-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, JG/FkGQLpSR9WtOzLEjF3J87bepAObXLHsusmSHUhEamMKwH53d3GYItljQGmPRW c74dgqdKv+DZLcB/nCBwhw== 0000950123-95-000964.txt : 19950414 0000950123-95-000964.hdr.sgml : 19950414 ACCESSION NUMBER: 0000950123-95-000964 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19950410 SROS: NYSE GROUP MEMBERS: JES DEVELOPMENTS, INC. GROUP MEMBERS: SEAGRAM CO LTD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DUPONT E I DE NEMOURS & CO CENTRAL INDEX KEY: 0000030554 STANDARD INDUSTRIAL CLASSIFICATION: PLASTIC MAIL, SYNTH RESIN/RUBBER, CELLULOS (NO GLASS) [2820] IRS NUMBER: 510014090 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-07714 FILM NUMBER: 95527912 BUSINESS ADDRESS: STREET 1: 1007 MARKET ST CITY: WILMINGTON STATE: DE ZIP: 19898 BUSINESS PHONE: 3027741000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SEAGRAM CO LTD CENTRAL INDEX KEY: 0000088188 STANDARD INDUSTRIAL CLASSIFICATION: BEVERAGES [2080] STATE OF INCORPORATION: CA FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1430 PEEL ST STREET 2: H3A 1S9 CITY: MONTREAL QUEBEC CANA STATE: A8 BUSINESS PHONE: 5148495271 MAIL ADDRESS: STREET 1: C/O JOSEPH E SEAGRAM & SONS INC STREET 2: 375 PARK AVE CITY: NEW YORK STATE: NY ZIP: 10152 SC 13D/A 1 AMENDMENT NO. 9 TO SCHEDULE 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 9)* E.I. du Pont de Nemours and Company - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.60 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 263534 10 9 --------------------------------------------------------- (CUSIP Number) Stephen E. Banner Joseph E. Seagram & Sons, Inc. 375 Park Avenue, New York, New York 10152 (212) 572-7000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 6, 1995 -------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /. Check the following box if a fee is being paid with the statement / /. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 SCHEDULE 13D CUSIP No. 263534 10 9 Page 2 of 27 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON JES DEVELOPMENTS, INC. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 (see item 3) 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH REPORTING 164,222,031 (including shares issuable upon PERSON exercise of warrants) WITH 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 164,222,031 (including shares issuable upon exercise of warrants) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 164,222,031 (including shares issuable upon exercise of warrants) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.1% (including shares issuable upon exercise of warrants) 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION 3 SCHEDULE 13D CUSIP No. 263534 10 9 Page 3 of 27 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON THE SEAGRAM COMPANY LTD. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* 00 (see item 3) 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Canada 7 SOLE VOTING POWER NUMBER OF SHARES BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH REPORTING 164,222,031 (including shares issuable upon PERSON exercise of warrants) WITH 9 SOLE DISPOSITIVE POWER 10 SHARED DISPOSITIVE POWER 164,222,031 (including shares issuable upon exercise of warrants) 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 164,222,031 (including shares issuable upon exercise of warrants) 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.1% (including shares issuable upon exercise of warrants) 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION 4 Page 4 of 27 Pages The Statement on Schedule 13D, as amended (the "Schedule 13D"), filed pursuant to Rule 13d-1 of the Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by The Seagram Company Ltd., a Canadian corporation ("Seagram"), and by JES Developments, Inc., a Delaware corporation and wholly owned subsidiary of Seagram ("Developments"), with respect to the common stock of E.I. du Pont de Nemours and Company, a Delaware corporation ("DuPont") is hereby amended and restated as set forth below: Item 1. Security and Issuer. This Schedule 13D relates to the Common Stock, par value $0.60 per share ("Common Stock"), of DuPont. The principal executive offices of DuPont are located at 1007 Market Street, Wilmington, Delaware 19898. Item 2. Identity and Background. This Schedule 13D is filed by Seagram and by Developments. The principal executive offices of Seagram are located at 1430 Peel Street, Montreal, Quebec, Canada H3A 1S9. The principal executive offices of Developments are located at 1105 North Market Street, Suite 1300, P.O. Box 8985, Wilmington, Delaware 19899. Seagram is a leading