beneficial ownership is not correct on or before the date of delivery of such Warrant Securities as to the entire principal amount of the Warrant Securities to be issuable upon exercise [then appearing on your books as being held for our account].
We understand that this certificate is required in connection with certain tax regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings. "United States person" means any citizen, national or resident of the United States or any political subdivision thereof, any corporation, partnership or other entity created or organized in or under laws of the United States, or any estate or trust the income of which is subject to United States federal income taxation regardless of its source. "United States" means the United States of America, its territories and possessions and areas subject to its jurisdiction and the Commonwealth of Puerto Rico.
Dated: ____________, 20__
Very truly yours,
[Name and, if appropriate, title] As the beneficial owner(s) of the interest in the Warrants to which this Warrant Exercise Notice relates.
Exhibit E
[DELETE THIS EXHIBIT IF WARRANT CERTIFICATES
IN ONLY REGISTERED FORM ARE TO BE ISSUED]
[FORM OF CONFIRMATION TO BE DELIVERED
TO PURCHASERS OF WARRANT SECURITIES
IN BEARER FORM]
J.P. MORGAN CHASE & CO.
[Title of Warrant Securities]
(the "Warrant Securities")
By your purchase of Warrant Securities in bearer form you represent that
you are not a United States person or, if you are a United States person, that
you are a financial institution as defined in Section 1.165-12(c)(1)(v) of the
Treasury Department regulations, purchasing for your own account or for the
account of a customer and that you will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder. Furthermore, if you are a dealer,
you agree that you will deliver a confirmation containing this entire paragraph
to purchasers of such Securities from you. For purposes of this statement,
"United States person" means any citizen, national or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof or any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source, and "United States" means the United States
of America, its territories and possessions and areas subject to its
jurisdiction and the Commonwealth of Puerto Rico.
Exhibit 4(e)
J.P. MORGAN CHASE & CO.
and
[_____________________], Warrant Agent
and
[_____________________], Determination Agent
INDEX WARRANT AGREEMENT
dated as of [__________]
TABLE OF CONTENTS(1)
ARTICLE 1
ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES AND GLOBAL WARRANT CERTIFICATE
SECTION 1.01. Issuance of Warrants..........................................1 SECTION 1.02. Form, Execution and Delivery of Warrant Certificates..........2 SECTION 1.03. Warrant Certificates..........................................3 SECTION 1.04. Registration of Transfers and Exchange........................3 SECTION 1.05. Mutilated or Missing Warrant Certificates.....................4 SECTION 1.06. Registered Holders............................................5 SECTION 1.07. Global Warrant Certificate....................................5 |
ARTICLE 2
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants; Minimum Exercise Amounts; Exercise
Notice........................................................8
SECTION 2.02. Exercise, Valuation and Delivery of Warrants..................9
SECTION 2.03. Automatic Exercise of Warrants; Exercise Upon an
Extraordinary Event or Exercise Limitation Event.............18
SECTION 2.04. Limitation of Number of Exercisable Warrants.................25
SECTION 2.05. Covenant of the Company......................................26
SECTION 2.06. Return of Money Held Unclaimed for Two Years.................26
SECTION 2.07. Return of Global Warrant Certificate.........................26
|
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder of Warrant May Enforce Rights..................27
ARTICLE 4
WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Warrants Acquired by the Company.............................27
SECTION 4.02. Payment of Taxes.............................................27
--------
1The Table of Contents is not a part of the Warrant Agreement.
|
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent................................................28 SECTION 5.02. Condition of Warrant Agent's Obligations.....................28 SECTION 5.03. Resignation and Appointment of Successor.....................30 |
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment....................................................32
SECTION 6.02. Notices and Demands to the Company, the Warrant Agent
and the Determination Agent..................................32
SECTION 6.03. Addresses for Notices........................................33
SECTION 6.04. Notices to Holders...........................................33
SECTION 6.05. Obtaining of Approvals.......................................33
SECTION 6.06. Persons Having Rights under this Agreement...................33
SECTION 6.07. Inspection of Agreement......................................34
SECTION 6.08. Headings.....................................................34
SECTION 6.09. Counterparts.................................................34
SECTION 6.10. Applicable Law...............................................34
EXHIBIT A -- Form of Warrant Certificate
EXHIBIT A-1 -- Form of Global Warrant Certificate
EXHIBIT A-2 -- Exercise Notice For Warrants Represented by the Global
Warrant Certificate
EXHIBIT B -- Confirmation of Exercise and Notice of Rejection For
Warrants Represented by Warrant Certificates
EXHIBIT B-1 -- Confirmation of Exercise and Notice of Rejection For
Warrants Represented by the Global Warrant Certificate
EXHIBIT C-1 -- Notice of Rejection Relating to Limit Option For Warrants
Represented by Warrant Certificates
EXHIBIT C-2 -- Notice of Rejection Relating to Limit Option For Warrants
Represented by the Global Warrant Certificate
|
WARRANT AGREEMENT
THIS AGREEMENT, dated as of [___________], 20[__], among J.P. MORGAN CHASE & CO., a corporation organized and existing under the laws of the State of Delaware (the "Company"), [_____________________], a New York banking corporation (the "Warrant Agent"), and [_____________________], a corporation organized and existing under the laws of the State of Delaware (the "Determination Agent").
WHEREAS, the Company proposes to sell [put warrants] [call warrants] (the "Warrants" or, individually, a "Warrant"), representing the right to receive from the Company an amount in [name of payment currency] to be determined by reference to [decreases (in the case of Put Warrants)] [increases (in the case of Call Warrants)] [in the level of the [name of Reference Index] (the "Index")] [or in the levels (or relative levels) of two or more Indices or combinations of Indices] on the terms and conditions set forth in this Agreement; and
WHEREAS the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance, transfer and exercise of the Warrants, and the Company 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 canceled;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION
OF WARRANT CERTIFICATES AND GLOBAL WARRANT CERTIFICATE
SECTION 1.01. Issuance of Warrants. (a) The Warrants are unsecured contractual obligations of the Company and will rank on a parity with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
(b) Each Warrant shall represent the right, upon exercise (including automatic exercise) subject to the provisions contained herein, to receive the Cash Settlement Value or the Alternative Settlement Amount, as the case may be (each as defined herein), of such Warrant. In no event shall a registered or beneficial holder of a Warrant (each a "Warrantholder") be entitled to receive any interest
on any Cash Settlement Value or Alternative Settlement Amount. The Warrants will not entitle the Warrantholders to any of the rights of the holder of any security underlying the Index (an "Underlying Security") [alternative provision for indices not based on securities]. A Warrant will not require or entitle the Warrantholder thereof to sell, deliver, purchase or take delivery of any Underlying Security [alternative provision for indices not based on securities], nor will the Company be under any obligation to, nor will it, purchase or take delivery of, or sell or deliver, any such securities to or from Warrantholders.
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates. (a) The Warrants, whenever issued, shall be represented by certificates in registered form substantially in the form set forth in Exhibit A hereto (the "Warrant Certificates"), with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may represent any whole number 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 which are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any stock exchange on which the Warrants may be listed, or of any securities depository, or to conform to usage. Warrant Certificates shall be signed on behalf of the Company by any of the chairman of its Board of Directors, its president, any vice chairman of its Board of Directors or the chief financial officer (or any other officer certified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Issuer), in each case under its corporate seal which may, but need not be attested by its secretary or one or more of its assistant secretaries [except that the Global Warrant Certificate may be executed by any such officer without any necessity that such signature be under seal as aforesaid]. The signature of any of such officers may be either manual or facsimile. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent.
(b) In case any officer of the Company who shall have signed a Warrant Certificate, either manually or by facsimile signature, shall cease to be such officer before such Warrant Certificate shall have been countersigned and delivered by the Warrant Agent to the Company or delivered by the Company, such Warrant Certificate nevertheless may be countersigned and delivered as though the person who signed such Warrant Certificate had not ceased to be such officer of the Company; and the Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Warrant Agreement any such person was not such officer.
SECTION 1.03. Warrant Certificates. Each Warrant Certificate, when executed on behalf of the Company in accordance with Section 1.02, shall be delivered to the Warrant Agent, which shall manually countersign and deliver the same to or upon the order of the Company. Each Warrant Certificate shall be dated the date of its countersignature. A Warrant Certificate shall not be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, unless and until such Warrant Certificate has been countersigned by the manual signature of an authorized officer of the Warrant Agent. Such countersignature by an authorized officer of the Warrant Agent upon any Warrant Certificate signed by the Company in accordance with Section 1.02 shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
SECTION 1.04. Registration of Transfers and Exchange. (a) Except as otherwise provided herein or in the Warrant Certificate, the Warrant Agent shall from time to time register the transfer of any outstanding Warrant Certificates upon the records to be maintained by it for that purpose (the "Warrant Register") at the Warrant Agent's Office (as defined herein), subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, upon surrender thereof, duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the registered holder(s) thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a bank or trust company with a correspondent office in The City of New York or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. Upon any such registration of transfer, a new Warrant Certificate shall be issued to the transferee(s) and the surrendered Warrant Certificate shall be canceled by the Warrant Agent.
(b) At the option of a Warrantholder, Warrant Certificates may be exchanged for other Warrant Certificates, representing a like number of Warrants, upon surrender to the Warrant Agent of the Warrant Certificates to be exchanged at its offices maintained for such purpose (the location of which shall be provided to the Company), which shall be in the Borough of Manhattan, The City of New York (the "Warrant Agent's Office"), and which is, on the date of this Agreement, [_____________________], Attention: [__________], or at the office of any successor Warrant Agent (as provided in Section 5.03). Upon surrender of any Warrant Certificate for exchange, the Warrant Agent shall cancel such Warrant Certificate, and the Company shall execute, and the Warrant Agent shall
countersign and deliver, in accordance with Sections 1.02 and 1.03, one or more new Warrant Certificates of like tenor and representing a like number of unexercised Warrants.
(c) Warrant Certificates issued upon transfer or exchange pursuant to
Section 1.04(a) or (b) shall be valid obligations of the Company, evidencing
the same obligations of the Company as the Warrant Certificates surrendered for
transfer or exchange, and entitled to the same benefits under this Agreement as
were such Warrant Certificates prior to such surrender.
(d) Except as provided in Section 1.05, no service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates, other than exchanges pursuant to this Section 1.04 not involving any transfer.
(e) In the event that upon any exercise of Warrants evidenced by a Warrant Certificate the number of Warrants exercised shall be less than the total number of Warrants evidenced by such Warrant Certificate, there shall be issued to the holder thereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised.
SECTION 1.05. Mutilated or Missing Warrant Certificates. (a) If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company may in its discretion execute, and the Warrant Agent may countersign and deliver, in exchange and substitution for the mutilated Warrant Certificate, or in replacement for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants, bearing an identification number not contemporaneously outstanding, but only (in case of loss, theft or destruction) upon receipt of evidence satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and security or indemnity, if requested, also satisfactory to them. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe.
(b) In case any such mutilated, lost, stolen or destroyed Warrant Certificate has been or is about to be exercised, or deemed to be exercised, the Company in its absolute discretion may, instead of issuing a new Warrant Certificate, direct the Warrant Agent to treat the same as if it had received the Warrant Certificate together with an irrevocable Exercise Notice (as defined
herein) in proper form in respect thereof, as provided herein, or as being subject to automatic exercise, as the case may be.
(c) Each new Warrant Certificate issued pursuant to this Section 1.05 in lieu of any lost, stolen or destroyed Warrant Certificate shall be an original, additional contractual obligation of the Company, and shall be entitled to the same benefits under this Agreement as the Warrant Certificate that was lost, stolen or destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance with this Section 1.05, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith.
(e) The provisions of this Section 1.05 are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the replacement or payment of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 1.06. Registered Holders. Prior to due presentment for registration of transfer, 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 shall be registered in the Warrant Register (a "Registered Holder") as the absolute owner of the Warrants evidenced thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate) for any purpose whatsoever, and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, 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. This Section 1.06 shall be without prejudice to the rights of Warrantholders as described elsewhere herein.
SECTION 1.07. Global Warrant Certificate. (a) Any global certificate evidencing the Warrants (the "Global Warrant Certificate") issued in accordance with this Section 1.07 shall be substantially in the form set forth in Exhibit A-1 hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may represent any number of whole Warrants. The 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 which are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto, or with any rule or regulation of any stock exchange on which the Warrants may be listed or of The Depository Trust Company, New York, New York (the "Depository", which term, as used herein, includes any successor securities depository selected by the Company), or to conform to usage. Each Global Warrant Certificate shall be signed on behalf of the Company upon the same conditions, in substantially the same manner and with the same effect as the Warrant Certificates
(b) The Warrant Agent is authorized upon receipt of a Global Warrant Certificate from the Company, duly executed on behalf of the Company, to countersign such Global Warrant Certificate. The Global Warrant Certificate shall be manually countersigned and dated the date of its countersignature by the Warrant Agent and shall not be valid for any purpose unless so countersigned. The Warrant Agent shall deliver the Global Warrant Certificate to or upon the order of the Company against receipt of an appropriate amount of Certificated Warrants (as defined herein) (such Certificated Warrants shall be disposed of in accordance with instructions provided by the Company). One or more Global Warrant Certificates may be executed by the Company and delivered to the Warrant Agent on or after the date of execution of this Agreement; provided that only one Global Warrant Certificate shall be outstanding at any one time.
The Company reserves the right to issue, from time to time after the date of execution of this Agreement, additional Warrants, and in connection therewith the Global Warrant Certificate may be exchanged for a new Global Warrant Certificate to reflect the issuance by the Company of such additional Warrants. To effect such an exchange the Company shall deliver to the Warrant Agent a new Global Warrant Certificate duly executed on behalf of the Company as provided in Section 1.02. The Warrant Agent shall countersign the new Global Warrant Certificate as provided in this Section and shall deliver the new Global Warrant Certificate to the Depository in exchange for, and upon receipt of, the Global Warrant Certificate then held by the Depository. The Warrant Agent shall cancel the Global Warrant Certificate delivered to it by the Depository, dispose of such Global Warrant Certificate and provide a certificate of disposition to the Company.
(c) The Global Warrant Certificate will initially be registered in the name of a nominee of the Depository. The Warrant holdings of each entity (a "Participant") entitled to execute, clear and settle transactions through the Depository will be recorded on the books of the Depository. The holdings of customers of the Participants and the identity of the Warrantholders will be reflected on the books and records of such Participants and will not be known to the Warrant Agent, the Company or the Depository. The Global Warrant Certificate will be held by the Depository or its agent. Neither the Company nor
the Warrant Agent will have any responsibility or liability for any aspect of the records relating to beneficial ownership interests in the Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
The Company may from time to time select a new entity to act as Depository with respect to the Warrants and, if such selection is made, the Company shall promptly give the Warrant Agent 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 below as promptly as possible. Appropriate changes may be made in the forms of the Global Warrant Certificate, the Exercise Notice and the related notices to be delivered in connection with an exercise to reflect the selection of the new Depository.
(d) 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 its records (which may be maintained electronically), subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, only to the Depository, to another 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, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the registered holder thereof or by the duly appointed legal representative thereof, or by its duly authorized attorney, such signature to be guaranteed by a bank or trust company with a correspondent office in The City of New York or by a broker or dealer which is a member of the NASD or by a member of a national securities exchange. Upon any such registration of transfer, a new Global Warrant Certificate shall be issued to the transferee and the surrendered Global Warrant Certificate shall be canceled by the Warrant Agent.
The Global Warrant Certificate may be transferred as provided in this Section, when surrendered to the Warrant Agent's Office, or at the office of any successor Warrant Agent (as provided in Section 5.03), for another Global Warrant Certificate of like tenor and representing a like number of unexercised Warrants.
ARTICLE 2
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants; Minimum Exercise Amounts; Exercise Notice. (a) Subject to the limitations set forth herein and in Section 2.03, each Warrant may be irrevocably exercised in whole but not in part, immediately upon issuance. Except in the case of automatic exercise, each Warrant shall be irrevocably exercised either (A) in the case of Warrants represented by Warrant Certificates ("Certificated Warrants"), on any New York Business Day during the period from the date of issuance until 3:00 p.m., New York City time, on the earlier of (i) the New York Business Day immediately preceding the date (established in or pursuant to a resolution or resolutions of the Board of Directors of the Company or any committee of such Board duly authorized to act on its behalf (a "Board Resolution" or "Board Resolutions")) upon which the right to exercise the Warrants expires (the "Expiration Date"), and (ii) any Delisting Date (as defined herein) by delivering or causing to be delivered to the Warrant Agent (at its address as set forth in the Exercise Notice (as defined below) or at such other address as the Warrant Agent may specify from time to time) the Warrant Certificate representing such Warrant, with the Exercise Notice duly completed and executed by the Registered Holder of such Warrant or (B) in the case of Warrants represented by a Global Warrant Certificate ("Book-Entry Warrants"), on any New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, by causing (x) such Warrant to be transferred free to the Warrant Agent on the records of the Depository in accordance with the Depository's Deposit/Withdrawal at Custodian procedures and (y) a duly completed and executed Exercise Notice to be received by the Warrant Agent from a Participant acting, directly or indirectly, on behalf of the Warrantholder; provided, however, that Exercise Notices are subject to rejection by the Warrant Agent as provided herein.
In the case of Book-Entry Warrants held through the facilities of Clearstream Banking S.A. ("Clearstream") or the Euroclear System ("Euroclear"), a Warrantholder may exercise each Warrant on any New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, by causing (x) such Warrant to be transferred to the Warrant Agent in accordance with clause ) of the preceding paragraph, giving appropriate instructions to Clearstream or the participant holding his Warrants in Euroclear, as the case may be, and (y) a duly completed and executed Exercise Notice to be delivered on behalf of the Warrantholder by Clearstream, in the case of Warrants held through Clearstream, or such participant, in the case of Warrants held through Euroclear, to the Warrant Agent
(b) No fewer than the minimum number of Warrants as set forth in each Warrant Certificate may be exercised by or on behalf of any one Warrantholder at any one time, except that no such minimum exercise amount shall apply in the case of automatic exercise on the Expiration Date or a Delisting Date, or in the case of cancellation of the Warrants as a result of an Extraordinary Event (as defined herein). With the exception of the Limit Option, an Exercise Notice shall be unconditional. Except as provided in Section 2.02(c), the Warrant Agent shall be entitled, with no duty of inquiry, to rely conclusively on any Exercise Notice received by it and on any representation of the exercising Warrantholder contained therein.
(c) "Exercise Notice" means an irrevocable notice of exercise to the Warrant Agent at its address, which notice (A) for Certificated Warrants, shall be on the reverse of the Warrant Certificate or such other form as the Company and the Warrant Agent may approve, and (B) for Book-Entry Warrants, shall be substantially in the form set forth in Exhibit A-2 hereto or such other form as the Company and the Warrant Agent may approve and may be given by facsimile transmission. For purposes of this Agreement, "New York Business Day" means any day other than a Saturday, Sunday or a day on which either the American Stock Exchange or the New York Stock Exchange is not open for securities trading or commercial banks in New York City are required or authorized by law or executive order to remain closed.
SECTION 2.02. Exercise, Valuation and Delivery of Warrants. (a) Except for Warrants subject to automatic exercise, Warrants held through the facilities of Clearstream or Euroclear, or Warrants subject to the Limit Option, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives the Warrant and Exercise Notice in proper form with respect to such Warrant, if received at or prior to 3:00 P.M., New York City time, on such day, or (ii) if the Warrant Agent receives such Warrant or Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the next New York Business Day succeeding the New York Business Day on which such Warrant or Exercise Notice is received. In the case of Warrants held through the facilities of Clearstream or Euroclear, except for Warrants subject to automatic exercise and except for Warrants subject to the Limit Option, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives (by facsimile transmission) the Exercise Notice in proper form with respect to such Warrant if such Exercise Notice is received at or prior to 3:00 P.M., New York City time, on such day, provided, that the Warrant being exercised is received by the Warrant Agent by 3:00 P.M., New York City time, on the New York Business Day next succeeding the date on which the Exercise Notice is received, or (ii) if the Warrant Agent receives such Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the New
York Business Day succeeding such New York Business Day, provided that such day will be the Exercise Date only if the Warrant being exercised is received by 3:00 P.M., New York City time, on the second succeeding New York Business Day following the New York Business Day on which the Exercise Notice is received. In the event that the Warrant being exercised is received after 3:00 P.M., New York City time, on the New York Business Day next succeeding the date on which the Exercise Notice is received, then the Exercise Date for such Warrant will be the day on which such Warrant is received or, if such day is not a New York Business Day, the next succeeding New York Business Day. Notwithstanding the foregoing, in the case of the exercise of a Book-Entry Warrant by Clearstream or a Euroclear participant, Clearstream or Euroclear, as the case may be, must by facsimile transmission to the Warrant Agent by 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date confirm (an "Account Confirmation") that the Warrants being exercised will be received by the Warrant Agent by 3:00 p.m., New York City time, on such date, provided, further, that if such Account Confirmation is received after 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date, the Company will be entitled to direct the Warrant Agent to reject the related Exercise Notice or waive the requirement for timely delivery of such Account Confirmation.
(b) The "Valuation Date" for a Warrant shall be the first Index Calculation Date (as defined herein) following the applicable Exercise Date (subject to postponement upon the occurrence of an Extraordinary Event or Exercise Limitation Event (as herein defined) or as a result of the exercise of a number of Warrants exceeding the limits on exercise set forth herein). For purposes of this Agreement, "Index Calculation Date" means any day the Index (as herein defined) or any Successor Index (as herein defined) is calculated and published.
All Warrants for which the Warrant Agent has not received a valid Exercise Notice at or prior to 3:00 p.m., New York City time, on (i) the New York Business Day immediately preceding the Expiration Date or (ii) the last New York Business Day prior to the effective date on which the Warrants are delisted from, or permanently suspended from trading (within the meaning of the Securities Exchange Act of 1934 and the rules and regulations of the Securities and Exchange Commission thereunder) on, the stock exchange on which the Warrants are listed and not accepted prior thereto or at the same time for listing on another United States national securities exchange (such New York Business Day being a "Delisting Date") or for which the Warrant Agent has received a valid Exercise Notice but with respect to which timely delivery of the relevant Warrants has not been made by such date or the Valuation Date for which has as of such date been postponed as provided in Section 2.03, shall be deemed to be automatically
exercised as of such date; provided, however, that if the Company first receives notice of the delisting or suspension of the Warrants on the same day on which such Warrants are delisted or suspended, such day will be deemed a Delisting Date for purposes of this Agreement.
(c) The Warrant Agent shall, in the case of Warrants other than Warrants held through the facilities of Clearstream or Euroclear, following receipt of proper and timely delivery of a Warrant in accordance with Section 2.02(a), accompanied by a completed Exercise Notice, and, in the case of Warrants held through Clearstream or Euroclear, following receipt of proper delivery of a completed Exercise Notice in accordance with Section 2.02(a):
(i) promptly (1) for Certificated Warrants, determine whether such Exercise Notice has been duly completed and is in proper form duly executed by the Registered Holder thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, (2) for Book-Entry Warrants not held through Clearstream or Euroclear, determine whether such Exercise Notice has been duly completed and is in proper form and (3) for Book-Entry Warrants held through Clearstream or Euroclear, determine whether such Exercise Notice has been duly completed and is in proper form duly executed by Clearstream or the Euroclear participant delivering such Warrant, as applicable; and if the Warrant Agent determines that the Exercise Notice has not been duly completed or is not in proper form or, in the case of Certificated Warrants, has not been so executed, the Warrant Agent promptly (A) shall reject such Exercise Notice and shall send to the entity that executed such Exercise Notice a notice of rejection substantially in the form set forth in Exhibit B or Exhibit B-1 hereto, as the case may be, and, in the case of Certificated Warrants, shall return to the Registered Holder that submitted such Exercise Notice, by first class mail, the Warrant Certificates evidencing such Warrants, or, in the case of Book-Entry Warrants, shall re-deliver such Warrants (to the extent received in the case of Warrants held through Clearstream or Euroclear) free through the facilities of DTC to the account from which they were transferred to the Warrant Agent and (B) shall not take the actions required by clauses i)-(viii) below with respect to such Exercise Notice or the related Warrants; provided, however, that the Warrant Agent shall deliver a copy of the Exercise Notice relating to such Warrants to the Company as required by Section 2.02(c)(viii) below and the Company may waive any defect in the form of such Exercise Notice;
(ii) notify the Company and the Determination Agent (and such other parties (not to exceed two) as the Company shall designate in writing) by 5:00 p.m., New York City time, on the New York Business
Day that such Exercise Notice has been received (or shall be deemed to have been received) of (A) the total number of Warrants covered by such Exercise Notice, (B) the number of such Warrants subject to the Limit Option (as defined herein) ("Contingently Tendered Warrants") and (C) the number of such Warrants not subject to the Limit Option;
(iii) with respect to Warrants held through Clearstream or Euroclear, determine whether the Warrant Agent has received by 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date relating to such Warrants, Account Confirmations with respect to such Warrants, and if the Warrant Agent has not received any such Account Confirmation by such time, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) by 10:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date, of the number of such Warrants in respect of which the Warrant Agent has not received such Account Confirmations and (except to the extent the Company has notified the Warrant Agent that it has waived the timing requirement of timely delivery of such Account Confirmations) send to Clearstream or the Euroclear participant, as the case may be, that delivered such Exercise Notice for which no related Account Confirmation was received (at the address specified in such notice) a notice of rejection substantially in the form set forth in Exhibit B hereto;
(iv) if any of the Warrants covered by such Exercise Notice
constitute Contingently Tendered Warrants, by 11:00 a.m., New York City
time, on the Valuation Date or if such date is not a New York Business
Day, then the next succeeding New York Business Day, (A) except as
provided in Section 2.02(h), determine the Limit Option Reference Index
Value (as defined herein) for such Warrants and the Spot Value (as defined
herein) for the Index Calculation Date that, but for the provisions of
Section 2.02(i), would be the Valuation Date for such Warrants; (B)
determine in accordance with Section 2.02(i) whether such Contingently
Tendered Warrants will be subject to exercise after giving effect to the
Limit Option and, if such Warrants will not be subject to exercise, send,
in the case of Certificated Warrants, to the Registered Holder or, in the
case of Book-Entry Warrants to the Participant or to Clearstream or to the
Euroclear participant in the case of Warrants held through the facilities
of Clearstream or Euroclear, respectively, that submitted such Exercise
Notice a notice of rejection substantially in the form set forth in
Exhibit C- 1 or Exhibit C-2 hereto, as appropriate, with respect to such
Warrants and return to the Registered Holder that submitted such Exercise
Notice, by first class mail, the Warrant Certificates evidencing such
Warrants, or, in
the case of Book-Entry Warrants (to the extent received, in the case of
Warrants held through Clearstream or Euroclear), redeliver the Warrants
free through the facilities of the Depository to the account of such
Participant, Clearstream or Euroclear participant, as the case may be; and
(C) notify the Company and the Determination Agent as to whether such
Contingently Tendered Warrants will be subject to exercise;
(v) by 11:00 a.m., New York City time, on the Valuation Date or if such Date is not a New York Business Day then the next succeeding New York Business Day, (A) determine the sum of (1) the number of such Warrants not subject to the Limit Option (i.e., the number of Warrants determined pursuant to clause i)(C) above) plus (2) the number of such Warrants that are Contingently Tendered Warrants that will be subject to exercise notwithstanding the Limit Option (i.e., the number of Warrants so identified pursuant to clause v)(B) above) (all of such Warrants, the "Exercised Warrants") and (B) notify the Company and the Determination Agent of the total number of Exercised Warrants so determined (if such number is zero, the Warrant Agent shall not take the actions required by clauses i) and (vii) of this Section 2.02(c) with respect to such Exercise Notice or the related Warrants);
(vi) determine the applicable Spot Value and calculate the Cash Settlement Value of the Exercised Warrants (excluding any Warrants held through Clearstream or Euroclear as to which timely delivery of the related Warrant has not been made) as of their Valuation Date in the manner set forth in Section 2.02(e) by no later than 10:00 a.m., New York City time, on the New York Business Day next succeeding the Valuation Date (unless the Cash Settlement Value shall be calculated by the Determination Agent);
(vii) notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) by 12:00 noon, New York City time, on the New York Business Day next succeeding the Valuation Date of the Cash Settlement Value payable in respect of the Exercised Warrants, and send notices of confirmation substantially in the form included in Exhibit B or Exhibit B-1 hereto, as the case may be, to the Registered Holder, Participant, Clearstream or Euroclear participant, as the case may be; and
(viii) promptly deliver a copy of each Exercise Notice to the Company and advise the Company of such other matters relating to the Exercised Warrants as the Company shall reasonably request. Any notice to be given to the Company by the Warrant Agent pursuant to this Section
2.02 or Section 2.03 shall be by telephone (promptly confirmed in writing) or facsimile transmission.
Except in the case of Warrants subject to automatic exercise and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value, if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then the attempted exercise of any such Warrants shall be void and of no effect and (i) for Certificated Warrants, the Warrant Certificate evidencing such Warrants shall be promptly returned by the Warrant Agent to the Registered Holder by first class mail at the Company's expense or (ii) for Book-Entry Warrants, the Warrants will be transferred by the Warrant Agent back to the Participant that submitted them free on the records of DTC (to the extent received, in the case of Warrants held through Clearstream or Euroclear) and, in either case such Warrantholder shall be permitted to re-exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
(d) Except in the case of Warrants subject to automatic exercise and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value, if the Company has made adequate funds available to the Warrant Agent in a timely manner, which shall in no event be later than 3:00 p.m., New York City time, on the fourth New York Business Day following a Valuation Date (or, if the Valuation Date is not a New York Business Day, on the fourth New York Business Day following the New York Business Day next succeeding the Valuation Date) (the "Funding Date"), the Warrant Agent will be responsible for making its payment available (i) for Certificated Warrants, to each Registered Holder of an exercised Warrant in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. Dollar account maintained by such Registered Holder in the United States (at such Registered Holder's election as specified in the applicable Exercise Notice), after 3:00 p.m., New York City time, but prior to the close of business on the first New York Business Day immediately succeeding such Funding Date or (ii) for Book-Entry Warrants, to each appropriate Participant in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. Dollar account maintained by such Participant in the United States (at the Participant's election as specified in the Exercise Notice), after 3:00 p.m., New York City time, but prior to the close of business, on the first New York Business Day immediately succeeding such Funding Date. For either clause (i) or (ii) above, such payment shall be in the amount of the aggregate Cash Settlement Value in respect of the Warrant Certificates or Warrants that were delivered to the Warrant Agent (together with the related Exercise Notice) as provided in Sections 2.01 and 2.02(a), (b) and (c).
(e) The "Cash Settlement Value" of an exercised Warrant shall be an amount in [name of payment currency] equal to [formula or method of calculation for cash settlement value] provided, however, that if such amount is less than zero, then the Cash Settlement Value shall be zero.
For purposes of this Agreement, the "Index" means the [Reference Index]
and the "Spot Value" for any date means the closing level on such date of the
[Reference Index]. References in this Agreement to "U.S. dollars", "U.S.$" or
"$" are to the lawful currency of the United States of America, [and references
to [other currency] are to the lawful currency of [country of the principal
trading market for the Underlying Securities]] [other provisions if the
principal trading markets for the Underlying Securities are in more than one
country] [alternative provision for indices not based on securities].
(f) In the case of exercise of Book-Entry Warrants, the Warrant Agent shall cause its records, which may be kept electronically, to be marked to reflect the reduction in the number of Warrants represented by the Global Warrant Certificate by the number of Warrants that were delivered to the Warrant Account and for which payment has been made as provided in Section 2.02(d) promptly after such delivery and payment. Absent manifest error, the Warrant Agent's records shall be conclusive evidence of such matters.
(g) The Company hereby appoints [_____________________], and
[_____________________] accepts such appointment, to be the Company's
Determination Agent to make such calculations as may be required upon the
occurrence of any of the circumstances described in Section 2.02(h) or 2.03,
including, without limitation, calculation of the Cash Settlement Value or the
Alternative Settlement Amount, as applicable, of a Warrant. The Determination
Agent shall act as an independent expert and not as an agent of the Company,
and, unless otherwise provided by this Agreement, its calculations and
determinations under this Agreement shall, absent manifest error, be final and
binding on the Company, the Warrant Agent, the Warrantholders and any
Participant. Any such calculations will be made available to a Warrantholder
for inspection at the Warrant Agent's Office.
The Company agrees, for the benefit of the Warrantholders that there shall at all times be a Determination Agent hereunder until all the Warrants are no longer outstanding or until monies for the payment of all outstanding Warrants, if any, shall have been paid to the Warrant Agent and shall have been returned to the Company as provided in Section 2.06, whichever occurs earlier. Resignation, removal and appointment of the Determination Agent shall be in accordance with the procedures set forth for the resignation, removal and appointment of the
Warrant Agent, as provided in Section 5.03, except that a successor Determination Agent need not be a banking institution with offices in the Borough of Manhattan, The City of New York, and may only be appointed if such successor has been nominated by the Company and approved by the predecessor Determination Agent.
The Company agrees promptly to pay the Determination Agent the compensation to be agreed upon with the Company for all services rendered by the Determination Agent hereunder. The Company also agrees to indemnify the Determination Agent for, and to hold it harmless against, any loss, liability, cost or expense (including reasonable attorneys' fees and expenses) incurred by the Determination Agent by reason of its being made a party to a suit or claim arising out of this Agreement; provided, however, that such indemnity shall in no event apply to the extent that any such loss, liability, cost or expense is a result of the negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The indemnity obligation of the Company shall continue notwithstanding the termination of this Agreement or the resignation or removal of the Determination Agent.
(h) In the event that the Index is not published by [name of Index publisher] (the "Index Publisher") but is published by another person not affiliated with the Company and acceptable to the Company (the "Third Party"), then the Spot Value for any date thereafter will be determined based on the closing level of the Index as published by such Third Party. If the Index Publisher or any Third Party discontinues publication of the Index and publishes a successor or substitute index that the Company determines, in its sole discretion, to be comparable to the Index (any such index being a "Successor Index"), then the Spot Value for any date thereafter will be determined by the Determination Agent on behalf of the Company based on the closing level of the Successor Index on such date. If the Index Publisher or any Third Party makes a material change in the formula for, or the method of calculating, the Index or any Successor Index, the Determination Agent shall make such calculations as may be required to determine the applicable Cash Settlement Value using the formula and method of calculating the Index or any Successor Index as in effect prior to such change or modification. If the Index Publisher and/or any Third Party discontinues publication of the Index and/or Successor Index, the Determination Agent will determine the applicable Cash Settlement Value based on the formula and method used in calculating the Index or any Successor Index as in effect on the date the Index or such Successor Index was last published.
If calculation or publication of the Index or a Successor Index is modified, discontinued or suspended, as provided in this Section 2.02(h), then the Determination Agent shall promptly notify the Warrant Agent, and the Warrant
Agent shall in turn promptly notify the Warrantholders in accordance with
Section 6.04 hereof, of such modification, discontinuance or suspension and of
any modification or adjustment to be made with respect to calculation of the
Cash Settlement Value or Alternative Settlement Amount, as applicable.
The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the Index, any Successor Index, adjustments or calculations by the Determination Agent (as provided above) in order to arrive at a calculation of a stock index comparable to the Index or any Successor Index, or the Cash Settlement Value or the Alternative Settlement Amount, as applicable.
(i) Except for Warrants subject to automatic exercise (as described in
Section 2.03 below) and except as described in Section 2.03 with respect to
payments of any Alternative Settlement Amount, each Warrantholder, in
connection with any exercise of Warrants (including an exercise with a
postponed Valuation Date following an Extraordinary Event or an Exercise
Limitation Event), will have the option (the "Limit Option") to specify in the
related Exercise Notice that such exercise be subject to the condition that the
Spot Value that would otherwise be used to determine the Cash Settlement Value
of such Warrants not be [minimum number of points] or more points [lower in the
case of call warrants] [higher in the case of put warrants] [formula] than the
Limit Option Reference Index Value for such Warrants. "Limit Option Reference
Index Value", with respect to any Contingently Tendered Warrants, means the
closing level of the Index on the relevant Exercise Date (or, if such Exercise
Date is not an Index Calculation Date, on the immediately preceding Index
Calculation Date). If a Warrantholder elects the Limit Option in connection
with any exercise of Warrants, the following provisions shall apply:
(i) To be valid, such election must be specified in the related Exercise Notice. Each of the Warrant Agent and the Company shall be entitled to rely conclusively on such Exercise Notice, as received by the Warrant Agent, in determining whether such election has been validly made. In connection with any exercise of [double the minimum exercise amount] Warrants, a Warrantholder may elect to subject only a portion of such Warrants to the Limit Option; provided that the number of such Warrants subject to the Limit Option and the number of such Warrants not subject to the Limit Option shall in each case not be less than [minimum exercise amount]. Registered Holders and Participants shall be required to certify that the number of Warrants exercised on behalf of any Warrantholder pursuant to the related Exercise Notice that are subject to the Limit Option is an amount that is not less than [minimum exercise amount].
(ii) Except as provided in Section 2.02(g), the Limit Option Reference Index Value shall be determined by the Warrant Agent, which determination shall be conclusive and binding for all purposes relating to such exercise.
(iii) In the event that the Spot Value for the first Index
Calculation Date following the relevant Exercise Date is [minimum number
of points] or more points [lower in the case of call warrants] [higher in
the case of put warrants] [formula] than the Limit Option Reference Index
Value for such Warrants, such Warrants (A) shall not be subject to
exercise and shall be treated for all purposes of this Agreement and the
Warrant Certificates and Global Warrant Certificate as if the related
Exercise Notice had never been received by the Warrant Agent, and (B)
shall not constitute "Exercised Warrants" for purposes of Section 2.02(c).
If such Spot Value is not [minimum number of points] or more points [lower
in the case of call warrants] [higher in the case of put warrants]
[formula] than such Limit Option Reference Index Value, such Warrants
shall be subject to exercise as provided in this Section 2.02 and shall be
deemed to be "Exercised Warrants" for such purposes. The Warrant Agent's
determination shall be conclusive and binding for all purposes relating to
such Warrants.
(iv) Except as provided in Section 2.03(b), the Limit Option (based on the Limit Option Reference Index Value as determined for the relevant Exercise Date or, if applicable, the first Index Calculation Date preceding such Exercise Date) shall continue to be applicable to any Exercised Warrant for which the Valuation Date has been postponed as a result of the occurrence of an Extraordinary Event or an Exercise Limitation Event until the Warrants are canceled as provided in Section 2.03(b) or until the Expiration Date or any Delisting Date.
SECTION 2.03. Automatic Exercise of Warrants; Exercise Upon an
Extraordinary Event or Exercise Limitation Event. (a) All Warrants for which
the Warrant Agent has not received an Exercise Notice in proper form by 3:00
p.m., New York City time, on (i) the New York Business Day immediately
preceding the Expiration Date or (ii) any Delisting Date, as the case may be,
or for which the Warrant Agent has received a valid Exercise Notice in proper
form but with respect to which timely delivery of the relevant Warrants has not
been made prior to such time, and which have not been canceled prior to such
time, will be deemed automatically exercised without any requirement of an
Exercise Notice to the Warrant Agent. The Exercise Date for such Warrants shall
be the Expiration Date or Delisting Date, as the case may be, or, if such date
is not a New York Business
Day, the next succeeding New York Business Day and the Valuation Date for such Warrants shall be the first Index Calculation Date following such date.
The Warrant Agent shall by 5:00 p.m., New York City time, on the Expiration Date or any Delisting Date, as the case may be, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) of the number of Warrants to be automatically exercised on such day. On the Valuation Date for such Warrants (or, if such Valuation Date is not a New York Business Day, on the next succeeding New York Business Day), the Warrant Agent shall (i) except as provided in Section 2.02(h), determine the Cash Settlement Value (in the manner provided in Section 2.02(e)) of the Warrants to be automatically exercised; (ii) by 5:00 p.m., New York City time, on the next New York Business Day succeeding such Valuation Date, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) of the Cash Settlement Value payable in respect of such exercised Warrants; and (iii) advise the Company of such other matters relating to the exercised Warrants as the Company shall reasonably request.
In the case of Certificated Warrants subject to automatic exercise (other than Certificated Warrants subject to postponed exercise following the occurrence of an Extraordinary Event or an Exercise Limitation Event as described in Section 2.03(b)), the Company shall make available to the Warrant Agent, not later than 3:00 p.m., New York City time, on the fourth New York Business Day following the Valuation Date for automatically exercised Warrants (or if such Valuation Date is not a New York Business Day, on the fourth New York Business Day following the New York Business Day next succeeding such Valuation Date) (in any such case, the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants. Subject to such funds having been made available as provided in the preceding sentence, the Warrant Agent will be responsible for making its payment available to the appropriate Registered Holder in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. Dollar account maintained by such Registered Holder in the United States (at such Registered Holder's election upon written notice to the Company and the Warrant Agent), after 3:00 p.m., New York City time, but prior to the close of business, on the Automatic Funding Date, against receipt by the Warrant Agent at the Warrant Agent's Office from such Registered Holder of its Warrant Certificates. Such payment shall be in the amount of the aggregate Cash Settlement Value in respect of the Warrants, evidenced by such Warrant Certificates, that were exercised automatically on the Expiration Date or on any Delisting Date, as the case may be. Warrant Certificates delivered to the Warrant Agent shall thereafter be promptly canceled by the Warrant Agent.
In the case of Book-Entry Warrants subject to automatic exercise (other
than Warrants subject to postponed exercise following the occurrence of an
Extraordinary Event or an Exercise Limitation Event as described in Section
2.03(b)), the Company shall make available to the Warrant Agent, not later than
3:00 p.m., New York City time, on the Automatic Funding Date, funds in an
amount equal to, and for the payment of, the aggregate Cash Settlement Value of
such Warrants. Subject to such funds having been made available as provided in
the preceding sentence, the Warrant Agent will be responsible for making funds
available to DTC, against receipt of the Global Warrant Certificate, after 3:00
p.m., New York City time, but prior to the close of business, on the Automatic
Funding Date. Such funds are to be in an amount equal to the aggregate Cash
Settlement Value of the Warrants subject to such automatic exercise.
The Company will advise the Warrant Agent as soon as practicable of the date of any expected delisting or permanent suspension of trading of the Warrants and will immediately inform the Warrant Agent after the Company has received notice that such delisting or suspension has occurred, but in no event will notice of such delisting or suspension be given to the Warrant Agent later than 9:30 a.m., New York City time, on the New York Business Day following the date that such delisting or suspension occurs. The Company will use its best efforts to notify the Warrantholders, or cause the Warrantholders to be notified, as promptly as practicable of any expected delisting or suspension of trading of the Warrants.
(b) Anything in this Agreement to the contrary notwithstanding, if the Company determines that an Extraordinary Event or Exercise Limitation Event has occurred and is continuing on the Home Country Business Day with respect to which the Spot Value on a Valuation Date is to be determined (the "Applicable Home Country Business Day"), then the Cash Settlement Value with respect to an exercise of Warrants shall be calculated on the basis that the Valuation Date shall be the next Index Calculation Day following an Applicable Home Country Business Day on which there is no Extraordinary Event or Exercise Limitation Event; provided, that if the Valuation Date has not occurred on or prior to the Expiration Date or any Delisting Date, then the Warrantholders shall receive the Alternative Settlement Amount (as defined herein) in lieu of the Cash Settlement Value which shall be calculated as if the Warrants had been canceled on the Expiration Date or any Delisting Date, as the case may be. The term "Home Country Business Day" means any day on which the principal trading market for the Underlying Securities is not open for securities trading [other provisions if the principal trading markets for the Underlying Securities are in more than one country] [alternative provision for indices not based on securities].
Upon the occurrence of an Extraordinary Event or an Exercise Limitation Event, the Company shall use its best efforts to notify the Warrant Agent and the
Determination Agent promptly that an Extraordinary Event or Exercise Limitation Event, as the case may be, has occurred and shall promptly give notice to the Warrantholders, by publication in a United States newspaper with a national circulation (currently expected to be the Wall Street Journal), that an Extraordinary Event or an Exercise Limitation Event has occurred.
If the Company determines that an Extraordinary Event or an Exercise
Limitation Event has occurred and is continuing on the Expiration Date or on
any Delisting Date, the Company shall so notify the Warrant Agent and the
Determination Agent, and the Cash Settlement Value with respect to the
exercised Warrants shall be equal to, and be calculated in the same manner as,
an "Alternative Settlement Amount", in accordance with Sections 2.03(b) and (d)
herein (treating the Expiration Date or any Delisting Date, as the case may be,
as the date on which the Warrants were canceled for the purposes of this
Section 2.03(b)).
If the Company determines that an Extraordinary Event has occurred and is continuing, and if that Extraordinary Event is expected by the Company to continue, the Company may immediately cancel the Warrants by notifying the Warrant Agent of such cancellation (the date such notice is given being the "Cancellation Date"), and each Warrantholder's rights with respect to the Warrants and under this Agreement shall thereupon cease; provided, that each Warrant shall be exercised (even if such Warrant would not otherwise be exercisable on such date because of the Limit Option) on the basis that the Valuation Date for such Warrant shall be the Cancellation Date and each Warrantholder shall have the right to receive, in lieu of the Cash Settlement Value of such Warrant, the Alternative Settlement Amount, determined by the Determination Agent.
(c) For purposes of this Agreement, "Extraordinary Event" means any of the following events:
(i) a suspension or absence of trading on the [principal market in
which the Underlying Securities are traded] [other provisions if there is
more than one principal trading market for the Underlying Securities]
[alternative provision for indices not based on securities] of all the
Underlying Securities which then comprise the Index or a Successor Index;
(ii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or any other U.S. or non- U.S. governmental authority that would make it unlawful for the Company to perform any of its obligations under this Agreement or the Warrants or
that has or will have a material adverse effect on the ability of the Company to perform its obligations under the Warrants or to modify the hedge of its position with respect to the Index; or
(iii) any outbreak or escalation of hostilities or other national or
international calamity or crises (including, without limitation, natural
calamities that in the opinion of the Company may materially and adversely
affect the economy of [country of principal market in which the Underlying
Securities are traded] or the trading of securities generally on the
[principal market in which the Underlying Securities are traded]) that has
or will have a material adverse effect on the ability of the Company to
perform its obligations under the Warrants or to modify the hedge of its
position with respect to the Index.
For the purpose of determining whether an Extraordinary Event has occurred: (1) a limitation on the hours or number of days of trading will not constitute an Extraordinary Event if it results from an announced change in the regular business hours of the [principal market in which the Underlying Securities are traded] and (2) an "absence of trading" on the [principal market in which the Underlying Securities are traded] will not include any time when the [principal market in which Underlying Securities are traded] is closed for trading under ordinary circumstances.
(d) For purposes of this Agreement, "Exercise Limitation Event" means either of the following events:
(i) a suspension, material limitation or absence of trading on the
[principal market in which the Underlying Securities are traded] of (a)
[___]% or more of the Underlying Securities and/or (b) the securities of
[percentage or number] of the most highly capitalized companies included
in the Underlying Securities which then comprise the Index or a Successor
Index; or
(ii) the suspension or material limitation on [relevant futures exchange(s) with respect to the Underlying Securities] or any other major futures or securities market of trading in futures or options contracts related to the [other relevant index], the Index or a Successor Index.]
For the purposes of determining whether an Exercise Limitation Event has occurred: (1) a limitation on the hours or number of days of trading will not constitute an Exercise Limitation Event if it results from an announced change in the regular business hours of the relevant market or exchange, [(2) a decision to
permanently discontinue trading in the relevant futures or options contract will not constitute an Exercise Limitation Event,] (3) a suspension in trading in an Underlying Security [or in a futures or options contract] referred to in clause[s] ) [and (ii)] above, by reason of (x) a price change violating limits set by the [principal market in which the Underlying Securities are traded] [or the relevant futures exchange(s) with respect to the Underlying Securities] or such [futures or] securities market, (y) an imbalance of orders relating to an Underlying Security [or such contracts] or (z) a disparity in bid and ask quotes relating to an Underlying Security [or such contracts], will constitute a suspension or material limitation of trading, (4) an "absence of trading" in the [principal market in which the Underlying Securities are traded] will not include any time when the [principal market in which the Underlying Securities are traded] is closed for trading under ordinary circumstances and (5) the occurrence of an Extraordinary Event described in clause ) of the definition of Extraordinary Event will not constitute, and will supersede the occurrence of, an Exercise Limitation Event.
The "Alternative Settlement Amount" is equal to the amount "X" calculated using the formula set forth below:
X = I + (T/2 x A/B)
where
I = the Cash Settlement Value of the Warrants determined as described under Section 2.02(e), but calculated with a Spot Value determined by the Determination Agent which, subject to approval by the Company (such approval not to be unreasonably withheld), in the reasonable opinion of the Determination Agent, fairly reflects the value of the component securities of the Index (the "Underlying Securities") [alternative provision for indices not based on securities] on the Cancellation Date, Expiration Date or Delisting Date, whichever has given rise to the payment of the Alternative Settlement Amount;
T = the initial offering price per Warrant;
A = the total number of days from but excluding the Cancellation Date, Expiration Date, or Delisting Date, whichever has given rise to the payment of the Alternative Settlement Amount for such Warrants, to and including the Expiration Date; and
B = the total number of days from, but excluding the date on which sales of the Warrants were initially confirmed, to and including the Expiration Date.
For purposes of determining "I" in the above formula, in the event that the Determination Agent and the Company are required, but have not, after good faith consultation with each other and within five days following the first day on which such Alternative Settlement Amount may be calculated in accordance with the above formula, agreed upon a Spot Value which fairly reflects the value of the Underlying Securities [alternative provision for indices not based on securities] on the Cancellation Date, Expiration Date or Delisting Date, whichever gives rise to the payment of the Alternative Settlement Amount, then the Determination Agent shall promptly nominate a third party, subject to approval by the Company (such approval not to be unreasonably withheld), to determine such figure and calculate the Alternative Settlement Amount in accordance with the above formula. Such party shall act as an independent expert and not as an agent of the Company or the Determination Agent, and its calculation and determination of the Alternative Settlement Amount shall, absent manifest error, be final and binding on the Company, the Warrant Agent, the Determination Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's Office. Neither the Company nor such third party shall have any responsibility for good faith errors or omissions in calculating the Alternative Settlement Amount.
(e) With respect to all Warrants as to which the Valuation Date has been
postponed or which have been canceled as described above, the Company shall
make available to the Warrant Agent not later than 3:00 p.m., New York City
time, on the third New York Business Day following the date on which the Cash
Settlement Value or Alternative Settlement Amount, as the case may be, has been
calculated (the "Alternative Funding Date"), funds in an amount equal to, and
for the payment of, the aggregate Cash Settlement Value or Alternative
Settlement Amount, as applicable, of such Warrants. Subject to such funds
having been made available as provided in the preceding sentence, the Warrant
Agent will be responsible for making a payment in the manner set forth in
Section 2.03(a), (i) in the case of Certificated Warrants, to each Registered
Holder that submitted a Warrant Certificate for exercise (and in the case of
cancellation as described above, to each Registered Holder) or (ii) in the case
of Book-Entry Warrants, to the Depository, after 3:00 p.m., New York City time,
but prior to the close of business on, the Alternative Funding Date, in an
amount equal to the aggregate Cash Settlement Value or Alternative Settlement
Amount (as applicable) of such exercised Warrants (and in the case of
cancellation as described above, of all previously unexercised Warrants).
SECTION 2.04. Limitation of Number of Exercisable Warrants. All exercises
of Warrants (other than on automatic exercise or upon cancellation) are
subject, at the Company's option, to the limitation that not more than [limit
on aggregate number of Warrants to be exercised on any day] Warrants in total
may be exercised on any Exercise Date and not more than [individual limit]
Warrants may be exercised by or on behalf of any beneficial owner, either
individually or in concert with any other beneficial owner, on any Exercise
Date. If any New York Business Day would otherwise, under the terms hereof, be
the Exercise Date in respect of more than [limit on aggregate number of
Warrants to be exercised on any day] Warrants, then at the Company's election
(by giving notice thereof to the Warrant Agent not later than 11:00 a.m., New
York City time, on the New York Business Day immediately following such
Exercise Date), [limit on aggregate number of Warrants to be exercised on any
day] of such Warrants shall be deemed exercised on such Exercise Date (selected
by the Warrant Agent on a pro rata basis, but if, as a result of such pro rata
selection, any Registered Holders would be deemed to have exercised less than
[minimum exercise amount] Warrants, then the Warrant Agent shall first select
additional amounts of such holders' Warrants so that no holder shall be deemed
to have exercised less than [minimum exercise amount] Warrants), and the
remainder of such Warrants (the "Remaining Warrants") shall be deemed exercised
on the following New York Business Day (notwithstanding the provisions of
Section 2.01(b)); provided that in the event that the aggregate number of such
Remaining Warrants, together with any additional Warrants with respect to which
the Exercise Date would be such following New York Business Day, exceeds the
[limit on aggregate number of Warrants to be exercised on any day] the
provisions of this Section 2.04 shall apply to the exercise of such Remaining
Warrants and such additional Warrants on such following New York Business Day
and successively until the limitations set forth in this Section 2.04 are no
longer exceeded; provided further that, any such Remaining Warrants shall be
deemed exercised before any such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the Company's
election (as notified to the Warrant Agent by giving notice thereof to the
Warrant Agent not later than 11:00 a.m., New York City time, on the next New
York Business Day following such Day) [individual limit] of such Warrants shall
be deemed exercised on such New York Business Day and the remainder of such
Warrants shall be deemed exercised on the following New York Business Day
(notwithstanding the provisions of Section 2.01(b)); provided, that in the
event that the aggregate number of such remaining Warrants, together with any
additional Warrants of such beneficial owner with respect to which the Exercise
Date would be such following New York Business Day, exceeds [individual limit],
at the Company's election (as notified in the manner described above), the
provisions of this Section 2.04 shall apply to the exercise of such remaining Warrants and such additional Warrants on such following New York Business Day and successively until the limitations set forth in this Section 2.04 are no longer exceeded; provided further, that, any such remaining Warrants shall be deemed exercised before any such additional Warrants of such beneficial owner. The date on which any Warrant is deemed exercised under the preceding sentences shall for all purposes of this Agreement be the "Exercise Date" in respect of such Warrants.
SECTION 2.05. Covenant of the Company. The Company covenants, for the benefit of the Warrantholders, that it will not seek the delisting of the Warrants from, or suspension of their trading on, the [exchange on which the Warrants are listed] unless the Company has, at the same time, arranged for listing on another United States national securities exchange.
SECTION 2.06. Return of Money Held Unclaimed for Two Years. Except as otherwise provided herein, any money deposited with or paid to the Warrant Agent for the payment of the Cash Settlement Value or Alternative Settlement Amount of any Warrants and not applied but remaining unclaimed for two years after the date upon which such Cash Settlement Value or Alternative Settlement Amount shall have become due and payable shall be repaid by the Warrant Agent to the Company, at the Company's request, and the holders of such Warrants shall thereafter look only to the Company for any payment which such holders may be entitled to collect and all liability of the Warrant Agent with respect to such money shall thereupon cease; provided that the Warrant Agent, before making any such repayment, may at the expense of the Company notify (i) in the case of Certificated Warrants, the Registered Holders or (ii) in the case of Book-Entry Warrants, the Participants concerned, that said money has not been so applied and remains unclaimed and that after a date named in the notification any unclaimed balance of said money then remaining will be returned to the Company.
SECTION 2.07. Return of Global Warrant Certificate. In the event a Global Warrant Certificate is issued, at such time as all of the Warrants evidenced by such Certificate have been exercised (including pursuant to an automatic exercise) or otherwise canceled and all payments to the Participants made as provided herein, the Warrant Agent shall dispose of the canceled Global Warrant Certificate in accordance with its customary procedures (unless instructed by the Company to deliver the Global Warrant Certificate to the Company) and shall provide a certificate of disposition to the Company.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder of Warrant May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any Warrantholder, without the consent of the Warrant Agent, may, in and for its own behalf, enforce, and may institute and maintain, any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, its right to exercise, and to receive payment for, its Warrants as provided in this Agreement.
ARTICLE 4
WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Warrants Acquired by the Company. In the event the Company shall purchase or otherwise acquire Warrants, such Warrants may, at the option of the Company, be (i) in the case of Certificated Warrants, delivered to the Warrant Agent, and if so delivered, the Warrant Agent shall promptly cancel such Warrants on the records of the Warrant Agent or (ii) in the case of Book-Entry Warrants, surrendered free through a Participant to the Depository for credit to the account of the Warrant Agent maintained at the Depository, and if so credited, the Warrant Agent shall promptly note the cancellation of such Warrants by notation on the records of the Warrant Agent and the Warrant Agent shall cause its records to be marked to reflect the reduction in the number of Warrants represented by the Global Warrant Certificate by the number of Warrants so canceled promptly after such account is credited. In the case of Book-Entry Warrants, such Warrants may also, at the option of the Company, be resold by the Company directly or to or through any of its affiliates in lieu of being surrendered to the Depository. No Warrant Certificate shall be countersigned in lieu of or in exchange for any Warrant which is canceled as provided herein, except as otherwise expressly permitted by this Agreement.
Any canceled Warrant Certificate held by the Warrant Agent under this Agreement shall be disposed of by the Warrant Agent in accordance with its customary procedures unless otherwise directed by the Company, and the Warrant Agent shall deliver a certificate of disposition to the Company evidencing the same.
SECTION 4.02. Payment of Taxes. The Company will pay all stamp, withholding and other duties, if any, attributable to the initial issuance of Warrants; provided, however, that, anything in this Agreement to the contrary notwithstanding, the Company shall not be required to pay any tax or other
governmental charge which may be payable in respect of any transfer involving any beneficial or record interest in, or ownership interest of, any Warrants, Warrant Certificates or Global Warrant Certificate which tax or other governmental charge shall be paid by the appropriate Warrantholder or Registered Holder.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
[_____________________] as Warrant Agent of the Company in respect of the
Warrants upon the terms and subject to the conditions set forth herein; and
[_____________________] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in this
Agreement and such further powers and authority to act on behalf of the Company
as the Company may hereafter grant to or confer upon it with its consent. All
of the terms and provisions with respect to such powers and authority contained
in any Warrant Certificates or the Global Warrant Certificate are subject to
and governed by the terms and provisions hereof.
SECTION 5.02. Condition of Warrant Agent's Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of- pocket expenses (including attorneys' fees and expenses) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or breach of this Agreement on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section 5.02(a) shall survive the termination of this Agreement.
(b) In acting under this Agreement, 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 owners or holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it (including counsel to the Company), and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any 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 behalf of, or as depository, trustee or agent for, any committee or body of owners or 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 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.
(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 authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent's countersignature 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 such duties as are herein specifically set forth, and no implied duties or obligations shall be read into this Agreement 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 is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility 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 in this Agreement or in any Warrant Certificate or 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, 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, except as provided in Section 6.02 hereof, to make any demand upon the Company.
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 outstanding or until monies for the payment of all outstanding Warrants, if any, shall have been paid to the Warrant Agent and shall have been returned to the Company as provided in Section 2.06, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective, subject to the appointment of a successor 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 banking institution organized under the laws of the United States of America or one of the states thereof, have a combined capital and surplus of at least $100,000,000 (as set forth in its most recent reports of condition published pursuant to law or to the requirements of any United States federal or state regulatory or supervisory authority) and having an 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, the Warrant Agent may apply to any court of competent jurisdiction for the designation of a successor Warrant Agent. The obligation of the Company under Section 5.02(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall give notice of its intent to 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 of 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 promptly 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, trusts, 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 (including, without limitation, the Warrant Register), as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the corporate agency assets and 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.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the terms of the Warrants may be amended by the Company, the Warrant Agent and the Determination Agent, without the consent of the Warrantholders, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein or in any other manner which the Company may deem necessary or desirable and which will not materially and adversely affect the interests of the owners or holders of the Warrants. Notwithstanding anything in this Section 6.01 to the contrary, this Agreement may not be amended to provide for the countersigning by the Warrant Agent of Warrant Certificates evidencing in the aggregate in excess of [maximum number of issuable Warrants] Warrants unless and until the Warrant Agent has received notice from the [exchange on which Warrants are to be listed] or any successor United States national securities exchange that the additional Warrants in excess of [maximum number of issuable Warrants] have been approved for listing on such exchange.
(b) The Company, the Warrant Agent and the Determination Agent may modify or amend this Agreement, with the consent of Warrantholders (by vote of Registered Holders or, in the case of Warrants held through the Depository, acting through a Participant or the Depository) holding not less than a majority in number of the then outstanding Warrants affected by such modification or amendment, for any purpose; provided, however, that no such modification or amendment that [increases the strike level or base value, in the case of call warrants] [decreases the strike level or base value, in the case of put warrants], shortens the period of time during which the Warrants may be exercised, or otherwise materially and adversely affects the exercise rights of the Warrantholders or reduces the percentage of the number of outstanding Warrants, the consent of whose holders is required for modification or amendment of this Agreement, may be made without the consent of each Warrantholder affected thereby. In the case of Warrants evidenced by a Global Warrant Certificate, the Company and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from holders of beneficial ownership interests in the relevant Global Warrant Certificate. Such certification may be provided by Participants acting on behalf of such beneficial owners of Warrants, provided that any such certification is accompanied by a certification from the Depository as to the Warrant holdings of such Participants.
SECTION 6.02. Notices and Demands to the Company, the Warrant Agent and the Determination Agent. If the Warrant Agent or the Determination Agent
shall receive any notice or demand addressed to the Company by any Registered Holder or Participant pursuant to the provisions of this Agreement, the Warrant Agent or the Determination Agent, as the case may be, shall promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses for Notices. Any communications to the Warrant
Agent with respect to this Agreement shall be addressed to
[_____________________], Attention: [____________], and any communications to
the Company with respect to this Agreement shall be addressed to J.P. Morgan
Chase & Co., 270 Park Avenue, New York, New York 10017-2070, Attention:
Corporate Secretary, and any communications to the Determination Agent with
respect to this Agreement shall be addressed to [_____________________] (or
such other address as shall be specified in writing by the Warrant Agent, the
Company or the Determination Agent, respectively).
SECTION 6.04. Notices to Holders. The Company may cause to have notice given to the holders of Warrants by providing the Warrant Agent with a form of notice to be distributed by (i) in the case of Certificated Warrants, the Warrant Agent to Registered Holders or (ii) in the case of Book-Entry Warrants, the Depository to be distributed by the Depository to Participants in accordance with the custom and practices of the Depository.
SECTION 6.05. Obtaining of Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective (a) any and all permits, consents and approvals of governmental agencies and authorities and the [exchange on which the Warrants are listed] or any successor national securities exchange an (b) any and all filings or notices under United States Federal and State securities laws, which may be or become required in connection with the issuance, sale, trading, transfer or delivery of the Warrant Certificates, the Global Warrant Certificate or the exercise of the Warrants.
SECTION 6.06. Persons Having Rights under this Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent, the registered holder of the Global Warrant Certificate and the Warrantholders 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 contained in this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent, and their respective successors, the registered holder of the Global Warrant Certificate and of the Warrantholders.
SECTION 6.07. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the Warrant Agent's Office for inspection by the Warrantholders, Participants or any person certified by any Participant to be an indirect participant of the Depository or any person certified by any Participant to be a Warrantholder, in each case, on behalf of whom such Participant holds Warrants.
SECTION 6.08. Headings. The descriptive headings of the several Articles d Sections this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. 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 6.10. Applicable Law. This Agreement and each Warrant shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
J.P. MORGAN CHASE & CO.
Title:
Title:
Title:
EXHIBIT A
FORM OF WARRANT CERTIFICATE
FACE
NO. C- CUSIP _________
J.P. MORGAN CHASE & CO.
[Title of Warrants]
This Warrant Certificate certifies that _____, or registered assigns, is
the registered holder of ______________ [title of Warrants] (the "Warrants").
Upon receipt by the Warrant Agent of this Warrant Certificate and the Exercise
Notice on the reverse hereof (or an Exercise Notice in substantially identical
form delivered herewith), duly completed and executed, at the offices of the
Warrant Agent in the Borough of Manhattan, The City of New York, each Warrant
evidenced hereby entitles the registered owner hereof (each a "Warrantholder")
to receive, subject to the terms and conditions set forth herein and in the
Warrant Agreement, from J.P. Morgan Chase & Co., the Cash Settlement Value in
[payment currency] (the "Cash Settlement Value") equal to [formula or method of
calculation for cash settlement value]; provided, however, that if such amount
is less than or equal to zero, then the Cash Settlement Value shall be zero. In
no event shall a Warrantholder be entitled to any interest on any Cash
Settlement Value.
The Warrants will not entitle the Warrantholders to any of the rights of
the holder of any security underlying the Index (an "Underlying Security")
[alternative provision for indices not based on securities]. A Warrant will not
require or entitle the Warrantholder thereof to sell, deliver, purchase or take
delivery of any Underlying Security to or from the Company [alternative
provision for indices not based on securities], nor will the Company be under
any obligation to, nor will it, purchase or take delivery of, or sell or
deliver, any such security to or from Warrantholders.
Subject to the terms and conditions set forth herein and in the Warrant
Agreement, each Warrant may be exercised, on any New York Business Day during
the period from its date of issuance until 3:00 p.m., New York City time, on
the earlier of (i) the New York Business Day immediately preceding the date,
established in or pursuant to a Board Resolution or Resolutions, upon which the
right to exercise the Warrants expires (the "Expiration Date") and (ii) any
Delisting Date (as defined herein). Any Warrant not exercised (including by
reason of any postponed exercise as described on the reverse hereof or in the
Warrant Agreement) at or before 3:00 P.M., New York City time, on the earlier
of (i) the New York Business Day immediately preceding the Expiration Date and
(ii) any Delisting Date, will be automatically exercised.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
IN WITNESS WHEREOF, J.P. Morgan Chase & Co. has caused this instrument to be duly executed.
Dated: _________________________________ J.P. MORGAN CHASE & CO.
[SEAL] By:________________________________
Name:
Title:
Attest:
By:_____________________________________
(Secretary)
Countersigned as of the date above written:
[_____________________], as Warrant
Agent
By:_____________________________________
Authorized Officer
|
[REVERSE]
J.P. MORGAN CHASE & CO.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued by the Company pursuant to a Warrant
Agreement, dated as of ________________ (the "Warrant Agreement"), among the
Company, [_____________________] (the "Warrant Agent") and
[_____________________] (the "Determination Agent") and is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions each Warrantholder consents by acceptance of this Warrant
Certificate and which Warrant Agreement is hereby incorporated by reference in
and made a part of this Warrant Certificate. A copy of the Warrant Agreement is
on file at the Warrant Agent's Office (as defined herein).
The Warrants are unsecured contractual obligations of the Company and rank on a parity with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant may be exercised during the period from its date of issuance until 3:00 p.m., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date (as defined herein) by delivering or causing to be delivered this Warrant Certificate and attached Exercise Notice (or an Exercise Notice in substantially identical form), duly completed and executed, to the Warrant Agent's offices in the Borough of Manhattan, The City of New York (the "Warrant Agent's Office"), which are, on the date hereof, located at [_____________________] or at such other address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise (including automatic exercise), the Cash Settlement Value of such Warrant, except that, under the circumstances described below and in the Warrant Agreement, such Warrantholder may instead receive the Alternative Settlement Amount for such Warrant. The "Cash Settlement Value" of a Warrant shall be an amount in [payment currency] equal to [formula or method of calculation for cash settlement value]; provided, however, that if such amount is less than or equal to zero, then the Cash Settlement Value shall be zero.
[The "Strike Level" is _____ which was determined by the Determination Agent and is [formula for strike level] [if applicable, the "Base
Value" is ____ which was determined by the Determination Agent and is [formula for base value]].
The Company has appointed [_____________________] to be its Determination Agent to make such calculations as may be required upon the occurrence of certain circumstances, as described in the Warrant Agreement and herein. The Determination Agent shall act as an independent expert and not as an agent of the Company, and, unless otherwise provided by the Warrant Agreement, its calculations and determinations under the Warrant Agreement and this Warrant Certificate shall, absent manifest error, be final and binding on the Company, the Warrant Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's office. The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the Index, any Successor Index, adjustments or calculations by the Determination Agent in order to arrive at a calculation of a stock index comparable to the Index or any Successor Index, or the Cash Settlement Value or the Alternative Settlement Amount, as applicable.
In the event that the [Reference Index] is not published by the Index Publisher but is published by another person not affiliated with the Company and acceptable to the Company (the "Third Party"), then the Spot Value for any date thereafter will be determined based on the closing level of the [Reference Index] as published by such Third Party. If the Index Publisher or any Third Party discontinues publication of the [Reference Index] and publishes a successor or substitute index that the Company determines, in its sole discretion, to be comparable to the [Reference Index] (any such index being a "Successor Index"), then the Spot Value for any date thereafter will be determined by the Determination Agent on behalf of the Company based on the closing level of the Successor Index on such date. If the Index Publisher or any Third Party makes a material change in the formula for, or the method of calculating, the [Reference Index] or any Successor Index, the Determination Agent shall make such calculations as may be required to determine the applicable Cash Settlement Value using the formula and method of calculating the Index or any Successor Index as in effect prior to such change or modification. If the Index Publisher and/or any Third Party discontinues publication of the [Reference Index] and/or any Successor Index, the Determination Agent will determine the applicable Cash Settlement Value based on the formula and method used in calculating the [Reference Index] or any Successor Index as in effect on the date the [Reference Index] or such Successor Index was last published.
Except for Warrants subject to automatic exercise, or Warrants subject to the Limit Option, the "Exercise Date" for a Warrant will be (i) the New York Business Day on which the Warrant Agent receives the Warrant and Exercise
Notice in proper form with respect to such Warrant, if received at or prior to 3:00 P.M., New York City time, on such day, or (ii) if the Warrant Agent receives such Warrant or Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the next New York Business Day succeeding the New York Business Day on which such Warrant or Exercise Notice is received. All Warrants for which the Warrant Agent has not received a valid Exercise Notice at or prior to 3:00 P.M., New York City time, on (i) the New York Business Day immediately preceding the Expiration Date or (ii) any Delisting Date, as the case may be, or for which the Warrant Agent has received a valid Exercise Notice but with respect to which timely delivery of the relevant Warrants has not been made, together with any Warrants the Valuation Date for which has at such time been postponed as described below, will be automatically exercised. The Exercise Date for such Warrants will be the Expiration Date or any Delisting Date, as the case may be, or, if such date is not a New York Business Day, the next succeeding New York Business Day. The Warrant Agent will obtain the Spot Value (determined as of the first Index Calculation Day following such date, which will be the Valuation Date for such Warrants except in the case of a postponed exercise following the occurrence of an Extraordinary Event or an Exercise Limitation Event) and will determine the Cash Settlement Value, if any, of such Warrants.
Subject to the Warrant Agreement and this Warrant Certificate, the "Valuation Date" for a Warrant will be the first Index Calculation Day following the applicable Exercise Date, subject to postponement upon the occurrence of an Extraordinary Event or Exercise Limitation Event or as a result of the exercise of a number of Warrants exceeding the limits on exercise, all as described below. For purposes of this Certificate, "Index Calculation Date" means any day the Index or any Successor Index is calculated and published.
All Warrants for which the Warrant Agent has not received a valid Exercise Notice at or prior to 3:00 p.m., New York City time, on (i) the New York Business Day immediately preceding the Expiration Date or (ii) any Delisting Date, as the case may be, together with any Warrants the Valuation Date for which has at such time been postponed as described below, will be automatically exercised. The Exercise Date for such Warrants will be the Expiration Date or any Delisting Date, as the case may be, or, if such date is not a New York Business Day, the next succeeding New York Business Day. The Warrant Agent will obtain the Spot Value (determined as of the first Index Calculation Date following such date, which will be the Valuation Date for such Warrants except in the case of a postponed exercise following the occurrence of an Extraordinary Event or Exercise Limitation Event) and will determine the Cash Settlement Value, if any, of such Warrants.
If the Exercise Notice is not rejected as provided in the Warrant Agreement, then the Warrant Agent or the Determination Agent, as the case may be, will determine the Cash Settlement Value of the exercised Warrants in accordance with the terms of the Warrant Agreement. Except in the case of Warrants subject to automatic exercise and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value, if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then the attempted exercise of any such Warrants shall be void and of no effect and the Warrant Certificate evidencing such Warrants will be returned to the registered holder of the Warrant by first class mail at the Company's expense and such holder shall be permitted to re- exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
Except in the case of Warrants subject to automatic exercise and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value, if the Company has made adequate funds available to the Warrant Agent in a timely manner, which shall in no event be later than 3:00 p.m., New York City time, on the fourth New York Business Day following the Valuation Date (or, if the Valuation Date is not a New York Business Day, on the fourth New York Business Day following the New York Business Day next succeeding the Valuation Date) (the "Funding Date"), the Warrant Agent will be responsible for making payment available to each Registered Holder of an exercised Warrant in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. dollar bank account maintained by such registered holder in the United States (at the registered holder's election as specified in the Exercise Notice) after 3:00 p.m. New York City time but prior to the close of business on the first New York Business Day immediately succeeding such Funding Date against receipt by the Warrant Agent at the Warrant Agent's office of such Registered Holder's Warrant Certificates.
With respect to automatically exercised Warrants, if the Company has made adequate funds available to the Warrant Agent not later than 3:00 p.m., New York City time, on the fourth New York Business Day following the Valuation Date for automatically exercised Warrants (or, if such Valuation Date is not a New York Business Day, on the fourth New York Business Day following the New York Business Day next succeeding such Valuation Date) (in any such case, the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants, the Warrant Agent will thereafter be responsible for making payment available to each Registered Holder of the Warrants in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. dollar bank
account maintained by such holder in the United States (at such holder's election and upon proper notice being given to the Company and the Warrant Agent), after 3:00 p.m., New York City time, but prior to the close of business on the Automatic Funding Date, against receipt by the Warrant Agent at the Warrant Agent's Office of such Registered Holder's Warrant Certificates. Such payment shall be in the amount equal to the aggregate Cash Settlement Value of the Warrants evidenced by such Warrant Certificates.
Anything in the Warrant Agreement or in this Warrant Certificate to the contrary notwithstanding, if the Company determines that an Extraordinary Event or an Exercise Limitation Event has occurred and is continuing on the Home Country Business Day (as defined herein) with respect to which the Spot Value on a Valuation Date is to be determined (the "Applicable Home Country Business Day"), then the Cash Settlement Value in respect of an exercise shall be calculated on the basis that the Valuation Date shall be the next Index Calculation Day following an Applicable Home Country Business Day on which there is no Extraordinary Event or Exercise Limitation Event; provided that, if the Valuation Date has not occurred on or prior to the Expiration Date or any Delisting Date, Warrantholders will receive the Alternative Settlement Amount in lieu of the Cash Settlement Value which shall be calculated as if the Warrants had been canceled on the Expiration Date or any Delisting Date, as the case may be. The term "Home Country Business Day" means any day other than a day on which the principal trading market for the Underlying Securities is not open for securities trading [other provisions if the principal trading markets for the Underlying Securities are in more than one country] [alternative provision for indices not based on securities].
Upon the occurrence of an Extraordinary Event or an Exercise Limitation Event, the Company shall use its best efforts to notify the Warrant Agent and the Determination Agent promptly that an Extraordinary Event or Exercise Limitation Event, as the case may be, has occurred and shall promptly give notice to the Warrantholders by publication in a United States newspaper with a national circulation that an Extraordinary Event or an Exercise Limitation Event has occurred.
If the Company determines that an Extraordinary Event or an Exercise Limitation Event has occurred and is continuing on the Expiration Date or on any Delisting Date, the Company shall so notify the Warrant Agent and the Determination Agent, and the Cash Settlement Value with respect to the exercised Warrants shall be equal to, and be calculated in the same manner as, an "Alternative Settlement Amount", in accordance with the Warrant Agreement (treating the Expiration Date or any Delisting Date, as the case may be, as the date on which the Warrants were canceled.
If the Company determines that an Extraordinary Event has occurred and is continuing, and if the Extraordinary Event is expected by the Company to continue, the Company may immediately cancel the Warrants by notifying the Warrant Agent of such cancellation (the date such notice is given being the "Cancellation Date"), and each Warrantholder's rights under the Warrants and the Warrant Agreement shall thereupon cease; provided, that each Warrant shall be exercised (even if such Warrant would not otherwise be exercisable on such date because of the Limit Option) on the basis that the Valuation Date for such Warrant shall be the Cancellation Date and the holder of each such Warrant shall have the right to receive, in lieu of the Cash Settlement Value of such Warrant an amount (the "Alternative Settlement Amount"), determined by the Determination Agent.
With respect to all Warrant Certificates as to which the Valuation Date has been postponed or which have been canceled as described above, if the Company has made adequate funds available to the Warrant Agent not later than 3:00 p.m., New York City time, on the third New York Business Day following the date on which the Cash Settlement Value or Alternative Settlement Amount, as the case may be, has been calculated (the "Alternative Funding Date"), the Warrant Agent will thereafter be responsible for making payment available to each Registered Holder of the Warrants that submitted a Warrant Certificate (and in the case of cancellation to each Registered Holder) in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. dollar bank account maintained by such holder in the United States (at such holder's election and upon proper notice being given to the Company and the Warrant Agent), after 3:00 p.m., New York City time, but prior to the close of business on the Alternative Funding Date, against receipt by the Warrant Agent at the Warrant Agent's Office of such Registered Holder's Warrant Certificates. Such payment shall be in the amount equal to the aggregate Cash Settlement Value or Alternative Settlement Amount, as the case may be, of the Warrants evidenced by such Warrant Certificates.
The "Alternative Settlement Amount" shall be an amount, determined by the Determination Agent, which is equal to the amount "X" calculated using the formula set forth below:
X = I + (T/2 x A/B)
where
I = the Cash Settlement Value of the Warrants determined as described above, but calculated with a Spot Value determined by the Determination Agent which, subject to approval by the Company
(such approval not to be unreasonably withheld), in the reasonable opinion of the Determination Agent, fairly reflects the value of the Underlying Securities [alternative provision for indices not based on securities] on the Cancellation Date, Expiration Date or Delisting Date, whichever has given rise to the payment of the Alternative Settlement Amount;
T = the initial offering price per Warrant;
A = the total number of days from but excluding the Cancellation Date, Expiration Date or Delisting Date, whichever has given rise to the payment of the Alternative Settlement Amount for such Warrants, to and including the Expiration Date; and
B = the total number of days from, but excluding the date on which sales of the Warrants were initially confirmed, to and including the Expiration Date.
For purposes of determining "I" in the above formula, in the event that the Determination Agent and the Company are required, but have not, after good faith consultation with each other and within five days following the first day upon which such Alternative Settlement Amount may be calculated in accordance with the above formula, agreed upon a Spot Value which fairly reflects the value of the Underlying Securities [alternative provision for indices not based on securities] on the Cancellation Date, Expiration Date or Delisting Date, whichever gives rise to the payment of the Alternative Settlement Amount then the Determination Agent shall promptly nominate a third party, subject to approval by the Company (such approval not to be unreasonably withheld), to determine such figure and calculate the Alternative Settlement Amount in accordance with the above formula. Such party shall act as an independent expert and not as an agent of the Company or the Determination Agent, and its calculation and determination of the Alternative Settlement Amount shall, absent manifest error, be final and binding on the Company, the Warrant Agent, the Determination Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's Office. Neither the Company nor such third party shall have any responsibility for good faith errors or omissions in calculating the Alternative Settlement Amount.
"Extraordinary Event" means any of the following events:
(i) a suspension or absence of trading on [principal market in which
the Underlying Securities are traded] [other provisions if there is more
than one principal trading market for the Underlying Securities]
[alternative provision for indices not based on securities] of all of the
Underlying Securities which then comprise the [Reference Index] or a
Successor Index;
(ii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or any other U.S. or non- U.S. governmental authority that would make it unlawful for the Company to perform any of its obligations under the Warrant Agreement or the Warrants or that has or will have a material adverse effect on the ability of the Company to perform its obligations under the Warrants or to modify the hedge of its position with respect to the [Reference Index]; or
(iii) any outbreak or escalation of hostilities or other national or
international calamity or crisis (including, without limitation, natural
calamities that in the opinion of the Company may materially and adversely
affect the economy of [country of principal market in which the Underlying
Securities are traded] or the trading of securities generally on the
[principal market in which the Underlying Securities are traded]) that has
or will have a material adverse effect on the ability of the Company to
perform its obligations under the Warrants or to modify the hedge of its
position with respect to the [Reference Index].
For the purposes of determining whether an Extraordinary Event has occurred: (1) a limitation on the hours or number of days of trading will not constitute an Extraordinary Event if it results from an announced change in the regular business hours of the [principal market in which the Underlying Securities are traded] and (2) an "absence of trading" on the [principal market in which the Underlying Securities are traded] will not include any time when the [principal market in which the Underlying Securities are traded] is closed for trading under ordinary circumstances.
"Exercise Limitation Event" means either of the following events:
(i) a suspension, material limitation or absence of trading on the
[principal market in which the Underlying Securities are traded] of (a)
[___]% or more of the Underlying Securities and/or (b) the securities of
[percentage or number] of the most highly capitalized companies included
in the Underlying Securities which then comprise the [Reference Index] or
a Successor Index; or
[(ii) the suspension or material limitation on the [relevant futures exchange(s) with respect to the Underlying Securities)] or any other major futures or securities market of trading in futures or options contracts related to the [other relevant index], the [Reference Index] or a Successor Index.]
For the purposes of determining whether an Exercise Limitation Event has occurred: (1) a limitation on the hours or number of days of trading will not constitute an Exercise Limitation Event if it results from an announced change in the regular business hours of the relevant market or exchange, [(2) a decision to permanently discontinue trading in the relevant futures or options contract will not constitute an Exercise Limitation Event,] (3) a suspension in trading in an Underlying Security [or in a futures or options contract] referred to in clause[s] ) [and (ii)] above, by reason of (x) a price change violating limits set by the [principal market in which the Underlying Securities are traded] [or the relevant futures exchange(s) with respect to the Underlying Securities] or such [futures or] securities market, (y) an imbalance of orders relating to an Underlying Security [or such contracts] or (z) a disparity in bid and ask quotes relating to an Underlying Security [or such contracts], will constitute a suspension or material limitation of trading, (4) an "absence of trading" in the [principal market in which the Underlying Securities are traded] will not include any time when the [principal market in which the Underlying Securities are traded] is closed for trading under ordinary circumstances and (5) the occurrence of an Extraordinary Event described in clause ) of the definition of Extraordinary Event will not constitute, and will supersede the occurrence of, an Exercise Limitation Event.
All exercises of Warrants (other than on automatic exercise or upon
cancellation) are subject, at the Company's option, to the limitation that not
more than [limit on aggregate number of Warrants to be exercised on any day]
Warrants in total may be exercised on any Exercise Date and not more than
[individual limit] Warrants may be exercised by or on behalf of any beneficial
owner, either individually or in concert with any other beneficial owner, on
any Exercise Date. If any New York Business Day would otherwise, under the
terms hereof, be the Exercise Date in respect of more than [limit on aggregate
number of Warrants to be exercised on any day] Warrants, then at the Company's
election (by giving notice thereof to the Warrant Agent not later than 11:00
a.m., New York City time, on the New York Business Day immediately following
such Exercise Date), [limit on aggregate number of Warrants to be exercised on
any day] of such Warrants shall be deemed exercised on such Exercise Date
(selected by the Warrant Agent on a pro rata basis, but if, as a result of such
pro rata selection, any Registered Holders of Warrants would be deemed to have
exercised less than [minimum exercise amount] Warrants, then the Warrant
Agent shall first select an additional amount of such holders' Warrants so that no holder shall be deemed to have exercised less than [minimum exercise amount] Warrants), and the remainder of such Warrants (the "Remaining Warrants") shall be deemed exercised on the following New York Business Day (notwithstanding the provisions of the Warrant Agreement); provided that in the event that the aggregate number of such Remaining Warrants, together with any additional Warrants with respect to which the Exercise Date would be such following New York Business Day, exceeds [limit on aggregate number of Warrants to be exercised on any day] the provisions of this paragraph all apply to the exercise of such Remaining Warrants and such additional Warrants on such following New York Business Day and successively until the limitations set forth in this paragraph d in the Warrant Agreement are no longer exceeded; provided further, that any such Remaining Warrants shall be deemed exercised before any such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the Company's
election (as notified to the Warrant Agent by giving notice thereof to the
Warrant Agent not later than 11:00 a.m., New York City time, on the New York
Business Day following such New York Business Day), [individual limit] of such
Warrants shall be deemed exercised on such New York Business Day and the
remainder of such Warrants shall be deemed exercised on the following New York
Business Day (notwithstanding any inconsistent provisions in the Warrant
Agreement); provided that in the event that the aggregate number of such
remaining Warrants, together with any additional Warrants of such beneficial
owner with respect to which the Exercise Date would be such following New York
Business Day, exceeds [individual limit], at the Company's election (as
notified in the manner described above), the provisions of this paragraph all
apply to the exercise of such remaining Warrants and such additional Warrants
on such following New York Business Day and successively until the limitations
set forth in this paragraph d in the Warrant Agreement are no longer exceeded;
provided further, that any such remaining Warrants shall be deemed exercised
before any such additional Warrants of such beneficial owner. The date on which
any Warrant is deemed exercised under the preceding sentences shall for all
purposes of this Warrant Certificate be deemed to be the "Exercise Date" in
respect of such Warrants.
Prior to due presentment for registration of transfer, 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 whatsoever, 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.
The Warrant Agent will, in accordance with the Warrant Agreement, from time to time register the transfer of this Warrant Certificate upon surrender hereof at the Warrant Agent's Office accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent duly executed by, the registered holder(s) hereof, a duly appointed legal representative or duly authorized attorney. Such signature must be guaranteed by a bank or trust company having a correspondent office in New York City or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. A new Warrant Certificate shall be issued to the transferee(s) upon any such registration of transfer, and this Warrant Certificate shall be canceled by the Warrant Agent.
In order to be exchanged for a Warrant in book-entry form, a Warrant Certificate must be delivered to DTC, in proper form for deposit, by a Participant. Accordingly, unless Warrants are purchased in book-entry form, a Warrantholder who is not a Participant must deliver his Warrant Certificate, in proper form for deposit, to a Participant, either directly or through an indirect participant (such as a bank, brokerage firm, dealer or trust company that clears through, or maintains a custodial relationship with, a Participant) or brokerage firm which maintains an account with a Participant, in order to have its Warrant Certificate exchanged for a Warrant in book-entry form.
Warrant Certificates received by The Depository Trust Company ("DTC") for exchange will be exchanged for Warrants in book-entry form by the close of business on the New York Business Day that such Certificates are received by DTC (if received by DTC at its then applicable cut-off time for same day credit) or on the following New York Business Day (if received by DTC at its then applicable cut-off time for next day credit). Warrants surrendered at any time for exchange for book-entry Warrants may not be exercised or delivered for settlement or transfer until such exchange has been effected. The Company has been informed by Clearstream and Euroclear that such clearing agencies will clear Warrants in book-entry form and that Warrants may not be held in certificated form through their facilities. Once a Warrantholder has elected to exchange for a Warrant in book-entry form, such Warrantholder may hold his Warrants only in book-entry form and will not be able to change his election or withdraw from the book-entry system thereafter except as provided in the Warrant Agreement.
Except for Warrants subject to automatic exercise and with respect to payments of any Alternative Settlement Amount, each Warrantholder, in connection with any exercise of Warrants (including a postponed exercise
following an Extraordinary Event or an Exercise Limitation Event), will have
the option (the "Limit Option") to specify that such Warrants are not to be
exercised if the Spot Value that would otherwise be used to determine the Cash
Settlement Value of such Warrants is [minimum number of points] or more points
[lower in the case of call warrants] [higher in the case of put warrants]
[formula] than the closing level of the [Reference Index] for the day specified
below (such closing level, the "Limit Option Reference Index Value"). A
Warrantholder's election of the Limit Option must be specified in the
applicable Exercise Notice delivered to the Warrant Agent. The Limit Option
Reference Index Value will be the closing level of the [Reference Index] on the
relevant Exercise Date (or if such day is not an Index Calculation Day, on the
immediately preceding Index Calculation Day). If an Exercise Notice and the
related Warrants are received after 3:00 P.M., New York City time, on a given
day, the applicable Limit Option Reference Index Value will be determined as of
the next day that is also a New York Business Day (or, if such day is not an
Index Calculation Day, as of the immediately preceding Index Calculation Day).
Following receipt of an Exercise Notice and the related Warrants subject to the Limit Option, the Warrant Agent will obtain the applicable Limit Option Reference Index Value and will determine whether such Warrants will not be exercised because of the Limit Option. Warrants that are not exercised will be treated as not having been tendered for exercise and the Warrant Certificate evidencing such Warrants will be returned to the registered holder by first class mail at the Company's expense. To exercise such Warrants, a Warrantholder will be required to cause an Exercise Notice and the related Warrants to be submitted again to the Warrant Agent. In the case of a postponed Valuation Date, the Limit Option will continue to apply once elected by a Warrantholder in connection with an exercise of Warrants on the basis of the Limit Option Reference Index Value as initially determined for such Warrants, except when such Valuation Date is postponed until the Expiration Date, any Delisting Date or the Cancellation Date. Such Warrants will either (i) be exercised on a delayed basis if the applicable Spot Value on the postponed Valuation Date is not [minimum number of points] or more points [less in the case of call warrants] [more in the case of put warrants] [formula] than the Limit Option Reference Index Value or (ii) be excluded from being exercised if, on any applicable postponed Valuation Date, the applicable Spot Value is [minimum number of points] or more points [less in the case of call warrants] [more in the case of put warrants] [formula] than the Limit Option Reference Index Value. In connection with any exercise of [double the minimum exercise amount] or more Warrants, a Warrantholder may elect to subject the exercise of only a portion of such Warrants to the Limit Option, provided that the number of Warrants subject to the Limit Option and the number of Warrants not subject to the Limit Option shall in each case not be less than [the minimum exercise amount].
As provided in the Warrant Agreement and subject to certain limitations, this Warrant Certificate may be exchanged for other Warrant Certificates, representing a like number of Warrants, upon surrender to the Warrant Agent at the Warrant Agent's Office of this Warrant Certificate. The Company will thereupon execute, and the Warrant Agent will countersign and deliver, one or more new Warrant Certificates representing such like number of Warrants. Upon surrender of this Warrant Certificate for exchange, the Warrant Agent shall cancel this Warrant Certificate.
No service charge will be made for any registration of transfer or exchange of this Warrant Certificate, but the Company may require the payment of a sum sufficient to cover any tax or governmental charge that may be imposed in relation thereto, other than exchanges not involving any transfer.
Capitalized terms included herein but not defined herein have the meanings assigned thereto in the Warrant Agreement.
For purposes of this Certificate, the "Index" means the [Reference Index]
and the "Spot Value" for any date means the closing level on such date of the
[Reference Index]. References herein to "U.S. dollar," "U.S.$" or "$" are to
the lawful currency of the United States of America [and, references to [other
currency] are to the lawful currency of [country of the principal trading
market of the Underlying Securities]] [alternative provision for indices not
based on securities] [other provision if the principal trading markets of the
Underlying Securities are in more than one country] [alternative provision for
indices not based on securities]. As used herein, "New York Business Day" means
any day other than a Saturday or a Sunday or a day on which either the American
Stock Exchange or the New York Stock Exchange is not open for securities
trading or commercial banks in New York City are required or authorized by law
or executive order to remain closed. As used herein, "Index Calculation Day"
means any day on which the [Reference Index] or any Successor Index is
calculated and published.
The Warrant Agreement and the terms of the Warrants are subject to amendment, as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.
Exercise Notice
[Name and address of Warrant Agent]
Attention: ___________________
1. This Notice DOES/DOES NOT relate to "Contingently Tendered Warrants" subject to a Limit Option, as provided for in the Warrant Agreement. If this Exercise Notice relates to any Contingently Tendered Warrants, _____ of such Warrants are Contingently Tendered Warrants and _____ are not. If the Spot Value used to determine the Cash Settlement Value of Contingently Tendered Warrants is [lower in the case of call warrants] [higher in the case of put warrants] [formula] than the Reference Index by [minimum number of points] points or more, an Exercise Notice with respect to such Contingently Tendered Warrants shall be void and of no effect (and shall be disregarded for all purposes of the Warrant Agreement).
2. Subject to paragraph the undersigned (the "Owner") hereby irrevocably exercises _____ Warrants (the "Exercised Warrants") and delivers to you herewith a Warrant Certificate or Certificates, registered in the Owner's name, representing a number of Warrants at least equal to the number of Exercised Warrants. Each beneficial owner of Warrants that is exercising Warrants pursuant to this Exercise Notice is exercising no fewer than [individual limit] Warrants and no beneficial owner is acting in concert with any other beneficial owner in relation to the exercise of the Exercised Warrants.
3. The Owner hereby directs the Warrant Agent (a) to pay the Cash Settlement Value, if any, with respect to the Exercised Warrants:
By cashier's check or an official bank check:
or
By wire transfer to the following U.S. dollar bank account in the United States:
(Minimum payments of $100,000 only)
Bank:________________________________________________________
ABA Routing No.:_____________________________________________
Account No.: _______________ Reference: _____________________
and (b) if the number of Exercised Warrants is less than the number of Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant Certificate representing the unexercised Warrants to
Dated: ______________________________ _______________________________________
(Owner)
By:____________________________________
Authorized Signature
Address:
|
Telephone:
EXHIBIT A-1
FORM OF GLOBAL WARRANT CERTIFICATE
No.
CUSIP No.
Unless this Global Warrant Certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the Company or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
J.P. MORGAN CHASE & CO.
Global Warrant Certificate Representing
[Title of the Warrants]
This Warrant Certificate certifies that CEDE & CO., or registered assigns, is the registered holder of the number of [title of the Warrants] (the "Warrants") set forth from time to time on Schedule hereto. Each Warrant entitles the beneficial owner thereof (each a "Warrantholder") to receive, subject to the conditions set forth herein and in the Warrant Agreement, from J.P. Morgan Chase & Co. (the "Company") the Cash Settlement Value in [payment currency] (the "Cash Settlement Value") equal to [formula or method of calculation for cash settlement value]; provided, however, that if such amount is less than or equal to zero, then the Cash Settlement Value shall be zero. In no event shall a Warrantholder be entitled to any interest on any Cash Settlement Value.
The Warrants will not entitle the Warrantholders to any of the rights of
the holder of any security underlying the Index (an "Underlying Security")
[alternative provision for indices not based on securities]. A Warrant will not
require or entitle the Warrantholder thereof to sell, deliver, purchase or take
delivery of any Underlying Security to or from the Company [alternative
provision for indices not based on securities], nor will the Company be under
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any obligation to, nor will it, purchase or take delivery of, or sell or deliver, any such security to or from Warrantholders.
Subject to the terms and conditions set forth herein and in the Warrant Agreement, each Warrant may be exercised, on any New York Business Day during the period from its date of issuance until 3:00 p.m., New York City time, on the earlier of (i) the New York Business Day immediately preceding the date, established in or pursuant to a Board Resolution or Resolutions, upon which the right to exercise the Warrants expires (the "Expiration Date") and (ii) any Delisting Date (as defined herein). Any Warrant not exercised (including by reason of any postponed exercise as described herein and in the Warrant Agreement) at or before 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, will be automatically exercised.
This Global Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
The Warrants evidenced by this Global Warrant Certificate are part of a
duly authorized issue of Warrants issued by the Company pursuant to a Warrant
Agreement, dated as of ________________ (the "Warrant Agreement"), among the
Company, [_____________________] (the "Warrant Agent") and
[_____________________] (the "Determination Agent") and is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions each Warrantholder, the entities through which such Warrantholders
hold their beneficial interests in the Warrants and the Registered Holder of
this Global Warrant Certificate consent by acceptance of this Global Warrant
Certificate by the Depository and which Warrant Agreement is hereby
incorporated by reference in and made a part of this Global Warrant
Certificate. A copy of the Warrant Agreement is on file at the Warrant Agent's
Office (as defined herein).
The Warrants are unsecured contractual obligations of the Company and rank on a parity with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant
represented by this Global Warrant Certificate (each a "Book-Entry Warrant")
may be exercised until 3:00 P.M., New York City time, on the earlier of (i) the
New York Business Day immediately preceding the Expiration Date and (ii) any
Delisting Date (as defined herein), by causing (x) such Warrant to be
transferred free to the Warrant Agent on the records of the Depository in
accordance with the Depository's Deposit/Withdrawal at Custodian procedures and
(y) a duly
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completed and executed Exercise Notice to be received by the Warrant Agent from a Participant acting, directly or indirectly, on behalf of the Warrantholder; provided, however, that Exercise Notices are subject to rejection by the Warrant Agent as provided herein and in the Warrant Agreement.
In the case of Book-Entry Warrants held through the facilities of Clearstream or Euroclear, a Warrantholder may exercise each Warrant on any New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date by causing (x) such Warrant to be transferred to the Warrant Agent (in accordance with the preceding paragraph), giving appropriate instructions either to Clearstream or to the participant holding his Warrants in Euroclear, as the case may be, and (y) a duly completed and executed Exercise Notice to be delivered on behalf of the Warrantholder by Clearstream, in the case of Warrants held through Clearstream, or such participant, in the case of Warrants held through Euroclear, to the Warrant Agent.
Each Warrant entitles the Warrantholder to receive, upon exercise (including automatic exercise), the Cash Settlement Value of such Warrant, except that, under the circumstances described below and in the Warrant Agreement, such Warrantholder may instead receive the Alternative Settlement Amount for such Warrant. The "Cash Settlement Value" of a Warrant shall be an amount in [payment currency] equal to [formula or method of calculation for Cash Settlement Value]; provided, however, that if such amount is less than or equal to zero, then the Cash Settlement Value shall be zero.
[The Strike Level is which was determined by the Determination Agent and is [formula for Strike Level] [if applicable, the Base Value is which was determined by the Determination Agent and is [formula for base value]].
The Company has appointed [_____________________] to be its Determination Agent, to make such calculations as may be required upon the occurrence of certain circumstances, as described in the Warrant Agreement and herein. The Determination Agent shall act as an independent expert and not as an agent of the Company, and, unless otherwise provided by the Warrant Agreement, its calculations and determinations under the Warrant Agreement and this Global Warrant Certificate shall, absent manifest error, be final and binding on the Company, the Warrant Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's office. The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the Index, any Successor Index, adjustments or calculations by the Determination Agent in order
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to arrive at a calculation of a stock index comparable to the Index or any Successor Index, or the Cash Settlement Value or the Alternative Settlement Amount, as applicable.
In the event that the [Reference Index] is not published by the Index Publisher but is published by another person not affiliated with the Company and acceptable to the Company (a "Third Party"), then the Spot Value for any date thereafter will be determined based on the closing level of the [Reference Index] as published by such Third Party. If the Index Publisher or any Third Party discontinues publication of the [Reference Index] and publishes a successor or substitute index that the Company determines, in its sole discretion, to be comparable to the [Reference Index] (any such index being a "Successor Index"), then the Spot Value for any date thereafter will be determined by the Determination Agent on behalf of the Company based on the closing level of the Successor Index on such date. If the Index Publisher or any Third Party makes a material change in the formula for, or the method of calculating, the [Reference Index] or any Successor Index, the Determination Agent shall make such calculations as may be required to determine the applicable Cash Settlement Value using the formula and method of calculating the Index or any Successor Index as in effect prior to such change or modification. If the Index Publisher and/or any Third Party discontinues publication of the [Reference Index] and/or any Successor Index, the Determination Agent will determine the applicable Cash Settlement Value based on the formula and method used in calculating the [Reference Index] or any Successor Index as in effect on the date the [Reference Index] or such Successor Index was last published.
Except for Warrants subject to automatic exercise or Warrants held through the facilities of Clearstream or Euroclear, or Warrants subject to the Limit Option, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives the Warrant and Exercise Notice in proper form with respect to such Warrant, if received at or prior to 3:00 P.M., New York City time, on such day, or (ii) if the Warrant Agent receives such Warrant or Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the next New York Business Day succeeding the New York Business Day on which such Warrant or Exercise Notice is received. In the case of Warrants held through the facilities of Clearstream or Euroclear, except for Warrants subject to automatic exercise and except for Warrants subject to the Limit Option, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives (by facsimile transmission) the Exercise Notice in proper form with respect to such Warrant if such Exercise Notice is received at or prior to 3:00 P.M., New York City time, on such day, provided, that the Warrant being exercised is received by the Warrant Agent by 3:00 P.M., New York City time, on the New York Business Day next succeeding
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the date on which the exercise notice is received, or (ii) if the Warrant Agent receives such Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the New York Business Day succeeding such New York Business Day, provided that such day will be the Exercise Date only if the Warrant being exercised is received by 3:00 P.M., New York City time, on the second succeeding New York Business Day following the New York Business Day on which the Exercise Notice is received. In the event that the Warrant being exercised is received after 3:00 P.M., New York City time, on the New York Business Day next succeeding the date on which the Exercise Notice is received, then the Exercise Date for such Warrant will be the day on which such Warrant is received or, if such day is not a New York Business Day, the next succeeding New York Business Day. Notwithstanding the foregoing, in the case of the exercise of a Warrant by a Clearstream or Euroclear participant, Clearstream or Euroclear, as the case may be, must by facsimile transmission to the Warrant Agent by 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date confirm (an "Account Confirmation") that the Warrants being exercised will be received by the Warrant Agent by 3:00 p.m., New York City time, on such date, provided, further, that if such Account Confirmation is received after 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date, the Company will be entitled to direct the Warrant Agent to reject the related Exercise Notice or waive the requirement for timely delivery of such Account Confirmation.
Subject to the Warrant Agreement and this Global Warrant Certificate, the "Valuation Date" for a Warrant will be the first Index Calculation Date following the applicable Exercise Date, subject to postponement upon the occurrence of an Extraordinary Event or Exercise Limitation Event or as a result of the exercise of a number of Warrants exceeding the limits on exercise, all as described below. For purposes of this Global Warrant Certificate, "Index Calculation Date" means any day the Index or any Successor Index is calculated and published.
All Warrants for which the Warrant Agent has not received a valid Exercise Notice at or prior to 3:00 p.m., New York City time, on (i) the New York Business Day immediately preceding the Expiration Date or (ii) any Delisting Date, as the case may be, or for which the Warrant Agent has received a valid Exercise Notice but with respect to which timely delivery of the relevant Warrants has not been made together with any Warrants the Valuation Date for which has at such time been postponed as described below, will be automatically exercised. The Exercise Date for such Warrants will be the Expiration Date or any Delisting Date, as the case may be, or, if such date is not a New York Business Day, the next succeeding New York Business Day. The Warrant Agent will obtain the Spot Value (determined as of the first Index Calculation Date following such date, which will be the Valuation Date for such Warrants except in the case of a
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postponed exercise following the occurrence of an Extraordinary Event or Exercise Limitation Event) and will determine the Cash Settlement Value, if any, of such Warrants.
If the Exercise Notice is not rejected as provided in the Warrant Agreement, then the Warrant Agent or the Determination Agent, as the case may be, will determine the Cash Settlement Value of the exercised Warrants in accordance with the terms of the Warrant Agreement. Except in the case of Warrants subject to automatic exercise and except for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value, if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then in such case, the attempted exercise of such Warrants shall be void and of no effect and the Warrants will be transferred by the Warrant Agent back to the Participant that submitted them free on the records of the Depository (to the extent received, in the case of Warrants held through Clearstream or Euroclear) and, in either case such Warrantholder shall be permitted to re-exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
Except in the case of Warrants subject to automatic exercise and except for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value, if the Company has made adequate funds available to the Warrant Agent in a timely manner, which shall in no event be later than 3:00 p.m., New York City time, on the fourth New York Business Day following a Valuation Date (or, if the Valuation Date is not a New York Business Day, on the fourth New York Business Day following the New York Business Day next succeeding the Valuation Date) (the "Funding Date"), the Warrant Agent will be responsible for making payment available to each appropriate Participant in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. Dollar account maintained by such Participant in the United States (at the Participant's election as specified in the Exercise Notice), after 3:00 p.m., New York City time, but prior to the close of business, on the first New York Business Day immediately succeeding such Funding Date. For either clause ) or (ii) above, such payment shall be in the amount of the aggregate Cash Settlement Value in respect of the Warrant Certificates or Warrants that were delivered to the Warrant Agent (together with the related Exercise Notice) as provided in the Warrant Agreement.
With respect to automatically exercised Warrants, if the Company has made adequate funds available to the Warrant Agent, not later than 3:00 p.m., New York City time, on the fourth New York Business Day following the Valuation Date for automatically exercised Warrants (or if such Valuation Day is
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not a New York Business Day, on the fourth New York Business Day following the New York Business Day next succeeding such Valuation Date) (in any such case the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants, the Warrant Agent will thereafter be responsible for making funds available to the Depository, against receipt of the Global Warrant Certificate, after 3:00 p.m., New York City time, but prior to the close of business, on the Automatic Funding Date. Such funds are to be in an amount equal to the aggregate Cash Settlement Value of the Warrants subject to such automatic exercise.
Anything in this Global Warrant Certificate or in the Warrant Agreement to
the contrary notwithstanding, if the Company determines that an Extraordinary
Event or Exercise Limitation Event has occurred and is continuing on the Home
Country Business Day (as defined herein) with respect to which the Spot Value
on a Valuation Date is to be determined (the "Applicable Home Country Business
Day"), then the Cash Settlement Value in respect of an exercise shall be
calculated on the basis that the Valuation Date shall be the next Index
Calculation Day following an Applicable Home Country Business Day on which
there is no Extraordinary Event or Exercise Limitation Event; provided, that,
if the Valuation Date has not occurred on or prior to the Expiration Date or
any Delisting Date, Warrantholders shall receive the Alternative Settlement
Amount in lieu of the Cash Settlement Value, which shall be calculated as if
the Warrants had been canceled on the Expiration Date or any Delisting Date, as
the case may be. The term "Home Country Business Day" means any day other than
a day on which the principal trading market for the Underlying Securities is
not open for securities trading [other provisions if the principal trading
markets for the Underlying Securities are in more than one country]
[alternative provision for indices not based on securities].
Upon the occurrence of an Extraordinary Event or an Exercise Limitation Event, the Company shall use its best efforts to notify the Warrant Agent and the Determination Agent promptly that an Extraordinary Event or Exercise Limitation Event, as the case may be, has occurred and shall promptly give notice to the Warrantholders by publication in a United States newspaper with a national circulation that an Extraordinary Event or an Exercise Limitation Event has occurred.
If the Company determines that an Extraordinary Event or an Exercise Limitation Event has occurred and is continuing on the Expiration Date or on any Delisting Date, the Company shall so notify the Warrant Agent and the Determination Agent, and the Cash Settlement Value with respect to the exercised Warrants shall be equal to, and be calculated in the same manner as, an "Alternative Settlement Amount", in accordance with the Warrant Agreement
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(treating the Expiration Date or any Delisting Date, as the case may be, as the date on which the Warrants were canceled).
If the Company determines that an Extraordinary Event has occurred and is continuing, and if that Extraordinary Event is expected by the Company to continue, the Company may immediately cancel the Warrants by notifying the Warrant Agent of such cancellation (the date such notice is given being the "Cancellation Date"), and each Warrantholder's rights with respect to the Warrants and under the Warrant Agreement shall thereupon cease; provided, that each Warrant shall be exercised (even if such Warrant would not otherwise be exercisable on such date because of the Limit Option) on the basis that the Valuation Date for such Warrant shall be the Cancellation Date and each Warrantholder shall have the right to receive, in lieu of the Cash Settlement Value of such Warrant an amount (the "Alternative Settlement Amount"), determined by the Determination Agent.
With respect to all Warrants as to which the Valuation Date has been postponed or which have been canceled as described above, if the Company has made adequate funds available to the Warrant Agent not later than 3:00 p.m., New York City time, on the third New York Business Day following the date on which the Cash Settlement Value or Alternative Settlement Amount, as the case may be, has been calculated (the "Alternative Funding Date"), the Warrant Agent will thereafter be responsible for making a payment in the manner set forth in the Warrant Agreement to the Depository, after 3:00 p.m., New York City time, but prior to the close of business on, the Alternative Funding Date, in an amount equal to the aggregate Cash Settlement Value or Alternative Settlement Amount (as applicable) of such exercised Warrants (and in the case of cancellation as described above, of all previously unexercised Warrants). Such payment shall be in the amount equal to the aggregate Cash Settlement Value or Alternative Settlement Amount, as the case may be, of the Warrants.
The "Alternative Settlement Amount" shall be an amount determined by the Determination Agent, which is equal to the amount "X" calculated using the formula set forth below:
X = I + (T/2 x A/B)
where
I = the Cash Settlement Value of the Warrants determined as described above, but calculated with a Spot Value determined by the Determination Agent which, subject to approval by the Company (such approval not to be unreasonably withheld), in the reasonable
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opinion of the Determination Agent, fairly reflects the value of the Underlying Securities [alternative provision for indices not based on securities] on the Cancellation Date, Expiration Date or Delisting Date, whichever has given rise to the payment of the Alternative Settlement Amount;
T = the initial offering price per Warrant;
A = the total number of days from but excluding the Cancellation Date, Expiration Date, or Delisting Date, whichever has given rise to the payment of the Alternative Settlement Amount for such Warrants, to and including the Expiration Date; and
B = the total number of days from, but excluding the date on which sales of the Warrants were initially confirmed, to and including the Expiration Date.
For purposes of determining "I" in the above formula, in the event that the Determination Agent and the Company are required, but have not, after good faith consultation with each other and within five days following the first day on which such Alternative Settlement Amount may be calculated in accordance with the above formula, agreed upon a Spot Value which fairly reflects the value of the Underlying Securities [alternative provision for indices not based on securities] on the Cancellation Date, Expiration Date or Delisting Date, whichever gives rise to the payment of the Alternative Settlement Amount then the Determination Agent shall promptly nominate a third party, subject to approval by the Company (such approval not to be unreasonably withheld), to determine such figure and calculate the Alternative Settlement Amount in accordance with the above formula. Such party shall act as an independent expert and not as an agent of the Company or the Determination Agent, and its calculation and determination of the Alternative Settlement Amount shall, absent manifest error, be final and binding on the Company, the Warrant Agent, the Determination Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's Office. Neither the Company nor such third party shall have any responsibility for good faith errors or omissions in calculating the Alternative Settlement Amount.
"Extraordinary Event" means any of the following events:
(i) a suspension or absence of trading on the [principal market in
which the Underlying Securities are traded] [other provisions if there is
more than one principal trading market for the Underlying Securities]
[alternative provision for indices not based on securities] of
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all the Underlying Securities which then comprise the [Reference Index] or a Successor Index;
(ii) the enactment, publication, decree or other promulgation of any statute, regulation, rule or order of any court or any other U.S. or non- U.S. governmental authority that would make it unlawful for the Company to perform any of its obligations under the Warrant Agreement or the Warrants or that has or will have a material adverse effect on the ability of the Company to perform its obligations under the Warrants or to modify the hedge of its position with respect to the [Reference Index]; or
(iii) any outbreak or escalation of hostilities or other national or
international calamity or crisis (including, without limitation, natural
calamities that in the opinion of the Company may materially and adversely
affect the economy of [country of principal market in which the Underlying
Securities are traded] or the trading of securities generally on the
[principal market in which the Underlying Securities are traded]) that has
or will have a material adverse effect on the ability of the Company to
perform its obligations under the Warrants or to modify the hedge of its
position with respect to the [Reference Index].