global producer and marketer of distilled spirits, wines, fruit juices, coolers, and mixers, and sells its brands in more than 150 countries and territories. Affiliates and joint ventures in 41 countries 5 Page 5 of 27 Pages and territories comprise the largest distribution system in the spirits and wine industry. Developments is a wholly owned subsidiary of Joseph E. Seagram & Sons, Inc., an Indiana corporation and wholly owned subsidiary of J.E. Seagram Corp. J.E. Seagram Corp. is a Delaware corporation and wholly owned subsidiary of Seagram. As of March 31, 1995, descendants of the late Samuel Bronfman and trusts established for their benefit (collectively, the "Bronfman Family") beneficially owned directly or indirectly approximately 36.41% of the outstanding common shares without nominal or par value of Seagram ("Common Shares"). Of that amount, Bronfman Associates, a partnership of which Edgar M. Bronfman, his children and a trust established for the benefit of Edgar M. Bronfman and his descendants are the sole partners and of which Edgar M. Bronfman is the managing partner, along with a second trust established for the benefit of Edgar M. Bronfman and his descendants, owned directly approximately 16.78% of the Common Shares, trusts for the benefit of Charles R. Bronfman and his descendants owned directly approximately 15.64% of the Common Shares, trusts for the benefit of the family of the late Minda de Gunzburg and members of her immediate family owned directly or indirectly approximately 3.30% of the Common Shares, Phyllis Lambert owned indirectly approximately 0.37% of the Common Shares, a charitable foundation of which Charles R. Bronfman is among the 6 Page 6 of 27 Pages directors owned approximately 0.16% of the Common Shares, a charitable foundation of which Edgar M. Bronfman and Charles R. Bronfman are among the trustees owned approximately 0.06% of the Common Shares, and Edgar M. Bronfman, Charles R. Bronfman and their respective children owned directly approximately 0.10% of the Common Shares. In addition, such persons held currently exercisable options to purchase an additional 0.53% of the Common Shares, calculated pursuant to Rule 13d-3 of the Rules and Regulations under the Exchange Act). Edgar M. Bronfman is Chairman of the Board of Seagram and a director of Seagram. Charles R. Bronfman is Co-Chairman of the Board and Chairman of the Executive Committee of Seagram and a director of Seagram. Edgar M. Bronfman and Charles R. Bronfman are brothers, Phyllis Lambert is their sister, and Alain de Gunzburg, the husband of the late Minda de Gunzburg, is their brother-in-law. Pursuant to a voting trust agreement, Charles R. Bronfman serves as voting trustee for Common Shares beneficially owned directly or indirectly by Bronfman Associates, the aforesaid trusts established for the benefit of Edgar M. Bronfman and his descendants, the aforesaid trusts established for the benefit of Charles R. Bronfman and his descendants, and the first of the two aforesaid charitable foundations. Pursuant to another voting trust agreement, Edgar M. Bronfman and Charles R. Bronfman are among the voting trustees for Common Shares beneficially owned directly or indirectly by trusts for the benefit of the 7 Page 7 of 27 Pages family of the late Minda de Gunzburg and members of her immediate family. Neither voting trust agreement contains restrictions on the right of the voting trustees to vote the deposited Common Shares. The Bronfman Family may be deemed to be in control of Developments and Seagram. Information concerning the foregoing persons and entities, together with information concerning the directors and executive officers of Developments and Seagram, is contained in Schedule A attached hereto. During the last five years, none of Seagram or Developments nor, to the best knowledge of Seagram and Developments, any director or executive officer of Seagram or Developments (or any other person or entity set forth in Schedule A) has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding has been or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. 