For the purpose of determining whether an Extraordinary Event has occurred: (1) a limitation on the hours or number of days of trading will not constitute an Extraordinary Event if it results from an announced change in the regular business hours of the [principal market in which the Underlying Securities are traded] and (2) an "absence of trading" on the [principal market in which the Underlying Securities are traded] will not include any time when the [principal market in which the Underlying Securities are traded] is closed for trading under ordinary circumstances.
An "Exercise Limitation Event" means either of the following events:
(i) a suspension, material limitation or absence of trading on the
[principal market in which the Underlying Securities are traded] of (a)
[___]% or more of the Underlying Securities and/or (b) the securities of
[percentage or number] of the most highly capitalized companies included
in the Underlying Securities which then comprise the [Reference Index] or
a Successor Index; or
[(ii) the suspension or material limitation on the [relevant futures exchange(s) with respect to the Underlying Securities] or any other major futures or securities market of trading in futures or
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options contracts related to the [other relevant index], the [Reference Index] or a Successor Index.]
For the purposes of determining whether an Exercise Limitation Event has occurred: (1) a limitation on the hours or number of days of trading will not constitute an Exercise Limitation Event if it results from an announced change in the regular business hours of the relevant market or exchange, [(2) a decision to permanently discontinue trading in the relevant futures or options contract will not constitute an Exercise Limitation Event,] (3) a suspension in trading in an Underlying Security [or in a futures or options contract] referred to in clause[s] ) [and (ii)] above, by reason of (x) a price change violating limits set by the [principal market in which the Underlying Securities are traded] [or the relevant futures exchange(s) with respect to the Underlying Securities] or such [futures or] securities market, (y) an imbalance of orders relating to an Underlying Security [or such contracts] or (z) a disparity in bid and ask quotes relating to an Underlying Security [or such contracts], will constitute a suspension or material limitation of trading, (4) an "absence of trading" in the [principal market in which the Underlying Securities are traded] will not include any time when the [principal market in which the Underlying Securities are traded] is closed for trading under ordinary circumstances and (5) the occurrence of an Extraordinary Event described in clause ) of the definition of Extraordinary Event will not constitute, and will supersede the occurrence of, an Exercise Limitation Event.
All exercises of Warrants (other than on automatic exercise or upon
cancellation) are subject, at the Company's option, to the limitation that not
more than [limit on aggregate number of Warrants to be exercised on any day]
Warrants in total may be exercised on any Exercise Date and not more than
[individual limit] Warrants may be exercised by or on behalf of any beneficial
owner, either individually or in concert with any other beneficial owner, on
any Exercise Date. If any New York Business Day would otherwise, under the
terms hereof, be the Exercise Date in respect of more than [limit on aggregate
number of Warrants to be exercised on any day] Warrants, then at the Company's
election (by giving notice thereof to the Warrant Agent not later than 11:00
a.m., New York City time, on the New York Business Day immediately following
such Exercise Date), [limit on aggregate number of Warrants to be exercised on
any day] of such Warrants shall be deemed exercised on such Exercise Date
(selected by the Warrant Agent on a pro rata basis, but if, as a result of such
pro rata selection, any Registered Holders of Warrants would be deemed to have
exercised less than [minimum exercise amount] Warrants, then the Warrant Agent
shall first select an additional amount of such holders' Warrants so that no
holder shall be deemed to have exercised less than [minimum exercise amount]
Warrants), and the remainder of such Warrants (the "Remaining Warrants") shall
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be deemed exercised on the following New York Business Day (notwithstanding the provisions of the Warrant Agreement); provided that in the event that the aggregate number of such Remaining Warrants, together with any additional Warrants with respect to which the Exercise Date would be such following New York Business Day, exceeds [limit on aggregate number of Warrants to be exercised on any day] the provisions of this paragraph all apply to the exercise of such Remaining Warrants and such additional Warrants on such following New York Business Day and successively until the limitations set forth in this paragraph d in the Warrant Agreement are no longer exceeded; provided further, that any such Remaining Warrants shall be deemed exercised before any such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the Company's
election (as notified to the Warrant Agent by giving notice thereof to the
Warrant Agent not later than 11:00 a.m., New York City time, on the next New
York Business Day following such New York Business Day) [individual limit] of
such Warrants shall be deemed exercised on such New York Business Day and the
remainder of such Warrants shall be deemed exercised on the following New York
Business Day (notwithstanding any inconsistent provisions in the Warrant
Agreement); provided that in the event that the aggregate number of such
remaining Warrants, together with any additional Warrants of such beneficial
owner with respect to which the Exercise Date would be such following New York
Business Day, exceeds [individual limit], at the Company's election (as
notified in the manner described above), the provisions of the paragraph all
apply to the exercise of such remaining Warrants and such additional Warrants
on such following New York Business Day and successively until the limitations
set forth in this paragraph d in the Warrant Agreement are no longer exceeded;
provided further, that any such remaining Warrants shall be deemed exercised
before any such additional Warrants of such beneficial owner. The date on which
any Warrant is deemed exercised under the preceding two sentences shall for all
purposes of this Agreement be the "Exercise Date" in respect of such Warrants.
Prior to due presentment for registration of transfer, 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 whatsoever, 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.
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The Warrant Agent will, in accordance with the Warrant Agreement, from time to time register the transfer of this Global Warrant Certificate in its records (which may be maintained electronically) subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, only to the Depository, to another 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, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the registered holder thereof or by the duly appointed legal representative thereof, or by its duly authorized attorney. Such signature must be guaranteed by a bank or trust company having a correspondent office in New York City or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. Upon any such registration of transfer, a new Global Warrant Certificate shall be issued to the transferee and the surrendered Global Warrant Certificate shall be canceled by the Warrant Agent.
Except for Warrants subject to automatic exercise and with respect to
payments of any Alternative Settlement Amount, each Warrantholder, in
connection with any exercise of Warrants (including a postponed exercise
following an Extraordinary Event or an Exercise Limitation Event), will have
the option (the "Limit Option") to specify that such Warrants are not to be
exercised if the Spot Value that would otherwise be used to determine the Cash
Settlement Value of such Warrants is [minimum number of points] or more points
[lower in the case of call warrants] [higher in the case of put warrants]
[formula] than the closing level of the [Reference Index] for the day specified
below (such closing level, the "Limit Option Reference Index Value"). A
Warrantholder's election of the Limit Option must be specified in the
applicable Exercise Notice delivered to the Warrant Agent. The Limit Option
Reference Index Value will be the closing level of the [Reference Index] on the
relevant Exercise Date (or if such day is not an Index Calculation Day, on the
immediately preceding Index Calculation Day). If an Exercise Notice is received
after 3:00 P.M., New York City time, on a given day, the applicable Limit
Option Reference Index Value will be determined as of the next day that is also
a New York Business Day (or, if such day is not an Index Calculation Day, as of
the immediately preceding Index Calculation Day).
Following receipt of an Exercise Notice subject to the Limit Option, the Warrant Agent will obtain the applicable Limit Option Reference Index Value and will determine whether such Warrants exercised pursuant to such Exercise Notice will not be exercised because of the Limit Option. Warrants that are not exercised will be treated as not having been tendered for exercise. To exercise such Warrants, a Warrantholder will be required to cause an Exercise Notice to be
A-1-13
submitted again to the Warrant Agent. In the case of a postponed Valuation Date, the Limit Option will continue to apply once elected by a Warrantholder in connection with an exercise of Warrants on the basis of the Limit Option Reference Index Value as initially determined for such Warrants, except when such Valuation Date is postponed until the Expiration Date, any Delisting Date or the Cancellation Date. Such Warrants will either (i) be exercised on a delayed basis if the applicable Spot Value on the postponed Valuation Date is not [minimum number of points] or more points [less in the case of call warrants] [more in the case of put warrants] [formula] than the Limit Option Reference Index Value of (ii) be excluded from being exercised if, on any applicable postponed Valuation Date, the applicable Spot Value is [minimum number of points] or more points [less in the case of call warrants] [more in the case of put warrants] [formula] than the Limit Option Reference Index Value. In connection with any exercise of [double the minimum exercise amount] or more Warrants, a Warrantholder may elect to subject the exercise of only a portion of such Warrants to the Limit Option, provided that the number of Warrants subject to the Limit Option and the number of Warrants not subject to the Limit Option shall in each case not be less than [the minimum exercise amount].
Capitalized terms included herein but not defined herein have the meanings assigned thereto in the Warrant Agreement.
For purposes of this Certificate, the "Index" means the [Reference Index]
and the "Spot Value" for any date means the closing level on such date of the
[Reference Index]. References herein to "U.S. dollar," "U.S.$" or "$" are to
the lawful currency of the United States of America [and, references to [other
currency] are to the lawful currency of [country of the principal trading
market of the Underlying Securities]] [other provision if the principal trading
markets of the Underlying Securities are in more than one country] [alternative
provision for indices not based on securities]. As used herein, "New York
Business Day" means any day other than a Saturday or a Sunday or a day on which
either the American Stock Exchange or the New York Stock Exchange is not open
for securities trading or commercial banks in New York City are required or
authorized by law or executive order to remain closed. As used herein, "Index
Calculation Day" means any day on which the [Reference Index] or any Successor
Index is calculated and published.
The Warrant Agreement and the terms of the Warrants are subject to amendment, as provided in the Warrant Agreement.
A-1-14
This Global Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, J.P. Morgan Chase & Co. has caused this instrument to be duly executed.
Dated:_________________________ J.P. MORGAN CHASE & CO.
By:_____________________________________
Name:
Title:
Attest:
By:____________________________
Name:
Title:
Countersigned as of the date above
written:
[_____________________], as Warrant
Agent
By:____________________________
Authorized Officer
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A-1-15
Schedule
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Date Number of Warrants Represented by this Global Warrant
Certificate
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EXHIBIT A-2
EXERCISE NOTICE
For Warrants Represented by the Global Warrant Certificate
[Name and address of Warrant Agent]
Attention: ________________________
1. We refer to the Warrant Agreement dated as of ________________ (the
"Warrant Agreement"), among J.P. Morgan Chase & Co. (the "Company"),
[_____________________], as warrant agent (the "Warrant Agent"), and
[_____________________], as determination agent (the "Determination Agent"). On
behalf of certain beneficial owners, each of whom we certify is exercising no
fewer than [minimum exercise amount] Warrants that are covered by this Exercise
Notice and whose Warrants have been, or will be, transferred to the Warrant
Agent, we hereby irrevocably exercise _____ Warrants (the "Tendered Warrants").
We hereby acknowledge that the Warrants being exercised and this Exercise
Notice must be received by you by 3:00 p.m., New York City time, on a New York
Business Day in order for the Valuation Date for the Tendered Warrants to be
the Index Calculation Date following such New York Business Day and that, if
the Warrants being exercised and this Exercise Notice are received by you after
3:00 p.m., New York City time, on a New York Business Day (or, in the case of
Warrants held through Clearstream or Euroclear, if the Warrants are not
received by 3:00 p.m., New York City time, on the first New York Business Day
next succeeding the New York Business Day on which such Exercise Notice is
received, the Valuation Date of the Tendered Warrants shall be the Index
Calculation Date next succeeding the succeeding New York Business Day, in each
case subject to certain provisions of the Warrant Agreement.
2. If you determine that this Exercise Notice has not been duly completed or is not in proper form, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered.
A-2-2
3. We hereby direct you to make payment to us of amounts payable to our clients as a result of the exercise of the Warrants hereunder as follows:
By cashier's check or an official bank check;
or
By wire transfer to the following U.S. dollar bank account in the United States:
(Minimum payments of $100,000 only)
Bank:________________________________________________________________
Account No.:_________________________________________________________
ABA Routing No.:_____________________________________________________
Reference:___________________________________________________________
4. The Tendered Warrants covered hereby ARE NOT subject to the Limit Option(2)
5. Each client on whose behalf we are exercising Warrants pursuant to this
Exercise Notice has certified to us that it is not exercising in excess of
[individual limit] Warrants on behalf of any beneficial owner or in concert
with any other beneficial owner.
6. We hereby certify that we are a Participant of The Depository Trust Company (the "Depository") with the present right to use and receive its services.
7. If this Exercise Notice is submitted in relation to Warrants held through the facilities of Euroclear, the undersigned represents that it is a participant in Euroclear.
A-2-3
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated:_________________________________ [NAME OF DEPOSITORY PARTICIPANT]
Participant Number
By:________________________________
Name:
Title:
[NAME OF EUROCLEAR PARTICIPANT]
[CLEARSTREAM BANKING S.A.]
By:________________________________
Authorized Signature
Address:
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Telephone:
A-2-4
EXHIBIT B
CONFIRMATION OF EXERCISE
For Warrants Represented by Warrant Certificates
We hereby confirm receipt of your Exercise Notice with respect to Warrants (the "Exercised Warrants") and the related Warrant Certificates, which we have found to be duly completed and in proper form. The Valuation Date of the Exercised Warrants was the close of business on ____________, 20__.
We hereby confirm that the aggregate Cash Settlement Value of the Exercised Warrants is $_______ ($____ per Warrant), which will be made available to you in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to the U.S. dollar bank account specified in your irrevocable Exercise Notice, for payment on the fifth New York Business Day following the Valuation Date for such Warrants (or, if such Valuation Date is not a New York Business Day, on the fifth New York Business Day following the New York Business Day next succeeding the Valuation Date for such Warrants).
Capitalized terms included herein but not defined have the meanings assigned thereto in the Warrant Agreement, dated as of ________________, among J.P. Morgan Chase & Co., [_____________________], and [______________________].
Dated:____________________________________ [_____________________], as Warrant
Agent
By:________________________________
Authorized Signature
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NOTICE OF REJECTION
You are hereby notified that the Exercise Notice delivered by you was determined by us not to have been duly completed in proper form. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form.
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated:_________________________________ [_____________________], as Warrant
Agent
By:________________________________
Authorized Signature
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EXHIBIT B-1
CONFIRMATION OF EXERCISE
For Warrants Represented by the Global Warrant Certificate
[Name of Depository Participant]
[Name of Euroclear Participant]
[Clearstream Banking S.A.]
[Address]
We hereby confirm receipt of your Exercise Notice with respect to Warrants (the "Exercised Warrants") which were transferred by you (or on your behalf) to our DTC Participant Account No. _______. Such Notice we have found to be duly completed and in proper form. The Valuation Date of the Exercised Warrants was the close of business on ____________, 20__.
As set forth in your Exercise Notice, none of the Warrants covered thereby is subject to the Limit Option. Accordingly, for purposes hereof, all such Warrants shall constitute Exercised Warrants, which number we hereby confirm to be ____________________. Your Exercise Notice stated that the Warrants covered thereby are subject to the Limit Option. The applicable Limit Option Reference Index Value for such Warrants is _______ and the Spot Value for the date that would otherwise be the Valuation Date for such Warrants is ________. Such Spot Value is not [lower, in the case of Call Warrants] [higher, in the case of Put Warrants] than such Limit Option Reference Index Value by [minimum number of points] or more points. Accordingly, for purposes hereof, all such Warrants shall constitute Exercised Warrants. We hereby confirm the number of such Exercised Warrants to be _________________.
We hereby confirm that the aggregate Cash Settlement Value of the Exercised Warrants is $__________ ($_____ per Warrant), which will be made available to you in the form of a cashier's check or an official bank check or by wire transfer to the bank account designated in your irrevocable Exercise Notice for payment on the fifth New York Business Day following the Valuation Date for such Warrants (or, if such Valuation Date is not a New York Business Day, on the fifth New York Business Day following the New York Business Day next succeeding the Valuation Date for such Warrants).
Capitalized terms included herein but not defined have the meanings assigned thereto in the Warrant Agreement dated as of ________________,
B-1-1
among J.P. Morgan Chase & Co., [_____________________], as Warrant Agent, and [_____________________], as Determination Agent.
Dated:_________________________________ [_____________________], as Warrant
Agent
By:________________________________
Authorized Signature
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B-1-2
NOTICE OF REJECTION
[Name of Depository Participant]
[Name of Euroclear Participant]
[Clearstream Banking S.A.]
[Address]
[You are hereby notified that the Exercise Notice delivered by you was
determined by us not to have been duly completed in proper form. Such Warrants
were not transferred to our DTC Participant Account No. _____.] [We did not
receive from Euroclear a Euroclear Confirmation that proper delivery of the
Warrants to which the Exercise Notice delivered by you relates would be made on
a timely basis, as set forth in the Warrant Agreement, dated as of
________________, among J.P. Morgan Chase & Co., [_____________________], and
[_____________________]. Accordingly, we have rejected your Exercise Notice as
being unsatisfactory as to form.
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated:_________________________________ [_____________________], as Warrant
Agent
By:________________________________
Authorized Signature
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B-1-3
EXHIBIT C-1
NOTICE OF REJECTION
RELATING TO LIMIT OPTION
For Warrants Represented
by Warrant Certificates
We refer to your Exercise Notice dated __________, 20__, with respect to
Warrants that were subject to the Limit Option. The applicable Limit Option
Reference Index Value for such Warrants is _________ and the Spot Value for the
date that would otherwise be the Valuation Date for such Warrants is
______________. Such Spot Value is [lower, in the case of Call Warrants]
[higher, in the case of Put Warrants] than the Limit Option Reference Index
Value on the Exercise Date (or if such date was not an Index Calculation Date,
on the Index Calculation Date prior to the Exercise Date for such Warrants) by
[minimum number of points] points or more. Accordingly, we have rejected such
Exercise Notice pursuant to your exercise of the Limit Option.
Capitalized terms included herein but not defined have the meanings assigned thereto in the Warrant Agreement dated as of ________________, among J.P. Morgan Chase & Co., [_____________________], and [_____________________].
Dated:_________________________________ [_____________________], as Warrant
Agent
By:________________________________
Authorized Signature
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EXHIBIT C-2
NOTICE OF REJECTION
RELATING TO LIMIT OPTION
For Warrants Represented
by the Global Warrant Certificate
[Name of Depository Participant]
[Name of Euroclear Participant]
[Clearstream Banking S.A.]
[Address]
We refer to your Exercise Notice dated ________, 20__, with respect to Warrants that were subject to the Limit Option. The applicable Limit Option Reference Index Value for such Warrants is __________ and the Spot Value for the date that would otherwise be the Valuation Date for such Warrants is __________. Such Spot Value is [lower, in the case of Call Warrants] [higher, in the case of Put Warrants] than the Reference Index on the Exercise Date (or if such date was not an Index Calculation Date, on the Index Calculation Date prior to the Exercise Date for such Warrants) by [minimum number of points] points or more. Accordingly, we have rejected such Exercise Notice pursuant to your exercise of the Limit Option.
Capitalized terms included herein but not defined have the meanings assigned thereto in the Warrant Agreement dated as of ________________, among J.P. Morgan Chase & Co., [_____________________], and [_____________________].
Dated:_________________________________ [_____________________], as Warrant
Agent
By:________________________________
Authorized Signature
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C-2-1
Exhibit 4(g)
J.P. MORGAN CHASE & CO.
and
[_____________________________], Warrant Agent
and
[_____________________________], Determination Agent
CURRENCY WARRANT AGREEMENT
dated as of [__________]
TABLE OF CONTENTS
Page
ARTICLE 1
Issuance of Warrants and Form, Execution, Delivery and Registration
of Warrant Certificates and Global Warrant Certificate
Section 1.01. Issuance of Warrants...........................................1
Section 1.02. Form, Execution and Delivery of Warrant Certificates...........3
Section 1.04. Registration of Transfers and Exchanges........................3
Section 1.05. Mutilated or Missing Warrant Certificates......................4
Section 1.06. Registered Holders.............................................5
Section 1.07. Global Warrant Certificate.....................................5
ARTICLE 2
Duration and Exercise of Warrants
Section 2.01. Duration of Warrants; Minimum Exercise Amounts;
Exercise Notice......................................................7
Section 2.02. Exercise, Valuation and Delivery of Warrants...................9
Section 2.03. Automatic Exercise of Warrants[; Exercise Upon an
Extraordinary Event or Exercise Limitation Event]...................15
Section 2.04. Limitation of Number of Exercisable Warrants..................17
Section 2.05. Covenant of the Company.......................................18
Section 2.06. Return of Money Held Unclaimed for Two Years..................18
Section 2.07. Return of Global Warrant Certificate..........................19
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ARTICLE 3
Other Provisions Relating to Rights of Warrantholders
Section 3.01. Warrantholder of Warrant May Enforce Rights...................19
ARTICLE 4
Warrants Acquired by the Company; Payment of Taxes
Section 4.01. Warrants Acquired by the Company..............................19
Section 4.02. Payment of Taxes..............................................20
Page
ARTICLE 5
Concerning the Warrant Agent
Section 5.01. Warrant Agent.................................................20
Section 5.02. Conditions of Warrant Agent's Obligations.....................20
Section 5.03. Resignation and Appointment of Successor......................22
ARTICLE 6
Miscellaneous
Section 6.01. Amendment.....................................................24
Section 6.02. Notices and Demands to the Company, the Warrant Agent
[and the Determination Agent].......................................25
Section 6.03. Addresses for Notices.........................................25
Section 6.04. Notices to Holders............................................25
Section 6.05. Obtaining of Approvals........................................25
Section 6.06. Persons Having Rights Under This Agreement....................26
Section 6.07. Inspection of Agreement.......................................26
Section 6.08. Headings......................................................26
Section 6.09. Counterparts..................................................26
Section 6.10. Applicable Law................................................26
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TESTIMONIUM.....................................................................
SIGNATURES....................................................................27
EXHIBIT A - Form of Warrant Certificate
EXHIBIT A-1 - Form of Global Warrant Certificate
EXHIBIT A-2 - Exercise Notice For Warrants Represented by the Global
Warrant Certificate
EXHIBIT B - Confirmation of Exercise and Notice of Rejection For
Warrants Represented by Warrant Certificates
EXHIBIT B-1 - Confirmation of Exercise and Notice of Rejection For
Warrants Represented by the Global Warrant
Certificate
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of [ ], 20[ ], among J.P. MORGAN CHASE & CO., a corporation organized and existing under the laws of the State of Delaware (the "Company"), [_____________________], a [New York] banking corporation, (the "Warrant Agent")[, and [_____________________], a corporation organized and existing under the laws of the State of [Delaware] (the "Determination Agent").]
WHEREAS, the Company proposes to sell [put warrants] [call warrants] (the
"Warrants" or, individually, a "Warrant"), representing the right to receive
from the Company an amount in [name of payment currency] equal to the Cash
Settlement Value [or Alternative Settlement Amount (each as] defined below)
determined by reference to [the right to sell (in case of put warrants)] [the
right to purchase (in the case of call warrants)] a specified amount[s] of the
[Base Currency, (the "Base Currency")] [Base Currencies (the "Base
Currencies")]2 for a specified amount[s] of the [Reference Currency], [(the
"Reference Currency")] [Reference Currencies (the "Reference Currencies")]1 on
the terms and conditions set forth in this Agreement; and
WHEREAS the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance, transfer and exercise of the Warrants, and the Company 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, the parties hereto agree as follows:
ARTICLE 1
Issuance of Warrants and Form, Execution, Delivery and Registration of Warrant Certificates and Global Warrant Certificate
(b) Each Warrant shall represent the right, upon exercise (including automatic exercise) subject to the provisions contained herein, to receive the Cash Settlement Value [or the Alternative Settlement Amount, as the case may be (each] as defined herein), of such Warrant. In no event shall a registered or beneficial holder of a Warrant (each a "Warrantholder") be entitled to receive any interest on any Cash Settlement Value [or Alternative Settlement Amount].
Section 1.02. Form, Execution and Delivery of Warrant Certificates. (a) The Warrants, whenever issued, shall be represented by certificates in registered form substantially in the form set forth in Exhibit A hereto (the "Warrant Certificates"), with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may represent any whole number 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 which are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any stock exchange on which the Warrants may be listed, or of any securities depository, or to conform to usage. Warrant Certificates shall be signed on behalf of the Company by any of the chairman of its Board of Directors, its president, any vice chairman of its Board of Directors or the chief financial officer (or any other officer certified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Issuer) in each case under its corporate seal which may, but need not be attested by its secretary or one or more of its assistant secretaries [except that the Global Warrant Certificate may be executed by any such officer without any necessity that such signature be under seal as aforesaid]. The signature of any of such officers may be either manual or facsimile. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent.
(b) In case any officer of the Company who shall have signed a Warrant Certificate, either manually or by facsimile signature, shall cease to be such officer before such Warrant Certificate shall have been countersigned and delivered by the Warrant Agent to the Company or delivered by the Company, such Warrant Certificate nevertheless may be countersigned and delivered as though the person who signed such Warrant Certificate had not ceased to be such officer of the Company; and the Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date of the execution of this Warrant Agreement any such person was not such officer.
Section 1.03. Warrant Certificates. Each Warrant Certificate, when executed on behalf of the Company in accordance with Section 1.02, shall be delivered to the Warrant Agent, which shall manually countersign and deliver the same to or upon the order of the Company. Each Warrant Certificate shall be dated the date of its countersignature. A Warrant Certificate shall not be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, unless and until such Warrant Certificate has been countersigned by the manual signature of an authorized officer of the Warrant Agent. Such countersignature by an authorized officer of the Warrant Agent upon any Warrant Certificate signed by the Company in accordance with Section 1.02 shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
Section 1.04. Registration of Transfers and Exchanges. (a) Except as otherwise provided herein or in the Warrant Certificate, the Warrant Agent shall from time to time register the transfer of any outstanding Warrant Certificates upon the records to be maintained by it for that purpose (the "Warrant Register") at the Warrant Agent's Office (as defined herein), subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, upon surrender thereof, duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the registered holder(s) thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a bank or trust company with a correspondent office in The City of New York or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. Upon any such registration of transfer, a new Warrant Certificate shall be issued to the transferee(s) and the surrendered Warrant Certificate shall be cancelled by the Warrant Agent.
(b) At the option of a Warrantholder, Warrant Certificates may be exchanged for other Warrant Certificates, representing a like number of Warrants, upon surrender to the Warrant Agent of the Warrant Certificates to be exchanged at its offices maintained for such purpose (the location of which shall be provided to the Company), which shall be in the Borough of Manhattan, The City of New York (the "Warrant Agent's Office"), and which is, on the date of this Agreement, [_____________________], Attention: [_____], or at the office of any successor Warrant Agent (as provided in Section 5.03). Upon surrender of any Warrant Certificate for exchange, the Warrant Agent shall cancel such Warrant Certificate, and the Company shall execute, and the Warrant Agent shall countersign and deliver, in accordance with Sections 1.02 and 1.03, one or more
new Warrant Certificates of like tenor and representing a like number of unexercised Warrants.
(c) Warrant Certificates issued upon transfer or exchange pursuant to
Section 1.04(a) or 1.04(b) shall be valid obligations of the Company, evidencing
the same obligations of the Company as the Warrant Certificates surrendered for
transfer or exchange, and entitled to the same benefits under this Agreement as
were such Warrant Certificates prior to such surrender.
(d) Except as provided in Section 1.05, no service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates, other than exchanges pursuant to this Section 1.04 not involving any transfer.
(e) In the event that upon any exercise of Warrants evidenced by a Warrant Certificate the number of Warrants exercised shall be less than the total number of Warrants evidenced by such Warrant Certificate, there shall be issued to the holder thereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised.
Section 1.05. Mutilated or Missing Warrant Certificates. (a) If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company may in its discretion execute, and the Warrant Agent may countersign and deliver, in exchange and substitution for the mutilated Warrant Certificate, or in replacement for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants, bearing an identification number not contemporaneously outstanding, but only (in case of loss, theft or destruction) upon receipt of evidence satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and security or indemnity, if requested, also satisfactory to them. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe.
(b) In case any such mutilated, lost, stolen or destroyed Warrant Certificate has been or is about to be exercised, or deemed to be exercised, the Company in its absolute discretion may, instead of issuing a new Warrant Certificate, direct the Warrant Agent to treat the same as if it had received the Warrant Certificate together with an irrevocable Exercise Notice (as defined herein) in proper form in respect thereof, as provided herein, or as being subject to automatic exercise, as the case may be.
(c) Each new Warrant Certificate issued pursuant to this Section 1.05 in lieu of any lost, stolen or destroyed Warrant Certificate shall be an original, additional contractual obligation of the Company, and shall be entitled to the same benefits under this Agreement as the Warrant Certificate that was lost, stolen or destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance with this Section 1.05, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith.
(e) The provisions of this Section 1.05 are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the replacement or payment of mutilated, lost, stolen or destroyed Warrant Certificates.
Section 1.06. Registered Holders. Prior to due presentment for registration of transfer, 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 shall be registered in the Warrant Register (a "Registered Holder") as the absolute owner of the Warrants evidenced thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate) for any purpose whatsoever, and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, 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. This Section 1.06 shall be without prejudice to the rights of Warrantholders as described elsewhere herein.
Section 1.07. Global Warrant Certificate. (a) Any global certificate evidencing the Warrants (the "Global Warrant Certificate") issued in accordance with this Section 1.07 shall be substantially in the form set forth in Exhibit A-1 hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may represent any number of whole Warrants. The 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 which are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any stock exchange on which the Warrants may be listed or of The Depository Trust
Company, New York, New York (the "Depository", which term, as used herein, includes any successor securities depository selected by the Company), or to conform to usage. Each Global Warrant Certificate shall be signed on behalf of the Company upon the same conditions, in substantially the same manner and with the same effect as the Warrant Certificates.
(b) The Warrant Agent is authorized upon receipt of a Global Warrant Certificate from the Company, duly executed on behalf of the Company, to countersign such Global Warrant Certificate. The Global Warrant Certificate shall be manually countersigned and dated the date of its countersignature by the Warrant Agent and shall not be valid for any purpose unless so countersigned. The Warrant Agent shall deliver the Global Warrant Certificate to or upon the order of the Company against receipt of an appropriate amount of Certificated Warrants (as defined herein) (such Certificated Warrants shall be disposed of in accordance with instructions provided by the Company). One or more Global Warrant Certificates may be executed by the Company and delivered to the Warrant Agent on or after the date of execution of this Agreement; provided that only one Global Warrant Certificate shall be outstanding at any one time.
The Company reserves the right to issue, from time to time after the date
of execution of this Agreement, additional Warrants, and in connection therewith
the Global Warrant Certificate may be exchanged for a new Global Warrant
Certificate to reflect the issuance by the Company of such additional Warrants.
To effect such an exchange the Company shall deliver to the Warrant Agent a new
Global Warrant Certificate duly executed on behalf of the Company as provided in
Section 1.02. The Warrant Agent shall countersign the new Global Warrant
Certificate as provided in this Section and shall deliver the new Global Warrant
Certificate to the Depository in exchange for, and upon receipt of, the Global
Warrant Certificate then held by the Depository. The Warrant Agent shall cancel
the Global Warrant Certificate delivered to it by the Depository, dispose of
such Global Warrant Certificate and provide a certificate of disposition to the
Company.
(c) The Global Warrant Certificate will initially be registered in the name of a nominee of the Depository. The Warrant holdings of each entity (a "Participant") entitled to execute, clear and settle transactions through the Depository will be recorded on the books of the Depository. The holdings of customers of the Participants and the identity of the Warrantholders will be reflected on the books and records of such Participants and will not be known to the Warrant Agent, the Company or the Depository. The Global Warrant Certificate will be held by the Depository or its agent. Neither the Company nor the Warrant Agent will have any responsibility or liability for any aspect of the records relating to beneficial ownership interests in the Global Warrant Certificate
or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
The Company may from time to time select a new entity to act as Depository with respect to the Warrants and, if such selection is made, the Company shall promptly give the Warrant Agent 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 below as promptly as possible. Appropriate changes may be made in the forms of the Global Warrant Certificate, the Exercise Notice and the related notices to be delivered in connection with an exercise to reflect the selection of the new Depository.
(d) 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 its records (which may be maintained electronically), subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, only to the Depository, to another 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, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the registered holder thereof or by the duly appointed legal representative thereof, or by its duly authorized attorney, such signature to be guaranteed by a bank or trust company with a correspondent office in The City of New York or by a broker or dealer which is a member of the NASD or by a member of a national securities exchange. Upon any such registration of transfer, a new Global Warrant Certificate shall be issued to the transferee and the surrendered Global Warrant Certificate shall be cancelled by the Warrant Agent.
The Global Warrant Certificate may be transferred as provided in this Section, when surrendered to the Warrant Agent's Office, or at the office of any successor Warrant Agent (as provided in Section 5.03), for another Global Warrant Certificate of like tenor and representing a like number of unexercised Warrants.
ARTICLE 2
Duration and Exercise of Warrants
Section 2.01. Duration of Warrants; Minimum Exercise Amounts; Exercise Notice. (a) Subject to the limitations set forth herein and in Section 2.03, each Warrant may be irrevocably exercised in whole but not in part, immediately upon issuance. Except in the case of automatic exercise, each Warrant shall be irrevocably exercised either (A) in the case of Warrants represented by Warrant Certificates ("Certificated Warrants"), on any New York Business Day during the period from the date of issuance until 3:00 p.m., New York City time, on the earlier of (i) the New York Business Day immediately preceding the date (established in or pursuant to a resolution or resolutions of the Board of Directors of the Company or any committee of such Board duly authorized to act on its behalf (a "Board Resolution" or "Board Resolutions")) upon which the right to exercise the Warrants expires (the "Expiration Date"), and (ii) any Delisting Date (as defined herein) by delivering or causing to be delivered to the Warrant Agent (at its address as set forth in the Exercise Notice (as defined below) or at such other address as the Warrant Agent may specify from time to time) the Warrant Certificate representing such Warrant, with the Exercise Notice duly completed and executed by the Registered Holder of such Warrant or (B) in the case of Warrants represented by a Global Warrant Certificate ("Book-Entry Warrants"), on any New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, by causing (x) such Warrant to be transferred free to the Warrant Agent on the records of the Depository in accordance with the Depository's Deposit/Withdrawal at Custodian procedures and (y) a duly completed and executed Exercise Notice to be received by the Warrant Agent from a Participant acting, directly or indirectly, on behalf of the Warrantholder; provided, however, that Exercise Notices are subject to rejection by the Warrant Agent as provided herein.
In the case of Book-Entry Warrants held through the facilities of Clearstream Banking S.A. ("Clearstream") or the Euroclear System ("Euroclear"), a Warrantholder may exercise each Warrant on any New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, by causing (x) such Warrant to be transferred to the Warrant Agent in accordance with clause (B) of the preceding paragraph, by giving appropriate instructions to Clearstream or the participant holding his Warrants in Euroclear, as the case may be, and (y) a duly completed and executed Exercise Notice to be delivered on behalf of the Warrantholder by Clearstream in the case of Warrants held through Clearstream, or such participant, in the case of Warrants held through Euroclear, to the Warrant Agent.
(b) No fewer than the minimum number of Warrants as set forth in each Warrant Certificate may be exercised by or on behalf of any one Warrantholder at any one time, except that no such minimum exercise amount shall apply in the case of automatic exercise on the Expiration Date or a Delisting Date[, or in the case of cancellation of the Warrants as a result of an Extraordinary Event (as defined herein)]. An Exercise Notice shall be unconditional. Except as provided in Section 2.02(c), the Warrant Agent shall be entitled, with no duty of inquiry, to rely conclusively on any Exercise Notice received by it and on any representation of the exercising Warrantholder contained therein.
(c) "Exercise Notice" means an irrevocable notice of exercise to the Warrant Agent at its address, which notice (A) for Certificated Warrants, shall be on the reverse of the Warrant Certificate or such other form as the Company and the Warrant Agent may approve, and (B) for Book-Entry Warrants, shall be substantially in the form set forth in Exhibit A-2 hereto or such other form as the Company and the Warrant Agent may approve and may be given by facsimile transmission. For purposes of this Agreement, "New York Business Day" means any day other than a Saturday, Sunday or a day on which commercial banks in New York City are required or authorized by law or executive order to remain closed.
Section 2.02. Exercise, Valuation and Delivery of Warrants. (a) Except for Warrants subject to automatic exercise or Warrants held through the facilities of Clearstream or Euroclear, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives the Warrant and Exercise Notice in proper form with respect to such Warrant, if received at or prior to 3:00 P.M., New York City time, on such day, or (ii) if the Warrant Agent receives such Warrant or Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the next New York Business Day succeeding the New York Business Day on which such Warrant or Exercise Notice is received. In the case of Warrants held through the facilities of Clearstream or Euroclear, except for Warrants subject to automatic exercise, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives (by facsimile transmission) the Exercise Notice in proper form with respect to such Warrant if such Exercise Notice is received at or prior to 3:00 P.M., New York City time, on such day, provided, that the Warrant being exercised is received by the Warrant Agent by 3:00 P.M., New York City time, on the New York Business Day next succeeding the date on which the Exercise Notice is received, or (ii) if the Warrant Agent receives such Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the New York Business Day succeeding such New York Business Day, provided that such day will be the Exercise Date only if the Warrant being exercised is received by 3:00 P.M., New York City time, on the second succeeding New York Business
Day following the New York Business Day on which the Exercise Notice is
received. In the event that the Warrant being exercised is received after 3:00
P.M., New York City time, on the New York Business Day next succeeding the date
on which the Exercise Notice is received, then the Exercise Date for such
Warrant will be the day on which such Warrant is received or, if such day is not
a New York Business Day, the next succeeding New York Business Day.
Notwithstanding the foregoing, in the case of the exercise of a Book-Entry
Warrant by Clearstream or a Euroclear participant, Clearstream or Euroclear, as
the case may be, must by facsimile transmission to the Warrant Agent by 9:00
a.m., New York City time, on the New York Business Day next succeeding the
Exercise Date confirm (an "Account Confirmation") that the Warrants being
exercised will be received by the Warrant Agent by 3:00 p.m., New York City
time, on such date, provided, further, that if such Account Confirmation is
received after 9:00 a.m., New York City time, on the New York Business Day next
succeeding the Exercise Date, the Company will be entitled to direct the Warrant
Agent to reject the related Exercise Notice or waive the requirement for timely
delivery of such Account Confirmation.
(b) The "Valuation Date" for a Warrant shall be the first New York Business Day following the applicable Exercise Date (subject to postponement [upon the occurrence of an Extraordinary Event or Exercise Limitation Event (as herein defined) or] as a result of the exercise of a number of Warrants exceeding the limits on exercise set forth herein).
All Warrants for which the Warrant Agent has not received a valid Exercise Notice at or prior to 3:00 p.m., New York City time, on (i) the New York Business Day immediately preceding the Expiration Date or (ii) the last New York Business Day prior to the effective date on which the Warrants are delisted from, or permanently suspended from trading (within the meaning of the Securities Exchange Act of 1934 and the rules and regulations of the Securities and Exchange Commission thereunder) on, the stock exchange on which the Warrants are listed and not accepted prior thereto or at the same time for listing on another United States national securities exchange (such New York Business Day being a "Delisting Date") or for which the Warrant Agent has received a valid Exercise Notice but with respect to which timely delivery of the relevant Warrants has not been made by such date [or the Valuation Date for which has as of such date been postponed as provided in Section 2.03], shall be deemed to be automatically exercised as of such date; provided, however, that if the Company first receives notice of the delisting or suspension of the Warrants on the same day on which such Warrants are delisted or suspended, such day will be deemed a Delisting Date for purposes of this Agreement.
(c) The Warrant Agent shall, in the case of Warrants other than Warrants held through the facilities of Clearstream or Euroclear, following receipt of proper and timely delivery of a Warrant in accordance with Section 2.02(a), accompanied by a completed Exercise Notice, and, in the case of Warrants held through Clearstream or Euroclear, following receipt of proper delivery of a completed Exercise Notice in accordance with Section 2.02(a):
(i) promptly (1) for Certificated Warrants, determine whether such
Exercise Notice has been duly completed and is in proper form duly executed
by the Registered Holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, (2) for Book-Entry
Warrants not held through Clearstream or Euroclear, determine whether such
Exercise Notice has been duly completed and is in proper form and (3) for
Book-Entry Warrants held through Clearstream or Euroclear, determine
whether such Exercise Notice has been duly completed and is in proper form
duly executed by Clearstream or the Euroclear participant delivering such
Warrant, as applicable; and if the Warrant Agent determines that the
Exercise Notice has not been duly completed or is not in proper form or, in
the case of Certificated Warrants, has not been so executed, the Warrant
Agent promptly (A) shall reject such Exercise Notice and shall send to the
entity that executed such Exercise Notice a notice of rejection
substantially in the form set forth in Exhibit B or Exhibit B-1 hereto, as
the case may be, and, in the case of Certificated Warrants, shall return to
the Registered Holder that submitted such Exercise Notice, by first class
mail, the Warrant Certificates evidencing such Warrants, or, in the case of
Book-Entry Warrants, shall re-deliver such Warrants (to the extent received
in the case of Warrants held through Clearstream or Euroclear) free through
the facilities of DTC to the account from which they were transferred to
the Warrant Agent and (B) shall not take the actions required by clauses
(ii)-(vii) below with respect to such Exercise Notice or the related
Warrants; provided, however, that the Warrant Agent shall deliver a copy of
the Exercise Notice relating to such Warrants to the Company as required by
Section 2.02(c)(vii) below and the Company may waive any defect in the form
of such Exercise Notice;
(ii) notify the Company [and the Determination Agent] (and such other parties (not to exceed two) as the Company shall designate in writing) by 5:00 p.m., New York City time, on the New York Business Day that such Exercise Notice has been received (or shall be deemed to have been received) of the total number of Warrants covered by such Exercise Notice;
(iii) with respect to Warrants held through Clearstream or Euroclear, determine whether the Warrant Agent has received by 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date relating to such Warrants, Account Confirmations with respect to such Warrants, and if the Warrant Agent has not received any such Account Confirmation by such time, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) by 10:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date, of the number of such Warrants in respect of which the Warrant Agent has not received such Account Confirmations and (except to the extent the Company has notified the Warrant Agent that it has waived the timing requirement of timely delivery of such Account Confirmations) send to Clearstream or the Euroclear participant, as the case may be, that delivered such Exercise Notice for which no related Account Confirmation was received (at the address specified in such notice) a notice of rejection substantially in the form set forth in Exhibit B hereto;
(iv) by 11:00 a.m., New York City time, on the Valuation Date (A)
determine the number of Warrants determined pursuant to clause (ii) above)
(all of such Warrants, the "Exercised Warrants") and (B) notify the Company
[and the Determination Agent] of the total number of Exercised Warrants so
determined (if such number is zero, the Warrant Agent shall not take the
actions required by clauses (v) and (vi) of this Section 2.02(c) with
respect to such Exercise Notice or the related Warrants);
(v) determine the applicable Spot Rate and calculate the Cash Settlement Value of the Exercised Warrants (excluding any Warrants held through Clearstream or Euroclear as to which timely delivery of the related Warrant has not been made) as of their Valuation Date in the manner set forth in Section 2.02(b) by no later than 10:00 a.m., New York City time, on the New York Business Day next succeeding the Valuation Date [(unless the Cash Settlement Value shall be calculated by the Determination Agent)];
(vi) notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) by 12:00 noon, New York City time, on the New York Business Day next succeeding the Valuation Date of the Cash Settlement Value payable in respect of the Exercised Warrants, and send notices of confirmation substantially in the form included in Exhibit B or Exhibit B-1 hereto, as the case may be, to the
Registered Holder, Participant, Clearstream or Euroclear participant, as the case may be; and
(vii) promptly deliver a copy of each Exercise Notice to the Company and advise the Company of such other matters relating to the Exercised Warrants as the Company shall reasonably request. Any notice to be given to the Company by the Warrant Agent pursuant to this Section 2.02 or Section 2.03 shall be by telephone (promptly confirmed in writing) or facsimile transmission.
Except in the case of Warrants subject to automatic exercise [and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then the attempted exercise of any such Warrants shall be void and of no effect and (i) for Certificated Warrants, the Warrant Certificate evidencing such Warrants shall be promptly returned by the Warrant Agent to the Registered Holder by first class mail at the Company's expense or (ii) for Book-Entry Warrants, the Warrants will be transferred by the Warrant Agent back to the Participant that submitted them free on the records of DTC (to the extent received, in the case of Warrants held through Clearstream or Euroclear) and, in either case such Warrantholder shall be permitted to re-exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
(d) Except in the case of Warrants subject to automatic exercise [and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if the Company has made adequate funds available to the Warrant Agent in a timely manner, which shall in no event be later than 3:00 p.m., New York City time, on the second New York Business Day following a Valuation Date (the "Funding Date"), the Warrant Agent will be responsible for making its payment available (i) for Certificated Warrants, to each Registered Holder of an exercised Warrant in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. Dollar account maintained by such Registered Holder in the United States (at such Registered Holder's election as specified in the applicable Exercise Notice), after 3:00 p.m., New York City time, but prior to the close of business on such Funding Date or (ii) for Book-Entry Warrants, to each appropriate Participant in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. Dollar account maintained by such Participant in the United States (at the Participant's election as specified in the Exercise Notice), after 3:00 p.m., New York City time, but prior to the close of business, on the first New York Business Day immediately succeeding such Funding Date. For either clause
(i) or (ii) above, such payment shall be in the amount of the aggregate Cash Settlement Value in respect of the Warrant Certificates or Warrants that were delivered to the Warrant Agent (together with the related Exercise Notice) as provided in Sections 2.01 and 2.02(a), 2.02(b) and 2.02(c).
(e) The "Cash Settlement Value" of an exercised Warrant shall be an amount in [payment currency] equal to [formula or method of calculation for cash settlement value] provided, however, that if such amount is less than zero, then the Cash Settlement Value shall be zero.
For purposes of this Agreement, the "Reference Currency" means the
[Reference Currency] and the "Base Currency" means the [Base Currency]. [[The
"Spot Rate"] for any date means the offered spot rate of [insert Base Currency]
per [insert Reference Currency] as quoted by [________________] (the "Spot Rate
Reference Bank") at 10:00 A.M., New York City time, on such date, or if such
bank is not quoting such rate at such time, the rate quoted by such other
leading bank in the foreign exchange markets as may be selected by the Company
in good faith and notified to the Warrant Agent.] [Alternative provision for
calculation of Spot Rate.] The offered spot rate of any applicable currency
shall be calculated to four (4) decimal places.
References in this Agreement to "U.S. dollars", "U.S.$" or "$" are to the lawful currency of the United States of America [other currency or currency unit].
(f) In the case of exercise of Book-Entry Warrants, the Warrant Agent shall cause its records, which may be kept electronically, to be marked to reflect the reduction in the number of Warrants represented by the Global Warrant Certificate by the number of Warrants that were delivered to the Warrant Account and for which payment has been made as provided in Section 2.02(d) promptly after such delivery and payment. Absent manifest error, the Warrant Agent's records shall be conclusive evidence of such matters.
[(g) The Company hereby appoints [_____________________], and
[_____________________] accepts such appointment, to be the Company's
Determination Agent to make such calculations as may be required upon the
occurrence of any of the circumstances described in Section 2.03, including,
without limitation, calculation of the Cash Settlement Value or the Alternative
Settlement Amount, as applicable, of a Warrant. The Determination Agent shall
act as an independent expert and not as an agent of the Company, and, unless
otherwise provided by this Agreement, its calculations and determinations under
this Agreement shall, absent manifest error, be final and binding on the
Company, the Warrant Agent, the
Warrantholders and any Participant. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's Office.
The Company agrees, for the benefit of the Warrantholders that there shall at all times be a Determination Agent hereunder until all the Warrants are no longer outstanding or until monies for the payment of all outstanding Warrants, if any, shall have been paid to the Warrant Agent and shall have been returned to the Company as provided in Section 2.06, whichever occurs earlier. Resignation, removal and appointment of the Determination Agent shall be in accordance with the procedures set forth for the resignation, removal and appointment of the Warrant Agent, as provided in Section 5.03, except that a successor Determination Agent need not be a banking institution with offices in the Borough of Manhattan, The City of New York, and may only be appointed if such successor has been nominated by the Company and approved by the predecessor Determination Agent.
The Company agrees promptly to pay the Determination Agent the compensation to be agreed upon with the Company for all services rendered by the Determination Agent hereunder. The Company also agrees to indemnify the Determination Agent for, and to hold it harmless against, any loss, liability, cost or expense (including reasonable attorneys' fees and expenses) incurred by the Determination Agent by reason of its being made a party to a suit or claim arising out of this Agreement; provided, however, that such indemnity shall in no event apply to the extent that any such loss, liability, cost or expense is a result of the negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The indemnity obligation of the Company shall continue notwithstanding the termination of this Agreement or the resignation or removal of the Determination Agent.]
[(h) The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the adjustments or calculations by the Determination Agent (as provided above) in order to arrive at a calculation of the Cash Settlement Value or the Alternative Settlement Amount, as applicable].
Section 2.03. Automatic Exercise of Warrants[; Exercise Upon an
Extraordinary Event or Exercise Limitation Event]. (a) All Warrants for which
the Warrant Agent has not received an Exercise Notice in proper form by 3:00
p.m., New York City time, on (i) the New York Business Day immediately preceding
the Expiration Date or (ii) any Delisting Date, as the case may be, or for which
the Warrant Agent has received a valid Exercise Notice in proper form but with
respect to which timely delivery of the relevant Warrants has not been made
prior to such time, and which have not been cancelled prior to such time, will be deemed automatically exercised without any requirement of an Exercise Notice to the Warrant Agent. The Exercise Date for such Warrants shall be the Expiration Date or Delisting Date, as the case may be, or, if such date is not a New York Business Day, the next succeeding New York Business Day and the Valuation Date for such Warrants shall be the first New York Business Day following the Exercise Date.
The Warrant Agent shall by 5:00 p.m., New York City time, on the Expiration Date or any Delisting Date, as the case may be, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) of the number of Warrants to be automatically exercised on such day. On the Valuation Date for such Warrants, the Warrant Agent shall (i) determine the Cash Settlement Value (in the manner provided in Section 2.02(e)) of the Warrants to be automatically exercised; (ii) by 5:00 p.m., New York City time, on the next New York Business Day succeeding such Valuation Date, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) of the Cash Settlement Value payable in respect of such exercised Warrants; and (iii) advise the Company of such other matters relating to the exercised Warrants as the Company shall reasonably request.
In the case of Certificated Warrants subject to automatic exercise [(other than Certificated Warrants subject to postponed exercise following the occurrence of an Extraordinary Event or an Exercise Limitation Event as described in Section 2.03(b))], the Company shall make available to the Warrant Agent, not later than 3:00 p.m., New York City time, on the second New York Business Day following the Valuation Date for automatically exercised Warrants (the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants. Subject to such funds having been made available as provided in the preceding sentence, the Warrant Agent will be responsible for making its payment available to the appropriate Registered Holder in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. Dollar account maintained by such Registered Holder in the United States (at such Registered Holder's election upon written notice to the Company and the Warrant Agent), after 3:00 p.m., New York City time, but prior to the close of business, on such Automatic Funding Date, against receipt by the Warrant Agent at the Warrant Agent's Office from such Registered Holder of its Warrant Certificates. Such payment shall be in the amount of the aggregate Cash Settlement Value in respect of the Warrants, evidenced by such Warrant Certificates, that were exercised automatically on the Expiration Date or on any Delisting Date, as the case may be. Warrant Certificates delivered to the Warrant Agent shall thereafter be promptly cancelled by the Warrant Agent.
In the case of Book-Entry Warrants subject to automatic exercise [(other
than Warrants subject to postponed exercise following the occurrence of an
Extraordinary Event or an Exercise Limitation Event as described in Section
2.03(b))], the Company shall make available to the Warrant Agent, not later than
3:00 p.m., New York City time, on the Automatic Funding Date, funds in an amount
equal to, and for the payment of, the aggregate Cash Settlement Value of such
Warrants. Subject to such funds having been made available as provided in the
preceding sentence, the Warrant Agent will be responsible for making funds
available to DTC, against receipt of the Global Warrant Certificate, after 3:00
p.m., New York City time, but prior to the close of business, on the Automatic
Funding Date. Such funds are to be in an amount equal to the aggregate Cash
Settlement Value of the Warrants subject to such automatic exercise.
The Company will advise the Warrant Agent as soon as practicable of the date of any expected delisting or permanent suspension of trading of the Warrants and will immediately inform the Warrant Agent after the Company has received notice that such delisting or suspension has occurred, but in no event will notice of such delisting or suspension be given to the Warrant Agent later than 9:30 a.m., New York City time, on the New York Business Day following the date that such delisting or suspension occurs. The Company will use its best efforts to notify the Warrantholders, or cause the Warrantholders to be notified, as promptly as practicable of any expected delisting or suspension of trading of the Warrants.
[(b) Extraordinary Event and Exercise Limitation Event provisions, if applicable.]
Section 2.04. Limitation of Number of Exercisable Warrants. All exercises of Warrants (other than on automatic exercise [or upon cancellation]) are subject, at the Company's option, to the limitation that not more than [limit on aggregate number of Warrants to be exercised on any day] Warrants in total may be exercised on any Exercise Date and not more than [individual limit] Warrants may be exercised by or on behalf of any beneficial owner, either individually or in concert with any other beneficial owner, on any Exercise Date. If any New York Business Day would otherwise, under the terms hereof, be the Exercise Date in respect of more than [limit on aggregate number of Warrants to be exercised on any day] Warrants, then at the Company's election (by giving notice thereof to the Warrant Agent not later than 11:00 a.m., New York City time, on the New York Business Day immediately following such Exercise Date), [limit on aggregate number of Warrants to be exercised on any day] of such Warrants shall be deemed exercised on such Exercise Date (selected by the Warrant Agent on a pro rata basis, but if, as a result of such pro rata selection, any Registered Holders would be deemed to have exercised less than [minimum exercise amount] Warrants, then the Warrant Agent shall first select additional
amounts of such holders' Warrants so that no holder shall be deemed to have
exercised less than [minimum exercise amount] Warrants), and the remainder of
such Warrants (the "Remaining Warrants") shall be deemed exercised on the
following New York Business Day (notwithstanding the provisions of
Section 2.01(b)); provided that in the event that the aggregate number of such
Remaining Warrants, together with any additional Warrants with respect to which
the Exercise Date would be such following New York Business Day, exceeds the
[limit on aggregate number of Warrants to be exercised on any day] the
provisions of this Section 2.04 shall apply to the exercise of such Remaining
Warrants and such additional Warrants on such following New York Business
Day and successively until the limitations set forth in this Section 2.04 are no
longer exceeded; provided further that, any such Remaining Warrants shall be
deemed exercised before any such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the Company's
election (as notified to the Warrant Agent by giving notice thereof to the
Warrant Agent not later than 11:00 a.m., New York City time, on the next New
York Business Day following such Day) [individual limit] of such Warrants shall
be deemed exercised on such New York Business Day and the remainder of such
Warrants shall be deemed exercised on the following New York Business Day
(notwithstanding the provisions of Section 2.01(b)); provided, that in the event
that the aggregate number of such remaining Warrants, together with any
additional Warrants of such beneficial owner with respect to which the Exercise
Date would be such following New York Business Day, exceeds [individual limit];
at the Company's election (as notified in the manner described above) the
provisions of this Section 2.04 shall apply to the exercise of such remaining
Warrants and such additional Warrants on such following New York Business Day
and successively until the limitations set forth in this Section 2.04 are no
longer exceeded; provided further, that, any such remaining Warrants shall be
deemed exercised before any such additional Warrants of such beneficial owner.
The date on which any Warrant is deemed exercised under the preceding sentences
shall for all purposes of this Agreement be the "Exercise Date" in respect of
such Warrants.
Section 2.05. Covenant of the Company. The Company covenants, for the benefit of the Warrantholders, that it will not seek the delisting of the Warrants from, or suspension of their trading on, the [exchange on which the Warrants are listed] unless the Company has, at the same time, arranged for listing on another United States national securities exchange.
Section 2.06. Return of Money Held Unclaimed for Two Years. Except as otherwise provided herein, any money deposited with or paid to the Warrant
Agent for the payment of the Cash Settlement Value [or Alternative Settlement Amount] of any Warrants and not applied but remaining unclaimed for two years after the date upon which such Cash Settlement Value [or Alternative Settlement Amount] shall have become due and payable shall be repaid by the Warrant Agent to the Company, at the Company's request, and the holders of such Warrants shall thereafter look only to the Company for any payment which such holders may be entitled to collect and all liability of the Warrant Agent with respect to such money shall thereupon cease; provided that the Warrant Agent, before making any such repayment, may at the expense of the Company notify (i) in the case of Certificated Warrants, the Registered Holders or (ii) in the case of Book-Entry Warrants, the Participants concerned, that said money has not been so applied and remains unclaimed and that after a date named in the notification any unclaimed balance of said money then remaining will be returned to the Company.
Section 2.07. Return of Global Warrant Certificate. In the event a Global Warrant Certificate is issued, at such time as all of the Warrants evidenced by such Certificate have been exercised (including pursuant to an automatic exercise) [or otherwise cancelled] and all payments to the Participants made as provided herein, the Warrant Agent shall dispose of the cancelled Global Warrant Certificate in accordance with its customary procedures (unless instructed by the Company to deliver the Global Warrant Certificate to the Company) and shall provide a certificate of disposition to the Company.
ARTICLE 3
Other Provisions Relating to Rights of Warrantholders
Section 3.01. Warrantholder of Warrant May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any Warrantholder, without the consent of the Warrant Agent, may, in and for its own behalf, enforce, and may institute and maintain, any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, its right to exercise, and to receive payment for, its Warrants as provided in this Agreement.
ARTICLE 4
Warrants Acquired by the Company; Payment of Taxes
Section 4.01. Warrants Acquired by the Company. In the event the Company shall purchase or otherwise acquire Warrants, such Warrants may, at the option of the Company, be (i) in the case of Certificated Warrants, delivered to the Warrant Agent, and if so delivered, the Warrant Agent shall promptly cancel such Warrants on the records of the Warrant Agent or (ii) in the case of Book-Entry Warrants, surrendered free through a Participant to the Depository for credit to the account of the Warrant Agent maintained at the Depository, and if so credited, the Warrant Agent shall promptly note the cancellation of such Warrants by notation on the records of the Warrant Agent and the Warrant Agent shall cause its records to be marked to reflect the reduction in the number of Warrants represented by the Global Warrant Certificate by the number of Warrants so cancelled promptly after such account is credited. In the case of Book-Entry Warrants, such Warrants may also, at the option of the Company, be resold by the Company directly or to or through any of its affiliates in lieu of being surrendered to the Depository. No Warrant Certificate shall be countersigned in lieu of or in exchange for any Warrant which is cancelled as provided herein, except as otherwise expressly permitted by this Agreement.
Any cancelled Warrant Certificate held by the Warrant Agent under this Agreement shall be disposed of by the Warrant Agent in accordance with its customary procedures unless otherwise directed by the Company, and the Warrant Agent shall deliver a certificate of disposition to the Company evidencing the same.
Section 4.02. Payment of Taxes. The Company will pay all stamp, withholding and other duties, if any, attributable to the initial issuance of Warrants; provided, however, that, anything in this Agreement to the contrary notwithstanding, the Company shall not be required to pay any tax or other governmental charge which may be payable in respect of any transfer involving any beneficial or record interest in, or ownership interest of, any Warrants, Warrant Certificates or Global Warrant Certificate which tax or other governmental charge shall be paid by the appropriate Warrantholder or Registered Holder.
ARTICLE 5
Concerning the Warrant Agent
Section 5.01. Warrant Agent. The Company hereby appoints
[_____________________] as Warrant Agent of the Company in respect of the
Warrants upon the terms and subject to the conditions set forth herein; and
[_____________________] hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in this Agreement
and such further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it with its consent. All of the
terms and provisions with respect to such powers and authority contained in any
Warrant Certificates or 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, including the following, to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of- pocket expenses (including attorneys' fees and expenses) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or breach of this Agreement on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section 5.02(a) shall survive the termination of this Agreement.
(b) In acting under this Agreement, 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 owners or holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it (including counsel to the Company), and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any 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 behalf of, or as depository, trustee or agent for, any committee or body of owners or 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 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.
(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 authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent's countersignature 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 such duties as are herein specifically set forth, and no implied duties or obligations shall be read into this Agreement 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 is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility 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 in this Agreement or in any Warrant Certificate or 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, 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, except as provided in Section 6.02 hereof, to make any demand upon the Company.
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 outstanding or until monies for the payment of all outstanding Warrants, if any, shall have been paid to the Warrant Agent and shall have been returned to the Company as provided in Section 2.06, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective, subject to the appointment of a successor 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 banking institution organized under the laws of the United States of America or one of the states thereof, have a combined capital and surplus of at least $100,000,000 (as set forth in its most recent reports of condition published pursuant to law or to the requirements of any United States federal or state regulatory or supervisory authority) and having an 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, the Warrant Agent may apply to any court of competent jurisdiction for the designation of a successor Warrant Agent. The obligation of the Company under Section 5.02(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall give notice of its intent to 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 of 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 promptly 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, trusts, 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 (including, without limitation, the Warrant Register), as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the corporate agency assets and 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.
ARTICLE 6
Miscellaneous
Section 6.01. Amendment. (a) This Agreement and the terms of the Warrants may be amended by the Company, the Warrant Agent [and the Determination Agent], without the consent of the Warrantholders, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein or in any other manner which the Company may deem necessary or desirable and which will not materially and adversely affect the interests of the owners or holders of the Warrants. Notwithstanding anything in this Section 6.01 to the contrary, this Agreement may not be amended to provide for the countersigning by the Warrant Agent of Warrant Certificates evidencing in the aggregate in excess of [maximum
number of issuable Warrants] Warrants unless and until the Warrant Agent has received notice from the [exchange on which Warrants are to be listed] or any successor United States national securities exchange that the additional Warrants in excess of [maximum number of issuable Warrants] have been approved for listing on such exchange.
(b) The Company, the Warrant Agent [and the Determination Agent] may modify or amend this Agreement, with the consent of Warrantholders (by vote of Registered Holders or, in the case of Warrants held through the Depository, acting through a Participant or the Depository) holding not less than a majority in number of the then outstanding Warrants affected by such modification or amendment, for any purpose; provided, however, that no such modification or amendment that [increases or decreases the price (in the Base Currency) provided in the Warrants at which the Warrantholder may purchase or sell the amount of Reference Currency provided in such Warrants], shortens the period of time during which the Warrants may be exercised, or otherwise materially and adversely affects the exercise rights of the Warrantholders or reduces the percentage of the number of outstanding Warrants, the consent of whose holders is required for modification or amendment of this Agreement, may be made without the consent of each Warrantholder affected thereby. In the case of Warrants evidenced by a Global Warrant Certificate, the Company and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from holders of beneficial ownership interests in the relevant Global Warrant Certificate. Such certification may be provided by Participants acting on behalf of such beneficial owners of Warrants, provided that any such certification is accompanied by a certification from the Depository as to the Warrant holdings of such Participants.
Section 6.02. Notices and Demands to the Company, the Warrant Agent [and the Determination Agent]. If the Warrant Agent [or the Determination Agent] shall receive any notice or demand addressed to the Company by any Registered Holder or Participant pursuant to the provisions of this Agreement, the Warrant Agent [or the Determination Agent, as the case may be], shall promptly forward such notice or demand to the Company.
Section 6.03. Addresses for Notices. Any communications to the Warrant
Agent with respect to this Agreement shall be addressed to
[_____________________], Attention: [__________] and any communications to the
Company with respect to this Agreement shall be addressed to J.P. Morgan Chase &
Co., 270 Park Avenue, New York, New York 10017-2070, Attention: Corporate
Secretary, and any communications to the Determination Agent with respect to
this Agreement shall be addressed to [_____________________] (or
such other address as shall be specified in writing by the Warrant Agent, the Company [or the Determination Agent], respectively).
Section 6.04. Notices to Holders. The Company may cause to have notice given to the holders of Warrants by providing the Warrant Agent with a form of notice to be distributed by (i) in the case of Certificated Warrants, the Warrant Agent to Registered Holders or (ii) in the case of Book-Entry Warrants, the Depository to be distributed by the Depository to Participants in accordance with the custom and practices of the Depository.
Section 6.05. Obtaining of Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective (a) any and all permits, consents and approvals of governmental agencies and authorities and the [exchange on which the Warrants are listed] or any successor national securities exchange and (b) any and all filings or notices under United States Federal and State securities laws, which may be or become required in connection with the issuance, sale, trading, transfer or delivery of the Warrant Certificates, the Global Warrant Certificate or the exercise of the Warrants.
Section 6.06. Persons Having Rights Under This Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent, the registered holder of the Global Warrant Certificate and the Warrantholders 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 contained in this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent, and their respective successors, the registered holder of the Global Warrant Certificate and of the Warrantholders.
Section 6.07. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the Warrant Agent's Office for inspection by the Warrantholders, Participants or any person certified by any Participant to be an indirect participant of the Depository or any person certified by any Participant to be a Warrantholder, in each case, on behalf of whom such Participant holds Warrants.
Section 6.08. 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 6.09. 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 6.10. Applicable Law. This Agreement and each Warrant shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
J.P. MORGAN CHASE & CO.
By:_______________________________
Name:
Title:
[____________________________]
By:_______________________________
Name:
Title:
[____________________________]
By:_______________________________
Name:
Title:
EXHIBIT A
FORM OF WARRANT CERTIFICATE
FACE
NO. C- CUSIP _________
J.P. MORGAN CHASE & CO.
[Title of Warrants]
This Warrant Certificate certifies that _____, or registered assigns, is
the registered holder of ______________ [title of Warrants] (the "Warrants").
Upon receipt by the Warrant Agent of this Warrant Certificate and the Exercise
Notice on the reverse hereof (or an Exercise Notice in substantially identical
form delivered herewith), duly completed and executed, at the offices of the
Warrant Agent in the Borough of Manhattan, The City of New York, each Warrant
evidenced hereby entitles the registered owner hereof (each a "Warrantholder")
to receive, subject to the terms and conditions set forth herein and in the
Warrant Agreement, from J.P. Morgan Chase & Co. (the "Company") the Cash
Settlement Value in [payment currency] (the "Cash Settlement Value") equal to
[formula or method of calculation for cash settlement value]; provided, however,
that if such amount is less than or equal to zero, then the Cash Settlement
Value shall be zero. In no event shall a Warrantholder be entitled to any
interest on any Cash Settlement Value.
Subject to the terms and conditions set forth herein and in the Warrant
Agreement, each Warrant may be exercised, on any New York Business Day
during the period from its date of issuance until 3:00 p.m., New York City time,
on the earlier of (i) the New York Business Day immediately preceding the date
established in or pursuant to a Board Resolution or Resolutions upon which the
right to exercise the Warrants expires (the "Expiration Date") and (ii) any
Delisting Date (as defined herein). Any Warrant not exercised (including by
reason of any postponed exercise as described on the reverse hereof or in the
Warrant Agreement) at or before 3:00 P.M., New York City time, on the earlier of
(i) the New York Business Day immediately preceding the Expiration Date and
(ii) any Delisting Date, will be automatically exercised.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
IN WITNESS WHEREOF, J.P. Morgan Chase & Co. has caused this instrument to be duly executed.
Dated: J.P. MORGAN CHASE & CO.
[SEAL] By:_____________________________
Name:
Title:
Attest:
By:________________________________
Secretary
Countersigned as of the date above
written:
[_____________________],
as Warrant Agent
By:________________________________
Authorized Officer
|
[REVERSE]
J.P. MORGAN CHASE & CO.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued by the Company pursuant to a Warrant
Agreement, dated as of [________________] (the "Warrant Agreement"), among the
Company, [_____________________] (the "Warrant Agent") and
[_____________________] (the "Determination Agent") and is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions each Warrantholder consents by acceptance of this Warrant Certificate
and which Warrant Agreement is hereby incorporated by reference in and made a
part of this Warrant Certificate. A copy of the Warrant Agreement is on file at
the Warrant Agent's Office (as defined herein).
The Warrants are unsecured contractual obligations of the Company and rank on a parity with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant may be exercised, during the period from its date of issuance until 3:00 p.m., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date (as defined herein) by delivering or causing to be delivered this Warrant Certificate and attached Exercise Notice (or an Exercise Notice in substantially identical form), duly completed and executed, to the Warrant Agent's offices in the Borough of Manhattan, The City of New York (the "Warrant Agent's Office"), which are, on the date hereof, located at [_____________________] or at such other address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise
(including automatic exercise), the Cash Settlement Value of such Warrant,
[except that, under the circumstances described below and in the Warrant
Agreement, such Warrantholder may instead receive the Alternative Settlement
Amount for such Warrant]. The "Cash Settlement Value" of a Warrant shall be an
amount in [payment currency] equal to [formula or method of calculation for cash
settlement value]; provided, however, that if such amount is less than or equal
to zero, then the Cash Settlement Value shall be zero.
[The Company has appointed [_____________________] to be its Determination Agent to make such calculations as may be required upon the occurrence of certain circumstances, as described in the Warrant Agreement and herein. The Determination Agent shall act as an independent expert and not as an agent of the Company, and, unless otherwise provided by the Warrant Agreement, its calculations and determinations under the Warrant Agreement and this Warrant Certificate shall, absent manifest error, be final and binding on the Company, the Warrant Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's office. The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the adjustments or calculations by the Determination Agent in order to arrive at a calculation the Cash Settlement Value [or the Alternative Settlement Amount, as applicable].]
Subject to the Warrant Agreement and this Warrant Certificate, the
"Valuation Date" for a Warrant will be the first New York Business Day following
the applicable Exercise Date, subject to postponement [upon the occurrence of an
Extraordinary Event or Exercise Limitation Event or] as a result of the exercise
of a number of Warrants exceeding the limits on exercise, all as described
below. Except for Warrants subject to automatic exercise, the "Exercise Date"
for a Warrant will be (i) the New York Business Day on which the Warrant Agent
receives the Warrant and Exercise Notice in proper form with respect to such
Warrant, if received at or prior to 3:00 P.M., New York City time, on such day,
or (ii) if the Warrant Agent receives such Warrant or Exercise Notice after 3:00
P.M., New York City time, on a New York Business Day, then the next New York
Business Day succeeding the New York Business Day on which such Warrant or
Exercise Notice is received. All Warrants for which the Warrant Agent has not
received a valid Exercise Notice at or prior to 3:00 P.M., New York City time,
on (i) the New York Business Day immediately preceding the Expiration Date or
(ii) any Delisting Date, as the case may be, or for which the Warrant Agent has
received a valid Exercise Notice but with respect to which timely delivery of
the relevant Warrants has not been made, together with any Warrants the
Valuation Date for which has at such time been postponed as described below,
will be automatically exercised. The Exercise Date for such Warrants will be the
Expiration Date or any Delisting Date, as the case may be, or, if such date is
not a New York Business Day, the next succeeding New York Business Day. The
Warrant Agent will obtain the Spot Rate (determined as of the first New York
Business Day following such date, which will be the Valuation Date for such
Warrants [except in the case of a postponed exercise following the occurrence of
an Extraordinary Event or an Exercise Limitation Event]) and will determine the
Cash Settlement Value, if any, of such Warrants.
If the Exercise Notice is not rejected as provided in the Warrant Agreement, then the Warrant Agent [or the Determination Agent, as the case may be,] will determine the Cash Settlement Value of the exercised Warrants in accordance with the terms of the Warrant Agreement. Except in the case of Warrants subject to automatic exercise [and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then the attempted exercise of any such Warrants shall be void and of no effect and the Warrant Certificate evidencing such Warrants will be returned to the registered holder of the Warrant by first class mail at the Company's expense and such holder shall be permitted to re-exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
Except in the case of Warrants subject to automatic exercise [and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if the Company has made adequate funds available to the Warrant Agent in a timely manner which shall in no event be later than 3:00 p.m., New York City time, on the second New York Business Day following the Valuation Date, (the "Funding Date"), the Warrant Agent will be responsible for making payment available to each Registered Holder of an exercised Warrant in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. dollar bank account maintained by such registered holder in the United States (at the registered holder's election as specified in the Exercise Notice) after 3:00 p.m., New York City time, but prior to the close of business on such Funding Date against receipt by the Warrant Agent at the Warrant Agent's office of such Registered Holder's Warrant Certificates. Such payment shall be in the amount equal to the aggregate Cash Settlement Value of the Warrants evidenced by such Warrant Certificates.
With respect to automatically exercised Warrants, if the Company has made adequate funds available to the Warrant Agent not later than 3:00 p.m., New York City time, on the second New York Business Day following the Valuation Date for automatically exercised Warrants (the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants, the Warrant Agent will thereafter be responsible for making payment available to each Registered Holder of the Warrants in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. dollar bank account maintained by such holder in the United States (at such holder's election and upon proper notice being given to the Company and the Warrant Agent), after 3:00 p.m., New York City time, but prior to the close of business on such Automatic
Funding Date, against receipt by the Warrant Agent at the Warrant Agent's Office of such Registered Holder's Warrant Certificates. Such payment shall be in the amount equal to the aggregate Cash Settlement Value of the Warrants evidenced by such Warrant Certificates.
[Extraordinary Event and Exercise Limitation Event provisions, if applicable.]
All exercises of Warrants (other than on automatic exercise [or upon
cancellation]) are subject, at the Company's option, to the limitation that not
more than [limit on aggregate number of Warrants to be exercised on any day]
Warrants in total may be exercised on any Exercise Date and not more than
[individual limit] Warrants may be exercised by or on behalf of any beneficial
owner, either individually or in concert with any other beneficial owner, on any
Exercise Date. If any New York Business Day would otherwise, under the terms
hereof, be the Exercise Date in respect of more than [limit on aggregate number
of Warrants to be exercised on any day] Warrants, then at the Company's election
(by giving notice thereof to the Warrant Agent not later than 11:00 a.m., New
York City time, on the New York Business Day immediately following such Exercise
Date), [limit on aggregate number of Warrants to be exercised on any day] of
such Warrants shall be deemed exercised on such Exercise Date (selected by the
Warrant Agent on a pro rata basis, but if, as a result of such pro rata
selection, any registered holders of Warrants would be deemed to have exercised
less than [the minimum exercise amount] Warrants, then the Warrant Agent shall
first select an additional amount of such holders' Warrants so that no holder
shall be deemed to have exercised less than [the minimum exercise amount]
Warrants), and the remainder of such Warrants (the "Remaining Warrants") shall
be deemed exercised on the following New York Business Day (notwithstanding to
the provisions of the Warrant Agreement); provided that in the event that the
aggregate number of such Remaining Warrants, together with any additional
Warrants with respect to which the Exercise Date would be such following New
York Business Day, exceeds [limit on aggregate number of Warrants to be
exercised on any day] the provisions of this paragraph shall apply to the
exercise of such Remaining Warrants and such additional Warrants on such
following New York Business Day and successively until the limitations set forth
in this paragraph and in the Warrant Agreement are no longer exceeded; provided
further, that any such Remaining Warrants shall be deemed exercised before any
such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the
Company's election (as notified to the Warrant Agent by giving notice thereof to
the Warrant Agent not later than 11:00 a.m., New York City time, on the New
York Business Day following such New York Business Day), [individual limit] of such Warrants shall be deemed exercised on such New York Business Day and the remainder of such Warrants shall be deemed exercised on the following New York Business Day (notwithstanding the provisions in the Warrant Agreement) provided that in the event that the aggregate number of such remaining Warrants, together with any additional Warrants of such beneficial owner with respect to which the Exercise Date would be such following New York Business Day, exceeds [individual limit], at the Company's election (as notified in the manner described above), the provisions of this paragraph shall apply to the exercise of such remaining Warrants and such additional Warrants on such following New York Business Day and successively until the limitations set forth in this paragraph and in the Warrant Agreement are no longer exceeded; provided further, that any such remaining Warrants shall be deemed exercised before any such additional Warrants of such beneficial owner. The date on which any Warrant is deemed exercised under the preceding sentences shall for all purposes of this Warrant Certificate be deemed to be the "Exercise Date" in respect of such Warrants.
Prior to due presentment for registration of transfer, 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 whatsoever, 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.
The Warrant Agent will, in accordance with the Warrant Agreement, from time to time register the transfer of this Warrant Certificate upon surrender hereof at the Warrant Agent's office accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent duly executed by, the registered holder(s) hereof, a duly appointed legal representative or duly authorized attorney. Such signature must be guaranteed by a bank or trust company having a correspondent office in New York City or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. A new Warrant Certificate shall be issued to the transferee(s) upon any such registration of transfer, and this Warrant Certificate shall be cancelled by the Warrant Agent.
In order to be exchanged for a Warrant in book-entry form, a Warrant Certificate must be delivered to DTC, in proper form for deposit, by a Participant. Accordingly, unless Warrants are purchased in book-entry form, a Warrantholder who is not a Participant must deliver his Warrant Certificate, in proper form for
deposit, to a Participant, either directly or through an indirect participant (such as a bank, brokerage firm, dealer or trust company that clears through, or maintains a custodial relationship with, a Participant) or brokerage firm which maintains an account with a Participant, in order to have its Warrant Certificate exchanged for a Warrant in book-entry form.
Warrant Certificates received by The Depository Trust Company ("DTC") for exchange will be exchanged for Warrants in book-entry form by the close of business on the New York Business Day that such Certificates are received by DTC (if received by DTC at its then applicable cut-off time for same day credit) or on the following New York Business Day (if received by DTC at its then applicable cut-off time for next day credit). Warrants surrendered at any time for exchange for book-entry Warrants may not be exercised or delivered for settlement or transfer until such exchange has been effected. The Company has been informed by Clearstream and Euroclear that such clearing agencies will clear Warrants in book-entry form and that Warrants may not be held in certificated form through their facilities. Once a Warrantholder has elected to exchange for a Warrant in book-entry form, such Warrantholder may hold his Warrants only in book-entry form and will not be able to change his election or withdraw from the book-entry system or thereafter except as provided in the Warrant Agreement.
As provided in the Warrant Agreement and subject to certain limitations, this Warrant Certificate may be exchanged for other Warrant Certificates, representing a like number of Warrants, upon surrender to the Warrant Agent at the Warrant Agent's Office of this Warrant Certificate. The Company will thereupon execute, and the Warrant Agent will countersign and deliver, one or more new Warrant Certificates representing such like number of Warrants. Upon surrender of this Warrant Certificate for exchange, the Warrant Agent shall cancel this Warrant Certificate.
No service charge will be made for any registration of transfer or exchange of this Warrant Certificate, but the Company may require the payment of a sum sufficient to cover any tax or governmental charge that may be imposed in relation thereto, other than exchanges not involving any transfer.
Capitalized terms included herein but not defined herein have the meanings assigned thereto in the Warrant Agreement.
For purposes of this Certificate the "Reference Currency" means the
[Reference Currency] and the "Base Currency" means the [Base Currency]. [[The
"Spot Rate"] for any date means the offered spot rate of [insert Base Currency]
per [insert Reference Currency] as quoted by [________________] (the "Spot Rate
Reference Bank") at 10:00 A.M., New York City time, on such
date, or if such bank is not quoting such rate at such time, the rate quoted by such other leading bank in the foreign exchange markets as may be selected by the Company in good faith and notified to the Warrant Agent.] [Alternative provision for calculation of Spot Rate.] The offered spot rate of any applicable currency shall be calculated to four (4) decimal places. References in this Agreement to "U.S. dollars", "U.S.$" or "$" are to the lawful currency of the United States of America [other currency or currency unit]. As used herein, "New York Business Day" means any day other than a Saturday or a Sunday or a day on which commercial banks in New York City are required or authorized by law or executive order to remain closed.
The Warrant Agreement and the terms of the Warrants are subject to amendment, as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.
Exercise Notice
[Name and address of Warrant Agent]
Attention: ___________________
1. The undersigned (the "Owner") hereby irrevocably exercises _____ Warrants (the "Exercised Warrants") and delivers to you herewith a Warrant Certificate or Certificates, registered in the Owner's name, representing a number of Warrants at least equal to the number of Exercised Warrants. Each beneficial owner of Warrants that is exercising Warrants pursuant to this Exercise Notice is exercising no fewer than [individual limit] Warrants and no beneficial owner is acting in concert with any other beneficial owner in relation to the exercise of the Exercised Warrants.
2. The Owner hereby directs the Warrant Agent (a) to pay the Cash Settlement Value, if any, with respect to the Exercised Warrants:
By cashier's check or an official bank check:
or
By wire transfer to the following U.S. dollar bank account in the
United States:
(Minimum payments of $100,000 only)
Bank: ______________________________ ABA Routing No.: ___________________ Account No.: ______ Reference: _____
and (b) if the number of Exercised Warrants is less than the number of Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant Certificate representing the unexercised Warrants to
Dated:
(Owner)
By:_______________________________
Authorized Signature
Address:
Telephone:
EXHIBIT A-1
FORM OF GLOBAL WARRANT CERTIFICATE
No.
CUSIP No.
Unless this Global Warrant Certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the Company or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
J.P. MORGAN CHASE & CO.
Global Warrant Certificate Representing
[Title of the Warrants]
This certifies that CEDE & CO., or registered assigns, is the Registered Holder of the number of [title of the Warrants] (the "Warrants") set forth from time to time on Schedule A hereto. Each Warrant entitles the beneficial owner thereof (each a "Warrantholder") to receive, subject to the conditions set forth herein and in the Warrant Agreement referred to below, from J.P. Morgan Chase & Co. (the "Company") the Cash Settlement Value in [name of payment currency] equal to [formula or method of calculation for cash settlement value]; provided, however, that if such amount is less than or equal to zero, then the Cash Settlement Value shall be zero. In no event shall a Warrantholder be entitled to any interest on any Cash Settlement Value.
Subject to the terms and conditions set forth herein and in the Warrant Agreement, each Warrant may be exercised, on any New York Business Day during the period from its date of issuance until 3:00 p.m., New York City time,
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on the earlier of (i) the New York Business Day immediately preceding the date (established in or pursuant to a Board Resolution or Resolutions) upon which the right to exercise the Warrants expires (the "Expiration Date") and (ii) any Delisting Date (as defined herein). Any Warrant not exercised (including by reason of any postponed exercise as described herein and in the Warrant Agreement) at or before 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, will be automatically exercised.
This Global Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
The Warrants evidenced by this Global Warrant Certificate are part of a
duly authorized issue of Warrants issued by the Company pursuant to a Warrant
Agreement, dated as of [________________] (the "Warrant Agreement"), among the
Company, [_____________________] (the "Warrant Agent"), and
[_____________________] (the "Determination Agent"), and is subject to the terms
and provisions contained in the Warrant Agreement, to all of which terms and
provisions the Warrantholders, the entities through which such Warrantholders
hold their beneficial interests in the Warrants and the Registered Holder of
this Global Warrant Certificate consent by acceptance of this Global Warrant
Certificate by the Depository and which Warrant Agreement is hereby incorporated
by reference in and made a part of this Global Warrant Certificate. A copy of
the Warrant Agreement is on file at the Warrant Agent's Office.
The Warrants are unsecured contractual obligations of the Company and rank on a parity with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant
represented by this Global Warrant Certificate (each a "Book-Entry Warrant") may
be exercised on any New York Business Day until 3:00 P.M., New York City time,
on the earlier of (i) the New York Business Day immediately preceding the
Expiration Date and (ii) any Delisting Date, by causing (x) such Warrant to be
transferred free to the Warrant Agent on the records of the Depository in
accordance with the Depository's Deposit/Withdrawal at Custodian procedures and
(y) a duly completed and executed Exercise Notice to be received by the Warrant
Agent from a Participant acting, directly or indirectly, on behalf of the
Warrantholder; provided, however, that Exercise Notices are subject to rejection
by the Warrant Agent as provided herein and in the Warrant Agreement.
In the case of Book-Entry Warrants held through the facilities of Clearstream or Euroclear, a Warrantholder may exercise each Warrant on any
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New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date by causing (x) such Warrant to be transferred to the Warrant Agent (in accordance with the preceding paragraph), by giving appropriate instructions either to Clearstream or to the participant holding his Warrants in Euroclear, as the case may be, and (y) a duly completed and executed Exercise Notice to be delivered on behalf of the Warrantholder by Clearstream, in the case of Warrants held through Clearstream, or such participant, in the case of Warrants held through Euroclear, to the Warrant Agent.
Each Warrant entitles the Warrantholder to receive, upon exercise (including automatic exercise), the Cash Settlement Value of such Warrant [, except that, under the circumstances described below and in the Warrant Agreement, such Warrantholder may instead receive the Alternative Settlement Amount for such Warrant]. The "Cash Settlement Value" of a Warrant shall be an amount in [payment currency] equal to [formula or method of calculation for cash settlement value]; provided however, that if such amount is less than or equal to zero, then the Cash Settlement Value shall be zero.
[The Company has appointed [_____________________], as Determination Agent, to make such calculations as may be required upon the occurrence of certain circumstances, as described in the Warrant Agreement and herein. The Determination Agent shall act as an independent expert and not as an agent of the Company, and, unless otherwise provided by the Warrant Agreement, its calculations and determinations under the Warrant Agreement and this Global Warrant Certificate shall, absent manifest error, be final and binding on the Company, the Warrant Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's office. The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the adjustments or calculations by the Determination Agent in order to arrive at a calculation of the Cash Settlement Value or the Alternative Settlement Amount, as applicable.]
Except for Warrants subject to automatic exercise or Warrants held through the facilities of Clearstream or Euroclear, the "Exercise Date" for a Warrant will be (i) the New York Business Day on which the Warrant Agent receives the Warrant and Exercise Notice in proper form with respect to such Warrant, if received at or prior to 3:00 P.M., New York City time, on such day, or (ii) if the Warrant Agent receives such Warrant or Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the next New York Business Day succeeding the New York Business Day on which such
A-1-13
Warrant or Exercise Notice is received. In the case of Warrants held through the
facilities of Clearstream or Euroclear, except for Warrants subject to automatic
exercise, the "Exercise Date" for a Warrant means (i) the New York Business Day
on which the Warrant Agent receives (by facsimile transmission) the Exercise
Notice in proper form with respect to such Warrant if such Exercise Notice is
received at or prior to 3:00 P.M., New York City time, on such day, provided,
that the Warrant being exercised is received by the Warrant Agent by 3:00 P.M.,
New York City time, on the New York Business Day next succeeding the date on
which the exercise notice is received, or (ii) if the Warrant Agent receives
such Exercise Notice after 3:00 P.M., New York City time, on a New York Business
Day, then the New York Business Day succeeding such New York Business Day,
provided that such day will be the Exercise Date only if the Warrant being
exercised is received by 3:00 P.M., New York City time, on the second succeeding
New York Business Day following the New York Business Day on which the Exercise
Notice is received. In the event that the Warrant being exercised is received
after 3:00 P.M., New York City time, on the New York Business Day next
succeeding the date on which the Exercise Notice is received, then the Exercise
Date for such Warrant will be the day on which such Warrant is received or, if
such day is not a New York Business Day, the next succeeding New York Business
Day. Notwithstanding the foregoing, in the case of the exercise of a Warrant by
a Clearstream or Euroclear participant, Clearstream or Euroclear, as the case
may be, must by facsimile transmission to the Warrant Agent by 9:00 a.m., New
York City time, on the New York Business Day next succeeding the Exercise Date
confirm (an "Account Confirmation") that the Warrants being exercised will be
received by the Warrant Agent by 3:00 p.m., New York City time, on such date,
provided, further, that if such Account Confirmation is received after 9:00
a.m., New York City time, on the New York Business Day next succeeding the
Exercise Date, the Company will be entitled to direct the Warrant Agent to
reject the related Exercise Notice or waive the requirement for timely delivery
of such Account Confirmation.
Subject to the Warrant Agreement and this Global Warrant Certificate, the "Valuation Date" for a Warrant will be the first New York Business Day following the applicable Exercise Date, subject to postponement [upon the occurrence of an Extraordinary Event or Exercise Limitation Event or] as a result of the exercise of a number of Warrants exceeding the limits on exercise, all as described below.
All Warrants for which the Warrant Agent has not received a valid Exercise Notice at or prior to 3:00 p.m., New York City time, on (i) the New York Business Day immediately preceding the Expiration Date or (ii) any Delisting Date, as the case may be, or for which the Warrant Agent has received a valid Exercise Notice but with respect to which timely delivery of the relevant Warrants
A-1-14
has not been made, together with any Warrants the Valuation Date for which has
as at such time been postponed as described below, will be automatically
exercised. The Exercise Date for such Warrants will be the Expiration Date or
any Delisting Date, as the case may be, or, if such date is not a New York
Business Day, the next succeeding New York Business Day. The Warrant Agent will
obtain the Spot Rate (determined as of the Valuation Date for such Warrants
[except in the case of a postponed exercise following the occurrence of an
Extraordinary Event or Exercise Limitation Events]) and will determine the Cash
Settlement Value, if any, of such Warrants.
If the Exercise Notice is not rejected as provided in the Warrant Agreement, then the Warrant Agent [or the Determination Agent, as the case may be], will determine the Cash Settlement Value of the exercised Warrants in accordance with the terms of the Warrant Agreement. Except in the case of Warrants subject to automatic exercise [and except for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then the attempted exercise of any such Warrants shall be void and of no effect and the Warrants will be transferred by the Warrant Agent back to the Participant that submitted them free on the records of the Depository (to the extent received, in the case of Warrants held through Clearstream or Euroclear) and, in either case such Warrantholder shall be permitted to exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
Except in the case of Warrants subject to automatic exercise [and except
for Warrants that upon exercise entitle the holder thereof to receive an
Alternative Settlement amount in lieu of the Cash Settlement Value], if the
Company has made adequate funds available to the Warrant Agent in a timely
manner, which shall in no event be later than 3:00 p.m., New York City time, on
the second New York Business Day following a Valuation Date (the "Funding
Date"), the Warrant Agent will be responsible for making payment available to
each appropriate Participant in the form of a cashier's check or an official
bank check, or (in the case of payments of at least $100,000) by wire transfer
to a U.S. Dollar account maintained by such Participant in the United States (at
the Participant's election as specified in the Exercise Notice), after 3:00
p.m., New York City time, but prior to the close of business, on such Funding
Date. For either clause (i) or (ii) above, such payment shall be in the amount
of the aggregate Cash Settlement Value in respect of the Warrant Certificates or
Warrants that were delivered to the Warrant Agent (together with the related
Exercise Notice) as provided in the Warrant Agreement.
A-1-15
With respect to automatically exercised Warrants [(other than Warrants subject to postponed exercise following the occurrence of an Extraordinary Event or an Exercise Limitation Event)], the Company shall make available to the Warrant Agent, not later than 3:00 p.m., New York City time, on the second New York Business Day following the Valuation Date for automatically exercised Warrants (the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants. Subject to such funds having been made available as provided in the preceding sentence, the Warrant Agent will be responsible for making funds available to the Depository, against receipt of the Global Warrant Certificate, after 3:00 p.m., New York City time, but prior to the close of business, on the Automatic Funding Date. Such funds are to be in an amount equal to the aggregate Cash Settlement Value of the Warrants subject to such automatic exercise.
[Extraordinary Event and Exercise Limitation Event provisions, if applicable.]
All exercises of Warrants (other than on automatic exercise [or upon
cancellation]) are subject, at the Company's option, to the limitation that not
more than [limit on aggregate number of Warrants to be exercised on any day]
Warrants in total may be exercised on any Exercise Date and not more than
[individual limit] Warrants may be exercised by or on behalf of any beneficial
owner, either individually or in concert with any other beneficial owner, on any
Exercise Date. If any New York Business Day would otherwise, under the terms
hereof, be the Exercise Date in respect of more than [limit on aggregate number
of Warrants to be exercised on any day] Warrants, then at the Company's election
(by giving notice thereof to the Warrant Agent not later than 11:00 a.m., New
York City time, on the New York Business Day immediately following such Exercise
Date), [limit on aggregate number of Warrants to be exercised on any day] of
such Warrants shall be deemed exercised on such Exercise Date (selected by the
Warrant Agent on a pro rata basis, but if, as a result of such pro rata
selection, any Registered Holders would be deemed to have exercised less than
[minimum exercise amount] Warrants, then the Warrant Agent shall first select
additional amounts of such holders' Warrants so that no holder shall be deemed
to have exercised less than [minimum exercise amount] Warrants), and the
remainder of such Warrants (the "Remaining Warrants") shall be deemed exercised
on the following New York Business Day (subject to the provisions of the Warrant
Agreement); provided that in the event that the aggregate number of such
Remaining Warrants, together with any additional Warrants with respect to which
the Exercise Date would be such following New York Business Day, exceeds [limit
on aggregate number of Warrants to be exercised on any day] the provisions of
this paragraph shall apply to the exercise of such Remaining Warrants and such
additional Warrants on such following New York Business
A-1-16
Day and successively until the limitations set forth in this paragraph and in the Warrant Agreement are no longer exceeded; provided further, that any such Remaining Warrants shall be deemed exercised before any such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the Company's
election (as notified to the Warrant Agent by giving notice thereof to the
Warrant Agent not later than 11:00 a.m., New York City time, on the next New
York Business Day following such Day) [individual limit] of such Warrants shall
be deemed exercised on such New York Business Day and the remainder of such
warrants shall be deemed exercised on the following New York Business Day
(subject to the provisions of the Warrant Agreement); provided that in the event
that the aggregate number of such remaining Warrants, together with any
additional Warrants of such beneficial owner with respect to which the Exercise
Date would be such following New York Business Day, exceeds [individual limit],
at the Company's election (as notified in the manner described above), the
provisions of the paragraph shall apply to the exercise of such remaining
Warrants and such additional Warrants on such following New York Business Day
and successively until the limitations set forth in this paragraph and in the
Warrant Agreement are no longer exceeded; provided further, that any such
remaining Warrants shall be deemed exercised before any such additional Warrants
of such beneficial owner. The date on which any Warrant is deemed exercised
under the preceding two sentences shall for all purposes of this Agreement be
the "Exercise Date" in respect of such Warrants.
Prior to due presentment for registration of transfer, 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 whatsoever, 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.
The Warrant Agent will, in accordance with the Warrant Agreement, from time to time register the transfer of this Global Warrant Certificate in its records (which may be maintained electronically) subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, only to the Depository, to another 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, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the
A-1-17
registered holder thereof or by the duly appointed legal representative thereof, or by its duly authorized attorney, such signature to be guaranteed by a bank or trust company with a correspondent office in The City of New York or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. Upon any such registration of transfer, a new Global Warrant Certificate shall be issued to the transferee and the surrendered Global Warrant Certificate shall be cancelled by the Warrant Agent.
The Global Warrant Certificate may be transferred as provided above when surrendered to the Warrant Agent's Office, or at the office of any successor Warrant Agent for another Global Warrant Certificate of like tenor and representing a like number of unexercised Warrants.
Capitalized terms included herein but not defined herein have the meanings assigned thereto in the Warrant Agreement.
For purposes of this Certificate, the "Reference Currency" means the
[Reference Currency] and the "Base Currency" means the [Base Currency]. [[The
"Spot Rate"] for any date means the offered spot rate of [insert Base Currency]
per [insert Reference Currency] as quoted by [________________] (the "Spot Rate
Reference Bank") at 10:00 A.M., New York City time, on such date, or if such
bank is not quoting such rate at such time, the rate quoted by such other
leading bank in the foreign exchange markets as may be selected by the Company
in good faith and notified to the Warrant Agent.] [Alternative provision for
calculation of Spot Rate.] The offered spot rate of any applicable currency
shall be calculated to four (4) decimal places.
References in this Agreement to "U.S. dollars", "U.S.$" or "$" are to the lawful currency of the United States of America [other currency or currency unit]. As used herein, "New York Business Day" means any day other than a Saturday or a Sunday or a day on which commercial banks in New York City are required or authorized by law or executive order to remain closed.
The Warrant Agreement and the terms of the Warrants are subject to amendment, as provided in the Warrant Agreement.
This Global Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.
A-1-18
IN WITNESS WHEREOF, J.P. Morgan Chase & Co. has caused this instrument to be duly executed.
Dated: J.P. MORGAN CHASE & CO.
[SEAL]
By:_______________________________
Name:
Title:
Attest:
By:________________________________
Secretary
Countersigned as of the date above
written:
[_____________________],
as Warrant Agent
By:_____________________________
Authorized Officer
|
A-1-19
Schedule A
Date Number of Warrants Represented by this Global Warrant Certificate
A-1-20
EXHIBIT A-2
EXERCISE NOTICE
For Warrants Represented by the Global Warrant Certificate
[Name and address of Warrant Agent]
Attention: ________________________
1. We refer to the Warrant Agreement dated as of ________________ (the
"Warrant Agreement"), among J.P. Morgan Chase & Co. (the "Company"),
[_____________________], as warrant agent (the "Warrant Agent"), [and
[_____________________], as determination agent (the "Determination Agent")]. On
behalf of certain beneficial owners, each of whom we certify is exercising no
fewer than [minimum exercise amount] Warrants that are covered by this Exercise
Notice and whose Warrants have been, or will be, transferred to the Warrant
Agent, we hereby irrevocably exercise _____ Warrants (the "Tendered Warrants").
We hereby acknowledge that the Warrants being exercised and this Exercise Notice
must be received by you by 3:00 p.m., New York City time, on a New York Business
Day in order for the Valuation Date for the Tendered Warrants to be the New York
Business Day following such New York Business Day and that, if the Warrants
being exercised and this Exercise Notice are received by you after 3:00 p.m.,
New York City time, on a New York Business Day (or, in the case of Warrants held
through Clearstream or Euroclear, if the Warrants are not received by 3:00 p.m.,
New York City time, on the first New York Business Day next succeeding the New
York Business Day on which such Exercise Notice is received), the Valuation Date
of the Tendered Warrants shall be the New York Business Day next succeeding the
succeeding New York Business Day, in each case subject to certain provisions of
the Warrant Agreement.
2. If you determine that this Exercise Notice has not been duly completed or is not in proper form, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered.
3. We hereby direct you to make payment to us of amounts payable to our clients as a result of the exercise of the Warrants hereunder as follows:
A-2-1
By cashier's check or an official bank check;
or
By wire transfer to the following U.S. dollar bank account in the
United States:
(Minimum payments of $100,000 only)
Bank:_________________________________ Account No.:__________________________ ABA Routing No.: ______________________ Reference: ___________________________
4. Each client on whose behalf we are exercising Warrants pursuant to this
Exercise Notice has certified to us that it is not exercising in excess of
[individual limit] Warrants on behalf of any beneficial owner or in concert with
any other beneficial owner.
5. We hereby certify that we are a Participant of The Depository Trust Company (the "Depository") with the present right to use and receive its services.
6. If this Exercise Notice is submitted in relation to Warrants held through the facilities of Euroclear, the undersigned represents that it is a participant in Euroclear.
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated: [NAME OF DEPOSITORY PARTICIPANT]
Participant Number
[NAME OF EUROCLEAR PARTICIPANT]
[CLEARSTREAM BANKING S.A.]
By:__________________________________
Authorized Signature:
Address:
|
Telephone:
A-2-2
EXHIBIT B
CONFIRMATION OF EXERCISE
For Warrants Represented by Warrant Certificates
We hereby confirm receipt of your Exercise Notice with respect to Warrants (the "Exercised Warrants") and the related Warrant Certificates, which we have found to be duly completed and in proper form. The Valuation Date of the Exercised Warrants was the close of business on ____________, 19__.
We hereby confirm that the aggregate Cash Settlement Value of the Exercised Warrants is $_______ ($____ per Warrant), which will be made available to you in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to the U.S. dollar bank account specified in your irrevocable Exercise Notice, for payment on the second New York Business Day following the Valuation Date for such Warrants.
Capitalized terms included herein but not defined have the meanings assigned thereto in the Warrant Agreement, dated as of ________________, among J.P. Morgan Chase & Co., [_____________________], and [_____________________].
Dated: [_____________________], as Warrant Agent
By:_______________________________ Authorized Signature
NOTICE OF REJECTION
You are hereby notified that the Exercise Notice delivered by you was determined by us not to have been duly completed in proper form. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form.
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated: [_____________________], as Warrant Agent
By:_______________________________ Authorized Signature
EXHIBIT B-1
CONFIRMATION OF EXERCISE
For Warrants Represented by the Global Warrant Certificate
[Name of Depository Participant]
[Name of Euroclear Participant]
[Clearstream Banking S.A.]
[Address]
We hereby confirm receipt of your Exercise Notice with respect to Warrants (the "Exercised Warrants") which were transferred by you (or on your behalf) to our DTC Participant Account No. _______. Such Notice we have found to be duly completed and in proper form. The Valuation Date of the Exercised Warrants was the close of business on ____________, 19__.
For purposes hereof, all such Warrants shall constitute Exercised Warrants, which number we hereby confirm to be ____________________.
We hereby confirm that the aggregate Cash Settlement Value of the Exercised Warrants is $__________ ($_____ per Warrant), which will be made available to you in the form of a cashier's check or an official bank check or by wire transfer to the bank account designated in your irrevocable Exercise Notice for payment on the second New York Business Day following the Valuation Date for such Warrants.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Warrant Agreement dated as of ________________,
among J.P. Morgan Chase & Co., [_____________________], [and
[_____________________], as Determination Agent].
Dated: [_____________________], as Warrant Agent
By:_______________________________ Authorized Signature
B-1-1
NOTICE OF REJECTION
[Name of Depository Participant]
[Name of Euroclear Participant]
[Clearstream Banking S.A.]
[Address]
[You are hereby notified that the Exercise Notice delivered by you was
determined by us not to have been duly completed in proper form. Such Warrants
were not transferred to our DTC Participant Account No. _____.] [We did not
receive from Euroclear a Euroclear Confirmation that proper delivery of the
Warrants to which the Exercise Notice delivered by you relates would be made on
a timely basis, as set forth in the Warrant Agreement, dated as of
________________, among J.P. Morgan Chase & Co., [_____________________], and
[_____________________].] Accordingly, we have rejected your Exercise Notice as
being unsatisfactory as to form.
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated: [_____________________], as Warrant Agent
By:_______________________________ Authorized Signature
B-1-2
Exhibit 4(i)
J.P. MORGAN CHASE & CO.
and
[ ], Warrant Agent
and
[ ], Determination Agent
INTEREST RATE WARRANT AGREEMENT
dated as of [ ]
TABLE OF CONTENTS
PAGE
ARTICLE 1
ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF
WARRANT CERTIFICATES AND GLOBAL WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants............................................1
SECTION 1.02. Form, Execution and Delivery of Warrant
Certificates................................................2
SECTION 1.03. Warrant Certificates............................................2
SECTION 1.04. Registration of Transfers and Exchanges.........................3
SECTION 1.05. Mutilated or Missing Warrant Certificates.......................4
SECTION 1.06. Registered Holders..............................................5
SECTION 1.07. Global Warrant Certificate......................................5
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ARTICLE 2
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants; Minimum Exercise
Amounts; Exercise Notice....................................7
SECTION 2.02. Exercise, Valuation and Delivery of Warrants....................9
SECTION 2.03. Automatic Exercise of Warrants; [Exercise Upon
an Extraordinary Event or Exercise Limitation
Event].....................................................15
SECTION 2.04. Limitation of Number of Exercisable Warrants...................17
SECTION 2.05. Covenant of the Company........................................18
SECTION 2.06. Return of Money Held Unclaimed for Two Years...................18
SECTION 2.07. Return of Global Warrant Certificate...........................18
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ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder of Warrant May Enforce Rights....................19
ARTICLE 4
WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Warrants Acquired by the Company...............................19
SECTION 4.02. Payment of Taxes...............................................19
PAGE
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent..................................................20
SECTION 5.02. Conditions of Warrant Agent's Obligations......................20
SECTION 5.03. Resignation and Appointment of Successor.......................22
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment......................................................24
SECTION 6.02. Notices and Demands to the Company, the
Warrant Agent [and the Determination Agent]................24
SECTION 6.03. Addresses for Notices..........................................25
SECTION 6.04. Notices to Holders.............................................25
SECTION 6.05. Obtaining of Approvals.........................................25
SECTION 6.06. Persons Having Rights under this Agreement.....................25
SECTION 6.07. Inspection of Agreement........................................26
SECTION 6.08. Headings.......................................................26
SECTION 6.09. Counterparts...................................................26
SECTION 6.10. Applicable Law.................................................26
EXHIBIT .....................................................................A-1
EXHIBIT A-1 ...............................................................A-1-2
EXHIBIT A-2 ...............................................................A-2-1
EXHIBIT B ...................................................................B-1
EXHIBIT B-1 ...............................................................B-1-1
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of [ ], 20 , among J.P. MORGAN CHASE & CO., a corporation organized and existing under the laws of the State of Delaware (the "Company"), [ ], a New York banking corporation (the "Warrant Agent")[, and [ ], a corporation organized and existing under the laws of the State of Delaware (the "Determination Agent").]
WHEREAS, the Company proposes to sell [put warrants] [call warrants] (the
"Warrants" or, individually, a "Warrant"), representing the right to receive
from the Company an amount in [name of payment currency] equal to the Cash
Settlement Value [or Alternative Settlement Amount (each as] defined below) to
be determined by reference to [decreases (in the case of put warrants)]
[increases (in the case of call warrants)] in the [yield or closing price of one
or more debt instruments (the "Reference Debt Instrument[s]") in an interest
rate, interest swap rate or other rate (the "Reference Rate[s]") or any
combination of foregoing] on the terms and conditions set forth in this
Agreement; and
WHEREAS the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance, transfer and exercise of the Warrants, and the Company 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, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF
WARRANT CERTIFICATES AND GLOBAL WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. (a) The Warrants are unsecured contractual obligations of the Company and will rank on a parity with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
(b) Each Warrant shall represent the right, upon exercise (including automatic exercise) subject to the provisions contained herein, to receive the Cash
Settlement Value [or the Alternative Settlement Amount, as the case may be (each] as defined herein), of such Warrant. In no event shall a registered or beneficial holder of a Warrant (each a "Warrantholder") be entitled to receive any interest on any Cash Settlement Value [or Alternative Settlement Amount].
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates. (a) The Warrants, whenever issued, shall be represented by certificates in registered form substantially in the form set forth in Exhibit A hereto (the "Warrant Certificates"), with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may represent any whole number 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 which are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any stock exchange on which the Warrants may be listed, or of any securities depository, or to conform to usage. Warrant Certificates shall be signed on behalf of the Company by any one of the chairman of its Board of Directors, its president, any vice chairman of its Board of Directors or the chief financial officer (or any other officer certified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Issuer) in each case, under its Corporate Seal which may, but need not be attested by its secretary or one or more of its assistant secretaries [except that the Global Warrant Certificate may be executed by any such officer without any necessity that such signature be under seal as aforesaid]. The signature of any of such officers may be either manual or facsimile. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent.
(b) In case any officer of the Company who shall have signed a Warrant Certificate, either manually or by facsimile signature, shall cease to be such officer before such Warrant Certificate shall have been countersigned and delivered by the Warrant Agent to the Company or delivered by the Company, such Warrant Certificate nevertheless may be countersigned and delivered as though the person who signed such Warrant Certificate had not ceased to be such officer of the Company; and the Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Warrant Agreement any such person was not such officer.
SECTION 1.03. Warrant Certificates. Each Warrant Certificate, when executed on behalf of the Company in accordance with Section 1.02, shall be delivered to the Warrant Agent, which shall manually countersign and deliver the same to or upon the order of the Company. Each Warrant Certificate shall be dated the date of its countersignature. A Warrant Certificate shall not be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, unless and until such Warrant Certificate has been countersigned by the manual signature of an authorized officer of the Warrant Agent. Such countersignature by an authorized officer of the Warrant Agent upon any Warrant Certificate signed by the Company in accordance with Section 1.02 shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
SECTION 1.04. Registration of Transfers and Exchanges. (a) Except as otherwise provided herein or in the Warrant Certificate, the Warrant Agent shall from time to time register the transfer of any outstanding Warrant Certificates upon the records to be maintained by it for that purpose (the "Warrant Register") at the Warrant Agent's Office (as defined herein), subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, upon surrender thereof, duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the registered holder(s) thereof or by the duly appointed legal representative thereof or by a duly authorized attorney, such signature to be guaranteed by a bank or trust company with a correspondent office in The City of New York or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. Upon any such registration of transfer, a new Warrant Certificate shall be issued to the transferee(s) and the surrendered Warrant Certificate shall be cancelled by the Warrant Agent.
(b) At the option of a Warrantholder, Warrant Certificates may be exchanged for other Warrant Certificates, representing a like number of Warrants, upon surrender to the Warrant Agent of the Warrant Certificates to be exchanged at its offices maintained for such purpose (the location of which shall be provided to the Company), which shall be in the Borough of Manhattan, The City of New York (the "Warrant Agent's Office"), and which is, on the date of this Agreement, [ ], Attention: [ ] or at the office of any successor Warrant Agent (as provided in Section 5.03). Upon surrender of any Warrant Certificate for exchange, the Warrant Agent shall cancel such Warrant Certificate, and the Company shall execute, and the Warrant Agent shall countersign and deliver, in accordance with Sections 1.02 and 1.03, one or more new Warrant Certificates of like tenor and representing a like number of unexercised Warrants.
(c) Warrant Certificates issued upon transfer or exchange pursuant to
Section 1.04(a) or 1.04(b) shall be valid obligations of the Company, evidencing
the same obligations of the Company as the Warrant Certificates surrendered for
transfer or exchange, and entitled to the same benefits under this Agreement as
were such Warrant Certificates prior to such surrender.
(d) Except as provided in Section 1.05, no service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates, other than exchanges pursuant to this Section 1.04 not involving any transfer.
(e) In the event that upon any exercise of Warrants evidenced by a Warrant Certificate the number of Warrants exercised shall be less than the total number of Warrants evidenced by such Warrant Certificate, there shall be issued to the holder thereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised.
SECTION 1.05. Mutilated or Missing Warrant Certificates. (a) If any Warrant Certificate is mutilated, lost, stolen or destroyed, the Company may in its discretion execute, and the Warrant Agent may countersign and deliver, in exchange and substitution for the mutilated Warrant Certificate, or in replacement for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants, bearing an identification number not contemporaneously outstanding, but only (in case of loss, theft or destruction) upon receipt of evidence satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and security or indemnity, if requested, also satisfactory to them. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe.
(b) In case any such mutilated, lost, stolen or destroyed Warrant Certificate has been or is about to be exercised, or deemed to be exercised, the Company in its absolute discretion may, instead of issuing a new Warrant Certificate, direct the Warrant Agent to treat the same as if it had received the Warrant Certificate together with an irrevocable Exercise Notice (as defined herein) in proper form in respect thereof, as provided herein, or as being subject to automatic exercise, as the case may be.