8 Page 8 of 27 Pages Item 3. Source and Amount of Funds or Other Consideration. As described in Item 6 below, no funds were used by Seagram or Developments in connection with the transactions described herein. Item 4. Purpose of Transaction. Pursuant to an agreement dated as of April 6, 1995 among DuPont, Seagram and Developments (the "Redemption Agreement"), and concurrently with the execution and delivery thereof, DuPont redeemed 156,000,000 of the 164,222,031 shares of Common Stock which were then owned by Developments. In connection with such redemption, Developments received $1 billion in cash, $7,336,250,000 aggregate principal amount of unsecured 90-day promissory notes payable by DuPont (the "Notes"), and warrants to purchase an aggregate of 156,000,000 shares of Common Stock (the "Warrants"). Reference is made to Item 6 below for a description of the Redemption Agreement, the Notes and the Warrants. Pursuant to an agreement dated as of October 2, 1981, as amended and restated as of March 26, 1986, between DuPont and Seagram (the "1986 Agreement"), Seagram had been entitled to designate four nominees to DuPont's Board of Directors, and DuPont had been entitled to designate two nominees to Seagram's Board of Directors. Such nominees resigned from the respective Boards of Directors of DuPont and Seagram on April 6, 1995, concurrently with the execution and delivery of the Redemption Agreement. As described in 9 Page 9 of 27 Pages Item 6, the Redemption Agreement provides that Seagram and DuPont each has the right to nominate directors to the other's Board of Directors in certain circumstances. As described in Item 6, the Redemption Agreement generally precludes Seagram or any entity controlled by it (the "Seagram Group") from acquiring any DuPont voting securities (other than Common Stock issuable upon exercise of the Warrants) during the term of the Redemption Agreement. To the extent consistent with the Redemption Agreement, Developments may in the future dispose of Common Stock and/or Warrants, depending upon market conditions and other economic factors. Except as set forth above, neither Seagram nor Developments has any present plans or proposals that relate to or would result in any of the actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) and (b) As of the date hereof, Developments beneficially owns an aggregate of 164,222,031 shares of Common Stock, consisting of 8,222,031 shares currently owned by it (the "Retained Shares") and 156,000,000 shares issuable upon exercise of the Warrants. Such shares constitute approximately 24.1% of the total number of shares of Common Stock stated to be outstanding as of March 7, 1995 in DuPont's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, assuming that the Warrants were exercised 10 Page 10 of 27 Pages in full. Developments has the power to vote and to dispose of the Retained Shares, to vote and to dispose of the shares of Common Stock issuable upon exercise of the Warrants, and to dispose of the Warrants, subject in each case to the ultimate control of Seagram. Except as set forth in this Item 5, to the best knowledge of Seagram or Developments, no director or executive officer of Seagram or Developments (or any other person or entity set forth in Schedule A) beneficially owns any shares of Common Stock. (c) Other than the redemption of Common Stock and the issuance of Warrants described herein, neither Seagram nor Developments effected any transactions in Common Stock during the past 60 days. (d) No person other than Developments has the right to receive dividends from the Retained Shares or the shares of Common Stock issuable upon exercise of the Warrants, and no person other than Developments has the right to receive the proceeds from the sale of the Retained Shares, the shares issuable upon exercise of the Warrants, or the Warrants. (e) Not applicable. Item 6. Contracts, Arrangement or Understandings with Respect to Securities of the Issuer. As described in Item 4 above, DuPont issued Notes to Developments in connection with the redemption transaction. Interest accrues on the unpaid principal amount 11 Page 11 of 27 Pages of the Notes at a rate per annum equal to the sum of (i) the Federal Funds Rate (as defined below) in effect from time to time plus (ii) the Applicable Spread (as defined below) in effect from time to time. "Federal Funds Rate" means, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers. "Applicable Spread" means (i) on each day in the period beginning on the date of issuance of the Notes to and including the 30th day following such date, 1/4 of 1%, (ii) on each day in the period beginning on the 31st day following the date of issuance and including the 60th day following such date, 3/8 of 1%, and (iii) on each day in the period beginning on the 61st day following the date of issuance to but not including the date of payment in full, 1/2 of 1%. Three tranches of Warrants were issued to Developments by DuPont, consisting of (i) Warrants to purchase 48 million shares of Common Stock with an exercise price of $89.33 per share and an expiration date of October 6, 1997, (ii) Warrants to purchase 