(c) Each new Warrant Certificate issued pursuant to this Section 1.05 in lieu of any lost, stolen or destroyed Warrant Certificate shall be an original,
additional contractual obligation of the Company, and shall be entitled to the same benefits under this Agreement as the Warrant Certificate that was lost, stolen or destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance with this Section 1.05, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith.
(e) The provisions of this Section 1.05 are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the replacement or payment of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 1.06. Registered Holders. Prior to due presentment for registration of transfer, 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 shall be registered in the Warrant Register (a "Registered Holder") as the absolute owner of the Warrants evidenced thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate) for any purpose whatsoever, and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, 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. This Section 1.06 shall be without prejudice to the rights of Warrantholders as described elsewhere herein.
SECTION 1.07. Global Warrant Certificate. (a) Any global certificate evidencing the Warrants (the "Global Warrant Certificate") issued in accordance with this Section 1.07 shall be substantially in the form set forth in Exhibit A-1 hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may represent any number of whole Warrants. The 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 which are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any stock exchange on which the Warrants may be listed or of The Depository Trust Company, New York, New York (the "Depository", which term, as used herein, includes any successor securities depository selected by the Company), or to conform to usage. Each Global Warrant Certificate shall be signed on behalf of
the Company upon the same conditions, in substantially the same manner and with the same effect as the Warrant Certificates.
(b) The Warrant Agent is authorized upon receipt of a Global Warrant Certificate from the Company, duly executed on behalf of the Company, to countersign such Global Warrant Certificate. The Global Warrant Certificate shall be manually countersigned and dated the date of its countersignature by the Warrant Agent and shall not be valid for any purpose unless so countersigned. The Warrant Agent shall deliver the Global Warrant Certificate to or upon the order of the Company against receipt of an appropriate amount of Certificated Warrants (as defined herein) (such Certificated Warrants shall be disposed of in accordance with instructions provided by the Company). One or more Global Warrant Certificates may be executed by the Company and delivered to the Warrant Agent on or after the date of execution of this Agreement; provided that only one Global Warrant Certificate shall be outstanding at any one time.
The Company reserves the right to issue, from time to time after the date
of execution of this Agreement, additional Warrants, and in connection therewith
the Global Warrant Certificate may be exchanged for a new Global Warrant
Certificate to reflect the issuance by the Company of such additional Warrants.
To effect such an exchange the Company shall deliver to the Warrant Agent a new
Global Warrant Certificate duly executed on behalf of the Company as provided in
Section 1.02. The Warrant Agent shall countersign the new Global Warrant
Certificate as provided in this Section and shall deliver the new Global Warrant
Certificate to the Depository in exchange for, and upon receipt of, the Global
Warrant Certificate then held by the Depository. The Warrant Agent shall cancel
the Global Warrant Certificate delivered to it by the Depository, dispose of
such Global Warrant Certificate and provide a certificate of disposition to the
Company.
(c) The Global Warrant Certificate will initially be registered in the name of a nominee of the Depository. The Warrant holdings of each entity (a "Participant") entitled to execute, clear and settle transactions through the Depository will be recorded on the books of the Depository. The holdings of customers of the Participants and the identity of the Warrantholders will be reflected on the books and records of such Participants and will not be known to the Warrant Agent, the Company or the Depository. The Global Warrant Certificate will be held by the Depository or its agent. Neither the Company nor the Warrant Agent will have any responsibility or liability for any aspect of the records relating to beneficial ownership interests in the Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
The Company may from time to time select a new entity to act as Depository with respect to the Warrants and, if such selection is made, the Company shall promptly give the Warrant Agent 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 below as promptly as possible. Appropriate changes may be made in the forms of the Global Warrant Certificate, the Exercise Notice and the related notices to be delivered in connection with an exercise to reflect the selection of the new Depository.
(d) 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 its records (which may be maintained elec tronically), subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, only to the Depository, to another 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, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the registered holder thereof or by the duly appointed legal representative thereof, or by its duly authorized attorney, such signature to be guaranteed by a bank or trust company with a correspondent office in The City of New York or by a broker or dealer which is a member of the NASD or by a member of a national securities exchange. Upon any such registration of transfer, a new Global Warrant Certificate shall be issued to the transferee and the surrendered Global Warrant Certificate shall be cancelled by the Warrant Agent.
The Global Warrant Certificate may be transferred as provided in this Section, when surrendered to the Warrant Agent's Office, or at the office of any successor Warrant Agent (as provided in Section 5.03), for another Global Warrant Certificate of like tenor and representing a like number of unexercised Warrants.
ARTICLE 2
DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Duration of Warrants; Minimum Exercise Amounts; Exercise Notice. (a) Subject to the limitations set forth herein and in Section 2.03, each Warrant may be irrevocably exercised in whole but not in part, immediately upon issuance. Except in the case of automatic exercise, each Warrant shall be irrevocably exercised either (A) in the case of Warrants represented by Warrant
Certificates ("Certificated Warrants"), on any New York Business Day during the period from the date of issuance until 3:00 p.m., New York City time, on the earlier of (ii) the New York Business Day immediately preceding the date (established in or pursuant to a resolution or resolutions of the Board of Directors of the Company or any committee of such Board duly authorized to act on its behalf (a "Board Resolution" or "Board Resolutions")) upon which the right to exercise the Warrants expires (the "Expiration Date"), and (iii) any Delisting Date (as defined herein) by delivering or causing to be delivered to the Warrant Agent (at its address as set forth in the Exercise Notice (as defined below) or at such other address as the Warrant Agent may specify from time to time) the Warrant Certificate representing such Warrant, with the Exercise Notice duly completed and executed by the Registered Holder of such Warrant or (A) in the case of Warrants represented by a Global Warrant Certificate ("Book-Entry Warrants"), on any New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, by causing (x) such Warrant to be transferred free to the Warrant Agent on the records of the Depository in accordance with the Depository's Deposit/ Withdrawal at Custodian procedures and (y) a duly completed and executed Exercise Notice to be received by the Warrant Agent from a Participant acting, directly or indirectly, on behalf of the Warrantholder; provided, however, that Exercise Notices are subject to rejection by the Warrant Agent as provided herein.
In the case of Book-Entry Warrants held through the facilities of Clearstream Banking S.A. ("Clearstream") or the Euroclear System ("Euroclear"), a Warrantholder may exercise each Warrant on any New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, by causing (x) such Warrant to be transferred to the Warrant Agent in accordance with clause (B) of the preceding paragraph, by giving appropriate instructions to Clearstream or the participant holding his Warrants in Euroclear, as the case may be, and (y) a duly completed and executed Exercise Notice to be delivered on behalf of the Warrantholder by Clearstream, in the case of Warrants held through Clearstream, or such participant, in the case of Warrants held through Euroclear, to the Warrant Agent.
(b) No fewer than the minimum number of Warrants as set forth in each Warrant Certificate may be exercised by or on behalf of any one Warrantholder at any one time, except that no such minimum exercise amount shall apply in the case of automatic exercise on the Expiration Date or a Delisting Date[, or in the case of cancellation of the Warrants as a result of an Extraordinary Event (as defined herein)]. An Exercise Notice shall be unconditional. Except as provided in Section 2.02(c), the Warrant Agent shall be entitled, with no duty of inquiry, to
rely conclusively on any Exercise Notice received by it and on any representation of the exercising Warrantholder contained therein.
(c) "Exercise Notice" means an irrevocable notice of exercise to the Warrant Agent at its address, which notice (A) for Certificated Warrants, shall be on the reverse of the Warrant Certificate or such other form as the Company and the Warrant Agent may approve, and (B) for Book-Entry Warrants, shall be substantially in the form set forth in Exhibit A-2 hereto or such other form as the Company and the Warrant Agent may approve and may be given by facsimile transmission. For purposes of this Agreement, "New York Business Day" means any day other than a Saturday, Sunday or a day on which commercial banks in New York City are required or authorized by law or executive order to remain closed.
SECTION 2.02. Exercise, Valuation and Delivery of Warrants. (a) Except for Warrants subject to automatic exercise or Warrants held through the facilities of Clearstream or Euroclear, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives the Warrant and Exercise Notice in proper form with respect to such Warrant, if received at or prior to 3:00 P.M., New York City time, on such day, or (ii) if the Warrant Agent receives such Warrant or Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the next New York Business Day succeeding the New York Business Day on which such Warrant or Exercise Notice is received. In the case of Warrants held through the facilities of Clearstream or Euroclear, except for Warrants subject to automatic exercise, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives (by facsimile transmission) the Exercise Notice in proper form with respect to such Warrant if such Exercise Notice is received at or prior to 3:00 P.M., New York City time, on such day, provided, that the Warrant being exercised is received by the Warrant Agent by 3:00 P.M., New York City time, on the New York Business Day next succeeding the date on which the Exercise Notice is received, or (ii) if the Warrant Agent receives such Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the New York Business Day succeeding such New York Business Day, provided that such day will be the Exercise Date only if the Warrant being exercised is received by 3:00 P.M., New York City time, on the second succeeding New York Business Day following the New York Business Day on which the Exercise Notice is received. In the event that the Warrant being exercised is received after 3:00 P.M., New York City time, on the New York Business Day next succeeding the date on which the Exercise Notice is received, then the Exercise Date for such Warrant will be the day on which such Warrant is received or, if such day is not a New York Business Day, the next succeeding New York Business Day. Notwithstanding the foregoing, in the case of the exercise of a Book-Entry
Warrant by Clearstream or a Euroclear participant, Clearstream or Euroclear, as
the case may be, must by facsimile transmission to the Warrant Agent by 9:00
a.m., New York City time, on the New York Business Day next succeeding the
Exercise Date confirm (an "Account Confirmation") that the Warrants being
exercised will be received by the Warrant Agent by 3:00 p.m., New York City
time, on such date, provided, further, that if such Account Confirmation is
received after 9:00 a.m., New York City time, on the New York Business Day next
succeeding the Exercise Date, the Company will be entitled to direct the Warrant
Agent to reject the related Exercise Notice or waive the requirement for timely
delivery of such Account Confirmation.
(b) The "Valuation Date" for a Warrant shall be the applicable Exercise Date (subject to postponement [upon the occurrence of an Extraordinary Event or Exercise Limitation Event (as herein defined) or] as a result of the exercise of a number of Warrants exceeding the limits on exercise set forth herein).
All Warrants for which the Warrant Agent has not received a valid Exercise Notice at or prior to 3:00 p.m., New York City time, on (i) the New York Business Day immediately preceding the Expiration Date or (ii) the last New York Business Day prior to the effective date on which the Warrants are delisted from, or permanently suspended from trading (within the meaning of the Securities Exchange Act of 1934 and the rules and regulations of the Securities and Exchange Commission thereunder) on, the stock exchange on which the Warrants are listed and not accepted prior thereto or at the same time for listing on another United States national securities exchange (such New York Business Day being a "Delisting Date") or for which the Warrant Agent has received a valid Exercise Notice but with respect to which timely delivery of the relevant Warrants has not been made by such date [or the Valuation Date for which has as of such date been postponed as provided in Section 2.03], shall be deemed to be automatically exercised as of such date; provided, however, that if the Company first receives notice of the delisting or suspension of the Warrants on the same day on which such Warrants are delisted or suspended, such day will be deemed a Delisting Date for purposes of this Agreement.
(c) The Warrant Agent shall, in the case of Warrants other than Warrants held through the facilities of Clearstream or Euroclear, following receipt of proper and timely delivery of a Warrant in accordance with Section 2.02(a), accompanied by a completed Exercise Notice, and, in the case of Warrants held through Clearstream or Euroclear, following receipt of proper delivery of a completed Exercise Notice in accordance with Section 2.02(a):
(i) promptly (1) for Certificated Warrants, determine whether such Exercise Notice has been duly completed and is in proper form duly
executed by the Registered Holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, (2) for Book-Entry
Warrants not held through Clearstream or Euroclear, determine whether such
Exercise Notice has been duly completed and is in proper form and (3) for
Book-Entry Warrants held through Clearstream or Euroclear, determine
whether such Exercise Notice has been duly completed and is in proper form
duly executed by Clearstream or the Euroclear participant delivering such
Warrant, as applicable; and if the Warrant Agent determines that the
Exercise Notice has not been duly completed or is not in proper form or, in
the case of Certificated Warrants, has not been so executed, the Warrant
Agent promptly (A) shall reject such Exercise Notice and shall send to the
entity that executed such Exercise Notice a notice of rejection
substantially in the form set forth in Exhibit B or Exhibit B-1 hereto, as
the case may be, and, in the case of Certificated Warrants, shall return to
the Registered Holder that submitted such Exercise Notice, by first class
mail, the Warrant Certificates evidencing such Warrants, or, in the case of
Book-Entry Warrants, shall re-deliver such Warrants (to the extent received
in the case of Warrants held through Clearstream or Euroclear) free through
the facilities of DTC to the account from which they were transferred to
the Warrant Agent and (B) shall not take the actions required by clauses
(ii)-(vii) below with respect to such Exercise Notice or the related
Warrants; provided, however, that the Warrant Agent shall deliver a copy of
the Exercise Notice relating to such Warrants to the Company as required by
Section 2.02(c)(vii) below and the Company may waive any defect in the form
of such Exercise Notice;
(ii) notify the Company [and the Determination Agent] (and such other parties (not to exceed two) as the Company shall designate in writing) by 5:00 p.m., New York City time, on the New York Business Day that such Exercise Notice has been received (or shall be deemed to have been received) of the total number of Warrants covered by such Exercise Notice;
(iii) with respect to Warrants held through Clearstream or Euroclear, determine whether the Warrant Agent has received by 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date relating to such Warrants, Account Confirmations with respect to such Warrants, and if the Warrant Agent has not received any such Account Confirmation by such time, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) by 10:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date, of the number of such Warrants in respect of which the Warrant Agent has not received
such Account Confirmations and (except to the extent the Company has notified the Warrant Agent that it has waived the timing requirement of timely delivery of such Account Confirmations) send to Clearstream or the Euroclear participant, as the case may be, that delivered such Exercise Notice for which no related Account Confirmation was received (at the address specified in such notice) a notice of rejection substantially in the form set forth in Exhibit B hereto;
(iv) by 11:00 a.m., New York City time, on the New York Business Day next succeeding the Valuation Date (A) determine the number of Warrants determined pursuant to clause (ii) above) (all of such Warrants, the "Exercised Warrants") and (B) notify the Company [and the Determination Agent] of the total number of Exercised Warrants so determined (if such number is zero, the Warrant Agent shall not take the actions required by clauses (v) and (vi) of this Section 2.02(c) with respect to such Exercise Notice or the related Warrants);
(v) determine the applicable Spot Rate and calculate the Cash Settlement Value of the Exercised Warrants (excluding any Warrants held through Clearstream or Euroclear as to which timely delivery of the related Warrant has not been made) as of their Valuation Date in the manner set forth in Section 2.02(b) by no later than 10:00 a.m., New York City time, on the New York Business Day next succeeding the Valuation Date [(unless the Cash Settlement Value shall be calculated by the Determination Agent)];
(vi) notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) by 12:00 noon, New York City time, on the New York Business Day next succeeding the Valuation Date of the Cash Settlement Value payable in respect of the Exercised Warrants, and send notices of confirmation substantially in the form included in Exhibit B or Exhibit B-1 hereto, as the case may be, to the Registered Holder, Participant, Clearstream or Euroclear participant, as the case may be; and
(vii) promptly deliver a copy of each Exercise Notice to the Company and advise the Company of such other matters relating to the Exercised Warrants as the Company shall reasonably request. Any notice to be given to the Company by the Warrant Agent pursuant to this Section 2.02 or Section 2.03 shall be by telephone (promptly confirmed in writing) or facsimile transmission.
Except in the case of Warrants subject to automatic exercise [and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then the attempted exercise of any such Warrants shall be void and of no effect and (i) for Certificated Warrants, the Warrant Certificate evidencing such Warrants shall be promptly returned by the Warrant Agent to the Registered Holder by first class mail at the Company's expense or (ii) for Book-Entry Warrants, the Warrants will be transferred by the Warrant Agent back to the Participant that submitted them free on the records of DTC (to the extent received, in the case of Warrants held through Clearstream or Euroclear) and, in either case such Warrantholder shall be permitted to re-exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
(d) Except in the case of Warrants subject to automatic exercise [and for
Warrants that upon exercise entitle the holder thereof to receive an Alternative
Settlement Amount in lieu of the Cash Settlement Value], if the Company has made
adequate funds available to the Warrant Agent in a timely manner, which shall in
no event be later than 3:00 p.m., New York City time, on the fourth New York
Business Day following a Valuation Date (the "Funding Date"), the Warrant Agent
will be responsible for making its payment available (i) for Certificated
Warrants, to each Registered Holder of an exercised Warrant in the form of a
cashier's check or an official bank check, or (in the case of payments of at
least $100,000) by wire transfer to a U.S. Dollar account maintained by such
Registered Holder in the United States (at such Registered Holder's election as
specified in the applicable Exercise Notice), after 3:00 p.m., New York City
time, but prior to the close of business on the first New York Business Day
immediately succeeding such Funding Date or (ii) for Book-Entry Warrants, to
each appropriate Participant in the form of a cashier's check or an official
bank check, or (in the case of payments of at least $100,000) by wire transfer
to a U.S. Dollar account maintained by such Participant in the United States (at
the Participant's election as specified in the Exercise Notice), after 3:00
p.m., New York City time, but prior to the close of business, on the first New
York Business Day immediately succeeding such Funding Date. For either clause
(i) or (ii) above, such payment shall be in the amount of the aggregate Cash
Settlement Value in respect of the Warrant Certificates or Warrants that were
delivered to the Warrant Agent (together with the related Exercise Notice) as
provided in Sections 2.01 and 2.02(a), 2.02(b) and 2.02(c).
(e) The "Cash Settlement Value" of an exercised Warrant shall be an amount in [payment currency] equal to [formula or method of calculation for cash settlement value] provided, however, that if such amount is less than zero, then the Cash Settlement Value shall be zero.
For purposes of this Agreement, ["Reference Rate" means the [Reference
Rate]] and ["Reference Debt Instrument" means the [Reference Debt Instrument]].
[[The "Spot Amount"] for any date means [insert definition from Prospectus
Supplement]. References in this Agreement to "U.S. dollars", "U.S.$" or "$" are
to the lawful currency of the United States of America [other currency or
currency unit]. [Provision for other relevant definitions.]
(f) In the case of exercise of Book-Entry Warrants, the Warrant Agent shall cause its records, which may be kept electronically, to be marked to reflect the reduction in the number of Warrants represented by the Global Warrant Certificate by the number of Warrants that were delivered to the Warrant Account and for which payment has been made as provided in Section 2.02(d) promptly after such delivery and payment. Absent manifest error, the Warrant Agent's records shall be conclusive evidence of such matters.
[(g) The Company hereby appoints [ ] and
[ ] accepts such appointment, to be the Company's
Determination Agent to make such calculations as may be required upon the
occurrence of any of the circumstances described in Section 2.03, including,
without limitation, calculation of the Cash Settlement Value or the Alternative
Settlement Amount, as applicable, of a Warrant. The Determination Agent shall
act as an independent expert and not as an agent of the Company, and, unless
otherwise provided by this Agreement, its calculations and determinations under
this Agreement shall, absent manifest error, be final and binding on the
Company, the Warrant Agent, the Warrantholders and any Participant. Any such
calculations will be made available to a Warrantholder for inspection at the
Warrant Agent's Office.
The Company agrees, for the benefit of the Warrantholders that there shall at all times be a Determination Agent hereunder until all the Warrants are no longer outstanding or until monies for the payment of all outstanding Warrants, if any, shall have been paid to the Warrant Agent and shall have been returned to the Company as provided in Section 2.06, whichever occurs earlier. Resignation, removal and appointment of the Determination Agent shall be in accordance with the procedures set forth for the resignation, removal and appointment of the Warrant Agent, as provided in Section 5.03, except that a successor Determination Agent need not be a banking institution with offices in the Borough of Manhattan, The City of New York, and may only be appointed if such successor has been nominated by the Company and approved by the predecessor Determination Agent.
The Company agrees promptly to pay the Determination Agent the compensation to be agreed upon with the Company for all services rendered by the Determination Agent hereunder. The Company also agrees to indemnify the Determination Agent for, and to hold it harmless against, any loss, liability, cost or expense (including reasonable attorneys' fees and expenses) incurred by the Determination Agent by reason of its being made a party to a suit or claim arising out of this Agreement; provided, however, that such indemnity shall in no event apply to the extent that any such loss, liability, cost or expense is a result of the negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The indemnity obligation of the Company shall continue notwithstanding the termination of this Agreement or the resignation or removal of the Determination Agent.]
[(h) The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the adjustments or calculations by the Determination Agent (as provided above) in order to arrive at a calculation of the Cash Settlement Value or the Alternative Settlement Amount, as applicable].
SECTION 2.03. Automatic Exercise of Warrants; [Exercise Upon an
Extraordinary Event or Exercise Limitation Event]. (a) All Warrants for which
the Warrant Agent has not received an Exercise Notice in proper form by 3:00
p.m., New York City time, on (i) the New York Business Day immediately preceding
the Expiration Date or (ii) any Delisting Date, as the case may be, or for which
the Warrant Agent has received a valid Exercise Notice in proper form but with
respect to which timely delivery of the relevant Warrants has not been made
prior to such time, and which have not been cancelled prior to such time, will
be deemed automatically exercised without any requirement of an Exercise Notice
to the Warrant Agent. The Exercise Date for such Warrants shall be the
Expiration Date or Delisting Date, as the case may be, or, if such date is not a
New York Business Day, the next succeeding New York Business Day and the
Valuation Date shall be the Exercise Date.
The Warrant Agent shall by 5:00 p.m., New York City time, on the Expiration Date or any Delisting Date, as the case may be, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) of the number of Warrants to be automatically exercised on such day. On the Valuation Date for such Warrants, the Warrant Agent shall (i) determine the Cash Settlement Value (in the manner provided in Section 2.02(e)) of the Warrants to be automatically exercised; (ii) by 5:00 p.m., New York City time, on the next New York Business Day succeeding such Valuation Date, notify the Company (and such other parties (not to exceed two) as the Company shall designate in writing) of the Cash Settlement Value payable in respect of such
exercised Warrants; and (iii) advise the Company of such other matters relating to the exercised Warrants as the Company shall reasonably request.
In the case of Certificated Warrants subject to automatic exercise [(other than Certificated Warrants subject to postponed exercise following the occurrence of an Extraordinary Event or an Exercise Limitation Event as described in Section 2.03(b))], the Company shall make available to the Warrant Agent, not later than 3:00 p.m., New York City time, on the fourth New York Business Day following the Valuation Date for automatically exercised Warrants (the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants. Subject to such funds having been made available as provided in the preceding sentence, the Warrant Agent will be responsible for making its payment available to the appropriate Registered Holder in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. Dollar account maintained by such Registered Holder in the United States (at such Registered Holder's election upon written notice to the Company and the Warrant Agent), after 3:00 p.m., New York City time, but prior to the close of business, on the Automatic Funding Date, against receipt by the Warrant Agent at the Warrant Agent's Office from such Registered Holder of its Warrant Certificates. Such payment shall be in the amount of the aggregate Cash Settlement Value in respect of the Warrants, evidenced by such Warrant Certificates, that were exercised automatically on the Expiration Date or on any Delisting Date, as the case may be. Warrant Certificates delivered to the Warrant Agent shall thereafter be promptly cancelled by the Warrant Agent.
In the case of Book-Entry Warrants subject to automatic exercise [(other
than Warrants subject to postponed exercise following the occurrence of an
Extraordinary Event or an Exercise Limitation Event as described in Section
2.03(b))], the Company shall make available to the Warrant Agent, not later than
3:00 p.m., New York City time, on the Automatic Funding Date, funds in an amount
equal to, and for the payment of, the aggregate Cash Settlement Value of such
Warrants. Subject to such funds having been made available as provided in the
preceding sentence, the Warrant Agent will be responsible for making funds
available to DTC, against receipt of the Global Warrant Certificate, after 3:00
p.m., New York City time, but prior to the close of business, on the Automatic
Funding Date. Such funds are to be in an amount equal to the aggregate Cash
Settlement Value of the Warrants subject to such automatic exercise.
The Company will advise the Warrant Agent as soon as practicable of the date of any expected delisting or permanent suspension of trading of the Warrants and will immediately inform the Warrant Agent after the Company has received notice that such delisting or suspension has occurred, but in no event will notice
of such delisting or suspension be given to the Warrant Agent later than 9:30
a.m., New York City time, on the New York Business Day following the date that
such delisting or suspension occurs. The Company will use its best efforts to
notify the Warrantholders, or cause the Warrantholders to be notified, as
promptly as practicable of any expected delisting or suspension of trading of
the Warrants.
(b) Extraordinary Event and Exercise Limitation Event provisions, if applicable.]
SECTION 2.04. Limitation of Number of Exercisable Warrants. All exercises of Warrants (other than on automatic exercise [or upon cancellation]) are subject, at the Company's option, to the limitation that not more than [limit on aggregate number of Warrants to be exercised on any day] Warrants in total may be exercised on any Exercise Date and not more than [individual limit] Warrants may be exercised by or on behalf of any beneficial owner, either individually or in concert with any other beneficial owner, on any Exercise Date. If any New York Business Day would otherwise, under the terms hereof, be the Exercise Date in respect of more than [limit on aggregate number of Warrants to be exercised on any day] Warrants, then at the Company's election (by giving notice thereof to the Warrant Agent not later than 11:00 a.m., New York City time, on the New York Business Day immediately following such Exercise Date), [limit on aggregate number of Warrants to be exercised on any day] of such Warrants shall be deemed exercised on such Exercise Date (selected by the Warrant Agent on a pro rata basis, but if, as a result of such pro rata selection, any Registered Holders would be deemed to have exercised less than [minimum exercise amount] Warrants, then the Warrant Agent shall first select additional amounts of such holders' Warrants so that no holder shall be deemed to have exercised less than [minimum exercise amount] Warrants), and the remainder of such Warrants (the "Remaining Warrants") shall be deemed exercised on the following New York Business Day (notwithstanding the provisions of Section 2.01(b)); provided that in the event that the aggregate number of such Remaining Warrants, together with any additional Warrants with respect to which the Exercise Date would be such following New York Business Day, exceeds the [limit on aggregate number of Warrants to be exercised on any day] the provisions of this Section 2.04 shall apply to the exercise of such Remaining Warrants and such additional Warrants on such following New York Business Day and successively until the limitations set forth in this Section 2.04 are no longer exceeded; provided further that, any such Remaining Warrants shall be deemed exercised before any such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the Company's
election (as notified to the Warrant Agent by giving notice thereof to
the Warrant Agent not later than 11:00 a.m., New York City time, on the next New York Business Day following such Day) [individual limit] of such Warrants shall be deemed exercised on such New York Business Day and the remainder of such Warrants shall be deemed exercised on the following New York Business Day (notwithstanding the provisions of Section 2.01(b)); provided, that in the event that the aggregate number of such remaining Warrants, together with any additional Warrants of such beneficial owner with respect to which the Exercise Date would be such following New York Business Day, exceeds [individual limit], at the Company's election (as notified in the manner described above) the provisions of this Section 2.04 shall apply to the exercise of such remaining Warrants and such additional Warrants on such following New York Business Day and successively until the limitations set forth in this Section 2.04 are no longer exceeded; provided further, that, any such remaining Warrants shall be deemed exercised before any such additional Warrants of such beneficial owner. The date on which any Warrant is deemed exercised under the preceding sentences shall for all purposes of this Agreement be the "Exercise Date" in respect of such Warrants.
SECTION 2.05. Covenant of the Company. The Company covenants, for the benefit of the Warrantholders, that it will not seek the delisting of the Warrants from, or suspension of their trading on, the [exchange on which the Warrants are listed] unless the Company has, at the same time, arranged for listing on another United States national securities exchange.
SECTION 2.06. Return of Money Held Unclaimed for Two Years. Except as otherwise provided herein, any money deposited with or paid to the Warrant Agent for the payment of the Cash Settlement Value [or Alternative Settlement Amount] of any Warrants and not applied but remaining unclaimed for two years after the date upon which such Cash Settlement Value [or Alternative Settlement Amount] shall have become due and payable shall be repaid by the Warrant Agent to the Company, at the Company's request, and the holders of such Warrants shall thereafter look only to the Company for any payment which such holders may be entitled to collect and all liability of the Warrant Agent with respect to such money shall thereupon cease; provided that the Warrant Agent, before making any such repayment, may at the expense of the Company notify (i) in the case of Certificated Warrants, the Registered Holders or (ii) in the case of Book-Entry Warrants, the Participants concerned, that said money has not been so applied and remains unclaimed and that after a date named in the notification any unclaimed balance of said money then remaining will be returned to the Company.
SECTION 2.07. Return of Global Warrant Certificate. In the event a Global Warrant Certificate is issued, at such time as all of the Warrants evidenced by such Certificate have been exercised (including pursuant to an automatic
exercise) [or otherwise cancelled] and all payments to the Participants made as provided herein, the Warrant Agent shall dispose of the cancelled Global Warrant Certificate in accordance with its customary procedures (unless instructed by the Company to deliver the Global Warrant Certificate to the Company) and shall provide a certificate of disposition to the Company.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder of Warrant May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any Warrantholder, without the consent of the Warrant Agent, may, in and for its own behalf, enforce, and may institute and maintain, any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, its right to exercise, and to receive payment for, its Warrants as provided in this Agreement.
ARTICLE 4
WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Warrants Acquired by the Company. In the event the Company shall purchase or otherwise acquire Warrants, such Warrants may, at the option of the Company, be (i) in the case of Certificated Warrants, delivered to the Warrant Agent, and if so delivered, the Warrant Agent shall promptly cancel such Warrants on the records of the Warrant Agent or (ii) in the case of Book-Entry Warrants, surrendered free through a Participant to the Depository for credit to the account of the Warrant Agent maintained at the Depository, and if so credited, the Warrant Agent shall promptly note the cancellation of such Warrants by notation on the records of the Warrant Agent and the Warrant Agent shall cause its records to be marked to reflect the reduction in the number of Warrants represented by the Global Warrant Certificate by the number of Warrants so cancelled promptly after such account is credited. In the case of Book-Entry Warrants, such Warrants may also, at the option of the Company, be resold by the Company directly or to or through any of its affiliates in lieu of being surrendered to the Depository. No Warrant Certificate shall be countersigned in lieu of or in exchange for any Warrant which is cancelled as provided herein, except as otherwise expressly permitted by this Agreement.
Any cancelled Warrant Certificate held by the Warrant Agent under this Agreement shall be disposed of by the Warrant Agent in accordance with its
customary procedures unless otherwise directed by the Company, and the Warrant Agent shall deliver a certificate of disposition to the Company evidencing the same.
SECTION 4.02. Payment of Taxes. The Company will pay all stamp, withholding and other duties, if any, attributable to the initial issuance of Warrants; provided, however, that, anything in this Agreement to the contrary notwithstanding, the Company shall not be required to pay any tax or other governmental charge which may be payable in respect of any transfer involving any beneficial or record interest in, or ownership interest of, any Warrants, Warrant Certificates or Global Warrant Certificate which tax or other governmental charge shall be paid by the appropriate Warrantholder or Registered Holder.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
[ ] as Warrant Agent of the Company in respect of
the Warrants upon the terms and subject to the conditions set forth herein; and
[ ] hereby accepts such appointment. The Warrant
Agent shall have the powers and authority granted to and conferred upon it in
this Agreement and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it with its
consent. All of the terms and provisions with respect to such powers and
authority contained in any Warrant Certificates or 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, including the following, to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of the Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of- pocket expenses (including attorneys' fees and expenses) incurred by the Warrant Agent without negligence, bad faith or breach of this Agreement on its part in connection with the services rendered by it hereunder. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or breach of this Agreement on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section 5.02(a) shall survive the termination of this Agreement.
(b) In acting under this Agreement, 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 owners or holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it (including counsel to the Company), and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e) The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any 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 behalf of, or as depository, trustee or agent for, any committee or body of owners or 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 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.
(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 authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates or the Global Warrant Certificate (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates or the Global Warrant Certificate (except as to the Warrant Agent's countersignature 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 such duties as are herein specifically set forth, and no implied duties or obligations shall be read into this Agreement 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 is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility 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 in this Agreement or in any Warrant Certificate or 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, 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, except as provided in Section 6.02 hereof, to make any demand upon the Company.
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 outstanding or until monies for the payment of all outstanding Warrants, if any, shall have been paid to the Warrant Agent and shall have been returned to the Company as provided in Section 2.06, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective, subject to the appointment of a successor 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 banking institution organized under the laws of the United States of America or one of the states thereof, have a combined capital and surplus of at least $100,000,000 (as set forth in its most recent reports of condition published pursuant to law or to the requirements of any United States federal or state regulatory or supervisory authority) and having an 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, the Warrant Agent may apply to any court of competent jurisdiction for the designation of a successor Warrant Agent. The obligation of the Company under Section 5.02(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall give notice of its intent to 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 of 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 promptly 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, trusts, 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 (including, without limitation, the Warrant Register), as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the corporate agency assets and 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.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the terms of the Warrants may be amended by the Company, the Warrant Agent [and the Determination Agent], without the consent of the Warrantholders, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein or in any other manner which the Company may deem necessary or desirable and which will not materially and adversely affect the interests of the owners or holders of the Warrants. Notwithstanding anything in this Section 6.01 to the contrary, this Agreement may not be amended to provide for the countersigning by the Warrant Agent of Warrant Certificates evidencing in the aggregate in excess of [maximum number of issuable Warrants] Warrants unless and until the Warrant Agent has received notice from the [exchange on which Warrants are to be listed] or any successor United States national securities exchange that the additional Warrants in excess of [maximum number of issuable Warrants] have been approved for listing on such exchange.
(b) The Company, the Warrant Agent [and the Determination Agent] may modify or amend this Agreement, with the consent of Warrantholders (by vote of Registered Holders or, in the case of Warrants held through the Depository, acting through a Participant or the Depository) holding not less than a majority in number of the then outstanding Warrants affected by such modification or amendment, for any purpose; provided, however, that no such modification or amendment that [increases the [strike amount], [base amount] in the case of call warrants] [decreases the [strike amount], [base amount] in the case of put warrants], shortens the period of time during which the Warrants may be exercised, or otherwise materially and adversely affects the exercise rights of the Warrantholders or reduces the percentage of the number of outstanding Warrants, the consent of whose holders is required for modification or amendment of this Agreement, may be made without the consent of each Warrantholder affected thereby. In the case of Warrants evidenced by a Global Warrant Certificate, the Company and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from holders of beneficial ownership interests in the relevant Global Warrant Certificate. Such certification may be provided by Participants acting on behalf of such beneficial owners of Warrants, provided that any such certification is accompanied by a certification from the Depository as to the Warrant holdings of such Participants.
SECTION 6.02. Notices and Demands to the Company, the Warrant Agent [and the Determination Agent]. If the Warrant Agent [or the Determination Agent] shall receive any notice or demand addressed to the Company by any Registered Holder or Participant pursuant to the provisions of this Agreement, the Warrant Agent [or the Determination Agent, as the case may be], shall promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses for Notices. Any communications to the Warrant
Agent with respect to this Agreement shall be addressed to
[ ], Attention: [ ], and any communications
to the Company with respect to this Agreement shall be addressed to J.P. Morgan
Chase & Co., 270 Park Avenue, New York, New York 10017-2070, Attention:
Corporate Secretary, and any communications to the Determination Agent with
respect to this Agreement shall be addressed to [ ]
(or such other address as shall be specified in writing by the Warrant Agent,
the Company [or the Determination Agent], respectively).
SECTION 6.04. Notices to Holders. The Company may cause to have notice given to the holders of Warrants by providing the Warrant Agent with a form of notice to be distributed by (i) in the case of Certificated Warrants, the Warrant Agent to Registered Holders or (ii) in the case of Book-Entry Warrants, the Depository to be distributed by the Depository to Participants in accordance with the custom and practices of the Depository.
SECTION 6.05. Obtaining of Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective (a) any and all permits, consents and approvals of governmental agencies and authorities and the [exchange on which the Warrants are listed] or any successor national securities exchange and (b) any and all filings or notices under United States Federal and State securities laws, which may be or become required in connection with the issuance, sale, trading, transfer or delivery of the Warrant Certificates, the Global Warrant Certificate or the exercise of the Warrants.
SECTION 6.06. Persons Having Rights under this Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent, the registered holder of the Global Warrant Certificate and the Warrantholders 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 contained in this Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent, and their respective successors, the registered holder of the Global Warrant Certificate and of the Warrantholders.
SECTION 6.07. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the Warrant Agent's Office for inspection by the Warrantholders, Participants or any person certified by any Participant to be an indirect participant of the Depository or any person certified by any Participant to be a Warrantholder, in each case, on behalf of whom such Participant holds Warrants.
SECTION 6.08. 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 6.09. 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 6.10. Applicable Law. This Agreement and each Warrant shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
J.P. MORGAN CHASE & CO.
Title:
[ ]
Title:
[ ]
Title:
EXHIBIT A
FORM OF WARRANT CERTIFICATE
FACE
J.P. MORGAN CHASE & CO.
[Title of Warrants]
This Warrant Certificate certifies that , or registered assigns, is
the registered holder of [title of Warrants] (the "Warrants").
Upon receipt by the Warrant Agent of this Warrant Certificate and the Exercise
Notice on the reverse hereof (or an Exercise Notice in substantially identical
form delivered herewith), duly completed and executed, at the offices of the
Warrant Agent in the Borough of Manhattan, The City of New York, each Warrant
evidenced hereby entitles the registered owner hereof (each a "Warrantholder")
to receive, subject to the terms and conditions set forth herein and in the
Warrant Agreement, from J.P. Morgan Chase & Co. (the "Company") the Cash
Settlement Value in [payment currency] (the "Cash Settlement Value") equal to
[formula or method of calculation for cash settlement value]; provided, however,
that if such amount is less than or equal to zero, then the Cash Settlement
Value shall be zero. In no event shall a Warrantholder be entitled to any
interest on any Cash Settlement Value.
Subject to the terms and conditions set forth herein and in the Warrant
Agreement, each Warrant may be exercised, on any New York Business Day during
the period from its date of issuance until 3:00 p.m., New York City time, on the
earlier of (i) the New York Business Day immediately preceding the date
established in or pursuant to a Board Resolution or Resolutions upon which the
right to exercise the Warrants expires (the "Expiration Date") and (ii) any
Delisting Date (as defined herein). Any Warrant not exercised (including by
reason of any postponed exercise as described on the reverse hereof or in the
Warrant Agreement) at or before 3:00 P.M., New York City time, on the earlier of
(i) the New York Business Day immediately preceding the Expiration Date and (ii)
any Delisting Date, will be automatically exercised.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
IN WITNESS WHEREOF, J.P. Morgan Chase & Co. has caused this instrument to be duly executed.
Dated: J.P. MORGAN CHASE & CO.
-------------------------
[SEAL] By:
----------------------------
Name:
|
Title:
Attest:
Countersigned as of the date above written:
[ ], as Warrant Agent
[REVERSE]
J.P. MORGAN CHASE & CO.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued by the Company pursuant to a Warrant
Agreement, dated as of (the "Warrant Agreement"), among the
Company, [ ] (the "Warrant Agent") and
[ ] (the "Determination Agent") and is subject to
the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions each Warrantholder consents by acceptance of this Warrant
Certificate and which Warrant Agreement is hereby incorporated by reference in
and made a part of this Warrant Certificate. A copy of the Warrant Agreement is
on file at the Warrant Agent's Office (as defined herein).
The Warrants are unsecured contractual obligations of the Company and rank on a parity with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant may be exercised, during the period from its date of issuance until 3:00 p.m., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date (as defined herein) by delivering or causing to be delivered this Warrant Certificate and attached Exercise Notice (or an Exercise Notice in substantially identical form), duly completed and executed, to the Warrant Agent's offices in the Borough of Manhattan, The City of New York (the "Warrant Agent's Office"), which are, on the date hereof, located at [ ] or at such other address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise
(including automatic exercise), the Cash Settlement Value of such Warrant,
[except that, under the circumstances described below and in the Warrant
Agreement, such Warrantholder may instead receive the Alternative Settlement
Amount for such Warrant]. The "Cash Settlement Value" of a Warrant shall be an
amount in [payment currency] equal to [formula or method of calculation for cash
settlement value]; provided, however, that if such amount is less than or equal
to zero, then the Cash Settlement Value shall be zero.
[The "Strike Amount" is which was determined by the Determination Agent and is the [formula for strike amount]].
[The Company has appointed [ ] to be its Determination Agent to make such calculations as may be required upon the occurrence of certain circumstances, as described in the Warrant Agreement and herein. The Determination Agent shall act as an independent expert and not as an agent of the Company, and, unless otherwise provided by the Warrant Agreement, its calculations and determinations under the Warrant Agreement and this Warrant Certificate shall, absent manifest error, be final and binding on the Company, the Warrant Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's office. The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the adjustments or calculations by the Determination Agent in order to arrive at a calculation the Cash Settlement Value [or the Alternative Settlement Amount, as applicable].]
Subject to the Warrant Agreement and this Warrant Certificate, the
"Valuation Date" for a Warrant will be the applicable Exercise Date, subject to
postponement [upon the occurrence of an Extraordinary Event or Exercise
Limitation Event or] as a result of the exercise of a number of Warrants
exceeding the limits on exercise, all as described below. Except for Warrants
subject to automatic exercise, the "Exercise Date" for a Warrant will be (i) the
New York Business Day on which the Warrant Agent receives the Warrant and
Exercise Notice in proper form with respect to such Warrant, if received at or
prior to 3:00 P.M., New York City time, on such day, or (ii) if the Warrant
Agent receives such Warrant or Exercise Notice after 3:00 P.M., New York City
time, on a New York Business Day, then the next New York Business Day succeeding
the New York Business Day on which such Warrant or Exercise Notice is received.
All Warrants for which the Warrant Agent has not received a valid Exercise
Notice at or prior to 3:00 P.M., New York City time, on (i) the New York
Business Day immediately preceding the Expiration Date or (ii) any Delisting
Date, as the case may be, or for which the Warrant Agent has received a valid
Exercise Notice but with respect to which timely delivery of the relevant
Warrants has not been made, together with any Warrants the Valuation Date for
which has at such time been postponed as described below, will be automatically
exercised. The Exercise Date for such Warrants will be the Expiration Date or
any Delisting Date, as the case may be, or, if such date is not a New York
Business Day, the next succeeding New York Business Day. The Warrant Agent will
obtain the Spot Rate (determined as of the Valuation Date for such Warrants
[except in the case of a postponed exercise following the occurrence of an
Extraordinary Event or an Exercise Limitation Event]) and will determine the
Cash Settlement Value, if any, of such Warrants.
If the Exercise Notice is not rejected as provided in the Warrant Agreement, then the Warrant Agent [or the Determination Agent, as the case may be,] will determine the Cash Settlement Value of the exercised Warrants in
accordance with the terms of the Warrant Agreement. Except in the case of Warrants subject to automatic exercise [and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then the attempted exercise of any such Warrants shall be void and of no effect and the Warrant Certificate evidencing such Warrants will be returned to the registered holder of the Warrant by first class mail at the Company's expense and such holder shall be permitted to re-exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
Except in the case of Warrants subject to automatic exercise [and for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if the Company has made adequate funds available to the Warrant Agent in a timely manner which shall in no event be later than 3:00 p.m., New York City time, on the fourth New York Business Day following the Valuation Date, (the "Funding Date"), the Warrant Agent will be responsible for making payment available to each Registered Holder of an exercised Warrant in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. dollar bank account maintained by such registered holder in the United States (at the registered holder's election as specified in the Exercise Notice) after 3:00 p.m., New York City, time but prior to the close of business on the first New York Business Day such Funding Date against receipt by the Warrant Agent at the Warrant Agent's office of such Registered Holder's Warrant Certificates. Such payment shall be in the amount equal to the aggregate Cash Settlement Value of such holder's exercised Warrants.
With respect to automatically exercised Warrants, if the Company has made adequate funds available to the Warrant Agent not later than 3:00 p.m., New York City time, on the fourth New York Business Day following the Valuation Date for automatically exercised Warrants (the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants, the Warrant Agent will thereafter be responsible for making payment available to each Registered Holder of the Warrants in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to a U.S. dollar bank account maintained by such holder in the United States (at such holder's election and upon proper notice being given to the Company and the Warrant Agent), after 3:00 p.m., New York City time, but prior to the close of business on the Automatic Funding Date, against receipt by the Warrant Agent at the Warrant Agent's Office of such Registered Holder's Warrant Certificates. Such payment shall be in the amount equal to the aggregate Cash Settlement Value of the Warrants evidenced by such Warrant Certificates.
[Extraordinary Event and Exercise Limitation Event provisions, if applicable.]
All exercises of Warrants (other than on automatic exercise [or upon
cancellation]) are subject, at the Company's option, to the limitation that not
more than [limit on aggregate number of Warrants to be exercised on any day]
Warrants in total may be exercised on any Exercise Date and not more than
[individual limit] Warrants may be exercised by or on behalf of any beneficial
owner, either individually or in concert with any other beneficial owner, on any
Exercise Date. If any New York Business Day would otherwise, under the terms
hereof, be the Exercise Date in respect of more than [limit on aggregate number
of Warrants to be exercised on any day] Warrants, then at the Company's election
(by giving notice thereof to the Warrant Agent not later than 11:00 a.m., New
York City time, on the New York Business Day immediately following such Exercise
Date), [limit on aggregate number of Warrants to be exercised on any day] of
such Warrants shall be deemed exercised on such Exercise Date (selected by the
Warrant Agent on a pro rata basis, but if, as a result of such pro rata
selection, any registered holders of Warrants would be deemed to have exercised
less than [the minimum exercise amount] Warrants, then the Warrant Agent shall
first select an additional amount of such holders' Warrants so that no holder
shall be deemed to have exercised less than [the minimum exercise amount]
Warrants), and the remainder of such Warrants (the "Remaining Warrants") shall
be deemed exercised on the following New York Business Day (notwithstanding to
the provisions of the Warrant Agreement); provided that in the event that the
aggregate number of such Remaining Warrants, together with any additional
Warrants with respect to which the Exercise Date would be such following New
York Business Day, exceeds [limit on aggregate number of Warrants to be
exercised on any day] the provisions of this paragraph shall apply to the
exercise of such Remaining Warrants and such additional Warrants on such
following New York Business Day and successively until the limitations set forth
in this paragraph and in the Warrant Agreement are no longer exceeded; provided
further, that any such Remaining Warrants shall be deemed exercised before any
such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the Company's
election (as notified to the Warrant Agent by giving notice thereof to the
Warrant Agent not later than 11:00 a.m., New York City time, on the New York
Business Day following such New York Business Day), [individual limit] of such
Warrants shall be deemed exercised on such New York Business Day and the
remainder of such Warrants shall be deemed exercised on the following New York
Business Day (notwithstanding the provisions in the Warrant Agreement) provided
that in the event that the aggregate number of such remaining Warrants, together
with any additional Warrants of such beneficial owner with respect to
which the Exercise Date would be such following New York Business Day, exceeds
[individual limit], at the Company's election (as notified in the manner
described above), the provisions of this paragraph shall apply to the exercise
of such remaining Warrants and such additional Warrants on such following New
York Business Day and successively until the limitations set forth in this
paragraph and in the Warrant Agreement are no longer exceeded; provided further,
that any such remaining Warrants shall be deemed exercised before any such
additional Warrants of such beneficial owner. The date on which any Warrant is
deemed exercised under the preceding sentences shall for all purposes of this
Warrant Certificate be deemed to be the "Exercise Date" in respect of such
Warrants.
Prior to due presentment for registration of transfer, 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 whatsoever, 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.
The Warrant Agent will, in accordance with the Warrant Agreement, from time to time register the transfer of this Warrant Certificate upon surrender hereof at the Warrant Agent's office accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent duly executed by, the registered holder(s) hereof, a duly appointed legal representative or duly authorized attorney. Such signature must be guaranteed by a bank or trust company having a correspondent office in New York City or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. A new Warrant Certificate shall be issued to the transferee(s) upon any such registration of transfer, and this Warrant Certificate shall be cancelled by the Warrant Agent.
In order to be exchanged for a Warrant in book-entry form, a Warrant Certificate must be delivered to DTC, in proper form for deposit, by a Participant. Accordingly, unless Warrants are purchased in book-entry form, a Warrantholder who is not a Participant must deliver his Warrant Certificate, in proper form for deposit, to a Participant, either directly or through an indirect participant (such as a bank, brokerage firm, dealer or trust company that clears through, or maintains a custodial relationship with, a Participant) or brokerage firm which maintains an account with a Participant, in order to have its Warrant Certificate exchanged for a Warrant in book-entry form.
Warrant Certificates received by The Depository Trust Company ("DTC") for exchange will be exchanged for Warrants in book-entry form by the close of business on the New York Business Day that such Certificates are received by DTC (if received by DTC at its then applicable cut-off time for same day credit) or on the following New York Business Day (if received by DTC at its then applicable cut-off time for next day credit). Warrants surrendered at any time for exchange for book-entry Warrants may not be exercised or delivered for settlement or transfer until such exchange has been effected. The Company has been informed by Clearstream and Euroclear that such clearing agencies will clear Warrants in book-entry form and that Warrants may not be held in certificated form through their facilities. Once a Warrantholder has elected to exchange for a Warrant in book-entry form, such Warrantholder may hold his Warrants only in book-entry form and will not be able to change his election or withdraw from the book-entry system thereafter, except as provided in the Warrant Agreement.
As provided in the Warrant Agreement and subject to certain limitations, this Warrant Certificate may be exchanged for other Warrant Certificates, representing a like number of Warrants, upon surrender to the Warrant Agent at the Warrant Agent's Office of this Warrant Certificate. The Company will thereupon execute, and the Warrant Agent will countersign and deliver, one or more new Warrant Certificates representing such like number of Warrants. Upon surrender of this Warrant Certificate for exchange, the Warrant Agent shall cancel this Warrant Certificate.
No service charge will be made for any registration of transfer or exchange of this Warrant Certificate, but the Company may require the payment of a sum sufficient to cover any tax or governmental charge that may be imposed in relation thereto, other than exchanges not involving any transfer.
Capitalized terms included herein but not defined herein have the meanings assigned thereto in the Warrant Agreement.
For purposes of this Certificate ["Reference Rate" means the [Reference
Rate] and ["Reference Debt Instrument" means the [Reference Debt Instrument]].
[[The "Spot Amount"] for any date means [insert definition from Prospectus
Supplement] [Alternative provision for calculation of Spot Rate.] References in
this Agreement to "U.S. dollars", "U.S.$" or "$" are to the lawful currency of
the United States of America [other currency or currency unit]. As used herein,
"New York Business Day" means any day other than a Saturday or a Sunday or a day
on which commercial banks in New York City are required or authorized by law or
executive order to remain closed. [Provisions for other relevant definitions]
The Warrant Agreement and the terms of the Warrants are subject to amendment, as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.
Exercise Notice
[Name and address of Warrant Agent]
1. The undersigned (the "Owner") hereby irrevocably exercises [ ] Warrants (the "Exercised Warrants") and delivers to you herewith a Warrant Certificate or Certificates, registered in the Owner's name, representing a number of Warrants at least equal to the number of Exercised Warrants. Each beneficial owner of Warrants that is exercising Warrants pursuant to this Exercise Notice is exercising no fewer than [individual limit] Warrants and no beneficial owner is acting in concert with any other beneficial owner in relation to the exercise of the Exercised Warrants.
2. The Owner hereby directs the Warrant Agent 3 to pay the Cash Settlement Value, if any, with respect to the Exercised Warrants:
and 4 if the number of Exercised Warrants is less than the number of Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant Certificate representing the unexercised Warrants to
Dated: , 19
--------------------------- --- ----------------------------------
(Owner)
By:
------------------------------
Authorized Signature
Address:
|
Telephone:
EXHIBIT A-1
FORM OF GLOBAL WARRANT CERTIFICATE
Unless this Global Warrant Certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the Company or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
A-1-2
J.P. MORGAN CHASE & CO.
Global Warrant Certificate Representing
[Title of the Warrants]
This certifies that CEDE & CO., or registered assigns, is the Registered Holder of the number of [title of the Warrants] (the "Warrants") set forth from time to time on Schedule A hereto. Each Warrant entitles the beneficial owner thereof (each a "Warrantholder") to receive, subject to the conditions set forth herein and in the Warrant Agreement referred to below, from J.P. Morgan Chase & Co. (the "Company") the Cash Settlement Value in [name of payment currency] equal to [formula or method of calculation for cash settlement value]; provided, however, that if such amount is less than or equal to zero, then the Cash Settlement Value shall be zero. In no event shall a Warrantholder be entitled to any interest on any Cash Settlement Value.
Subject to the terms and conditions set forth herein and in the Warrant Agreement, each Warrant may be exercised, on any New York Business Day during the period from its date of issuance until 3:00 p.m., New York City time, on the earlier of (i) the New York Business Day immediately preceding the date (established pursuant to a Board Resolution or Resolutions) upon which the right to exercise the Warrants expires (the "Expiration Date") and (ii) any Delisting Date (as defined herein). Any Warrant not exercised (including by reason of any postponed exercise as described herein and in the Warrant Agreement) at or before 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date, will be automatically exercised.
This Global Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
The Warrants evidenced by this Global Warrant Certificate are part of a
duly authorized issue of Warrants issued by the Company pursuant to a Warrant
Agreement, dated as of (the "Warrant Agreement"), among the
Company, [ ] (the "Warrant Agent"), [and
[ ] (the "Determination Agent"),] and is subject to
the terms and provisions contained in the Warrant Agreement, to all of which
terms and provisions the Warrantholders, the entities through which such
Warrantholders hold their beneficial interests in the Warrants and the
Registered Holder of this Global Warrant Certificate consent by acceptance of
this Global Warrant Certificate by the Depository and which Warrant Agreement is
hereby
A-1-3
incorporated by reference in and made a part of this Global Warrant Certificate. A copy of the Warrant Agreement is on file at the Warrant Agent's Office.
The Warrants are unsecured contractual obligations of the Company and rank on a parity with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant
represented by this Global Warrant Certificate (each a "Book-Entry Warrant") may
be exercised on any New York Business Day until 3:00 P.M., New York City time,
on the earlier of (i) the New York Business Day immediately preceding the
Expiration Date and (ii) any Delisting Date, by causing (x) such Warrant to be
transferred free to the Warrant Agent on the records of the Depository in
accordance with the Depository's Deposit/Withdrawal at Custodian procedures and
(y) a duly completed and executed Exercise Notice to be received by the Warrant
Agent from a Participant acting, directly or indirectly, on behalf of the
Warrantholder; provided, however, that Exercise Notices are subject to rejection
by the Warrant Agent as provided herein and in the Warrant Agreement.
In the case of Book-Entry Warrants held through the facilities of Clearstream or Euroclear, a Warrantholder may exercise each Warrant on any New York Business Day until 3:00 P.M., New York City time, on the earlier of (i) the New York Business Day immediately preceding the Expiration Date and (ii) any Delisting Date by causing (x) such Warrant to be transferred to the Warrant Agent (in accordance with the preceding paragraph), by giving appropriate instructions either to Clearstream or to the participant holding his Warrants in Euroclear, as the case may be, and (y) a duly completed and executed Exercise Notice to be delivered on behalf of the Warrantholder by Clearstream, in the case of Warrants held through Clearstream, or such participant, in the case of Warrants held through Euroclear, to the Warrant Agent.
Each Warrant entitles the Warrantholder to receive, upon exercise (including automatic exercise), the Cash Settlement Value of such Warrant [, except that, under the circumstances described below and in the Warrant Agreement, such Warrantholder may instead receive the Alternative Settlement Amount for such Warrant]. The "Cash Settlement Value" of a Warrant shall be an amount in [payment currency] equal to [formula or method of calculation for cash settlement value]; provided, however, that if such amount is less than or equal to zero, then the Cash Settlement Value shall be zero.
[The Company has appointed [ ], as Determination Agent, to make such calculations as may be required upon the
A-1-4
occurrence of certain circumstances, as described in the Warrant Agreement and herein. The Determination Agent shall act as an independent expert and not as an agent of the Company, and, unless otherwise provided by the Warrant Agreement, its calculations and determinations under the Warrant Agreement and this Global Warrant Certificate shall, absent manifest error, be final and binding on the Company, the Warrant Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's office. The Determination Agent will have no responsibility for good faith errors or omissions in calculating or disseminating information regarding the adjustments or calculations by the Determination Agent in order to arrive at a calculation of the Cash Settlement Value or the Alternative Settlement Amount, as applicable.]
Except for Warrants subject to automatic exercise or Warrants held through the facilities of Clearstream or Euroclear, the "Exercise Date" for a Warrant will be (i) the New York Business Day on which the Warrant Agent receives the Warrant and Exercise Notice in proper form with respect to such Warrant, if received at or prior to 3:00 P.M., New York City time, on such day, or (ii) if the Warrant Agent receives such Warrant or Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the next New York Business Day succeeding the New York Business Day on which such Warrant or Exercise Notice is received. In the case of Warrants held through the facilities of Clearstream or Euroclear, except for Warrants subject to automatic exercise, the "Exercise Date" for a Warrant means (i) the New York Business Day on which the Warrant Agent receives (by facsimile transmission) the Exercise Notice in proper form with respect to such Warrant if such Exercise Notice is received at or prior to 3:00 P.M., New York City time, on such day, provided, that the Warrant being exercised is received by the Warrant Agent by 3:00 P.M., New York City time, on the New York Business Day next succeeding the date on which the exercise notice is received, or (ii) if the Warrant Agent receives such Exercise Notice after 3:00 P.M., New York City time, on a New York Business Day, then the New York Business Day succeeding such New York Business Day, provided that such day will be the Exercise Date only if the Warrant being exercised is received by 3:00 P.M., New York City time, on the second succeeding New York Business Day following the New York Business Day on which the Exercise Notice is received. In the event that the Warrant being exercised is received after 3:00 P.M., New York City time, on the New York Business Day next succeeding the date on which the Exercise Notice is received, then the Exercise Date for such Warrant will be the day on which such Warrant is received or, if such day is not a New York Business Day, the next succeeding New York Business Day. Notwithstanding the foregoing, in the case of the exercise of a Warrant by a Clearstream or Euroclear participant, Clearstream or Euroclear, as the case may be, must by facsimile transmission to the Warrant Agent by 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date confirm (an "Account Confirmation") that the
A-1-5
Warrants being exercised will be received by the Warrant Agent by 3:00 p.m., New York City time, on such date, provided, further, that if such Account Confirmation is received after 9:00 a.m., New York City time, on the New York Business Day next succeeding the Exercise Date, the Company will be entitled to direct the Warrant Agent to reject the related Exercise Notice or waive the requirement for timely delivery of such Account Confirmation.
Subject to the Warrant Agreement and this Global Warrant Certificate, the "Valuation Date" for a Warrant will be the applicable Exercise Date, subject to postponement [upon the occurrence of an Extraordinary Event or Exercise Limitation Event or] as a result of the exercise of a number of Warrants exceeding the limits on exercise, all as described below.
All Warrants for which the Warrant Agent has not received a valid Exercise Notice at or prior to 3:00 p.m., New York City time, on (i) the New York Business Day immediately preceding the Expiration Date or (ii) any Delisting Date, as the case may be, or for which the Warrant Agent has received a valid Exercise Notice but with respect to which timely delivery of the relevant Warrants has not been made, together with any Warrants by such date the Valuation Date for which has at such time been postponed as described below, will be automatically exercised. The Exercise Date for such Warrants will be the Expiration Date or any Delisting Date, as the case may be, or, if such date is not a New York Business Day, the next succeeding New York Business Day. The Warrant Agent will obtain the Spot Rate (determined as of the Valuation Date for such Warrants [except in the case of a postponed exercise following the occurrence of an Extraordinary Event or Exercise Limitation Event]) and will determine the Cash Settlement Value, if any, of such Warrants.
If the Exercise Notice is not rejected as provided in the Warrant Agreement, then the Warrant Agent [or the Determination Agent, as the case may be], will determine the Cash Settlement Value of the exercised Warrants in accor dance with the terms of the Warrant Agreement. Except in the case of Warrants subject to automatic exercise [and except for Warrants that upon exercise entitle the holder thereof to receive an Alternative Settlement Amount in lieu of the Cash Settlement Value], if on any Valuation Date the Cash Settlement Value for any Warrants then exercised would be zero, then the attempted exercise of any such Warrants shall be void and of no effect and the Warrants will be transferred by the Warrant Agent back to the Participant that submitted them free on the records of the Depository (to the extent received, in the case of Warrants held through Clearstream or Euroclear) and, in either case such Warrantholder shall be permitted to re-exercise such Warrants prior to the Expiration Date or any Delisting Date, as the case may be.
A-1-6
Except in the case of Warrants subject to automatic exercise [and except
for Warrants that upon exercise entitle the holder thereof to receive an
Alternative Settlement amount in lieu of the Cash Settlement Value], if the
Company has made adequate funds available to the Warrant Agent in a timely
manner, which shall in no event be later than 3:00 p.m., New York City time, on
the fourth New York Business Day following a Valuation Date (the "Funding
Date"), the Warrant Agent will be responsible for making payment available to
each appropriate Participant in the form of a cashier's check or an official
bank check, or (in the case of payments of at least $100,000) by wire transfer
to a U.S. Dollar account maintained by such Participant in the United States (at
the Participant's election as specified in the Exercise Notice), after 3:00
p.m., New York City time, but prior to the close of business, on the first New
York Business Day immediately succeeding such Funding Date. For either clause
(i) or (ii) above, such payment shall be in the amount of the aggregate Cash
Settlement Value in respect of the Warrant Certificates or Warrants that were
delivered to the Warrant Agent (together with the related Exercise Notice) as
provided in the Warrant Agreement.
With respect to automatically exercised Warrants [(other than Warrants subject to postponed exercise following the occurrence of an Extraordinary Event or an Exercise Limitation Event)], the Company shall make available to the Warrant Agent, not later than 3:00 p.m., New York City time, on the fourth New York Business Day following the Valuation Date for automatically exercised Warrants (the "Automatic Funding Date"), funds in an amount equal to, and for the payment of, the aggregate Cash Settlement Value of such Warrants. Subject to such funds having been made available as provided in the preceding sentence, the Warrant Agent will be responsible for making funds available to the Depository, against receipt of the Global Warrant Certificate, after 3:00 p.m., New York City time, but prior to the close of business, on the Automatic Funding Date. Such funds are to be in an amount equal to the aggregate Cash Settlement Value of the Warrants subject to such automatic exercise.
[Extraordinary Event and Exercise Limitation Event provisions, if applicable.]
All exercises of Warrants (other than on automatic exercise [or upon
cancellation]) are subject, at the Company's option, to the limitation that not
more than [limit on aggregate number of Warrants to be exercised on any day]
Warrants in total may be exercised on any Exercise Date and not more than
[individual limit] Warrants may be exercised by or on behalf of any beneficial
owner, either individually or in concert with any other beneficial owner, on any
Exercise Date. If any New York Business Day would otherwise, under the terms
hereof, be the Exercise Date in respect of more than [limit on aggregate number
of Warrants to be exercised on any day] Warrants, then at the Company's election
(by giving
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notice thereof to the Warrant Agent not later than 11:00 a.m., New York City
time, on the New York Business Day immediately following such Exercise Date),
[limit on aggregate number of Warrants to be exercised on any day] of such
Warrants shall be deemed exercised on such Exercise Date (selected by the
Warrant Agent on a pro rata basis, but if, as a result of such pro rata
selection, any Registered Holders would be deemed to have exercised less than
[minimum exercise amount] Warrants, then the Warrant Agent shall first select
additional amounts of such holders' Warrants so that no holder shall be deemed
to have exercised less than [minimum exercise amount] Warrants), and the
remainder of such Warrants (the "Remaining Warrants") shall be deemed exercised
on the following New York Business Day (subject to the provisions of the Warrant
Agreement); provided that in the event that the aggregate number of such
Remaining Warrants, together with any additional Warrants with respect to which
the Exercise Date would be such following New York Business Day, exceeds [limit
on aggregate number of Warrants to be exercised on any day] the provisions of
this paragraph shall apply to the exercise of such Remaining Warrants and such
additional Warrants on such following New York Business Day and successively
until the limitations set forth in this paragraph and in the Warrant Agreement
are no longer exceeded; provided further, that any such Remaining Warrants shall
be deemed exercised before any such additional Warrants.
If any beneficial owner of Warrants attempts to exercise more than
[individual limit] Warrants on any New York Business Day, then at the Company's
election (as notified to the Warrant Agent by giving notice thereof to the
Warrant Agent not later than 11:00 a.m., New York City time, on the next New
York Business Day following such Day) [individual limit] of such Warrants shall
be deemed exercised on such New York Business Day and the remainder of such
warrants shall be deemed exercised on the following New York Business Day
(subject to the provisions of the Warrant Agreement); provided that in the event
that the aggregate number of such remaining Warrants, together with any
additional Warrants of such beneficial owner with respect to which the Exercise
Date would be such following New York Business Day, exceeds [individual limit],
at the Company's election (as notified in the manner described above), the
provisions of the paragraph shall apply to the exercise of such remaining
Warrants and such additional Warrants on such following New York Business Day
and successively until the limitations set forth in this paragraph and in the
Warrant Agreement are no longer exceeded; provided further, that any such
remaining Warrants shall be deemed exercised before any such additional Warrants
of such beneficial owner. The date on which any Warrant is deemed exercised
under the preceding two sentences shall for all purposes of this Agreement be
the "Exercise Date" in respect of such Warrants.
Prior to due presentment for registration of transfer, the Company, the Warrant Agent, and any agent of the Company or the Warrant Agent, may deem
A-1-8
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 whatsoever, 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.
The Warrant Agent will, in accordance with the Warrant Agreement, from time to time register the transfer of this Global Warrant Certificate in its records (which may be maintained electronically) subject to such reasonable regulations as the Company or the Warrant Agent may prescribe, only to the Depository, to another 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, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Warrant Agent and the Company, duly executed by the registered holder thereof or by the duly appointed legal representative thereof, or by its duly authorized attorney, such signature to be guaranteed by a bank or trust company with a correspondent office in The City of New York or by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. (the "NASD") or by a member of a national securities exchange. Upon any such registration of transfer, a new Global Warrant Certificate shall be issued to the transferee and the surrendered Global Warrant Certificate shall be cancelled by the Warrant Agent.
The Global Warrant Certificate may be transferred as provided above when surrendered to the Warrant Agent's Office, or at the office of any successor Warrant Agent for another Global Warrant Certificate of like tenor and representing a like number of unexercised Warrants.
Capitalized terms included herein but not defined herein have the meanings assigned thereto in the Warrant Agreement.
For purposes of this Certificate, ["Reference Rate" means the [Reference Rate] and ["Reference Debt Instrument" means [Reference Debt Instrument]]. [[The "Spot Amount"] for any date means [insert definition from Prospectus Supplement]. References in this Agreement to "U.S. dollars", "U.S.$" or "$" are to the lawful currency of the United States of America [other currency or currency unit]. As used herein, "New York Business Day" means any day other than a Saturday or a Sunday or a day on which commercial banks in New York City are required or authorized by law or executive order to remain closed. [Provisions for other relevant definitions]
The Warrant Agreement and the terms of the Warrants are subject to amendment, as provided in the Warrant Agreement.
A-1-9
This Global Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.
A-1-10
IN WITNESS WHEREOF, J.P. Morgan Chase & Co. has caused this instrument to be duly executed.
Dated: ,19 J.P. MORGAN CHASE & CO.
---------- -- ---
By:
------------------------------
Name:
|
Title:
Attest:
Countersigned as of the date above
written:
[ ], as
Warrant Agent
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Schedule A
Number of Warrants Represented
Date by this Global Warrant Certificate
---- ----------------------------------
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A-1-12
EXHIBIT A-2
EXERCISE NOTICE
For Warrants Represented by the Global Warrant Certificate
[Name and address of Warrant Agent]
1. We refer to the Warrant Agreement dated as of (the
"Warrant Agreement"), among J.P. Morgan Chase & Co., (the "Company"),
[ ], as warrant agent (the "Warrant Agent"), [and
[ ], as determination agent (the "Determination
Agent")]. On behalf of certain beneficial owners, each of whom we certify is
exercising no fewer than [minimum exercise amount] Warrants that are covered by
this Exercise Notice and whose Warrants have been, or will be, transferred to
the Warrant Agent, we hereby irrevocably exercise Warrants (the "Tendered
Warrants"). We hereby acknowledge that the Warrants being exercised and this
Exercise Notice must be received by you by 3:00 p.m., New York City time, on a
New York Business Day in order for the Valuation Date for the Tendered Warrants
to be such New York Business Day and that, if the Warrants being exercised and
this Exercise Notice are received by you after 3:00 p.m., New York City time, on
a New York Business Day (or, in the case of Warrants held through Clearstream or
Euroclear, if the Warrants are not received by 3:00 p.m., New York City time, on
the first New York Business Day next succeeding the New York Business Day on
which such Exercise Notice is received, the Valuation Date of the Tendered
Warrants shall be the next succeeding New York Business Day, in each case
subject to certain provisions of the Warrant Agreement.
2. If you determine that this Exercise Notice has not been duly completed or is not in proper form, this Exercise Notice will be void and of no effect and will be deemed not to have been delivered.
3. We hereby direct you to make payment to us of amounts payable to our clients as a result of the exercise of the Warrants hereunder as follows:
By cashier's check or an official bank check;
or
4. Each client on whose behalf we are exercising Warrants pursuant to this
Exercise Notice has certified to us that it is not exercising in excess of
[individual limit] Warrants on behalf of any beneficial owner or in concert with
any other beneficial owner.
5. We hereby certify that we are a Participant of The Depository Trust Company (the "Depository") with the present right to use and receive its services.
6. If this Exercise Notice is submitted in relation to Warrants held through the facilities of Euroclear, the undersigned represents that it is a participant in Euroclear.
A-2-2
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated: , 19 [NAME OF DEPOSITORY PARTICIPANT]
----------------------- --- Participant Number
--------------------
[NAME OF EUROCLEAR PARTICIPANT]
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[CLEARSTREAM BANKING S.A.]
Title:
Telephone:
A-2-3
EXHIBIT B
CONFIRMATION OF EXERCISE
For Warrants Represented by Warrant Certificates
We hereby confirm receipt of your Exercise Notice with respect to Warrants (the "Exercised Warrants") and the related Warrant Certificates, which we have found to be duly completed and in proper form. The Valuation Date of the Exercised Warrants was the close of business on _____________, 19__.
We hereby confirm that the aggregate Cash Settlement Value of the Exercised Warrants is $______ ($_____ per Warrant), which will be made available to you in the form of a cashier's check or an official bank check, or (in the case of payments of at least $100,000) by wire transfer to the U.S. dollar bank account specified in your irrevocable Exercise Notice, for payment on the fifth New York Business Day following the Valuation Date for such Warrants.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Warrant Agreement, dated as of _________________ among
J.P. Morgan Chase & Co., [____________________________________________], and
[_____________________________].
Dated: , 19 [ ],
___________________________ ___ _____________________________
as Warrant Agent
By:
------------------------------
Authorized Signature
Name:
|
Title:
NOTICE OF REJECTION
You are hereby notified that the Exercise Notice delivered by you was determined by us not to have been duly completed in proper form. Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to form.
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated: , 19 [ ],
--------------------------- --- -----------------------------
as Warrant Agent
By:
------------------------------
Authorized Signature
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EXHIBIT B-1
CONFIRMATION OF EXERCISE
For Warrants Represented by the Global Warrant Certificate
[Name of Depository Participant]
[Name of Euroclear Participant]
[Clearstream Banking S.A.]
[Address]
We hereby confirm receipt of your Exercise Notice with respect to Warrants (the "Exercised Warrants") which were transferred by you (or on your behalf) to our DTC Participant Account No. _________. Such Notice we have found to be duly completed and in proper form. The Valuation Date of the Exercised Warrants was the close of business on ___________, 19__.
For purposes hereof, all such Warrants shall constitute Exercised Warrants, which number we hereby confirm to be ________________________.
We hereby confirm that the aggregate Cash Settlement Value of the Exercised Warrants is $__________ ($______ per Warrant), which will be made available to you in the form of a cashier's check or an official bank check or by wire transfer to the bank account designated in your irrevocable Exercise Notice for payment on the fifth New York Business Day following the Valuation Date for such Warrants.
Capitalized terms included herein but not defined have the meanings
assigned thereto in the Warrant Agreement dated as of _________________, among
J.P. Morgan Chase & Co., [_______________________], as Warrant Agent, [and
[_____________________________], as Determination Agent].
Dated: ___________________________, 19__ [_____________________________], as Warrant Agent
By:______________________________ Authorized Signature
NOTICE OF REJECTION
[Name of Depository Participant]
[Name of Euroclear Participant]
[Clearstream Banking S.A.]
[Address]
[You are hereby notified that the Exercise Notice delivered by you was
determined by us not to have been duly completed in proper form. Such Warrants
were not transferred to our DTC Participant Account No. _______.] [We did not
receive from Euroclear a Euroclear Confirmation that proper delivery of the
Warrants to which the Exercise Notice delivered by you relates would be made on
a timely basis, as set forth in the Warrant Agreement, dated as of
___________________________, among J.P. Morgan Chase & Co.,
[___________________________], and [___________________________].]
Accordingly, we have rejected your Exercise Notice as being unsatisfactory as to
form.
Capitalized terms used but not defined herein have the meanings assigned thereto in the Warrant Agreement.
Dated: , 19 [ ],
--------------------------- --- -----------------------------
as Warrant Agent
By:
------------------------------
Authorized Signature
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B-1-2
Exhibit 4(k)
J.P. MORGAN CHASE & CO.
and
[_____________________], Warrant Agent
UNIVERSAL WARRANT AGREEMENT
dated as of [_______]
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
UNIVERSAL WARRANTS
SECTION 1.01. Ranking.........................................................1
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates............1
SECTION 1.03. Number Unlimited; Issuable in Series............................3
SECTION 1.04. Countersignature and Delivery of Warrant Certificates...........6
SECTION 1.05. Place of Exercise; Registration of Transfers and Exchanges......9
SECTION 1.06. Mutilated or Missing Warrant Certificates......................14
SECTION 1.07. Registered Holders.............................................15
SECTION 1.08. Cancellation...................................................15
SECTION 1.09. Additional Warrant Agents......................................16
SECTION 1.10. Appointment of Calculation Agents..............................16
ARTICLE 2
DURATION AND EXERCISE OF UNIVERSAL WARRANTS
SECTION 2.01. Duration and Exercise of Universal Warrants....................17
SECTION 2.02. Return of Money Held Unclaimed for Two Years...................17
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder May Enforce Rights...............................17
SECTION 3.02. No Rights as Holder of Warrant Property Conferred by Universal
Warrants or Warrant Certificates...........................18
SECTION 3.03. Merger, Consolidation, Conveyance or Transfer..................18
ARTICLE 4
UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Universal Warrants Acquired by the Company.....................19
SECTION 4.02. Payment of Taxes...............................................19
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent..................................................20
SECTION 5.02. Condition of Warrant Agent's Obligations.......................20
i
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PAGE
SECTION 5.03. Resignation and Appointment of Successor.......................22
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment......................................................24
SECTION 6.02. Notices and Demands to the Company and the Warrant Agent
..........................................................25
SECTION 6.03. Addresses for Notices..........................................26
SECTION 6.04. Notices to Warrantholders......................................26
SECTION 6.05. Obtaining of Approvals.........................................26
SECTION 6.06. Persons Having Rights under this Agreement.....................26
SECTION 6.07. Inspection of Agreement........................................27
SECTION 6.08. Officer's Certificates and Opinions of Counsel; Statements
to be Contained Therein....................................27
SECTION 6.09. Payments Due on Saturdays, Sundays and Holidays................28
SECTION 6.10. Judgment Currency..............................................28
SECTION 6.11. Headings.......................................................29
SECTION 6.12. Counterparts...................................................29
SECTION 6.13. Applicable Law.................................................29
TESTIMONIUM...................................................................30
SIGNATURES....................................................................30
Exhibit A --Form of Registered Call Warrant Certificate
Exhibit B --Form of Registered Put Warrant Certificate
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WARRANT AGREEMENT
THIS AGREEMENT, dated as of [___________], 20[ ], between J.P. MORGAN CHASE & CO., a corporation organized and existing under the laws of the State of Delaware (the "Company"), and [_____________________] ("[_____________________]"), a [ ] banking corporation (the "Warrant Agent").
WHEREAS, the Company has duly authorized the issue from time to time of warrants (the "Universal Warrants") to purchase or sell (i) securities of an entity unaffiliated with the Company, a basket of such securities, an index or indices of such securities or any combination of the above, or (ii) commodities (the property described in clauses (i) and (ii) in relation to a Universal Warrant, being hereinafter referred to as the "Warrant Property" applicable to such Universal Warrant) to be issued in one or more series and in such number and with such terms as may from time to time be authorized in accordance with the terms of this Agreement;
WHEREAS, the Company has duly authorized the execution and delivery of this Agreement to provide, among other things, for the delivery and administration of the Universal Warrants; and
WHEREAS, all things necessary to make this Agreement a valid agreement according to its terms have been done;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
UNIVERSAL WARRANTS
SECTION 1.01. Ranking. The Universal Warrants are unsecured contractual obligations of the Company and will rank pari passu with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates. (a) Certificates ("Warrant Certificates") evidencing the Universal Warrants of each series shall be substantially in the form of Exhibits I and II hereto or in such form (not inconsistent with this Agreement) as shall be established by or pursuant to one or more Board Resolutions (as defined below) (as set forth in a Board
Resolution or, to the extent established pursuant to, rather than set forth in, a Board Resolution, in an Officer's Certificate (as defined below) detailing such establishment) or in one or more agreements supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement. 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 that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any self- regulatory organization (an "SRO") on which the Universal Warrants any of such series may be listed, or of any securities depository, or to conform to usage. Warrant Certificates shall be signed on behalf of the Company by the chairman of its Board of Directors, any vice chairman of its Board of Directors or the Chief Financial Officer (or any other officer certified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Company) in each case under its corporate seal which may, but need not be attested by the secretary or one of its assistant secretaries of the Company [except that the Global Warrant Certificate may be executed by any such officer without any necessity that such signature be under seal as aforesaid]. The signature of any of such officers may be either manual or facsimile. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Warrant Certificate that has been duly countersigned and delivered by the Warrant Agent.
"Board Resolution" means a copy of one or more resolutions, certified by the secretary or an assistant secretary of the Company to have been duly adopted or consented to by the Board of Directors and to be in full force and effect, and delivered to the Warrant Agent.
"Board of Directors" means either the Board of Directors of the Company or any committee of such Board duly authorized to act on its behalf for the purposes of this Agreement.
"Officer's Certificate" means a certificate signed by the chairman of the Board of Directors, the president, a vice chairman of the Board of Directors, the chief financial officer or the treasurer of the Issuer (or any other officer identified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the corporation) and the secretary, an assistant secretary or the controller of the Issuer and delivered to the Warrant Agent. Without limiting the generality of the foregoing, if the Universal Warrants of any series are to be issued as components of a unit ("Unit") with one or more other securities of the Company, an officer's certificate or similar certificate relating to the Universal Warrants
delivered pursuant to an indenture or unit agreement or similar agreement governing such Units or one or more other components thereof may also constitute an Officer's Certificate under this Agreement.
(b) In case any officer of the Company who shall have signed a Warrant Certificate, either manually or by facsimile signature, shall cease to be such officer before such Warrant Certificate shall have been countersigned and delivered by the Warrant Agent to the Company or delivered by the Company, such Warrant Certificate nevertheless may be countersigned and delivered as though the person who signed such Warrant Certificate had not ceased to be such officer of the Company; and a Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company to sign such Warrant Certificate, although at the date of the execution of this Warrant Agreement any such person was not such officer.
(c) Pending the preparation of final Warrant Certificates evidencing Universal Warrants of any series, the Company may execute and the Warrant Agent shall countersign and deliver temporary Warrant Certificates evidencing such Universal Warrants (printed, lithographed, typewritten or otherwise produced, in each case in form satisfactory to the Warrant Agent). Such temporary Warrant Certificates shall be issuable substantially in the form of the final Warrant Certificates but with such omissions, insertions and variations as may be appropriate for temporary Warrant Certificates, all as may be determined by the Company with the concurrence of the Warrant Agent. Such temporary Warrant Certificates may contain such reference to any provisions of this Warrant Agreement as may be appropriate. Every such temporary Warrant Certificate shall be executed by the Company and shall be countersigned by the Warrant Agent upon the same conditions and in substantially the same manner, and with like effect, as the final Warrant Certificates. Without unreasonable delay, the Company shall execute and shall furnish final Warrant Certificates and thereupon such temporary Warrant Certificates may be surrendered in exchange therefor without charge, and the Warrant Agent shall countersign and deliver in exchange for such temporary Warrant Certificates final Warrant Certificates evidencing a like aggregate number of Universal Warrants of the same series and of like tenor as those evidenced by such temporary Warrant Certificates. Until so exchanged, such temporary Warrant Certificates and the Universal Warrants evidenced thereby shall be entitled to the same benefits under this Warrant Agreement as final Warrant Certificates and the Universal Warrants evidenced thereby.
SECTION 1.03. Number Unlimited; Issuable in Series. (a) The aggregate number of Universal Warrants that may be delivered under this Agreement is unlimited.
(b) The Universal Warrants may be issued in one or more series. There shall be established in or pursuant to one or more Board Resolutions (and to the extent established pursuant to, rather than set forth in, a Board Resolution, in an Officer's Certificate detailing such establishment) or established in one or more agreements supplemental hereto, prior to the initial issuance of Universal Warrants of any series;
(i) the designation of the Universal Warrants of the series, which shall distinguish the Universal Warrants of the series from the Universal Warrants of all other series;
(ii) any limit upon the aggregate number of the Universal Warrants of the series that may be countersigned and delivered under this Agreement (except for Universal Warrants countersigned and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Universal Warrants of the series):
(iii) the specific Warrant Property purchasable or salable upon exercise of the Universal Warrants of the series, and the amount thereof (or the method for determining the same);
(iv) the price at which the Universal Warrants of the series will be issued and, if other than U.S. dollars, the coin or currency or composite currency in which such issue price will be payable;
(v) whether the Universal Warrants of the series are warrants to purchase ("call warrants") or warrants to sell ("put warrants") the Warrant Property;
(vi) the price at which and, if other than U.S. dollars, the coin or currency or composite currency with which the Warrant Property may be purchased or sold upon exercise of the Universal Warrants of the series (or the method for determining the same);
(vii) whether the exercise price for the Universal Warrants of the series may be paid in cash or by the exchange of any other security of the Company, or both, or otherwise, and the method of exercise of the Universal Warrants of the series;
(viii) whether the exercise of the Universal Warrants of the series is to be settled in cash or by delivery of the Warrant Property or both, or otherwise;
(ix) the date on which the right to exercise the Universal Warrants of the series shall commence and the date (the "Expiration Date") on which such right shall expire or, if the Universal Warrants of the series are not continuously exercisable throughout such period, the specific date or dates on which they will be exercisable;
(x) whether the Warrant Certificates representing the Universal Warrants of the series will be in registered form ("Registered Warrants") or bearer form ("Bearer Warrants") or both;
(xi) whether the Warrant Certificates evidencing any Registered Warrants or Bearer Warrants of the series will be issued in global form ("Global Warrant Certificates") or definitive form ("Definitive Warrant Certificates") or both, and whether and on what terms (if different from those set forth herein) Warrant Certificates in one form may be converted into or exchanged for Warrant Certificates in the other form;
(xii) the place or places at which payment of the cash settlement value of the Universal Warrants of the series is to be made by the Company, if applicable;
(xiii) the circumstances, if any, which will cause the Universal Warrants of the series to be deemed to be automatically exercised;
(xiv) any warrant agents, depositaries, authenticating or paying agents, transfer agents or registrars or any determination or calculation agents or other agents with respect to Universal Warrants of the series;
(xv) whether the Universal Warrants of the series will be issued separately or together as a unit (a "Unit") with one or more other securities of the Company or any other person and, if the Universal Warrants of the series are to be issued as components of Units, whether and on what terms the Universal Warrants of the series may be separated from the other components of such Units prior to the Expiration Date of such Universal Warrants; and
(xvi) any other terms of the Universal Warrants of the series (which terms shall not be inconsistent with the provisions of this Agreement).
(c) All Universal Warrants of any one series shall be substantially identical, except as may otherwise be provided by or pursuant to the Board Resolution or Officer's Certificate referred to above or as set forth in any such
agreement supplemental hereto. All Universal Warrants of any one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Agreement, if so provided by or pursuant to such Board Resolution, such Officer's Certificate or in any such agreement supplemental hereto.
SECTION 1.04. Countersignature and Delivery of Warrant Certificates.
(a) The Company may deliver Warrant Certificates evidencing Universal Warrants
of any series executed by the Company to the Warrant Agent for countersignature
together with the applicable documents referred to below in this Section, and
the Warrant Agent shall thereupon countersign and deliver such Warrant
Certificates to or upon the order of the Company (contained in the Issuer Order
(as defined below) referred to below in this Section) or pursuant to such
procedures acceptable to the Warrant Agent as may be specified from time to time
by an Issuer Order. Any terms of the Universal Warrants evidenced by such
Warrant Certificates may be determined by or pursuant to such Issuer Order or
such other procedures. If provided for in such procedures, such Issuer Order may
authorize countersignature and delivery pursuant to oral instructions from the
Company or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In countersigning such Warrant Certificates and accepting
the responsibilities under this Agreement in relation to the Universal Warrants
evidenced by such Warrant Certificates, the Warrant Agent shall be entitled to
receive (in the case of subparagraphs 1.04(a)(ii), 1.04(a)(iii) and 1.04(a)(iv)
below only at or before the time of the first request of the Company to the
Warrant Agent to countersign Warrant Certificates in a particular form
evidencing Universal Warrants) and shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(i) an Issuer Order requesting such countersignature and setting forth delivery instructions if the Warrant Certificates are not to be delivered to the Company;
(ii) any Board Resolution, Officer's Certificate and/or executed supplemental agreement pursuant to which the forms and terms of the Universal Warrants evidenced by such Warrant Certificates were established;
(iii) an Officer's Certificate setting forth the forms and terms of the Universal Warrants evidenced by such Warrant Certificates stating that the form or forms and terms of the Universal Warrants evidenced by such Warrant Certificates have been established pursuant to Sections 1.02 and 1.03 and comply with this Agreement, and covering such other matters as the Warrant Agent may reasonably request; and
(iv) At the option of the Company, either an Opinion of Counsel (as defined below) or a letter addressed to the Warrant Agent permitting it to rely on an Opinion of Counsel, substantially to the effect that:
(A) the forms of the Warrant Certificates have been duly authorized and established in conformity with the provisions of this Agreement;
(B) in the case of an underwritten offering, the terms of the Universal Warrants have been duly authorized and established in conformity with the provisions of this Agreement and, in the case of an offering that is not underwritten, certain terms of the Universal Warrants have been established pursuant to a Board Resolution, an Officer's Certificate or a supplemental agreement in accordance with this Agreement, and when such other terms as are to be established pursuant to procedures set forth in an Issuer Order shall have been established, all terms will have been duly authorized by the Company and will have been established in conformity with the provisions of this Agreement; and
(C) when the Warrant Certificates have been executed by the Company and countersigned by the Warrant Agent in accordance with the provisions of this Agreement and delivered to and duly paid for by the purchasers thereof, subject to such other conditions as may be set forth in such opinion of counsel, they will have been duly issued under this Agreement and the Universal Warrants evidenced thereby will be valid and legally binding obligations of the Company, enforceable in accordance with their respective terms, and will be entitled to the benefits of this Agreement.
In rendering such opinions, such counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Such counsel may rely, as to all matters governed by the laws of jurisdictions other than the State of New York and the federal law of the United States, upon opinions of other counsel (copies of which shall be delivered to the Warrant Agent), who shall be counsel reasonably satisfactory to the Warrant Agent, in which case the opinion shall state that such counsel believes such counsel and the
Warrant Agent are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, such counsel has relied, to the extent such counsel deems proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
"Issuer Order" means a written statement, request or order of the Company signed in its name by any one of the following: the chairman of the Board of Directors, the president, a vice chairman of the Board of Directors, the chief financial officer or the Treasurer or any other person certified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Issuer or authorized by the Board of Directors to execute any such written statement, request or order. Without limiting the generality of the foregoing, if the Universal Warrants of a series are issued as components of Units, an issuer order or similar order relating to the Universal Warrants delivered pursuant to an indenture or unit or similar agreement governing such Units or one or more other components thereof may also constitute an Issuer Order under this Agreement if addressed to the Warrant Agent.
"Opinion of Counsel" means an opinion in writing signed by such legal counsel, who may be an employee of or counsel to the Company, as shall be satisfactory to the Warrant Agent.
(b) The Warrant Agent shall have the right to decline to countersign
and deliver any Warrant Certificates under this Section if the Warrant Agent,
being advised by counsel, determines that such action may not lawfully be taken
by the Company or if the Warrant Agent in good faith determines that (i) such
action would expose the Warrant Agent to personal liability to existing
registered or beneficial holders of Universal Warrants (each, a "Warrantholder")
or would affect the Warrant Agent's own rights, duties or immunities under the
Warrant Certificates, the Universal Warrants, this Agreement or otherwise or
(ii) the terms of such Universal Warrants are administratively unacceptable to
it.
(c) If the Company shall establish pursuant to Section 1.03 that the Universal Warrants of a series are to be evidenced in whole or in part by one or more Global Warrant Certificates, then the Company shall execute and the Warrant Agent shall, in accordance with this Section and the Issuer Order with respect to such series, countersign and deliver one or more Global Warrant Certificates that (i) shall evidence all or part of the Universal Warrants of such series issued in such form and not yet canceled, (ii) shall be registered in the name of the Depositary (as defined below) for such Universal Warrants or the nominee of such Depositary, (iii) shall be delivered by the Warrant Agent to such Depositary or pursuant to such Depositary's instructions and (iv) shall bear a legend substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Universal Warrants in definitive registered form, this Warrant Certificate and the Universal Warrants evidenced hereby may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary."
"Depositary" means, with respect to the Universal Warrants of any
series that are or may be evidenced by one or more Global Warrant Certificates,
the person or persons designated as Depositary by the Company pursuant to
Section 1.03 hereof until a successor Depositary shall have become such pursuant
to the applicable provisions of this Agreement, and thereafter "Depositary"
shall mean or include each person who is then a Depositary hereunder, and if at
any time there is more than one such person, "Depositary" as used with respect
to the Universal Warrants of any such series shall mean the Depositary with
respect to that series.
(d) If so required by applicable law, each Depositary for a series of Universal Warrants must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.
(e) Each Warrant Certificate shall be dated the date of its countersignature. A Warrant Certificate shall not be valid for any purpose, and no Universal Warrant evidenced thereby shall be exercisable, unless and until such Warrant Certificate has been countersigned by the manual signature of an authorized officer of the Warrant Agent. Such countersignature by an authorized officer of the Warrant Agent upon any Warrant Certificate executed by the Company in accordance with this Agreement shall be conclusive evidence that the Warrant Certificate so countersigned and the Universal Warrants evidenced thereby have been duly issued hereunder.
SECTION 1.05. Place of Exercise; Registration of Transfers and Exchanges. (a) Except as otherwise established pursuant to Section 1.03 with respect to Universal Warrants of a series, Universal Warrants may be presented for exercise at the Warrant Agent's Window (as defined below) in accordance with procedures to be established pursuant to Section 1.03.
(b) Except as otherwise provided herein or as established pursuant to
Section 1.03 with respect to the Universal Warrants of a series, the Warrant
Agent shall from time to time register the transfer of any outstanding
Registered Definitive Warrant Certificates upon the records to be maintained by
it for that purpose (the "Warrant Register") at the Warrant Agent's Office (as
defined
below), subject to such reasonable regulations as the Company or the Warrant
Agent may prescribe with respect to the Universal Warrants of such series, upon
surrender thereof at the Warrant Agent's Window (as defined below), Attention:
[Transfer Department], duly endorsed by, or accompanied by a written instrument
or instruments of transfer in form satisfactory to the Warrant Agent and the
Company duly executed by, the Registered Holder(s) (as defined below) thereof or
by the duly appointed legal representative thereof or by a duly authorized
attorney, such signature to be guaranteed by a bank or trust company with a
correspondent office in The City of New York or by a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. (the "NASD") or
by a member of a national securities exchange or in such other manner acceptable
to the Warrant Agent and the Company. Upon any such registration of transfer,
one or more new Warrant Certificates of the same series and like terms
evidencing a like number of unexercised Universal Warrants shall be issued to
the transferee(s) and the surrendered Warrant Certificate shall be cancelled by
the Warrant Agent.
(c) Except as otherwise established for a series of Universal Warrants pursuant to Section 1.03, at the option of a Registered Holder, Definitive Warrant Certificates may be exchanged for other Definitive Warrant Certificates evidencing the same aggregate number of unexercised Universal Warrants of the same series and of like tenor upon surrender to the Warrant Agent of the Definitive Warrant Certificates to be exchanged at the Warrant Agent's Window, Attention: [Transfer Department]. The "Warrant Agent's Window" shall be the window of the Warrant Agent maintained for purposes of transfer and tender in the Borough of Manhattan, The City of New York (or at the address of any additional agency established by the Company pursuant to Section 1.08 hereof, or at the address of any successor Warrant Agent (as provided in Section 5.03)), which is, on the date of this Agreement, [_____________________]. If the Universal Warrants of any series are issued in both registered and unregistered form, except as otherwise established for such series pursuant to Section 1.03, at the option of the holder thereof, Warrant Certificates evidencing Bearer Warrants of any series may be exchanged for Definitive Warrant Certificates evidencing an equal number of unexercised Registered Warrants of the same series and of like tenor upon surrender of such Warrant Certificates evidencing Bearer Warrants to be exchanged at the Warrant Agent's Window, Attention: [Transfer Department]. Unless otherwise established for such series pursuant to Section 1.03, Registered Warrants of any series may not be exchanged for Bearer Warrants of such series. Upon surrender of any unexercised Warrant Certificate for exchange, the Warrant Agent shall cancel such Warrant Certificate, and the Company shall execute, and the Warrant Agent shall countersign and deliver, one or more new Warrant Certificates evidencing a like number of unexercised Universal Warrants of the same series and of like tenor.
(d) Universal Warrants evidenced by the Warrant Certificates issued upon transfer or exchange pursuant to paragraph (b) or (c) of this Section shall be valid obligations of the Company, constituting the same obligations of the Company as the Universal Warrants evidenced by the Warrant Certificates surrendered for transfer or exchange, and entitled to the same benefits under this Agreement as were such Universal Warrants evidenced by the Warrant Certificates prior to such surrender.
(e) Except as provided in Section 1.06, no service charge shall be made for any registration of transfer or exchange of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates, other than exchanges pursuant to this Section not involving any transfer.
(f) In the event that upon any exercise of Universal Warrants evidenced by a Warrant Certificate the number of Universal Warrants exercised shall be less than the total number of Universal Warrants evidenced by such Warrant Certificate, there shall be issued to the Registered Holder thereof (or, in the case of Bearer Warrants, the holder thereof) or his assignee a new Warrant Certificate evidencing the number of Universal Warrants of the same series and of like tenor not exercised.
(g) Warrant Certificates evidencing Bearer Warrants shall be transferable by delivery.
(h) Notwithstanding any other provision of this Agreement, unless and until it is exchanged in whole or in part for Definitive Warrant Certificates, a Global Warrant Certificate evidencing all or a portion of the Universal Warrants of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
(i) If at any time the Depositary for any series of Universal Warrants notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any time the Depositary for such series shall no longer be eligible under this Agreement, the Company shall appoint a successor Depositary with respect to such series. If a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election pursuant to Section 1.03 that such series be evidenced by one or more Global Warrant
Certificates shall no longer be effective and the Company will execute, and the Warrant Agent, upon receipt of an Officer's Certificate for the countersignature and delivery of Definitive Warrant Certificates evidencing Universal Warrants of such series, will countersign and deliver Definitive Warrant Certificates evidencing Universal Warrants of such series and of like tenor in an aggregate number equal to the number of the unexercised Universal Warrants represented by such Global Warrant Certificate or Certificates in exchange for such Global Warrant Certificate or Certificates.
(j) If established pursuant to Section 1.03 with respect to a series of Universal Warrants evidenced in whole or in part by one or more Global Warrant Certificates, the Depositary for such series may surrender such Global Warrant Certificate or Certificates in exchange in whole or in part for Definitive Warrant Certificates evidencing Universal Warrants of the same series and of like tenor on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Warrant Agent shall countersign and deliver, without service charge,
(i) to the person specified by such Depositary a new Definitive Warrant Certificate of the same series and of like tenor in an aggregate number equal to and in exchange for such person's beneficial interest in the Universal Warrants evidenced by such Global Warrant Certificate or Certificates; and
(ii) to such Depositary a new Global Warrant Certificate or Certificates evidencing Universal Warrants of the same series and of like tenor in number equal to the difference, if any, between the number of unexercised Universal Warrants evidenced by the surrendered Global Warrant Certificates and the number of unexercised Universal Warrants evidenced by such Definitive Warrant Certificate countersigned and delivered pursuant to clause 1.05(j)(i) above.
Upon the exchange of a Global Warrant Certificate for Definitive Warrant Certificates, such Global Warrant Certificate shall be canceled by the Warrant Agent or an agent of the Company or the Warrant Agent. Registered Definitive Warrant Certificates issued in exchange for a Registered Global Warrant Certificate pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such series, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The Warrant Agent or such agent shall deliver such Warrant Certificates to or as directed by the persons in whose names such Warrant Certificates are so registered. Definitive Bearer Warrant Certificates issued in exchange for a Global Bearer Warrant
Certificate pursuant to this Section shall be issued in such authorized denominations as the Depositary for such series, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent or an agent of the Company or the Warrant Agent. The Warrant Agent or such agent shall deliver such Warrant Certificates to or as directed by the Depositary for such series.
(k) Notwithstanding anything herein or in the terms of any series of Universal Warrants to the contrary, none of the Company, the Warrant Agent or any agent of the Company or the Warrant Agent (any of which, other than the Company, shall rely on an Officer's Certificate and an Opinion of Counsel) shall be required to exchange any Bearer Warrant for a Registered Warrant if such exchange would result in adverse Federal income tax consequences to the Company under then applicable United States Federal income tax laws.
(l) The Company will maintain one or more offices or agencies in a city or cities located outside the United States (including any city in which such an agency is required to be maintained under the rules of any stock exchange on which the Universal Warrants of such series are listed) where the Bearer Warrants, if any, of each series may be presented for exercise and payment. No payment on any Bearer Warrants will be made upon presentation of such Bearer Warrant at an agency of the Company within the United States nor will any payment be made by transfer to an account in, or by mail to an address in, the United States unless pursuant to applicable United States laws and regulations then in effect such payment can be made without adverse tax consequences to the Company. Notwithstanding the foregoing, payments in United States dollars with respect to Bearer Warrants of any series which are payable in United States dollars may be made at an agency of the Company maintained in the Borough of Manhattan, The City of New York if such payment in United States dollars at each agency maintained by the Company outside the United States for payment on such Bearer Warrants is illegal or effectively precluded by exchange controls or other similar restrictions.
(m) The Company may from time to time designate one or more additional offices or agencies where the Universal Warrants of a series may be presented for exercise and payment, where the Universal Warrants of that series may be presented for exchange as provided in this Agreement and where the Registered Universal Warrants of that series may be presented for registration of transfer as in this Agreement provided, and the Company may from time to time rescind any such designation, as the Company may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain the agencies provided for in this
Section. The Company will give to the Warrant Agent prompt written notice of any such designation or rescission thereof.
SECTION 1.06. Mutilated or Missing Warrant Certificates. (a) If any Warrant Certificate evidencing Universal Warrants of any series is mutilated, lost, stolen or destroyed, the Company may in its discretion execute, and the Warrant Agent may countersign and deliver, in exchange and substitution for the mutilated Warrant Certificate, or in replacement for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate representing an equivalent number of unexercised Universal Warrants of the same series and of like tenor, bearing an identification number, if applicable, not contemporaneously outstanding, but only (in case of loss, theft or destruction) upon receipt of evidence satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and security or indemnity, if requested, also satisfactory to them. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe.
(b) In case the Universal Warrants evidenced by any such mutilated, lost, stolen or destroyed Warrant Certificate have been or are about to be exercised, or deemed to be exercised, the Company in its absolute discretion may, instead of issuing a new Warrant Certificate, and subject to the conditions set forth in clause 1.06(a) above, direct the Warrant Agent to treat the same as if it had received the Warrant Certificate together with an irrevocable exercise notice in proper form in respect thereof, as established with respect to the Universal Warrants of such series.
(c) The Universal Warrants evidenced by each new Warrant Certificate issued pursuant to this Section in lieu of any lost, stolen or destroyed Warrant Certificate shall be original, additional contractual obligations of the Company, and shall be entitled to the same benefits under this Agreement as the Universal Warrants evidenced by the Warrant Certificate that was lost, stolen or destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance with this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith.
(e) The provisions of this Section are exclusive and shall preclude (to the extent lawful) any other rights and remedies with respect to the replacement or payment of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 1.07. Registered Holders. (a) Prior to due presentment for registration of transfer, 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 shall be registered in the Warrant Register (a "Registered Holder") as the absolute owner of the Registered Warrants evidenced thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate) for any purpose whatsoever, and as the person entitled to exercise the rights represented by the Registered Warrants evidenced thereby, 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. All payments on account of any Registered Warrant to the Registered Holder, or upon his order, shall be valid, and to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability of the Company for moneys paid upon such Registered Warrant. This Section shall be without prejudice to the rights of Warrantholders as described elsewhere herein.
(b) The Company, the Warrant Agent and any agent of the Company or the Warrant Agent may treat the holder of any Bearer Warrant as the absolute owner of such Bearer Warrant for the purpose of exercising the rights represented thereby and for all other purposes and neither the Company, the Warrant Agent, nor any agent of the Company or the Warrant Agent shall be affected by any notice to the contrary. All payments on account of such Bearer Warrant made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon such Bearer Warrant. This Section shall be without prejudice to the rights of Warrantholders as described elsewhere herein.
SECTION 1.08. Cancellation. All Universal Warrant Certificates surrendered to the Warrant Agent for redemption or registration of transfer or exchange shall be promptly cancelled by the Warrant Agent. The Company may at any time deliver to the Warrant Agent for cancellation any Universal Warrant Certificates previously countersigned and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Universal Warrant Certificates so delivered shall, upon receipt by the Warrant Agent of an Issuer Order, be promptly cancelled by the Warrant Agent. No Universal Warrant Certificates shall be countersigned in lieu of or in exchange for any Universal Warrant Certificates cancelled as provided in this Section, except as permitted by this Agreement. All cancelled Universal Warrant Certificates held by the Warrant Agent shall be disposed of in accordance with its customary procedures and a certificate of their disposition shall be delivered by the Warrant Agent to the Company, unless by Issuer Order the Company shall direct that cancelled Universal Warrant Certificates be returned to it.
If the Company or any affiliate of the Company shall acquire any Universal Warrant Certificate, such acquisition shall not operate as a cancellation of such Universal Warrant Certificate unless and until such Universal Warrant Certificate is delivered to the Warrant Agent for the purpose of cancellation.
SECTION 1.09. Additional Warrant Agents. Whenever the Company shall appoint a warrant agent other than the Warrant Agent with respect to the Universal Warrants of any series, it will cause such warrant agent to execute and deliver to the Warrant Agent an instrument in which such agent shall agree with the Warrant Agent, subject to the provisions of this Section,
(a) that it will hold all Warrant Property received by it as such agent for any payment with respect to the Universal Warrants of such series in trust for the benefit of the Warrantholders of such series if any, or of the Warrant Agent, and
(b) that it will give the Warrant Agent notice of any failure by the Company to make any payment with respect to the Universal Warrants of such series when the same shall be due and payable.
The Company will, on or prior to each date of any payment of Universal Warrants of any such series, deposit with the Warrant Agent or any such additional warrant agent a sum sufficient to make such payment, and the Company will promptly notify the Warrant Agent of any failure to take such action with respect to any such additional warrant agent.
SECTION 1.10. Appointment of Calculation Agents. Pursuant to Section 1.03 hereof, the Company may, in connection with any series of Universal Warrants appoint [_____________________] or any other person or entity as Calculation Agent to make any calculations as may be required pursuant to the terms of any such series of Universal Warrants. Any such Calculation Agent shall act as an independent expert and, unless otherwise provided by this Agreement, its calculations and determinations under this Agreement shall, absent manifest error, be final and binding on the Company, the Warrant Agent and the Warrantholders. Any such calculations will be made available to a Warrantholder for inspection at the Warrant Agent's Office.
ARTICLE 2
DURATION AND EXERCISE OF UNIVERSAL WARRANTS
SECTION 2.01. Duration and Exercise of Universal Warrants. All terms with respect to duration and exercise of Universal Warrants will be established pursuant to Section 1.03 for each series of Universal Warrants.
SECTION 2.02. Return of Money Held Unclaimed for Two Years. Except as
otherwise provided herein, any money or other assets deposited with or paid to
the Warrant Agent for the payment of any Universal Warrants and not paid but
remaining unclaimed for two years after the date upon which such money or other
assets shall have become due and payable shall be repaid by the Warrant Agent to
the Company, at the Company's request pursuant to an Officer's Certificate, and
the holders of such Universal Warrants shall thereafter look only to the Company
for any payment which such holders may be entitled to collect and all liability
of the Warrant Agent with respect to such money shall thereupon cease; provided
that the Warrant Agent, before making any such repayment, may (but shall not be
obligated to) at the expense of the Company notify (i) in the case of Registered
Warrants evidenced by Definitive Warrant Certificates, the Registered Holders,
(ii) in the case of Warrants evidenced by one or more Global Warrant
Certificates, the participants of the Depositary, and (iii) in the case of
Bearer Warrants evidenced by Definitive Warrant Certificates, the holders
thereof, in each case as provided in Section 6.04, that said money has not been
so applied and remains unclaimed and that after a date named in the notification
any unclaimed balance of said money then remaining will be returned to the
Company.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any Warrantholder may, without the consent of the Warrant Agent, the Depositary, any participant of the Depositary, any other Warrantholder, the holder of any Warrant Property or, if applicable, the common depositary for Euroclear Bank, as operator of the Euroclear System and Clearstream Banking, societe anonyme, or its successor, in and for its own behalf, enforce, and may institute and maintain, any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, its right to exercise its Universal Warrants as provided in this Agreement and established with respect to such Universal Warrants pursuant to Section 1.03.
SECTION 3.02. No Rights as Holder of Warrant Property Conferred by Universal Warrants or Warrant Certificates. No Warrant Certificate or Universal Warrant evidenced thereby shall entitle the holder or any beneficial owner thereof to any of the rights of a holder or beneficial owner of Warrant Property, including, without limitation, the right to receive the payment of principal of (premium, if any) or interest, if any, on Warrant Property or to vote or to enforce any rights under any documents governing Warrant Property.
SECTION 3.03. Merger, Consolidation, Conveyance or Transfer. (a) If at any time the Company merges or consolidates with any other person or sells or conveys all or substantially all of its assets to any other person, then in any such event the successor, if other than the Company, shall by an instrument of assumption delivered to the Warrant Agent succeed to and be substituted for the Company, with the same effect as if it had been named herein and in the Warrant Certificates as the Company. The Company shall thereupon, except in the case of a transfer by way of lease, be relieved of any further obligation hereunder and under the Universal Warrants and the Warrant Certificates, and the Company, as the predecessor corporation, except in the case of a transfer by way of lease, may thereupon or at any time thereafter be dissolved, wound up or liquidated. Such successor and assuming corporation may thereupon cause to be signed, and may issue either in its own name or in the name of the Company, Warrant Certificates evidencing any or all of the Universal Warrants issuable hereunder that theretofore shall not have been signed by the Company. All the Universal Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement as the Universal Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Universal Warrants had been issued at the date of the execution hereof. In any case of any such merger, consolidation, conveyance or transfer, such changes in phraseology and form (but not in substance) may be made in the Warrant Certificates representing the Universal Warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive an Opinion of Counsel as conclusive evidence that any such merger, consolidation, conveyance, transfer or assumption complies with the provisions of this Section.
ARTICLE 4
UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Universal Warrants Acquired by the Company. (a) In the event the Company shall purchase or otherwise acquire Universal Warrants, such Universal Warrants may, at the option of the Company, be (i) in the case of Bearer Warrants or Registered Warrants evidenced by Definitive Warrant Certificates, delivered to the Warrant Agent, and if so delivered, the Warrant Agent shall promptly cancel such Universal Warrants on the records of the Warrant Agent or (ii) in the case of Warrants evidenced by one or more Global Warrant Certificates, surrendered free through a participant of the Depositary to the Depositary for credit to the account of the Warrant Agent maintained at the Depositary, and if so credited, the Warrant Agent shall promptly note the cancellation of such Universal Warrants by notation on the records of the Warrant Agent and the Warrant Agent shall cause its records to be marked to reflect the reduction in the number of Universal Warrants evidenced by the Global Warrant Certificate or Certificates by the number of Universal Warrants so canceled promptly after such account is credited. Universal Warrants acquired by the Company may also, at the option of the Company, be resold by the Company directly or to or through any of its affiliates in lieu of being surrendered to the Warrant Agent or credited to its account. No Warrant Certificate shall be countersigned in lieu of or in exchange for any Universal Warrant that is canceled as provided herein, except as otherwise expressly permitted by this Agreement.
(b) Any canceled Warrant Certificate held by the Warrant Agent under this Agreement shall be disposed of by the Warrant Agent in accordance with its customary procedures unless otherwise directed by the Company, and the Warrant Agent shall deliver a certificate of disposition to the Company evidencing the same.
SECTION 4.02. Payment of Taxes. The Company will pay all stamp, withholding and other duties, if any, attributable to the initial issuance of each series or tranche of Universal Warrants; provided, however, that, anything in this Agreement to the contrary notwithstanding, the Company shall not be required to pay any tax or other governmental charge that may be payable in respect of any transfer involving any beneficial or record interest in, or ownership interest of, any Universal Warrants or Warrant Certificates.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints
[_____________________] as Warrant Agent of the Company in respect of the
Universal Warrants upon the terms and subject to the conditions set forth
herein; and [_____________________] hereby accepts such appointment. The Warrant
Agent shall have the powers and authority granted to and conferred upon it in
this Agreement and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it with its
consent. All of the terms and provisions with respect to such powers and
authority contained in any Warrant Certificate are subject to and governed by
the terms and provisions hereof.
SECTION 5.02. Condition of Warrant Agent's Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of the Universal Warrants shall be subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for its reasonable out-of- pocket expenses (including attorneys' 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 for, and to hold it harmless against, any loss, liability or expense (including reasonable attorneys' fees and expenses) incurred without negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, as well as the reasonable costs and expenses of defending against any claim of liability in the premises. The obligations of the Company under this Section shall survive the expiration of all Universal Warrants issued under this Agreement.
(b) In acting under this Agreement, 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 Warrantholders.
(c) The Warrant Agent may consult with counsel satisfactory to it (including counsel to the Company), and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any notice, direction, consent, certificate, affidavit, opinion, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e) The Warrant Agent and its officers, directors and employees may become the owner of, or acquire any interest in, any Universal 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 behalf of, or as depositary, trustee or agent for, any committee or body of owners or holders of Universal 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 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.
(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 authorization, execution and delivery hereof by the Warrant Agent) or with respect to the validity or execution of the Warrant Certificates (except its countersignature thereof).
(h) The recitals contained herein and in the Warrant Certificates (except as to the Warrant Agent's countersignature 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 such duties as are specifically set forth in this Agreement and no implied duties or obligations shall be read into this Agreement 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 is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the application by the Company of any proceeds of the issuance of any Warrants. 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 in this Agreement or in any Warrant Certificate or in the case of the receipt of any written demand from a holder of a Universal Warrant with respect to such default, 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, except as provided in Section 6.02, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the holders from time to time of the Universal
Warrants, that there shall at all times be a Warrant Agent hereunder with
respect to each series of Universal Warrants until all the Universal Warrants of
such series are no longer outstanding or until monies for the payment of all
outstanding Universal Warrants of such series, if any, shall have been paid to
the Warrant Agent and shall have been returned to the Company as provided in
Section 2.02, whichever occurs earlier.
(b) The Warrant Agent may at any time resign as such agent with respect to any series of Universal Warrants by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective, subject to the appointment of a successor Warrant Agent with respect to such series and acceptance of such appointment by such successor Warrant Agent as hereinafter provided. The Warrant Agent hereunder may be removed with respect to any series of Universal Warrants 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 with respect to such series (which shall be a banking institution organized under the laws of the United States of America or one of the states thereof, have a combined capital and surplus of at least $50,000,000 (as set forth in its most recent reports of condition published pursuant to law or to the requirements of any United States federal or state regulatory or supervisory authority) and having an 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, the Warrant Agent may apply to any court of competent jurisdiction for the designation of a successor Warrant Agent with respect to such series. The obligation of the Company under Section 5.02(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent with respect to any series of Universal Warrants.
(c) In case at any time the Warrant Agent with respect to any series of Universal Warrants shall give notice of its intent to 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 of 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 promptly 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 with respect to such series.
(d) Any successor Warrant Agent appointed hereunder with respect to any series of Universal Warrants 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, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent with respect to such series 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 (including, without limitation, the Warrant Register), as Warrant Agent with respect to such series hereunder.
(e) If a successor Warrant Agent is appointed with respect to the Universal Warrants of one or more (but not all) series, the Company, the predecessor Warrant Agent and each successor Warrant Agent with respect to the Universal Warrants of any applicable series shall execute and deliver an agreement supplemental hereto that shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers and duties of the predecessor Warrant Agent with respect to the Universal Warrants of any series as to which the predecessor Warrant Agent is not retiring shall continue to be vested in the predecessor Warrant Agent, and shall add to or change any of the provisions of this Agreement as shall be necessary to provide for or facilitate the administration of the Universal Warrants hereunder by more than one Warrant Agent, it being understood that nothing herein or in such supplemental agreement shall constitute such Warrant Agents Co-Warrant Agents of the same Universal Warrants and that each such Warrant Agent shall be a Warrant Agent with respect to separate series of Universal Warrants.
(f) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the corporate agency assets and 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.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) This Agreement and the terms of the Universal Warrants of any series may be amended (by means of an agreement supplemental hereto or otherwise) by the Company and the Warrant Agent, without the consent of the Warrantholders of any series of Universal Warrants, (i) for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein, (ii) to establish the form or terms of Warrant Certificates or Universal Warrants of any series as permitted by Sections 1.02 and 1.03, (iii) to evidence and provide for the acceptance of appointment hereunder by a successor Warrant Agent with respect to the Universal Warrants of any series and to add to or change any of the provisions of this Agreement as shall be necessary to provide for or facilitate the administration of the Universal Warrants hereunder by more than one Warrant Agent pursuant to Section 5.03, or (iv) in any other manner which the Company may deem necessary or desirable and which will not materially and adversely affect the interests of the Warrantholders of such series.
(b) The Company and the Warrant Agent may modify or amend this Agreement (by means of an agreement supplemental hereto or otherwise) with the consent of Warrantholders holding not less than a majority in number of the then outstanding Universal Warrants of all series affected by such modification or amendment, for any purpose; provided, however, that no such modification or amendment that changes the exercise price of the Universal Warrants of any series, reduces the amount receivable upon exercise, cancellation or expiration of the Universal Warrants other than in accordance with the antidilution provisions or other similar adjustment provisions included in the terms of the Universal Warrants, shortens the period of time during which the Universal Warrants of such series may be exercised, or otherwise materially and adversely affects the
exercise rights of the affected Warrantholders or reduces the percentage of the number of outstanding Universal Warrants of such series, the consent of whose holders is required for modification or amendment of this Agreement, may be made without the consent of each Warrantholder affected thereby. In the case of Universal Warrants evidenced by one or more Global Warrant Certificates, the Company and the Warrant Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from holders of beneficial ownership interests in the relevant Global Warrant Certificate. Such certification may be provided by participants of the Depositary acting on behalf of such beneficial owners of Universal Warrants, provided that any such certification is accompanied by a certification from the Depositary as to the Universal Warrant holdings of such participants.
(c) An amendment that changes or eliminates any provision of this Agreement that has expressly been included solely for the benefit of one or more particular series of Universal Warrants, or that modifies the rights of Warrantholders of such series with respect to such provision, shall be deemed not to affect the rights under this Agreement of the Warrantholders of any other series.
(d) Upon the request of the Company, accompanied by a copy of a Board Resolution (which Board Resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order) authorizing the execution of any such amendment, and upon the filing with the Warrant Agent of evidence of the consent of Warrantholders as aforesaid, the Warrant Agent shall join with the Company in the execution of such amendment unless such amendment affects the Warrant Agent's own rights, duties or immunities under this Agreement or otherwise, in which case the Warrant Agent may in its discretion, but shall not be obligated to, enter into such amendment. In executing, or accepting the additional duties created by, any amendment permitted by this Article, the Warrant Agent shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement. The fact and date of the execution of any consent of Warrantholders, or the authority of the Person executing the same, may be proved in any manner which the Warrant Agent (with the approval of the Company) deems sufficient.
(e) It shall not be necessary for the consent of the Warrantholders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof.
SECTION 6.02. Notices and Demands to the Company and the Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by any Warrantholder pursuant to the provisions of this Agreement or the terms of the Universal Warrants of any series, the Warrant Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses for Notices. Any communications to the
Warrant Agent with respect to this Agreement shall be in writing addressed to
[_____________________], Attention: [______________] (the "Warrant
Agent's Office") and any communications to the Company with respect to this
Agreement shall be addressed to J.P. Morgan Chase & Co., 270 Park Avenue,
New York, New York 10017-2070, Attention: [___________] (or in each case to
such other address as shall be given in writing to the other party hereto).
SECTION 6.04. Notices to Warrantholders. The Company may cause to have notice given to the Warrantholders of any series by providing the Warrant Agent with a form of notice to be distributed by (i) in the case of Registered Warrants evidenced by Definitive Warrant Certificates, the Warrant Agent to Registered Holders by first class mail, (ii) in the case of Warrants evidenced by one or more Global Warrant Certificates, the Depositary to be distributed by the Depositary to its participants in accordance with the custom and practices of the Depositary or (iii) in the case of Bearer Warrants evidenced by Definitive Warrant Certificates, publication at least once in an Authorized Newspaper (as defined below) in The City of New York, and Western Europe.
"Authorized Newspaper" means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall Street Journal (Eastern Edition) and, in the case of Western Europe, will, if practicable, be the Financial Times (London Edition)) published in an official language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in The City of New York, and Western Europe, as applicable. If it shall be impractical in the opinion of the Warrant Agent to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given with the approval of the Warrant Agent shall constitute a sufficient publication of such notice.
SECTION 6.05. Obtaining of Approvals. The Company will from time to time take all action that may be necessary to obtain and keep effective any and all filings or notices under applicable law, which may be or become required in connection with the issuance, sale, trading, transfer or delivery of the Warrant Certificates or the exercise of the Universal Warrants.
SECTION 6.06. Persons Having Rights under this Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of
the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the Warrantholders 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 contained in this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent, their respective successors and the Warrantholders.
SECTION 6.07. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the Warrant Agent's Office for inspection by the Warrantholders, participants of the Depositary certified as such by the Depositary or any person certified by any such participant to be an indirect participant of the Depositary or any person certified by any such participant to be a beneficial owner of a Universal Warrant, in each case, on behalf of whom such participant holds Universal Warrants.
SECTION 6.08. Officer's Certificates and Opinions of Counsel; Statements to be Contained Therein. (a) Each certificate or opinion provided for in this Agreement and delivered to the Warrant Agent with respect to compliance with a condition or covenant provided for in this Agreement shall include (i) a statement that the person making such certificate or opinion has read such covenant or condition, (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (iii) a statement that, in the opinion of such person, such person has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied with and (iv) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
(b) Any certificate, statement or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which such officer's certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Company, upon the certificate, statement or opinion of or representations by an officer or officers of the Company, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which such officer's certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
(c) Any certificate, statement or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which such officer's or counsel's, as the case may be, certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate or opinion of any independent firm of public accountants filed with and directed to the Warrant Agent shall contain a statement that such firm is independent.
SECTION 6.09. Payments Due on Saturdays, Sundays and Holidays. If the date fixed for any payment with respect to the Universal Warrants of any series appertaining thereto shall not be a Business Day (as defined below), then such payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date fixed, and no interest shall accrue for the period after such date.
"Business Day" means, with respect to any Universal Warrant, a Business Day as defined in any debt security included in any unit comprised of such Universal Warrant or as otherwise established pursuant to Section 1.03 hereof or if the term Business Day is not so specified, Business Day means any day that is not a Saturday or Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law, regulation or executive order to be closed.
SECTION 6.10. Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the Universal Warrants of any series (the "Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Warrant Agent could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day (as defined below), in which event, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Warrant Agent could purchase in The City of New York the Required Currency with the Judgment Currency on the last New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Agreement and the terms of the Universal
Warrants of such series to make payments in the Required Currency (i) shall not
be discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with clause 6.10(a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum due
under this Agreement. For purposes of the foregoing, "New York Banking Day"
means any day except a Saturday, Sunday or a legal holiday in The City of New
York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
SECTION 6.11. 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 6.12. Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 6.13. Applicable Law. This Agreement and each Universal Warrant shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
J.P. MORGAN CHASE & CO.
By:___________________________________
Name:
Title:
[---------------------]
By:___________________________________
Name:
Title:
EXHIBIT A
[FORM OF FACE OF REGISTERED CALL WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for Universal Warrants in definitive registered form, this Warrant Certificate and the Universal Warrants evidenced hereby may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.]1
J.P. MORGAN CHASE & CO.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO
_____]1
WARRANT PROPERTY:
AMOUNT OF WARRANT PROPERTY
PURCHASABLE PER WARRANT:
CALL PRICE PER WARRANT:
FORM OF PAYMENT OF
CALL PRICE:
FORM OF SETTLEMENT:
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered assigns, is the Registered Holder of the number of [Designation of Universal Warrants] (the "Warrants") [specified above]2[specified on Schedule A hereto]3. Upon receipt by the Warrant Agent of this Warrant Certificate, the exercise notice on the reverse hereof (or an exercise notice in substantially identical form delivered herewith)(the "Exercise Notice"), duly completed and executed, and the Call Price per Warrant set forth above, in the form set forth above, for each Warrant to be exercised (the "Exercise Property") at the Warrant Agent's Window, Attention: [Tender Department], in the Borough of Manhattan, The City of New York, each Warrant evidenced hereby entitles the Registered Holder hereof to receive, subject to the terms and conditions set forth herein and in the Warrant Agreement (as defined below), from J.P. Morgan Chase & Co. (the "Company") the amount and form of property (the "Warrant Property") specified above. Warrants will not entitle the Warrantholder to any of the rights of the holders of any of the Warrant Property.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, and such further provisions shall for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
IN WITNESS WHEREOF, J.P. Morgan Chase & Co. has caused this instrument to be duly executed.
Dated:___________________________
J.P. MORGAN CHASE & CO.
By:____________________________________
Name:
Title:
Attest:
By:________________________________
Secretary
Countersigned as of the date above written:
[---------------------],
as Warrant Agent
By:________________________________
Authorized Officer
[FORM OF REVERSE OF REGISTERED CALL WARRANT CERTIFICATE]
J.P. MORGAN CHASE & CO.
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Universal Warrants issued by the Company pursuant to a Universal Warrant Agreement, dated as of [_______], 20[ ] (the "Warrant Agreement"), between the Company and [_____________________] (the "Warrant Agent") and are subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions each Warrantholder consents by acceptance of this Warrant Certificate or a beneficial interest therein and which Warrant Agreement is hereby incorporated by reference in and made a part of this Warrant Certificate. Without limiting the foregoing, all capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Warrant Agreement. A copy of the Warrant Agreement is on file at the Warrant Agent's Office. The Warrants constitute a separate series of Universal Warrants under the Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and rank pari passu with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant may be exercised during the dates of exercise set forth on the face hereof by delivering or causing to be delivered this Warrant Certificate, the Exercise Notice, duly completed and executed, and the Exercise Property for each such Warrant to the Warrant Agent's Window, in the Borough of Manhattan, The City of New York, which is, on the date hereof (unless otherwise specified herein), [_____________________], Attention: [Tender Department], or at such other address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise, the Warrant Property set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject to amendment as provided in the Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.
[Designation of Universal Warrants]
Exercise Notice
[Name and address of Warrant Agent]
Attention: [Tender Department]
The undersigned (the "Registered Holder") hereby irrevocably exercises __________ Warrants (the "Exercised Warrants") and delivers to you herewith a Warrant Certificate or Certificates, registered in the Registered Holder's name, representing a number of Warrants at least equal to the number of Exercised Warrants, and the Exercise Property with respect thereto.
The Registered Holder hereby directs the Warrant Agent (a) to deliver the Warrant Property as follows:
and (b) if the number of Exercised Warrants is less than the number of Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant Certificate representing the unexercised Warrants to:
Dated:________________ __________________________________________
(Registered Holder)
By:_______________________________________
Authorized Signature
Address:
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Telephone:
[If Warrant is a Global Warrant, insert this Schedule A.]
SCHEDULE A
[Designation of Universal Warrants]
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global Universal Warrant is __________. In accordance with the Universal Warrant Agreement, the following (A) exchanges of [the number of Universal Warrants indicated below for a like number of Universal Warrants to be represented by a Global Universal Warrant that has been separated from a Unit (a "Separated Universal Warrant")]1 [the number of Universal Warrants that had been represented by a Global Universal Warrant that is part of a Unit (an "Attached Unit Universal Warrant") for a like number of Universal Warrants represented by this Global Universal Warrant]2 or (B) reductions as a result of the exercise of the number of Universal Warrants indicated below have been made:
[Number of Attached
Unit Universal [Increased
[Number Warrants Exchanged Number Reduced Notation
Exchanged for [Reduced Number for Universal Outstanding Number of Number Made by or
Date of Separated Outstanding Warrants represented Following Universal Outstanding on Behalf of
Exchange or Universal Following Such by this Separated Such Warrants Following Warrant
Exercise Warrants](1) Exchange](1) Universal Warrant](2) Exchange](2) Exercised Such Exercise Agent
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2 Applies only if this Global Universal Warrant has been separated from a Unit.
EXHIBIT B
[FORM OF FACE OF REGISTERED PUT WARRANT CERTIFICATE]
No. _____ CUSIP No. __________
[Unless and until it is exchanged in whole or in part for Universal Warrants in definitive registered form, this Warrant Certificate and the Universal Warrants evidenced hereby may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.]1
J.P. MORGAN CHASE & CO.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO
____]1
CASH SETTLEMENT VALUE PER WARRANT (OR METHOD OF
DETERMINING SAME):
[WARRANT PROPERTY:]2
[AMOUNT OF WARRANT PROPERTY
SALABLE PER WARRANT:]2
[PUT PRICE FOR SUCH SPECIFIED AMOUNT OF WARRANT PROPERTY PER WARRANT:]2
[METHOD OF DELIVERY OF ANY WARRANT PROPERTY TO BE
DELIVERED FOR SALE UPON EXERCISE OF WARRANTS:]2
2 Only if the terms of the Warrants contemplate that the holder may deliver Warrant Property to exercise the Warrants.
DATES OF EXERCISE:
OTHER TERMS:
This Warrant Certificate certifies that __________, or registered
assigns, is the Registered Holder of the number of [Designation of Universal
Warrants] (the "Warrants") [specified above]3 [specified on Schedule A hereto]4.
Upon receipt by the Warrant Agent of this Warrant Certificate, the exercise
notice on the reverse hereof (or an exercise notice in substantially identical
form delivered herewith) (the "Exercise Notice"), duly completed and executed,
and the Amount of Warrant Property saleable per Warrant set forth above,
adjusted, if applicable, as set forth above, for each Warrant to be exercised,
delivered as set forth above at the Warrant Agent's Window, Attention: [Tender
Department], in the Borough of Manhattan, The City of New York (which is, on the
date hereof, [_____________________], Attention: [Tender Department]), each
Warrant evidenced hereby entitles the Registered Holder hereof to receive,
subject to the terms and conditions set forth herein and in the Warrant
Agreement (as defined below), from J.P. Morgan Chase & Co. (the "Company") the
[Cash Settlement Value][Put Price]5 per Warrant specified above.
Unless otherwise indicated above, a Warrant will not require or entitle a Warrantholder to sell or deliver to the Company, nor will the Company be under any obligation to, nor will it, purchase or take delivery from any Warrantholder of, any Warrant Property, and upon exercise of a Warrant, the Company will make only a cash payment in the amount of the Cash Settlement Value or Put Price per Warrant. Warrantholders will not receive any interest on any Cash Settlement Value.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth in this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
3 Applies to definitive warrant certificates.
4 Applies to global warrant certificates.
5 Only if the terms of the Warrants contemplate that the holder may deliver Warrant Property to exercise the Warrants.
IN WITNESS WHEREOF, J.P. Morgan Chase & Co. has caused this instrument to be duly executed.
Dated:___________________
J.P. MORGAN CHASE & CO.
By:__________________________
Name:
Title:
Attest:
By:__________________________________
Secretary
Countersigned as of the date above written:
[---------------------],
as Warrant Agent
By:___________________________________
Authorized Officer
[FORM OF REVERSE OF REGISTERED PUT WARRANT CERTIFICATE]
J.P. MORGAN CHASE & CO.
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Universal Warrants issued by the Company pursuant to a Universal Warrant Agreement, dated as of [_______], 20[ ] (the "Universal Warrant Agreement"), between the Company and [_____________________] (the "Warrant Agent") and are subject to the terms and provisions contained in the Universal Warrant Agreement, to all of which terms and provisions each Warrantholder consents by acceptance of this Warrant Certificate or a beneficial interest therein and which Universal Warrant Agreement is hereby incorporated by reference in and made a part of this Warrant Certificate. Without limiting the foregoing, all capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Universal Warrant Agreement. A copy of the Universal Warrant Agreement is on file at the Warrant Agent's Office. The Warrants constitute a separate series of Universal Warrants under the Universal Warrant Agreement.
The Warrants are unsecured contractual obligations of the Company and rank pari passu with the Company's other unsecured contractual obligations and with the Company's unsecured and unsubordinated debt.
Subject to the provisions hereof and the Warrant Agreement, each Warrant may be exercised during the dates of exercise set forth on the face hereof by delivering or causing to be delivered this Warrant Certificate, the Exercise Notice, duly completed and executed, and the Exercise Property for each such Warrant to the Warrant Agent's Window, in the Borough of Manhattan, The City of New York, which is, on the date hereof (unless otherwise specified herein), [_____________________], Attention: [Tender Department], or at such other address as the Warrant Agent may specify from time to time.
Each Warrant entitles the Warrantholder to receive, upon exercise, the Cash Settlement Value per Warrant set forth on the face hereof.
The Warrant Agreement and the terms of the Warrants are subject to amendment as provided in the Universal Warrant Agreement.
This Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.
[Designation of Universal Warrants]
Exercise Notice
[Name and address of Warrant Agent]
Attention: [Tender Department]
The undersigned (the "Registered Holder") hereby irrevocably exercises __________ Warrants (the "Exercised Warrants") and delivers to you herewith a Warrant Certificate or Certificates, registered in the Registered Holder's name, representing a number of Warrants at least equal to the number of Exercised Warrants[, and the Warrant Property with respect thereto].1
The Registered Holder hereby directs the Warrant Agent (a) to deliver the [Cash Settlement Value][Put Price]2 per Warrant as follows:
and (b) if the number of Exercised Warrants is less than the number of Warrants represented by the enclosed Warrant Certificate, to deliver a Warrant Certificate representing the unexercised Warrants to:
Dated:__________________ ___________________________________
(Registered Holder)
By:_______________________________
Authorized Signature
Address:
Telephone:
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1 Only if terms of the Warrants contemplate that the holder may deliver Warrant Property to exercise the Warrants.
2 Only if terms of the Warrants contemplate that the holder may deliver Warrant Property to exercise the Warrants.
[If Warrant is a Global Warrant, insert this Schedule A.]
[Designation of Universal Warrants]
SCHEDULE A
GLOBAL
UNIVERSAL WARRANT
SCHEDULE OF EXCHANGES
The initial number of Universal Warrants represented by this Global Universal Warrant is __________. In accordance with the Universal Warrant Agreement, the following (A) exchanges of [the number of Universal Warrants indicated below for a like number of Universal Warrants to be represented by a Global Universal Warrant that has been separated from a Unit (a "Separated Universal Warrant")]1 [the number of Universal Warrants that had been represented by a Global Universal Warrant that is part of a Unit (an "Attached Unit Universal Warrant") for a like number of Universal Warrants represented by this Global Universal Warrant]2 or (B) reductions as a result of the exercise of the number of Universal Warrants indicated below have been made:
[Number of Attached
Unit Universal Reduced
[Number [Reduced Warrants Exchanged [Increased Number Notation
Exchanged for Number for Universal Number Number of Outstanding Made by or
Date of Separated Outstanding Warrants represented Outstanding Universal Following on Behalf
Exchange or Universal Following Such by this Separated Following Such Warrants Such of Warrant
Exercise Warrants](1) Exchange](1) Universal Warrant](2) Exchange](2) Exercised Exercise Agent
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1 Applies only if this Global Universal Warrant is part of a Unit.
2 Applies only if this Global Universal Warrant has been separated from a Unit.
EXHIBIT 4(m)
J.P. MORGAN CHASE & CO.
AND
[ ], as Unit Agent, as Trustee and Paying Agent under the Indenture referred to herein, and as Warrant Agent under the Warrant Agreement referred to herein
FORM OF UNIT AGREEMENT
Dated as of __________
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions.............................................2
ARTICLE 2
Units
Section 2.01. Forms Generally.........................................5
Section 2.02. Form of Certificate of Authentication and
Countersignature.....................................6
Section 2.03. Units...................................................6
Section 2.04. Denominations...........................................7
Section 2.05. Rights and Obligations Evidenced by the Units...........7
Section 2.06. Execution, Authentication, Delivery and Dating..........7
Section 2.07. Registration of Transfer and Exchange...................7
Section 2.08. Mutilated, Destroyed, Lost and Stolen Unit
Certificates.........................................8
Section 2.09. Persons Deemed Owners...................................9
Section 2.10. Cancellation...........................................10
Section 2.11. Exchange of Global Units and Definitive Units..........10
ARTICLE 3
Automatic separation of units; termination of unit agreement
Section 3.01. Automatic Separation of Units; Termination of Unit
Agreement...........................................11
Section 3.02. Effect of Termination..................................11
ARTICLE 4
Other Provisions Relating to Rights of Holders of Units
Section 4.01. Holder May Enforce Rights...............................11
ARTICLE 5
The Agent
Section 5.01. Certain Duties and Responsibilities....................12
Section 5.02. Certain Rights of Agent................................13
i
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Page
Section 5.03. Not Responsible for Recitals or Issuance of Units......13
Section 5.04. May Hold Units.........................................14
Section 5.05. Compensation and Reimbursement.........................14
Section 5.06. Corporate Agent Required; Eligibility..................15
Section 5.07. Resignation and Removal; Appointment of
Successor...........................................15
Section 5.08. Acceptance of Appointment by Successor.................16
Section 5.09. Merger, Conversion, Consolidation or Succession to
Business............................................17
Section 5.10. Tax Compliance.........................................17
ARTICLE 6
Consolidation, Merger, Sale or Conveyance
Section 6.01. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions............18
Section 6.02. Rights and Duties of Successor Corporation.............18
Section 6.03. Opinion of Counsel to Agent............................19
ARTICLE 7
Miscellaneous Provisions
Section 7.01. Amendments.............................................19
Section 7.02. Incorporators, Stockholders, Officers and Directors
of the Corporation Immune from Liability............20
Section 7.03. Compliance Certificates and Opinions...................21
Section 7.04. Form of Documents Delivered to Agent...................21
Section 7.05. Maintenance of Office or Agency........................22
Section 7.06. Notices, Etc...........................................23
Section 7.07. Notices to Holders; Waiver.............................23
Section 7.08. Effect of Headings and Table of Contents...............23
Section 7.09. Successors and Assigns.................................23
Section 7.10. Separability Clause....................................23
Section 7.11. Benefits of Agreement..................................24
Section 7.12. Governing Law..........................................24
Section 7.13. Counterparts...........................................24
Section 7.14. Inspection of Agreement................................24
Exhibit A -- Form of Unit Certificate
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UNIT AGREEMENT, dated as of _____________, by and among
J.P. MORGAN CHASE & CO., a Delaware corporation (the "Corporation") and
[ ], acting solely as unit agent under this Agreement (in its capacity as unit
agent, the "Agent", except to the extent that this Agreement specifically states
that the Agent is acting in another capacity), [ ], as trustee and paying agent
under the Indenture described below (in its capacity as trustee under the
Indenture, the "Trustee" and, in its capacity as paying agent under the
Indenture, the "Paying Agent"), and [ ], as Warrant Agent under the Warrant
Agreement described below (in its capacity as Warrant Agent under the Warrant
Agreement, the "Warrant Agent").
WHEREAS, the Corporation has entered into an Indenture dated as of [ ], 2001 between the Corporation and [ ], as Trustee (the "Indenture");
WHEREAS, the Corporation has entered into a Warrant Agreement (the "Warrant Agreement") dated as of ____________ between the Corporation and [ ], as Warrant Agent;
WHEREAS, the Corporation has duly authorized the issuance, pursuant to the Warrant Agreement, of _________ Warrants [Settling/Expiring] ________ (the "Warrants");
WHEREAS, the Corporation has duly authorized the issuance, pursuant to the Indenture, of [ ] aggregate principal amount of Notes due _______(the "Notes") and
WHEREAS, the Corporation desires to provide for the issuance of the
[Separable] Units [Mandatorily] Exchangeable for ________________________
consisting of ___________________ (the "Units");
NOW, THEREFORE, in consideration of the premises and the purchases of the Units by the holders thereof, the Corporation, the Agent, the Warrant Agent and the Trustee and Paying Agent mutually covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(ii) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States in effect at the time of any computation; and
(iii) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control", with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph of this Agreement until a successor Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter "Agent" shall mean such successor Person.
"Agreement" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.
["Automatic Separation Date" means _________________________.]
"Board of Directors", means the board of directors of the Corporation or any other committee duly authorized to act on its behalf with respect to this Agreement.
"Board Resolution", means one or more resolutions, certified by the Secretary or an Assistant Secretary of the Corporation to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Agent.
"Corporate Trust Office" means the office of the Agent at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at [ ].
"Corporation" means the Person named as the "Corporation" in the first paragraph of this Agreement until a successor Person shall have become such pursuant to the applicable provisions of this Agreement, and thereafter the "Corporation" shall mean such successor Person.
"Definitive Securities" means any Security in definitive form.
"Definitive Unit" means any Unit comprised of Definitive Securities.
"Depositary" means DTC, or any successor as the Holder of any Global Units.
"DTC" means The Depository Trust Company or its nominee.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Note" means a global Note in registered form originally issued as part of a Global Unit.
"Global Securities" means the Global Warrant and Global Note.
"Global Unit" means any Unit that comprises the Global Securities and is represented by a Global Unit Certificate.
"Global Unit Certificate" means a global Unit Certificate in registered form.
"Global Warrant" means a global Warrant in registered form originally issued as part of a Global Unit.
"Holder" means in the case of any Security or Unit, the Person in whose name such Security or the Securities constituting a part of such Unit are registered on the relevant Security Register.
"Indenture" has the meaning specified in the first recital in this Agreement.
"Issuer Order" means a written statement, request or order of the Issuer signed in its name by any one of the following: the chairman of the Board of Directors, the president, a vice chairman of the Board of Directors, the chief financial officer or the treasurer or any other person certified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Corporation or authorized by the Board of Directors to execute any such written statement, request or order and delivered to the Agent.
"Note" has the meaning stated in the fourth recital in this Agreement.
"Note Register" has the meaning specified in Section 2.07.
"Officer's Certificate" means a certificate signed by the chairman of the Board of Directors, the president, a vice chairman of the Board of Directors, the chief financial officer or the treasurer of the Issuer (or any other officer identified by any of the foregoing officers in an Officers' Certificate to be an executive officer of the Corporation) and the secretary, an assistant secretary or the controller of the Issuer and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Corporation and who shall otherwise be satisfactory to the Agent.
"Paying Agent" means any Person authorized by the Corporation to pay the Put Price or any other sums payable by the Corporation; provided that such Person shall be a bank or trust company organized and in good standing under the laws of the United States or any state in the United States, having (together with its parent) capital, surplus and undivided profits aggregating at least $50,000,000 or any foreign branch or office of such a bank or trust company, and, subject to the foregoing, may be an Affiliate of the Corporation.
"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Responsible Officer" with respect to the Agent means the chairman of the Board of Directors, any vice chairman of the board of directors, the chairman of the trust committee, the chairman of the executive committee, any vice chairman of the executive committee, the president, any vice president, the cashier, the secretary, the treasurer, any trust officer, any assistant trust officer, any assistant vice president, any assistant cashier, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject.
"Security" means either a [list constituent securities].
"Security Register" means either a Note Register or Warrant Register.
"Trustee", with respect to Notes, means the Person acting as Trustee under the Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of such Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"Unit" has the meaning stated in the fifth recital to this Agreement.
"Unit Certificate" means a certificate evidencing the rights and obligations of the Corporation and a Holder with respect to the number of Units specified on such certificate.
"Unit Register" has the meaning specified in Section 2.07.
"Warrant Agreement" has the meaning stated in the second recital of this Agreement.
"Warrant Property" has the meaning specified in the Warrant Agreement.
"Warrant Register" with respect to any Warrants constituting a part of the Units means the security register of the Corporation maintained by the Warrant Agent pursuant to the Warrant Agreement.
"Warrants" has the meaning stated in the third recital of this Agreement.
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally. (a) The Units shall be substantially in the form of Exhibit A. The Unit 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 Corporation executing the Securities constituting a part thereof may approve (execution
thereof to be conclusive evidence of such approval) and that are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto, or with any rule or regulation of any self-regulatory organization on which the Units may be listed or quoted or of any securities depository or to conform to general usage.
(b) The Unit Certificates shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Unit Certificates, as evidenced by their execution of the Securities constituting a part of the Units evidenced by such Unit Certificates.
(c) The Units shall be issued initially as Global Units in fully registered form. A beneficial interest in a Unit may not be exchanged for a Definitive Unit, except as provided in Section 2.11. The Corporation shall execute, and the Trustee and Warrant Agent shall, in accordance with Section 2.06, authenticate and countersign, respectively, and deliver one or more global Unit Certificates (comprised of [list constituent Global Securities]) that (i) shall evidence all of the Units issued, shall be registered in the name of the Depositary or its nominee, shall be delivered by the Agent to the Depositary or pursuant to such Depositary's instructions and shall bear a legend substantially to the following effect: "Unless and until it is exchanged in whole or in part for Units in definitive registered form, this Unit Certificate may not be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary."
SECTION 2.02. Form of Certificate of Authentication and Countersignature. The form of the Trustee's certificate of authentication of the Notes and the form of the Warrant Agent's countersignature of the Warrants, each constituting a part of the Units, shall be substantially in such form as set forth in the Indenture or the Warrant Agreement, as applicable.
SECTION 2.03. Units. (a) Each Unit will consist of ______________.
(b) The aggregate number of Units that may be authenticated, countersigned and delivered under this Agreement is ___________________ (except for Units authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Units pursuant to Section 2.07, 2.08 or 2.11);
(c) The [list constituent securities] may be purchased, transferred and exchanged only as Units [until the Automatic Separation Date. On the Automatic Separation Date, the Units shall automatically separate into their constituent [list constituent securities], and the Units will cease to exist. Each beneficial owner of
a Unit on the Automatic Separation Date shall become the owner of [list amount of constituent securities], which may thereafter be transferred as separate Securities.]
SECTION 2.04. Denominations. Units shall be issuable only in registered form and in denominations of ___________ Units, Notes and Warrants, respectively, and any integral multiple thereof.
SECTION 2.05. Rights and Obligations Evidenced by the Units. Units
shall evidence [(a) the number of Warrants specified on the face of the Warrant
Certificate attached to any Unit Certificate representing Definitive Units or
[on the face of] [Schedule A to] the Warrant Certificate representing Global
Warrants attached to the Unit Certificate representing Global Units and (b) the
aggregate principal amount of Notes specified on the face of the Note attached
to any Unit Certificate representing Definitive Units or on [the face
of][Schedule A to] the Global Note attached to the Unit Certificate representing
Global Units.]
SECTION 2.06. Execution, Authentication, Delivery and Dating. Upon the
execution and delivery of this Agreement, and from time to time thereafter, the
Corporation may deliver, subject to the limitation on the aggregate number of
[list constituent securities] represented thereby set forth in Section 2.03(b),
Unit Certificates (including the Securities executed by the Corporation
constituting the Units evidenced by such Unit Certificates) to the Trustee and
Warrant Agent for authentication and countersignature, as the case may be, of
the Securities comprised by such Units, together with its Issuer Requests for
authentication and countersignature of such Securities, and the Trustee in
accordance with the Indenture and the Issuer Request of the Corporation shall
authenticate the Notes constituting a part of the Units evidenced by such Unit
Certificates and the Warrant Agent in accordance with the Warrant Agreement
shall countersign the Warrants constituting a part of the Units evidenced by
such Unit Certificates and each shall deliver such Unit Certificates upon the
order of the Corporation.
Notes constituting a part of the Units shall be executed on behalf of the Corporation in accordance with the terms of the Indenture. Warrants constituting a part of the Units shall be executed on behalf of the Corporation in accordance with the terms of the Warrant Agreement.
SECTION 2.07. Registration of Transfer and Exchange. A register (the register being herein referred to as "Note Register") shall be maintained in accordance with the Indenture to provide for the registration of Notes constituting a part of the Units and of transfers of such Notes.
At the option of the Holder thereof, Units may be transferred or exchanged for a Unit or Units having authorized denominations evidencing the number of Units transferred or exchanged, upon surrender of such Units to be so transferred or exchanged at the Corporate Trust Office of the Agent upon payment, if the Corporation shall so require, of the charges hereinafter provided. Whenever any Units are so surrendered for transfer or exchange, the Corporation shall execute, and the Trustee and/or Warrant Agent, as appropriate, shall authenticate and/or countersign, respectively, and the Agent shall deliver the Units which the Holder making the transfer or exchange is entitled to receive. All Units (including the Securities constituting part of such Units) surrendered upon any exchange or transfer provided for in this Agreement shall be promptly canceled and disposed of in accordance with Section 2.10.
All Unit Certificates delivered upon any registration of transfer or exchange of a Unit Certificate shall evidence the ownership of [list number/amount listed on the face of constituent securities] and shall be entitled to the same benefits, and be subject to the same obligations, under the Indenture, the Warrant Agreement and this Agreement as the Units evidenced by the Unit Certificate surrendered upon such registration of transfer or exchange.
Every Unit Certificate presented or surrendered for registration of transfer or for exchange shall (if so required by the Corporation or the Agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Agent, duly executed by the Holder thereof or his attorney duly authorized in writing. Except as otherwise provided herein with respect to the Units, the Agent shall register the transfer or exchange of any outstanding Unit Certificate upon the records to be maintained by it for that purpose (the "Unit Register") at its Corporate Trust Office.
No service charge shall be made for any transfer or exchange of a Unit, but the Corporation and the Agent may require payment from the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Units, other than any exchanges pursuant to Section 2.08 not involving any transfer.
SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Unit Certificates. If any mutilated Unit Certificate is surrendered to the Agent, the Corporation shall execute and deliver to the Trustee and the Warrant Agent, as appropriate, and the Trustee and the Warrant Agent shall authenticate, countersign and deliver, as appropriate, in exchange therefor new Securities comprised by Units of like tenor and evidenced by a new Unit Certificate evidencing the same number of Units and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee and the Warrant Agent and/or the Agent, as appropriate, (i) evidence to their satisfaction of the destruction, loss or theft of any Unit Certificate and (ii) such security or indemnity as may be required by them to hold each of them and any agent of any of them harmless, then, in the absence of notice to the Corporation and the Trustee and the Warrant Agent as appropriate, that such Unit Certificate has been acquired by a bona fide purchaser, the Corporation shall execute and deliver to the Trustee and the Warrant Agent and/or the Agent, as appropriate, and the Trustee (in accordance with the provisions of the Indenture) and the Warrant Agent (in accordance with the provisions of the Warrant Agreement) shall authenticate and countersign and the Agent shall deliver to the Holder, as appropriate, in lieu of any such destroyed, lost or stolen Unit Certificate, new Securities comprised by Units of like tenor and evidenced by a new Unit Certificate evidencing the same number of Units and bearing a number not contemporaneously outstanding.
Upon the issuance of any new Unit Certificate under this Section, the Corporation and the Agent may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Agent) connected therewith.
Every new Unit Certificate executed pursuant to this Section in lieu of any destroyed, lost or stolen Unit Certificate shall constitute an original additional contractual obligation of the Corporation, whether or not the destroyed, lost or stolen Unit Certificate (and the Securities evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Unit Certificates.
SECTION 2.09. Persons Deemed Owners. Prior to due presentment of a Unit Certificate for registration of transfer, the Corporation, the Trustee, the Warrant Agent and the Agent, as appropriate, and any agent of the Corporation, the Trustee, the Warrant Agent or the Agent, as appropriate, may treat the Person in whose name any Security evidenced by such Unit Certificate is registered as the owner of the Units evidenced thereby for all purposes whatsoever, whether or not payment with respect to any Security constituting a part of the Units evidenced thereby shall be overdue and notwithstanding any notice to the contrary. None of the Corporation, the Trustee, the Warrant Agent, the Agent or any agent of the
Corporation, the Trustee, the Warrant Agent or the Agent shall be affected by notice to the contrary.
SECTION 2.10. Cancellation. All Unit Certificates surrendered for registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, the Warrant Agent or the Agent, as appropriate, be delivered to the Trustee, the Warrant Agent and/or the Agent, as appropriate, and, if not already canceled, [list constituent securities] evidenced by such Units shall be promptly canceled by the Trustee, the Warrant Agent and/or the Agent, as appropriate. The Corporation may at any time deliver to the Trustee, the Warrant Agent and/or the Agent, as appropriate, for cancellation any Unit Certificates previously authenticated, countersigned and delivered hereunder, under the Warrant Agreement and under the Indenture, which the Corporation may have acquired in any manner whatsoever, and all Unit Certificates so delivered shall, upon Issuer Request of the Corporation, be promptly canceled by the Trustee, Warrant Agent and/or the Agent, as appropriate. No Unit Certificates shall be authenticated, countersigned and executed in lieu of or in exchange for any Unit Certificates canceled as provided in this Section, except as permitted by this Agreement. All canceled Unit Certificates held by the Agent shall be disposed of in accordance with its customary procedures and a certificate of their disposition shall be delivered by the Agent to the Corporation, unless by Issuer Request the Corporation shall direct that canceled Unit Certificates be returned to it.
If the Corporation or any Affiliate of the Corporation shall acquire any Unit Certificate, such acquisition shall not operate as a cancellation of such Unit Certificate unless and until such Unit Certificate is delivered to the Trustee, the Warrant Agent and/or the Agent, as appropriate, for the purpose of cancellation.
SECTION 2.11. Exchange of Global Units and Definitive Units. Holders of Global Units shall receive Definitive Units in exchange for interests in such Global Units if DTC notifies the Corporation that it is unwilling or unable to continue as Depositary with respect to the Global Units or if at any time it ceases to be a clearing agency under the Exchange Act, and a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Corporation within 90 days after receipt of such notice or after it becomes aware that DTC has ceased to be such a clearing agency.
Definitive Units exchanged for interests in Global Units pursuant to this Section 2.11 shall be denominated in the amounts and registered in the name of such Person or Persons as the Depositary shall instruct the Agent, the Warrant Agent and the Trustee, as appropriate.
Whenever Global Units are exchanged for Definitive Units the Agent
shall cause Schedule A of the Global Unit to be endorsed to reflect any decrease
in the Global Units as a result of such exchange, whereupon the Global Unit
Certificate or Certificates shall be canceled and disposed of in accordance with
Section 2.10.
ARTICLE 3
AUTOMATIC SEPARATION OF UNITS; TERMINATION OF UNIT AGREEMENT
SECTION 3.01. Automatic Separation of Units; Termination of Unit
Agreement. Prior to the Automatic Separation Date, the [list constituent
securities] shall be purchased and transferred only as Units. On the Automatic
Separation Date, the Units shall automatically separate into their constituent
[list constituent securities] and the Units will cease to exist. Each beneficial
owner of a Unit on the Automatic Separation Date shall become the owner of [list
number/amount of constituent securities], which may thereafter be transferred as
separate securities. Immediately upon the separation of the Units into their
constituent Securities, this Agreement shall terminate.
SECTION 3.02. Effect of Termination. If this Agreement is terminated as provided in Section 3.01, such termination shall be without liability of any party to any other party to this Agreement and the obligations of the Corporation with respect to the Units shall automatically cease upon the Automatic Separation Date and the Holders shall not have any claims with respect to the Units; provided that the provisions of Section 5.05 shall survive the termination hereof pursuant to Section 3.01 and provided, further, that the provisions of this Section shall not limit the ability of a Holder to enforce its rights in accordance with the proviso in Section 4.01.
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF UNITS
SECTION 4.01. Holder May Enforce Rights. Any Holder of a Unit may, without the consent of the Agent, the Depositary, any participant of the Depositary or any other Holder, in and for its own behalf, enforce, and may institute and maintain, any suit, action or proceeding against the Corporation suitable to enforce, or otherwise in respect of, its rights under this Agreement; provided that a Holder of a Unit may only enforce its rights under the Securities comprised by such Unit in accordance with the terms of the Indenture and the Warrant Agreement, as applicable.
ARTICLE 5
THE AGENT
SECTION 5.01. Certain Duties and Responsibilities. (a) The Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the Agent from liability for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that
(i) the duties and obligations of the Agent with respect to the Units shall be determined solely by the express provisions of this Agreement and the Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Agent; and
(ii) in the absence of bad faith on its part, the Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Agent and conforming to the requirements of this Agreement, but in the case of any such statements, certificates or opinions that by any provision hereof are specifically required to be furnished to the Agent, the Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement.
(c) The Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Agent, unless it shall be proved that the Agent was negligent in ascertaining the pertinent facts.
(d) No provision of this Agreement shall require the Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Agent shall be subject to the provisions of this Section.
(f) The Agent is acting solely as agent for the Corporation hereunder and owes no fiduciary duties to any person by virtue of this Agreement.
SECTION 5.02. Certain Rights of Agent. Subject to the provisions of
Section 5.01:
(a) the Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Corporation mentioned herein shall be sufficiently evidenced by an Officer's Certificate or Issuer Request and any resolution of the Board of Directors of the Corporation, as the case may be, may be sufficiently evidenced by a Board Resolution;
(c) the Agent may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel;
(d) the 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, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Agent, in its discretion, may make reasonable further inquiry or investigation into such facts or matters related to the issuance of the [constituent securities], as the case may be, and, if the Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Corporation, at reasonable times during normal business hours, personally or by agent or attorney;
(e) the Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Agent shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder; and
(f) the Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement.
SECTION 5.03. Not Responsible for Recitals or Issuance of Units. The recitals contained herein, in the Indenture, in the Warrant Agreement and in the Units, except the Trustee's and Warrant Agent's certificates of authentication or
countersignature, shall be taken as the statements of the Corporation, and none of the Trustee, Agent or the Warrant Agent assumes any responsibility for their correctness. The Agent makes no representations as to the validity or sufficiency of this Agreement or of the Units. None of the Trustee, Agent or the Warrant Agent shall be accountable for the use or application by the Corporation of the proceeds with respect to Units or be responsible for exercising any remedy hereunder on behalf of the Holders, except as expressly provided in this Agreement.
SECTION 5.04. May Hold Units. The Agent, the Trustee, the Warrant Agent, or any other agent of the Corporation, the Trustee, the Warrant Agent, or the Agent, in its individual or any other capacity, may become the owner or pledgee of Units and may otherwise deal with the Corporation and receive, collect, hold and retain collections from the Corporation with the same rights it would have if it were not such other agent, the Trustee, the Warrant Agent or the Agent.
SECTION 5.05. Compensation and Reimbursement. The Corporation agrees:
(a) to pay to the Agent from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law with regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Agent and any predecessor Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Agent in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Agent and any predecessor Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Agreement and its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Corporation under this Section to compensate and indemnify the Agent and any predecessor Agent and to pay or reimburse the Agent and any predecessor Agent for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the resignation or removal of such Agent or predecessor Agent or the termination hereof. Such additional indebtedness shall be a senior claim to that of the Units upon all property and funds held or collected by the Agent as such, except funds held in trust for the benefit of the Holders of particular Units, and the Units are hereby subordinated to such senior claim.
SECTION 5.06. Corporate Agent Required; Eligibility. There shall at all times be an Agent hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, having, together with its parent, a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal, State or District of Columbia authority and willing to act on reasonable terms. If such corporation, or its parent, publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Agent hereunder shall at all times be the Trustee under the Indenture and the Warrant Agent under the Warrant Agreement, subject to receipt of an Opinion of Counsel that the same Person is precluded by law from acting in such capacities. If at any time the Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. The Agent may appoint one or more sub-agents with offices or agencies in a city or cities outside the United States.
SECTION 5.07. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Agent and no appointment of a successor Agent pursuant to this Article shall become effective until the acceptance of appointment by the successor Agent in accordance with the applicable requirements of Section 5.08.
(b) The Agent may resign by giving written notice thereof to the Corporation and the Holders, in accordance with Section 7.06 and Section 7.07, 60 days prior to the effective date of such resignation. The Agent may be removed at any time upon 60 days' notice by the filing with it of an instrument in writing signed on behalf of the Corporation and specifying such removal and the date when it is intended to become effective. If the instrument of acceptance by a successor Agent required by Section 5.08 shall not have been delivered to the Agent within 30 days after the giving of such notice of resignation, the resigning Agent may petition any court of competent jurisdiction for the appointment of a successor Agent.
(c) If at any time
(i) the Agent shall cease to be eligible under Section 5.06, or shall cease to be eligible as Trustee under the Indenture or as Warrant Agent under the Warrant Agreement, and shall fail to resign after written request therefor by the Corporation or by any Holder, or
(ii) the Agent shall become incapable of acting with respect to the Units or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Agent or of its property shall be appointed or any public officer shall take charge or control of the Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Corporation, by Board Resolution, may remove the Agent and appoint a successor Agent, or (B) any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Agent and the appointment of a successor Agent or Agents. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Agent and appoint a successor Agent.
(d) If the Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Agent for any cause, the Corporation, by Board Resolution, shall promptly appoint a successor Agent or Agents (other than the Corporation) and shall comply with the applicable requirements of Section 5.08. If no successor Agent shall have been so appointed by the Corporation and accepted appointment in the manner required by Section 5.08, any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Agent.
(e) The Corporation shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent to all Holders of Units in accordance with
Section 7.07. Each notice shall include the name of the successor Agent and the
address of its Corporate Trust Office.
SECTION 5.08. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Agent, every such successor Agent so appointed shall execute, acknowledge and deliver to the Corporation and to the retiring Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Agent shall become effective and such successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring Agent, with like effect as if originally named as Agent hereunder; but, on the request of the Corporation or the successor Agent, such retiring Agent shall, upon payment of all amounts due and payable to it pursuant to Section 5.05, execute and deliver an instrument transferring to such successor Agent all the rights and powers of the retiring Agent and shall duly assign, transfer and deliver to such successor Agent all property and money held by such retiring Agent hereunder. Any retiring Agent shall, nonetheless, retain a prior claim upon all property or funds held or collected by such Agent to secure any amounts then due it pursuant to Section 5.05.
(b) Upon request of any such successor Agent, the Corporation shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Agent all such rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time of such acceptance such successor Agent shall be eligible under this Article.
(d) Upon acceptance of appointment by any successor Agent as provided in this Section, the Corporation shall give notice thereof to the Holders of Units in accordance with Section 7.07. If the acceptance of appointment is substantially contemporaneous with the resignation of the Agent, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.07. If the Corporation fails to give such notice within ten days after acceptance of appointment by the successor Agent, the successor Agent shall cause such notice to be given at the expense of the Corporation.
SECTION 5.09. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Agent shall be a party, or any corporation succeeding to all or substantially all the agency business of the Agent, shall be the successor of the Agent hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation shall be otherwise eligible under this Article.
[SECTION 5.10. Tax Compliance. (a) The Company will allocate __% of the issue price of the Units as premium for the Warrants, based on the relative fair market values of the Notes and the Warrants at the time of the issuance of the Units, and will allocate __% of the issue price of the Units to the Notes.]
(b) The Corporation by the issuance and sale of any Unit and any Holder of a Unit by his acceptance thereof agree to (in the absence of any applicable
administrative ruling or judicial determination to the contrary) treat the Securities that constitute any Unit as separate securities and to file all United States federal, state and local tax returns consistent with the treatment of such Unit as constituted by separate securities.
ARTICLE 6
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 6.01. Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions. The Corporation covenants that it will not merge or consolidate with any other corporation or sell or convey all or substantially all of its assets to any Person, firm or corporation, except that the Corporation may merge or consolidate with, or sell or convey all or substantially all of its assets to, any other corporation, provided that (i) the Corporation shall be the continuing corporation, or the successor corporation (if other than the Corporation) shall be a corporation organized and existing under the laws of the United States of America or a state thereof or the District of Columbia and such corporation shall assume the due and punctual performance and observance of all of the covenants and conditions of this Agreement to be performed by the Corporation by supplemental agreement in form satisfactory to the Agent executed and delivered to the Agent by such corporation, and (ii) neither the Corporation nor such successor corporation immediately after such merger or consolidation, or such sale or conveyance shall be in default in the performance of any such covenant or condition.
SECTION 6.02. Rights and Duties of Successor Corporation. In case of any such consolidation, merger, sale or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Corporation with the same effect as if it had been named herein as the Corporation. Such successor corporation thereupon may cause to be signed, and may issue (subject to the provisions of the Indenture and the Warrant Agreement) either in its own name or in the name of J.P. Morgan Chase & Co. any or all of the [list constituent securities] issuable hereunder which theretofore shall not have been signed by the Corporation and delivered to the Agent; and, upon the order of such successor corporation, instead of the Corporation, and subject to all the terms, conditions and limitations in this Agreement prescribed, the Trustee, the Warrant Agent and the Agent shall authenticate, countersign and deliver, as applicable, any [list constituent securities] that previously shall have been signed and delivered by the officers of the Corporation to the Trustee and the Warrant Agent for authentication and countersignature, and any [list constituent securities] evidencing Units which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee and the Warrant Agent for such purpose.
In case of any such consolidation, merger, sale, conveyance or lease such change in phraseology and form (but not in substance) may be made in the Unit Certificates thereafter to be issued as may be appropriate.
SECTION 6.03. Opinion of Counsel to Agent. The Agent subject to Sections 5.01 and 5.02 may receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance or lease, and any such assumption, complies with the provisions of this Article.
ARTICLE 7
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendments. (a) This Agreement and the terms of the Units may be amended (by means of an agreement supplemental hereto or otherwise) by the Corporation and the Agent, without the consent of the Holders, (i) for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein, (ii) to evidence and provide for the acceptance of appointment hereunder by a successor Agent with respect to the Units or (iii) in any other manner which the Corporation may deem necessary or desirable and which will not adversely affect the interests of the affected Holders.
(b) The Corporation and the Agent may modify or amend this Agreement (by means of an agreement supplemental hereto or otherwise) with the consent of Holders holding not less than a majority in number of the then outstanding Units for any purpose; provided, however, that no such modification or amendment that materially and adversely affects the exercise rights of the affected Holders or reduces the percentage of the number of outstanding Units, the consent of the Holders of which is required for modification or amendment of this Agreement, may be made without the consent of each Holder affected thereby. In the case of Units evidenced by one or more Global Unit Certificates, the Corporation and the Agent shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from holders of beneficial ownership interests in the relevant Global Unit Certificate. Such certification may be provided by participants of the Depositary acting on behalf of such beneficial owners of Units, provided that any such certification is accompanied by a certification from the Depositary as to the Unit holdings of such participants.
(c) Upon the request of the Corporation, accompanied by a copy of a Board Resolution (which Board Resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Officer's Certificate) authorizing the execution of any such amendment, and upon the filing with the Agent of evidence of the consent of Holders as aforesaid, the Agent shall join with the Corporation in the execution of such amendment unless such amendment affects the Agent's own rights, duties or immunities under this Agreement or otherwise, in which case the Agent may in its discretion, but shall not be obligated to, enter into such amendment. In executing, or accepting the additional duties created by, any amendment permitted by this Section, the Agent shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement. The fact and date of the execution of any consent of Holders, or the authority of the Person executing the same, may be proved in any manner which the Agent (with the approval of the Corporation) deems sufficient.
(d) It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof.
(e) The Corporation may set a record date for purposes of determining the identity of Holders of Units entitled to consent to any action by consent authorized or permitted hereby. Such record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of Units furnished to the Agent. The ownership of Units shall be proved by the Unit Register.
SECTION 7.02. Incorporators, Stockholders, Officers and Directors of the Corporation Immune from Liability. No recourse under or upon any obligation, covenant or agreement contained in this Agreement, or in any Warrant Agreement or any [list constituent securities], or because of any indebtedness evidenced thereby, shall be had against any incorporator, or against any past, present or future stockholder, officer, attorney-in-fact or director, as such, of the Corporation or of any successor corporation, either directly or through the Corporation or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or penalty or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Units by the Holders thereof and as part of the consideration for the issue thereof, provided that nothing in this Article shall impair the obligations, covenants and agreements of the Corporation contained in this Agreement and in any [list constituent securities] constituting a part of the Units.
SECTION 7.03. Compliance Certificates and Opinions. Except as otherwise expressly provided by this Agreement, upon any application or request by the Corporation to the Agent to take any action under any provision of this Agreement, the Corporation, as applicable, shall furnish to the Agent an Officer's Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such certificate or opinion has reached such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 7.04. Form of Documents Delivered to Agent. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate, statement or opinion of an officer or counsel of or for the Corporation may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion is based are erroneous. Any such certificate, statement or opinion may be based, insofar as it relates to factual matters, upon a certificate, statement or opinion of, or representations by, an officer or officers of the Corporation, as applicable, stating that the information with respect to such factual matters is in the possession of the Corporation, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need not, be consolidated and form one instrument.
SECTION 7.05. Maintenance of Office or Agency. So long as Units are authorized for issuance pursuant to this Agreement or are outstanding hereunder, the Corporation will maintain in the Borough of Manhattan, The City of New York, an office or agency where Units may be presented or surrendered for delivery, where Units may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Corporation in respect of Units and this Agreement may be served. The Corporation hereby initially designates the Agent as its office or agency in the Borough of Manhattan, The City of New York, for each of said purposes. The Corporation will give prompt written notice to the Agent of the location, and any change in the location, of such office or agency. If at any time the Corporation shall fail to maintain any such required office or agency or shall fail to furnish the Agent with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Agent, and the Corporation hereby appoints the Agent as its agent to receive all such presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more other offices or agencies where Units may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Corporation of its obligations to maintain offices or agencies provided for in this Section. The Corporation will give prompt written notice to the Agent of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 7.06. Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with,
(a) the Agent, by any Holder or by the Corporation shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, to the Agent at its Corporate Trust Office, Attention: Corporate Trustee Administration Department, or at any other address previously furnished in writing by the Agent to the Holders and the Corporation, or
(b) the Corporation by the Agent or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, addressed to the Corporation at 270 Park Avenue, New York, New York 10017-2070, Attention: Corporate Secretary, or at any other address previously furnished in writing to the Agent by the Corporation.
SECTION 7.07. Notices to Holders; Waiver. The Corporation may cause notice to be given to the Holders by providing the Agent with a form of notice to be distributed by (a) in the case of Definitive Units, the Agent to the Holders by first class mail, or (b) in the case of Global Units, the Depositary to its participants in accordance with the custom and practices of the Depositary. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 7.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 7.09. Successors and Assigns. All covenants and agreements in this Agreement, the Units and the Unit Certificates by the Corporation shall bind its successors and assigns, whether so expressed or not.
SECTION 7.10. Separability Clause. In case any provision in this Agreement or in the Units, Unit Certificates or [list constituent securities] shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
SECTION 7.11. Benefits of Agreement. Nothing in this Agreement or in the Units, Unit Certificates, the Indenture, the Warrant Agreement, [list constituent securities], express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefits or any legal or equitable right, remedy or claim under this Agreement. The Holders from time to time shall be bound by all of the terms and conditions hereof and of the Indenture, the Units, the Warrant Agreement, [list constituent securities] evidenced by the Units, by their acceptance of delivery of such Units.
SECTION 7.12. Governing Law. This Agreement, the Units, the Unit Certificate and [list constituent securities] shall be governed and construed in accordance with the laws of the State of New York.
SECTION 7.13. Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
SECTION 7.14. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office of the Agent for inspection by any Holder.
IN WITNESS WHEREOF, the Corporation, the Agent, the Trustee and the Warrant Agent have duly executed this Agreement as of the day and year first above set forth.
J.P. MORGAN CHASE & CO.
By: ______________________________
Name:
Title:
[ ],
as Agent
By: ______________________________
Name:
Title:
[ ],
as Trustee and Paying Agent under the
Indenture
By:_______________________________
Name:
Title:
[ ],
as Warrant Agent under the Warrant
Agreement
By: ______________________________
Name:
Title:
EXHIBIT A
[[FORM OF UNIT CERTIFICATE]
[FACE]
[IF THE UNIT CERTIFICATE IS TO BE A GLOBAL UNIT CERTIFICATE,
INSERT--This Unit Certificate is a global Unit Certificate within the meaning of the Unit Agreement hereinafter referred to and is registered in the name of The Depository Trust Company (the "Depositary") or a nominee of the Depositary. Unless and until it is exchanged in whole or in part for Units in definitive registered form, this Unit Certificate may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary).
Unless this Unit Certificate is presented by an authorized representative of The Depositary (55 Water Street, New York) to J.P. Morgan Chase & Co. or its agent for registration of transfer, exchange or payment, and any Unit issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary and any payment hereon is made to Cede & Co. or such other entity as is requested by an authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
UNIT CERTIFICATE
(issuable in integral multiples of ________ Units)
CUSIP No. _________
Certificate No. _____Number of Units _________
This Unit Certificate certifies that ______________________ (the "Holder"), or registered assigns, is the registered owner of [ ( ) Units].
Each Unit represents ownership by the Holder of __________.
[INSERT NOTE AND WARRANT CERTIFICATE, AS APPLICABLE]
Reference is hereby made to the further provisions of this certificate set forth on the succeeding pages hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
[IF UNIT IS A DEFINITIVE UNIT, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Unit(s) represented by this Certificate to:
_________________ (Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Unit Certificate on the books of the Corporation. The agent may substitute another to act for him or her.
Date:
Signature(s):
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.]
Exhibit 5
[Letterhead of J.P. Morgan Chase & Co.]
June 13, 2001
J.P. Morgan Chase & Co.
270 Park Avenue
New York, NY 10017-2070
Re: J.P. Morgan Chase & Co.
Registration Statement on Form S-3
Dear Sir or Madame:
I am a Senior Vice President and Associate General Counsel of J.P. Morgan Chase & Co., a Delaware corporation ("J.P. Morgan Chase") and in such capacity am acting as counsel in connection with J.P. Morgan Chase's Registration Statement on Form S-3 (as it may be amended or supplemented from time to time, the "Registration Statement") being filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act") with respect to $1,000,000,000 aggregate initial offering price of the following securities (collectively, the "Securities"): (i) debt securities ("Debt Securities"), (ii) warrants to purchase Debt Securities ("Debt Warrants"), to receive cash determined by reference to an index or indices ("Index Warrants"), to receive cash determined by reference to currencies ("Currency Warrants"), to receive cash determined by reference to interest rates ("Interest Rate Warrants"), or to purchase or sell (a) securities of an entity other than J.P. Morgan Chase, a basket of such securities or commodities, or (b) receive cash determined by reference to any other financial, economic or other measure or instrument including the occurrence or non-occurrence of any other event or circumstance, any combination of the above ("Universal Warrants," and together with Debt Warrants, Index Warrants, Currency Warrants and Interest Rate Warrants, the "Warrants") and (iii) Debt Securities and Warrants or any combination thereof that may be offered in the form of Units ("Units").
The Debt Securities, if any, are to be issued from time to time as senior indebtedness of J.P. Morgan Chase under an indenture (the "Indenture") to be entered into between J.P. Morgan Chase and Bankers Trust Company, as trustee (the "Trustee"). The Debt Warrants, if any, will be issued under a debt warrant agreement to be entered into between J.P. Morgan Chase and a debt warrant agent (the "Debt Warrant Agreement"). The Index Warrants, if any, will be issued under an index warrant agreement to be entered into between J.P. Morgan Chase and an index warrant agent (the "Index Warrant Agreement"). The Currency
Warrants, if any, will be issued under a currency warrant agreement to be entered into between J.P. Morgan Chase and a currency warrant agent (the "Currency Warrant Agreement"). The Interest Rate Warrants, if any, will be issued under an interest rate warrant agreement to be entered into between J.P. Morgan Chase and an interest rate warrant agent (the "Interest Rate Warrant Agreement"). The Universal Warrants, if any, will be issued under a universal warrant agreement to be entered into between J.P. Morgan Chase and a universal warrant agent (the "Universal Warrant Agreement"). The Units, if any, will be issued under a unit agreement to be entered into between J.P. Morgan Chase and a unit agent (the "Unit Agreement"). The forms of the Indenture, the Debt Warrant Agreement, the Index Warrant Agreement, the Currency Warrant Agreement, the Interest Rate Warrant Agreement, the Universal Warrant Agreement, the Unit Agreement and the Securities are filed as exhibits to the Registration Statement.
I have examined originals or copies, certified or otherwise identified to my satisfaction, of such documents, corporate records, certificates of public officials and other instruments as I have deemed necessary for the purposes of rendering this opinion.
Based upon the foregoing, I am of the opinion that:
1. When the Indenture and any supplemental indenture to be entered into in connection with the issuance of Debt Securities have been duly authorized, executed and delivered by J.P. Morgan Chase and the Trustee, the specific terms of a particular Debt Security have been duly authorized and established in accordance with the Indenture, and such Debt Security has been duly authorized, executed, authenticated, issued and delivered against payment therefor in accordance with the Indenture and the underwriting or other agreement, such Debt Security will constitute a valid and binding obligation of J.P. Morgan Chase, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, fraudulent conveyance (or transfer) or other similar laws affecting creditors' rights generally and (b) general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law).
2. When the applicable warrant agreement or Unit Agreement, as the case may be, to be entered into in connection with the issuance of Warrants or Units, has been duly authorized, executed and delivered by J.P. Morgan Chase and the warrant agent or unit agent, as the case may be, the specific terms of a particular Warrant or Unit have been duly authorized and established in accordance with the applicable warrant agreement or Unit Agreement, as the case may be, and such Warrants or Units have been duly authorized, executed, issued and delivered against payment therefor in accordance with the applicable warrant agreement or Unit Agreement, as the case may be, and the applicable underwriting
or other agreement, all corporate action on the part of J.P. Morgan Chase will have been taken to authorize the issuance and sale of such Warrants or Units proposed to be sold by J.P. Morgan Chase and such Warrants or Units will constitute valid and binding obligations of J.P. Morgan Chase, enforceable in accordance with their terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, fraudulent conveyance (or transfer) or other similar laws affecting creditors' rights generally and (b) general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law).
In connection with the opinions expressed above, I have assumed that, at or prior to the time of the delivery of any such Security, (i) the Board of Directors or a duly constituted committee duly authorized by the Board of Directors shall have duly established the terms of such Security and duly authorized the issuance and sale of such Security and such authorization shall not have been modified or rescinded; (ii) the Board of Directors, or a duly constituted committee duly authorized by the Board of Directors, shall have duly authorized the execution and delivery of the Indenture and any supplemental indenture or the applicable warrant agreement or unit agreement, as the case may be, and such authorization shall not have been modified or rescinded; (iii) the Registration Statement shall have been declared effective and such effectiveness shall not have been terminated or rescinded; and (iv) there shall not have occurred any change in law affecting the validity or enforceability of such Security. I have also assumed that none of the terms of any Security to be established subsequent to the date hereof, nor the issuance and delivery of such Security, nor the compliance by J.P. Morgan Chase with the terms of such Security will violate any applicable law or will result in a violation of any provision of any instrument or agreement then binding upon J.P. Morgan Chase, or any restriction imposed by any court or governmental body having jurisdiction over J.P. Morgan Chase.
I am a member of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In addition, I consent to the reference to me under the caption "Legal Matters" in the prospectus.
This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by or furnished to any other person without my prior written consent.
Very truly yours,
/s/ Neila B. Radin ----------------------------- Neila B. Radin Senior Vice President and Associate General Counsel |
Exhibit 12.2
J.P. MORGAN CHASE & CO.
HISTORICAL PRO FORMA COMBINED RATIOS
OF EARNINGS TO FIXED CHARGES
1999 1998 1997 1996
-------- -------- -------- --------
(unaudited)
(in millions, except ratios)
Excluding Interest on Deposits
Income before income taxes $ 11,489 $ 7,347 $ 8,064 $ 6,143
-------- -------- -------- --------
Fixed charges:
Interest expense $ 12,077 $ 15,420 $ 14,765 $ 12,001
One-third of rents, net of income
from subleases 176 163 137 148
-------- -------- -------- --------
Total fixed charges 12,253 15,583 14,902 12,149
Less: Equity in undistributed income
of affiliates (146) (112) (107) (89)
-------- -------- -------- --------
Earnings before taxes and fixed
charges $ 23,596 $ 22,818 $ 22,859 $ 18,203
======== ======== ======== ========
Fixed charges, as above $ 12,253 $ 15,583 $ 14,902 $ 12,149
======== ======== ======== ========
Ratio of earnings to fixed charges 1.93 1.46 1.53 1.50
======== ======== ======== ========
Including Interest on Deposits
Fixed charges, as above $ 12,253 $ 15,583 $ 14,902 $ 12,149
Add: Interest on deposits 8,845 9,663 9,314 8,579
-------- -------- -------- --------
Total fixed charges and interest on
deposits $ 21,098 $ 25,246 $ 24,216 $ 20,728
======== ======== ======== ========
Earnings before taxes and fixed
charges, as above $ 23,596 $ 22,818 $ 22,859 $ 18,203
Add: Interest on deposits 8,845 9,663 9,314 8,579
-------- -------- -------- --------
Total earnings before taxes, fixed
charges & int. on dep. $ 32,441 $ 32,481 $ 32,173 $ 26,782
======== ======== ======== ========
Ratio of earnings to fixed charges 1.54 1.29 1.33 1.29
======== ======== ======== ========
|
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of J.P. Morgan Chase & Co. of our report dated January 16, 2001 relating to the financial statements, which appears in J.P. Morgan Chase & Co.'s Annual Report on Form 10-K for the year ended December 31, 2000. We also consent to the references to us under the headings "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
New York, New York
June 13, 2001
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Hans W. Becherer -------------------------- Hans W. Becherer Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Riley P. Bechtel -------------------------------- Riley P. Bechtel Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Frank A. Bennack, Jr. -------------------------------- Frank A. Bennack, Jr. Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Lawrence A. Bossidy -------------------------------- Lawrence A. Bossidy Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ M. Anthony Burns ------------------------------- M. Anthony Burns Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ H. Laurance Fuller --------------------------------- H. Laurance Fuller Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Ellen V. Futter -------------------------------- Ellen V. Futter Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ William H. Gray III -------------------------------- William H. Gray III Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Helene L. Kaplan ---------------------------------- Helene L. Kaplan Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Lee R. Raymond ---------------------------------- Lee R. Raymond Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ John R. Stafford ------------------------------- John R. Stafford Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Lloyd D. Ward ---------------------------------- Lloyd D. Ward Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Marina v.N. Whitman --------------------------------- Marina v.N. Whitman Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ William B. Harrison, Jr. ---------------------------------- William B. Harrison, Jr. President, Chief Executive Officer and Director (Principal Executive Officer) |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Douglas A. Warner III ---------------------------------- Douglas A. Warner III Chairman of the Board and Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, in his or her
capacity as an officer or director of J.P. Morgan Chase & Co., a Delaware
corporation (the "Corporation"), hereby constitutes and appoints DOUGLAS A.
WARNER III, WILLIAM B. HARRISON JR., MARC J. SHAPIRO, DINA DUBLON, WILLIAM H.
MCDAVID, DAVID EDELSON, INA DREW, JOHN C. WILMOT, GLENN HAVLICEK and ANTHONY J.
HORAN, and each of them severally, his or her true and lawful attorneys-in-fact
and agents, with full power to act with or without the others and with full
power of substitution and resubstitution, for and on behalf of him or her and
in his or her name, place and stead, in any and all capacities, to perform any
and all acts and do all things and to execute any and all instruments which
said attorneys-in-fact and agents and each of them may deem necessary or
desirable to enable the Corporation to comply with the Securities Act of 1933
(the "Act"), and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") thereunder in connection with the filing of the
accompanying registration statement under the Act for the registration of debt
securities, warrants and units of the Corporation pursuant to resolutions
adopted by the Board of Directors of the Corporation on April 17, 2001,
authorizing the preparation and filing of a shelf registration statement on
Form S-3 pursuant to Rule 415 under the Act, for the offer and sale of debt
securities, warrants and units of the Corporation, including without
limitation, (i) debt securities, (ii) warrants that may entitle the holder (A)
to purchase debt securities registered thereby, (B) to receive cash determined
by reference to an index or indicies, (C) to receive cash determined by
reference to currencies, (D) to receive cash determined by reference to
interest rates, or (E)(1) to purchase or sell securities of an entity other
than the Corporation, a basket of such securities or commodities, or (2) to
receive cash determined by reference to any other financial, economic or other
measure or instrument including the occurrence or non-occurrence of any other
event or circumstance, or any combination of the above, (iii) units consisting
of one or more warrants and debt securities or any combination thereof, or (iv)
other securities of the Corporation, in any combination thereof (the
"Securities"), including without limiting the generality of the foregoing,
power and authority to sign the name of the undersigned director or officer or
both in such capacity or capacities, to such registration statement including
without limitation, the prospectuses and prospectus supplements contained
therein, and any and all amendments, including post-effective amendments, and
exhibits thereto, and, if appropriate a second registration statement that will
become effective upon filing pursuant to Rule 462(b) under the Act (the
"Registration Statements") to be filed with the SEC with respect to such
Securities, and to sign any and all instruments or documents to be filed as a
part of or in connection with said Registration Statements or any and all
amendments thereto, whether such instruments or documents are filed before or
after the effective date of such Registration Statements, and to appear before
the SEC in connection with any matter relating thereto, hereby granting to such
attorneys-in-fact and agents, and each of them, full power to do and perform
any and all acts and things requisite and necessary to be done in connection
therewith as the undersigned might or could do in person, and hereby ratifying
and confirming all that said attorneys-in-fact and agents and each of them may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney as of April 17, 2001.
/s/ Marc J. Shapiro --------------------------------- Marc J. Shapiro (Principal Financial Officer) |
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
-----------------------------------------------------------
|
J.P Morgan Chase & Co.
(Exact name of Registrant as specified in its charter)
Delaware 13-2624428
(State or other jurisdiction or organization) (IRS Employer Identification no.)
270 Park Avenue
New York, NY 10017-2070
(212) 270-6000
|
(Address, including zip code and telephone number of principal executive offices)
Debt Securities Warrants
Units
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which it is subject.
Name Address Federal Reserve Bank (2nd District) New York, NY Federal Deposit Insurance Corporation Washington, D.C. New York State Banking Department Albany, NY |
(b) Whether it is authorized to exercise corporate trust powers. Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust Company dated August 6, 1998, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998, and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 16, 1998, copies attached.
Exhibit 2 - Certificate of Authority to commence business - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate trust powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended on June 22, 1999. Copy attached.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section 321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust Company dated as of March 31, 2001. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bankers Trust Company, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 17th day of May, 2001.
BANKERS TRUST COMPANY
/s/ Carol Ng
-----------------------
By: Carol Ng
Vice President
|
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law," dated September 16, 1998, providing for an increase in authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New York,
RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
Under Section 8007 Of the Banking Law
Bankers Trust Company 130 Liberty Street New York, N.Y. 10006
Counterpart Filed in the Office of the Superintendent of Banks, State of New York, August 31, 1998
RESTATED ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and an Assistant Secretary and a Vice President and an Assistant Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by the Superintendent of Banks of the State of New York on March 5, 1903.
3. The text of the organization certificate, as amended heretofore, is hereby restated without further amendment or change to read as herein-set forth in full, to wit:
"Certificate of Organization of Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A. Blair, James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A. Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H. Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C. Young, all being persons of full age and citizens of the United States, and a majority of us being residents of the State of New York, desiring to form a corporation to be known as a Trust Company, do hereby associate ourselves together for that purpose under and pursuant to the laws of the State of New York, and for such purpose we do hereby, under our respective hands and seals, execute and duly acknowledge this Organization Certificate in duplicate, and hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers Trust Company.
II. The place where its business is to be transacted is the City of New York, in the State of New York.
III. Capital Stock: The amount of capital stock which the corporation is hereafter to have is Three Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.
(a) Common Stock
1. Dividends: Subject to all of the rights of the Series Preferred Stock, dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the corporation legally available for the payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with respect to the Series Preferred Stock or with respect to any series of the Series Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, each holder of the Common Stock being entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, and after the holders of the Series Preferred Stock of each series shall have been paid in full the amounts to which they respectively shall be entitled, or a sum sufficient for the payment in full set aside, the remaining net assets of the corporation shall be distributed pro rata to the holders of the Common Stock in accordance with their respective rights and interests, to the exclusion of the holders of the Series Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall be entitled, as such, as a matter of right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time to time by the Board of Directors as herein provided in one or more series. The designations, relative rights, preferences and limitations of the Series Preferred Stock, and particularly of the shares of each series thereof, may, to the extent permitted by law, be similar to or may differ from those of any other series. The Board of Directors of the corporation is hereby expressly granted authority, subject to the provisions of this Article III, to issue from time to time Series Preferred Stock in one or more series and to fix from time to time before issuance thereof, by filing a certificate pursuant to the Banking Law, the number of shares in each such series of such class and all designations, relative rights (including the right, to the extent permitted by law, to convert into shares of any class or into shares of any series of any class), preferences and limitations of the shares in each such series, including, buy without limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which number may at any time, or from time to time, be increased or decreased by the Board of Directors, notwithstanding that shares of the series may be outstanding at the time of such increase or decrease, unless the Board of Directors shall have otherwise provided in creating such series) and the distinctive designation thereof;
(ii) The dividend rate on the shares of such series, whether or not dividends on the shares of such series shall be cumulative, and the date or dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the share of such series shall be redeemable, and, if redeemable, the date or dates upon or after which they shall be redeemable, the amount or
amounts per share (which shall be, in the case of each share, not less than its preference upon involuntary liquidation, plus an amount equal to all dividends thereon accrued and unpaid, whether or not earned or declared) payable thereon in the case of the redemption thereof, which amount may vary at different redemption dates or otherwise as permitted by law;
(iv) The right, if any, of holders of shares of such series to convert the same into, or exchange the same for, Common Stock or other stock as permitted by law, and the terms and conditions of such conversion or exchange, as well as provisions for adjustment of the conversion rate in such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series upon the voluntary and involuntary liquidation, dissolution or winding up of the corporation;
(vi) Whether the holders of shares of such series shall have voting power, full or limited, in addition to the voting powers provided by law and, in case additional voting powers are accorded, to fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and any qualifications, limitations or restrictions of such rights and privileges of such series, provided, however, that no such rights, privileges, qualifications, limitations or restrictions shall be in conflict with the organization certificate of the corporation or with the resolution or resolutions adopted by the Board of Directors providing for the issue of any series of which there are shares outstanding.
All shares of Series Preferred Stock of the same series shall be identical in all respects, except that shares of any one series issued at different times may differ as to dates, if any, from which dividends thereon may accumulate. All shares of Series Preferred Stock of all series shall be of equal rank and shall be identical in all respects except that to the extent not otherwise limited in this Article III any series may differ from any other series with respect to any one or more of the designations, relative rights, preferences and limitations described or referred to in subparagraphs (I) to (vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock of each series shall be declared and paid or set apart for payment before any dividends shall be declared and paid or set apart for payment on the Common Stock with respect to the same quarterly dividend period. Dividends on any shares of Series Preferred Stock shall be cumulative only if and to the extent set forth in a certificate filed pursuant to law. After dividends on all shares of Series Preferred Stock (including cumulative dividends if and to the extent any such shares shall be entitled thereto) shall have been declared and paid or set apart for payment with respect to any quarterly dividend period, then and not otherwise so long as any shares of Series Preferred Stock shall remain outstanding, dividends may be declared and paid or set apart for payment with respect to the same quarterly dividend period on the Common Stock out the assets or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal rank, preference and priority as to dividends irrespective of whether or not the rates of dividends to which the same shall be entitled shall be the same and when the stated dividends are not paid in full, the shares of all series of the Series Preferred Stock shall share ratably in the payment thereof in accordance with the sums which would be payable on such shares if all dividends were paid in full, provided, however, that any two or more series of the Series Preferred Stock may differ from each other as to the existence and extent of the right to cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the certificate filed pursuant to law with respect to any series of the Series Preferred Stock, or as otherwise provided by law, the Series Preferred Stock shall not have any right to vote for the election of directors or for any other purpose and the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, each series of Series Preferred Stock shall have preference and priority over the Common Stock for payment of the amount to which each outstanding series of Series Preferred Stock shall be entitled in accordance with the provisions thereof and each holder of Series Preferred Stock shall be entitled to be paid in full such amount, or have a sum sufficient for the payment in full set aside, before any payments shall be made to the holders of the Common Stock. If, upon liquidation, dissolution or winding up of the corporation, the assets of the corporation or proceeds thereof, distributable among the holders of the shares of all series of the Series Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid, then such assets, or the proceeds thereof, shall be distributed among such holders ratably in accordance with the respective amounts which would be payable if all amounts payable thereon were paid in full. After the payment to the holders of Series Preferred Stock of all such amounts to which they are entitled, as above provided, the remaining assets and funds of the corporation shall be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any series
shall be made redeemable as provided in clause (iii) of paragraph 1 of section
(b) of this Article III, the corporation, at the option of the Board of
Directors, may redeem at any time or times, and from time to time, all or any
part of any one or more series of Series Preferred Stock outstanding by paying
for each share the then applicable redemption price fixed by the Board of
Directors as provided herein, plus an amount equal to accrued and unpaid
dividends to the date fixed for redemption, upon such notice and terms as may
be specifically provided in the certificate filed pursuant to law with respect
to the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the corporation shall be entitled, as such, as a matter or right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock, Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established hereby shall be "Floating Rate Non-Cumulative Preferred Stock, Series A" (hereinafter called "Series A Preferred Stock").
2. Number: The number of shares of Series A Preferred Stock shall initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased or otherwise acquired by the corporation shall be cancelled and shall revert to authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock shall be entitled to receive non-cumulative cash dividends when, as and if declared by the Board of Directors of the corporation, out of funds legally available therefor, from the date of original
issuance of such shares (the "Issue Date") and such dividends will be payable on March 28, June 28, September 28 and December 28 of each year ("Dividend Payment Date") commencing September 28, 1990, at a rate per annum as determined in paragraph 3(b) below. The period beginning on the Issue Date and ending on the day preceding the first Dividend Payment Date and each successive period beginning on a Dividend Payment Date and ending on the date preceding the next succeeding Dividend Payment Date is herein called a "Dividend Period". If any Dividend Payment Date shall be, in The City of New York, a Sunday or a legal holiday or a day on which banking institutions are authorized by law to close, then payment will be postponed to the next succeeding business day with the same force and effect as if made on the Dividend Payment Date, and no interest shall accrue for such Dividend Period after such Dividend Payment Date.
(b) Dividend Rate. The dividend rate from time to time payable in respect of Series A Preferred Stock (the "Dividend Rate") shall be determined on the basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the basis of the offered rates for deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date, as such rates appear on the Reuters Screen LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in respect of such Dividend Determination Dates will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such offered rates. If fewer than those offered rates appear, LIBOR in respect of such Dividend Determination Date will be determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those offered rates for the applicable maturity appear on the Reuters Screen LIBO Page as specified in paragraph (I) above, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time are offered by three major banks in the London interbank market selected by the corporation at approximately 11:00 A.M., London time, on such Dividend Determination Date to prime banks in the London market. The corporation will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such quotations. If fewer than two quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of the rates quoted by three major banks in New York City selected by the corporation at approximately 11:00 A.M., New York City time, on such Dividend Determination Date for loans in U.S. dollars to leading European banks having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the corporation are not quoting as aforementioned in this sentence, then, with respect to such Dividend Period, LIBOR for the preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(iii) The Dividend Rate for any Dividend Period shall be equal to the lower of 18% or 50 basis points above LIBOR for such Dividend Period as LIBOR is determined by sections (I) or (ii) above.
As used above, the term "Dividend Determination Date" shall mean, with respect to any Dividend Period, the second London Business Day prior to the commencement of such Dividend Period; and
the term "London Business Day" shall mean any day that is not a Saturday or Sunday and that, in New York City, is not a day on which banking institutions generally are authorized or required by law or executive order to close and that is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock shall have the voting power and rights set forth in this paragraph 4 and shall have no other voting power or rights except as otherwise may from time to time be required by law.
So long as any shares of Series A Preferred Stock remain outstanding, the corporation shall not, without the affirmative vote or consent of the holders of at least a majority of the votes of the Series Preferred Stock entitled to vote outstanding at the time, given in person or by proxy, either in writing or by resolution adopted at a meeting at which the holders of Series A Preferred Stock (alone or together with the holders of one or more other series of Series Preferred Stock at the time outstanding and entitled to vote) vote separately as a class, alter the provisions of the Series Preferred Stock so as to materially adversely affect its rights; provided, however, that in the event any such materially adverse alteration affects the rights of only the Series A Preferred Stock, then the alteration may be effected with the vote or consent of at least a majority of the votes of the Series A Preferred Stock; provided, further, that an increase in the amount of the authorized Series Preferred Stock and/or the creation and/or issuance of other series of Series Preferred Stock in accordance with the organization certificate shall not be, nor be deemed to be, materially adverse alterations. In connection with the exercise of the voting rights contained in the preceding sentence, holders of all series of Series Preferred Stock which are granted such voting rights (of which the Series A Preferred Stock is the initial series) shall vote as a class (except as specifically provided otherwise) and each holder of Series A Preferred Stock shall have one vote for each share of stock held and each other series shall have such number of votes, if any, for each share of stock held as may be granted to them.
The foregoing voting provisions will not apply if, in connection with the matters specified, provision is made for the redemption or retirement of all outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this Article III, upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, the holders of the Series A Preferred Stock shall have preference and priority over the Common Stock for payment out of the assets of the corporation or proceeds thereof, whether from capital or surplus, of $1,000,000 per share (the "liquidation value") together with the amount of all dividends accrued and unpaid thereon, and after such payment the holders of Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this Article III, Series A Preferred Stock may be redeemed, at the option of the corporation in whole or part, at any time or from time to time at a redemption price of $1,000,000 per share, in each case plus accrued and unpaid dividends to the date of redemption.
At the option of the corporation, shares of Series A Preferred Stock redeemed or otherwise acquired may be restored to the status of authorized but unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such redemption to the holders of the Series A Preferred Stock to be redeemed in the following manner: a notice specifying the shares to be redeemed and the time and place of redemption (and, if less than the total outstanding shares are to be redeemed, specifying the certificate numbers and number of shares to be redeemed) shall be mailed by first class mail, addressed to the holders of record of the
Series A Preferred Stock to be redeemed at their respective addresses as the same shall appear upon the books of the corporation, not more than sixty (60) days and not less than thirty (30) days previous to the date fixed for redemption. In the event such notice is not given to any shareholder such failure to give notice shall not affect the notice given to other shareholders. If less than the whole amount of outstanding Series A Preferred Stock is to be redeemed, the shares to be redeemed shall be selected by lot or pro rata in any manner determined by resolution of the Board of Directors to be fair and proper. From and after the date fixed in any such notice as the date of redemption (unless default shall be made by the corporation in providing moneys at the time and place of redemption for the payment of the redemption price) all dividends upon the Series A Preferred Stock so called for redemption shall cease to accrue, and all rights of the holders of said Series A Preferred Stock as stockholders in the corporation, except the right to receive the redemption price (without interest) upon surrender of the certificate representing the Series A Preferred Stock so called for redemption, duly endorsed for transfer, if required, shall cease and terminate. The corporation's obligation to provide moneys in accordance with the preceding sentence shall be deemed fulfilled if, on or before the redemption date, the corporation shall deposit with a bank or trust company (which may be an affiliate of the corporation) having an office in the Borough of Manhattan, City of New York, having a capital and surplus of at least $5,000,000 funds necessary for such redemption, in trust with irrevocable instructions that such funds be applied to the redemption of the shares of Series A Preferred Stock so called for redemption. Any interest accrued on such funds shall be paid to the corporation from time to time. Any funds so deposited and unclaimed at the end of two (2) years from such redemption date shall be released or repaid to the corporation, after which the holders of such shares of Series A Preferred Stock so called for redemption shall look only to the corporation for payment of the redemption price.
IV. The name, residence and post office address of each member of the corporation are as follows:
Name Residence Post Office Address
----
James A. Blair 9 West 50th Street, 33 Wall Street,
Manhattan, New York City Manhattan, New York City
James G. Cannon 72 East 54th Street, 14 Nassau Street,
Manhattan New York City Manhattan, New York City
E. C. Converse 3 East 78th Street, 139 Broadway,
Manhattan, New York City Manhattan, New York City
Henry P. Davison Englewood, 2 Wall Street,
New Jersey Manhattan, New York City
Granville W. Garth 160 West 57th Street, 33 Wall Street
Manhattan, New York City Manhattan, New York City
A. Barton Hepburn 205 West 57th Street 83 Cedar Street
Manhattan, New York City Manhattan, New York City
William Logan Montclair, 13 Nassau Street
New Jersey Manhattan, New York City
George W. Perkins Riverdale, 23 Wall Street,
New York Manhattan, New York City
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William H. Porter 56 East 67th Street 270 Broadway,
Manhattan, New York City Manhattan, New York City
John F. Thompson Newark, 143 Liberty Street,
New Jersey Manhattan, New York City
Albert H. Wiggin 42 West 49th Street, 214 Broadway,
Manhattan, New York City Manhattan, New York City
Samuel Woolverton Mount Vernon, 34 Wall Street,
New York Manhattan, New York City
Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place,
Jersey City, New Jersey Jersey City, New Jersey
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V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each for himself does, hereby declare that he will accept the responsibilities and faithfully discharge the duties of a director therein, if elected to act as such, when authorized accordance with the provisions of the Banking Law of the State of New York.
VII. The number of directors of the corporation shall not be less than 10 nor more than 25."
4. The foregoing restatement of the organization certificate was authorized by the Board of Directors of the corporation at a meeting held on July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th day of August, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th day of August, 1998.
Managing Director and Secretary
State of New York )
) ss:
County of New York )
|
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
Sworn to before me this
6th day of August, 1998.
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law," dated August 6, 1998, providing for the restatement of the Organization Certificate and all amendments into a single certificate.
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.
4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 25th day of September, 1998
Managing Director and Secretary
Lea Lahtinen
---------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
|
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
Sworn to before me this 25th day
of September, 1998
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under
Section 8005 of the Banking Law," dated December 16, 1998, providing for an
increase in authorized capital stock from $3,501,666,670 consisting of
200,166,667 shares with a par value of $10 each designated as Common Stock and
1,500 shares with a par value of $1,000,000 each designated as Series Preferred
Stock to $3,627,308,670 consisting of 212,730,867 shares with a par value of
$10 each designated as Common Stock and 1,500 shares with a par value of
$1,000,000 each designated as Series Preferred Stock.
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.
4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred Sixty-Seven (212,730,867) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 16th day of December, 1998
Managing Director and Secretary
Lea Lahtinen
---------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
|
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
Sworn to before me this 16th day
of December, 1998
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 2000
BY-LAWS
JUNE 22, 1999
Bankers Trust Corporation
(Incorporated under the New York Business Corporation Law)
1
BANKERS TRUST CORPORATION
BY-LAWS
ARTICLE I
SHAREHOLDERS
SECTION 1.01 Annual Meetings. The annual meetings of shareholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held on the third Tuesday in April of each year, if not a legal holiday, and if a legal holiday then on the next succeeding business day, at such hour as shall be designated by the Board of Directors. If no other hour shall be so designated such meeting shall be held at 3 P.M.
SECTION 1.02 Special Meetings. Special meetings of the shareholders, except those regulated otherwise by statute, may be called at any time by the Board of Directors, or by any person or committee expressly so authorized by the Board of Directors and by no other person or persons.
SECTION 1.03 Place of Meetings. Meetings of shareholders shall be held at such place within or without the State of New York as shall be determined from time to time by the Board of Directors or, in the case of special meetings, by such person or persons as may be authorized to call a meeting. The place in which each meeting is to be held shall be specified in the notice of such meeting.
SECTION 1.04 Notice of Meetings. A copy of the written notice of the place, date and hour of each meeting of shareholders shall be given personally or by mail, not less than ten nor more than fifty days before the date of the meeting, to each shareholder entitled to vote at such meeting. Notice of a special meeting shall indicate that it is being issued by or at the direction of the person or persons calling the meeting and shall also state the purpose or purposes for which the meeting is called. Notice of any meeting at which is proposed to take action which would entitle shareholders to receive payment for their shares pursuant to statutory provisions must include a statement of that purpose and to that effect. If mailed, such notices of the annual and each special meeting are given when deposited in the United States mail, postage prepaid, directed to the shareholder at his address as it appears in the record of shareholders unless he shall have filed with the Secretary of the corporation a written request that notices intended for him shall be mailed to some other address, in which case it shall be directed to him at such other address.
SECTION 1.05 Record Date. For the purpose of determining the shareholders entitled to notice of or to vote any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the Board of Directors may fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than fifty nor less than ten days before the date of such meeting, nor more than fifty days prior to any other action.
SECTION 1.06 Quorum. The presence, in person or by proxy, of the holders of a majority of the shares entitled to vote thereat shall constitute a quorum at a meeting of shareholders for the transaction of business, except as otherwise provided by statute, by the Certificate of Incorporation or by the By-Laws. The shareholders present in person or by proxy and entitled to vote at any meeting, despite the absence of a quorum, shall have power to adjourn the meeting from time to time, to a designated time and place, without notice other than by announcement at the meeting, and at any adjourned meeting any business may be transacted that might have been transacted on the original date of the meeting. However, if after the adjournment the Board of Directors fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to notice.
SECTION 1.07 Notice of Shareholder Business at Annual Meeting. At an annual meeting of shareholders, only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board of Directors or (b) by any shareholder of the corporation who complies with the notice procedures set forth in this Section 1.07. For business to be properly brought before an annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than thirty days nor more than fifty days prior to the meeting; provided, however, that in the event that less than forty days' notice or prior public disclosure of the date of the meeting is given or made to shareholders, notice by the shareholder to be timely must be received not later than the close of business on the tenth day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made. A shareholder's notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting (a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (b) the name and address, as they appear on the corporation's books, of the shareholder proposing such business, (c) the class and number of shares of the corporation which are beneficially owned by the shareholder and (d) any material interest of the shareholder in such business. Notwithstanding anything in these By-Laws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Section 1.07 and Section 2.03. The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Section 1.07 and Section 2.03, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01 Number and Qualifications. The business of the corporation shall be managed by its Board of Directors. The number of directors constituting the entire Board of Directors shall be not less than seven nor more than fifteen, as shall be fixed from time to time by vote of a majority of the entire Board of Directors. Each director shall be at least 21 years of age. Directors need not be shareholders. No Officer-Director who shall have attained age 65, or earlier relinquishes his responsibilities and title, shall be eligible to serve as a director.
SECTION 2.02 Election. At each annual meeting of shareholders, directors shall be elected by a plurality of the votes to hold office until the next annual meeting. Subject to the provisions of the statute, of the Certificate of Incorporation and of the By-Laws, each director shall hold office until the expiration of the term for which elected, and until his successor has been elected and qualified.
SECTION 2.03 Nomination and Notification of Nomination. Subject to the rights of holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, nominations for the election of directors may be made by the Board of Directors or to any committee
appointed by the Board of Directors or by any shareholder entitled to vote in
the election of directors generally. However, any shareholder entitled to vote
in the election of directors generally may nominate one or more persons for
election as directors at a meeting only if written notice of such shareholder's
intent to make such nomination or nominations has been given, either by
personal delivery or by United States mail, postage prepaid, to the Secretary
of the corporation not later than (i) with respect to an election to be held at
an annual meeting of shareholders ninety days in advance of such meeting, and
(ii) with respect to an election to be held at a special meeting of
shareholders for the election of directors, the close of business on the
seventh day following the date on which notice of such meeting is first given
to shareholders. Each such notice shall set forth: (a) the name and address of
the shareholder who intends to make the nomination and of the person or persons
to be nominated; (b) a representation that the shareholder is a holder of
record of stock of the corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) a description of all arrangements or
understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder; (d) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or intended
to be nominated, by the Board of Directors; and (e) the consent of each nominee
to serve as a director of the corporation if so elected. At the request of the
Board of Directors, any person nominated by the Board of Directors for election
as a director shall furnish to the Secretary of the corporation that
information required to be set forth in a shareholder's notice of nomination
which pertains to the nominee. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the procedures
set forth in the By-Laws. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these By-Laws, and if he should so
determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
SECTION 2.04 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such places and times as may be fixed from time to time by resolution of the Board and a regular meeting for the purpose of organization and transaction of other business shall be held each year after the adjournment of the annual meeting of shareholders.
SECTION 2.05 Special Meetings. The Chairman of the Board, the Chief Executive Officer, the President, the Senior Vice Chairman or any Vice Chairman may, and at the request of three directors shall, call a special meeting of the Board of Directors, two days' notice of which shall be given in person or by mail, telegraph, radio, telephone or cable. Notice of a special meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him.
SECTION 2.06 Place of Meeting. The directors may hold their meetings, have one or more offices, and keep the books of the corporation (except as may be provided by law) at any place, either within or without the State of New York, as they may from time to time determine.
SECTION 2.07 Quorum and Vote. At all meetings of the Board of Directors the presence of one-third of the entire Board, but not less than two directors, shall constitute a quorum for the transaction of business. Any one or more members of the Board of Directors or of any committee thereof may participate in a meeting of the Board of Directors or a committee thereof by means of a conference telephone or similar communications equipment which allows all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at such a meeting. The vote of a majority of the directors present at the time of the vote, if a quorum is present at such time, shall be the act of the Board of Directors, except as may be otherwise provided by statute or the By-Laws.
SECTION 2.08 Vacancies. Newly created directorships resulting from increase in the number of directors and vacancies in the Board of Directors, whether caused by resignation, death, removal or otherwise, may be filled by vote of a majority of the directors then in office, although less than a quorum exists.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 3.01 Designation and Authority. The Board of Directors, by resolution adopted by a majority of the entire Board, may designate from among its members an Executive Committee and other committees, each consisting of three or more directors. Each such committee, to the extent provided in the resolution or the By-Laws, shall have all the authority of the Board, except that no such committee shall have authority as to:
(i) the submission to shareholders of any action as to which shareholders' authorization is required by law.
(ii) the filling of vacancies in the Board of Directors or any committee.
(iii) the fixing of compensation of directors for serving on the Board or on any committee.
(iv) the amendment or appeal of the By-Laws, or the adoption of new By-Laws.
(v) the amendment or repeal of any resolution of the Board which by its terms shall not be so amendable or repealable.
The Board may designate one or more directors as alternate members of any such committee, who may replace any absent member or members at any meeting of such committee. Each such committee shall serve at the pleasure of the Board of Directors.
SECTION 3.02 Procedure. Except as may be otherwise provided by statute, by the By-Laws or by resolution of the Board of Directors, each committee may make rules for the call and conduct of its meetings. Each committee shall keep a record of its acts and proceedings and shall report the same from time to time to the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 4.01 Titles and General. The Board of Directors shall elect from among their number a Chairman of the Board and a Chief Executive Officer, and may also elect a President, a Senior Vice Chairman, one or more Vice Chairmen, one or more Executive Vice Presidents, one or more Senior Vice Presidents, one or more Principals, one or more Vice Presidents, a Secretary, a Controller, a Treasurer, a General Counsel, a General Auditor, and a General Credit Auditor, who need not be directors. The officers of the corporation may also include such other officers or assistant officers as shall from time to time be elected or appointed by the Board. The Chairman of the Board or the Chief Executive Officer or, in their absence, the President, the Senior Vice Chairman or any Vice Chairman, may from time to time appoint assistant officers. All officers elected or appointed by the Board of Directors shall hold their respective offices during the pleasure of the Board of Directors, and all assistant officers shall hold office at the pleasure of the Board or the Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors may require any and all officers and employees to give security for the faithful performance of their duties.
SECTION 4.02 Chairman of the Board. The Chairman of the Board shall preside at all meetings of the shareholders and of the Board of Directors. Subject to the Board of Directors, he shall exercise all the powers and perform all the duties usual to such office and shall have such other powers as may be prescribed by the Board of Directors or the Executive Committee or vested in him by the By-Laws.
SECTION 4.03 Chief Executive Officer. The Board of Directors shall designate the Chief Executive Officer of the corporation, which person may also hold the additional title of Chairman of the Board, President, Senior Vice Chairman or Vice Chairman. Subject to the Board of Directors, he shall exercise all the powers and perform all the duties usual to such office and shall have such other powers as may be prescribed by the Board of Directors or the Executive Committee or vested in him by the By-Laws.
SECTION 4.04 Chairman of the Board, President, Senior Vice Chairman, Vice Chairmen, Executive Vice Presidents, Senior Vice Presidents, Principals and Vice Presidents. The Chairman of the Board or, in his absence or incapacity the President or, in his absence or incapacity, the Senior Vice Chairman, the Vice Chairmen, the Executive Vice Presidents, or in their absence, the Senior Vice Presidents, in the order established by the Board of Directors shall, in the absence or incapacity of the Chief Executive Officer perform the duties of the Chief Executive Officer. The President, the Senior Vice Chairman, the Vice Chairmen, the Executive Vice Presidents, the Senior Vice Presidents, the Principals, and the Vice Presidents shall also perform such other duties and have such other powers as may be prescribed or assigned to them, respectively, from time to time by the Board of Directors, the Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.05 Controller. The Controller shall perform all the duties customary to that office and except as may be otherwise provided by the Board of Directors shall have the general supervision of the books of account of the corporation and shall also perform such other duties and have such powers as may be prescribed or assigned to him from time to time by the Board of Directors, the Executive Committee, the Chief Executive Officer, or the By-Laws.
SECTION 4.06 Secretary. The Secretary shall keep the minutes of the meetings of the Board of Directors and of the shareholders and shall have the custody of the seal of the corporation. He shall perform all other duties usual to that office, and shall also perform such other duties and have such powers as may be prescribed or assigned to him from time to time by the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer, or the By-Laws.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 5.01 The corporation shall, to the fullest extent permitted by Section 721 of the New York Business Corporation Law, indemnify any person who is or was made, or threatened to be made, a party to an action or proceeding, whether civil or criminal, whether involving any actual or alleged breach of duty, neglect or error, any accountability, or any actual or alleged misstatement, misleading statement or other act or omission and whether brought or threatened in any court or administrative or legislative body or agency, including an action by or in the right of the corporation to procure a judgment in its favor and an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the corporation is serving or served in any capacity at the request of the corporation by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation, or is serving or served
such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement, and costs, charges and expenses, including attorneys' fees, or any appeal therein; provided, however, that no indemnification shall be provided to any such person if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.
SECTION 5.02 The corporation may indemnify any other person to whom the
corporation is permitted to provide indemnification or the advancement of
expenses by applicable law, whether pursuant to rights granted pursuant to, or
provided by, the New York Business Corporation Law or other rights created by
(i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, it being expressly intended that
these By-Laws authorize the creation of other rights in any such manner.
SECTION 5.03 The corporation shall, from time to time, reimburse or advance to any person referred to in Section 5.01 the funds necessary for payment of expenses, including attorneys' fees, incurred in connection with any action or proceeding referred to in Section 5.01, upon receipt of a written undertaking by or on behalf of such person to repay such amount(s) if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.
SECTION 5.04 Any director or officer of the corporation serving (i) another corporation, of which a majority of the shares entitled to vote in the election of its directors is held by the corporation, or (ii) any employee benefit plan of the corporation or any corporation referred to in clause (i), in any capacity shall be deemed to be doing so at the request of the corporation. In all other cases, the provisions of this Article V will apply (i) only if the person serving another corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise so served at the specific request of the corporation, evidenced by a written communication signed by the Chairman of the Board, the Chief Executive Officer, the President, the Senior Vice Chairman or any Vice Chairman, and (ii) only if and to the extent that, after making such efforts as the Chairman of the Board, the Chief Executive Officer, or the President shall deem adequate in the circumstances, such person shall be unable to obtain indemnification from such other enterprise or its insurer.
SECTION 5.05 Any person entitled to be indemnified or to the reimbursement or advancement of expenses as a matter of right pursuant to this Article V may elect to have the right to indemnification (or advancement of expenses) interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time indemnification is sought.
SECTION 5.06 The right to be indemnified or to the reimbursement or advancement of expenses pursuant to this Article V (i) is a contract right pursuant to which the person entitled thereto may bring suit as if the provisions hereof were set forth in a separate written contract between the corporation and the director or officer, (ii) is intended to be retroactive and shall be available with respect to events occurring prior to the adoption hereof, and (iii) shall continue to exist after the rescission or restrictive modification hereof with respect to events occurring prior thereto.
SECTION 5.07 If a request to be indemnified or for the reimbursement or advancement of expenses pursuant hereto is not paid in full by the corporation within thirty days after a written claim has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled
also to be paid the expenses of prosecuting such claim. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such action that indemnification of or reimbursement or advancement of expenses to the claimant is proper in the circumstances, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its shareholders) that the claimant is not entitled to indemnification or to the reimbursement or advancement of expenses, shall be a defense to the action or create a presumption that the claimant is not so entitled.
SECTION 5.08 A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Section 5.01 shall be entitled to indemnification only as provided in Sections 5.01 and 5.03, notwithstanding any provision of the New York Business Corporation Law to the contrary.
ARTICLE VI
SEAL
SECTION 6.01 Corporate Seal. The corporate seal shall contain the name of the corporation and the year and state of its incorporation. The seal may be altered from time to time at the discretion of the Board of Directors.
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.01 Form. The certificates for shares of the corporation shall be in such form as shall be approved by the Board of Directors and shall be signed by the Chairman of the Board, the Chief Executive Officer, the President, the Senior Vice Chairman or any Vice Chairman and the Secretary or an Assistant Secretary, and shall be sealed with the seal of the corporation or a facsimile thereof. The signatures of the officers upon the certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or its employees.
ARTICLE VIII
CHECKS
SECTION 8.01 Signatures. All checks, drafts and other orders for the payment of money shall be signed by such officer or officers or agent or agents as the Board of Directors may designate from time to time.
ARTICLE IX
AMENDMENT
SECTION 9.01 Amendment of By-Laws. The By-Laws may be amended, repealed or added to by vote of the holders of the shares at the time entitled to vote in the election of any directors. The Board of Directors may also amend, repeal or add to the By-Laws, but any By-Laws adopted by the Board of
Directors may be amended or repealed by the shareholders entitled to vote thereon as provided herein. If any By-Law regulating an impending election of directors is adopted, amended or repealed by the Board, there shall be set forth in the notice of the next meeting of shareholders for the election of directors the By-Laws so adopted, amended or repealed, together with concise statement of the changes made.
ARTICLE X
SECTION 10.01 Construction. The masculine gender, when appearing in these By-Laws, shall be deemed to include the feminine gender.
I, Carol Ng, Vice President of Bankers Trust Company, New York, New York, hereby certify that the foregoing is a complete, true and correct copy of the By-Laws of Bankers Trust Company, and that the same are in full force and effect at this date.
/s/ Carol Ng
-------------------
Carol Ng
Vice President
DATED: May 17, 2001
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Legal Title of Bank: Bankers Trust Company Call Date: 05/15/01 State#: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-1
City, State ZIP: New York, NY 10006 Transit#: 21001003
11
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 2001
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
-------------
| C400 |
-------------------|
Dollar Amounts in Thousands | RCFD |
---------------------------------------------------------------------------------------------------------|------------------|
ASSETS | ////////////// |
1. Cash and balances due from depository institutions (from Schedule RC-A): | ////////////// |
a. Noninterest-bearing balances and currency and coin (1) .................. | 0081 2,380,000| 1.a.
b. Interest-bearing balances (2) ........................................... | 0071 636,000| 1.b.
2. Securities: | ////////////// |
a. Held-to-maturity securities (from Schedule RC-B, column A) .............. | 1754 0| 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............. | 1773 103,000| 2.b.
3. Federal funds sold and securities purchased under agreements to resell...... | 1350 2,733,000| 3.
4. Loans and lease financing receivables (from Schedule RC-C): | ////////////// |
a. Loans and leases held for sale | 5369 0| 4.a.
b. Loans and leases, net unearned income.................................... B528 16,536,000 | ////////////// | 4.b.
c. LESS: Allowance for loan and lease losses ............................... 3123 442,000 | ////////////// | 4.c.
d. Loans and leases, net of unearned income and | ////////////// |
allowance (item 4.b minus 4.c) .......................................... | B529 16,094,000| 4.d.
5. Trading Assets (from schedule RC-D) ....................................... | 3545 13,324,000| 5.
6. Premises and fixed assets (including capitalized leases) ................... | 2145 563,000| 6.
7. Other real estate owned (from Schedule RC-M) ............................... | 2150 100,000| 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 2,649,000| 8.
9. Customers' liability to this bank on acceptances outstanding ............... | 2155 237,000| 9.
10. Intangible assets .......................................................... | ////////////// |
a. Goodwill................................................................. | 3163 56,000|10.a
b. Other intangible assets (from Schedule RC-M) | 0426 10,000|10.b
11. Other assets (from Schedule RC-F) .......................................... | 2160 2,989,000|11.
12. Total assets (sum of items 1 through 11) ................................... | 2170 41,874,000|12.
---------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
|
Legal Title of Bank: Bankers Trust Company Call Date: 05/15/01 FFIEC 031
Address: 130 Liberty Street Vendor ID: D Cert#: 00623 Page RC-2
City, State ZIP: New York, NY 10006 Transit#: 21001003
12
Schedule RC--Continued
Dollar Amounts in Thousands
----------------------------------------------------------------------------------------------------------------------------
LIABILITIES | |
13. Deposits: | ////////////// |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 220 12,065,000 |13.a.
(1) Noninterest-bearing(1) ............................................ RCON 6631 3,280,000 | ////////////// |13.a.(1)
(2) Interest-bearing .................................................. RCON 6636 8,785,000 | ////////////// |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | ////////////// |
part II) | RCFN 2200 8,315,000 |13.b.
(1) Noninterest-bearing ............................................... RCFN 6631 1,177,000 | ////////////// |13.b.(1)
(2) Interest-bearing .................................................. RCFN 6636 7,138,000 | ////////////// |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 7,957,000 |14.
15. Trading liabilities (from Schedule RC-D).................................. | RCFD 3548 1,515,000 |15
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized
leases): | ////////////// |
(from Schedule RC-M): | RCFD 3190 2,213,000 |16.
17. Not Applicable. | ////////////// |17.
18. Bank's liability on acceptances executed and outstanding ................. | RCFD 2920 237,000 |18.
19. Subordinated notes and debentures (2)..................................... | RCFD 3200 285,000 |19.
20. Other liabilities (from Schedule RC-G) ................................... | RCFD 2930 2,063,000 |20.
21. Total liabilities (sum of items 13 through 20) ........................... | RCFD 2948 34,650,000 |21.
22. Minority interest in consolidated subsidiaries | RCFD 3000 618,000 |22.
| ////////////// |
EQUITY CAPITAL | ////////////// |
23. Perpetual preferred stock and related surplus ............................ | RCFD 3838 1,500,000 |23.
24. Common stock ............................................................. | RCFD 3230 2,127,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ................. | RCFD 3839 584,000 |25.
26. a. Retained earnings ..................................................... | RCFD 3632 2,527,000 |26.a.
b. Accumulated other comprehensive Income (3) ............................ | RCFD B530 (132,000)|26.b.
27. Other equity capital components (4) ...................................... | RCFD A130 0 |27.
28. Total equity capital (sum of items 23 through 27) ........................ | RCFD 3210 6,606,000 |28.
29. Total liabilities, minority interest, and equity capital (sum of items 21, 22, and 28)......... | RCFD 3300 41,874,000 |29
| |
------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
---------------------------
auditors as of any date during 2000.......................................................| RCFD 6724 1 | M.1
1 = Independent audit of the bank conducted in accordance 5 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 6 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 7 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 8 = Other audit procedures (excluding tax preparation work)
3 = Attestation on bank management's assertion on the 9 = No external audit work
effectiveness of the bank's internal control over financial
reporting by a certified public accounting firm
4 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
---------
(1) Including total demand deposits and noninterest-bearing time and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
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