54 million shares of Common Stock with an exercise price of $101.14 per share and an expiration date of October 6, 1998, and (iii) Warrants to purchase 54 million shares of Common Stock with an exercise price of $113.63 per share and an expiration date of October 6, 1999. So long as Seagram holds the Warrants, the Warrants will be exercisable during the 60 day period preceding their 12 Page 12 of 27 Pages expiration, subject to acceleration in connection with Significant Events (as defined below) and certain tender offers. Upon the transfer of Warrants to a third party in accordance with the transfer restrictions described below, such Warrants will become immediately exercisable. The Redemption Agreement provides, among other things, that during its term: (a) No member of the Seagram Group shall acquire beneficial ownership of any voting securities or any rights to acquire any voting securities of DuPont (other than the Warrants and other than as a result of the exercise of the Warrants or as a result of any stock dividends or other distributions or offerings made available by DuPont to holders of its voting securities generally), except for the acquisition by affiliates of Seagram of not more than 500,000 additional shares of Common Stock. (b) No member of the Seagram Group shall propose or seek to effect any merger, business combination, restructuring, recapitalization or similar transaction involving DuPont or any of its subsidiaries or the sale or other disposition of any material portion of the assets of DuPont or any of its subsidiaries. (c) No member of the Seagram Group shall seek election to, seek to place a representative on, or seek the removal of any member of DuPont's Board of Directors, except as described in paragraph (h) below. 13 Page 13 of 27 Pages (d) No member of the Seagram Group shall engage in any "solicitation" (within the meaning of Rule 14a-1 under the Exchange Act) of proxies or consents with respect to DuPont, or become a "participant" in any "election contest" (within the meaning of Rule 14a-11 under the Exchange Act), or execute any written consent in lieu of a meeting of the holders of any class of DuPont voting securities, except that (i) this limitation shall not apply to any Significant Event that is initiated or proposed by DuPont and (ii) if Seagram opposes any solicitation by DuPont's management with respect to any such Significant Event and no member of the Seagram Group otherwise publishes or distributes solicitation material required to be filed with the Securities and Exchange Commission under Regulation 14A under the Exchange Act, DuPont shall include in its proxy statement in connection with such solicitation the fact that Seagram opposes the solicitation and a brief statement of Seagram's reasons for such opposition. "Significant Event" means, if stockholder approval is required by the General Corporation Law of the State of Delaware, the rules of the New York Stock Exchange or the charter or by-laws of DuPont: any charter or by-law amendment (other than a proposal to require cumulative voting in the election of directors), acquisition or disposition of assets (by way of merger, consolidation or otherwise), change in capitalization, liquidation, or other action out of the ordinary course of business of DuPont, 14 Page 14 of 27 Pages except that "Significant Event" shall not include proposals relating to certain employment plans or arrangements. (e) No member of the Seagram Group shall call or seek to have called any meeting of the stockholders of DuPont or initiate, propose or otherwise solicit stockholders for the approval of any stockholder proposal with respect to DuPont. (f) The members of the Seagram Group shall vote all DuPont voting securities which they beneficially own for the slate of nominees proposed by the Board of Directors of DuPont and on all other matters to be voted on by the holders of DuPont voting securities, in the same proportion as the votes cast by the other holders of DuPont voting securities, except that voting securities beneficially owned by the members of the Seagram Group may be voted in their sole discretion on any Significant Event. (g) Subject to DuPont's right of first refusal, Seagram may dispose of Warrants or Common Stock in privately- negotiated transactions or in public offerings as contemplated by a registration rights agreement dated as of April 6, 1995 between the parties. However, no dispositions may be made to any person who would thereafter own more than 1% of the Common Stock (including shares issuable upon exercise of the Warrants), except for (i) dispositions to a person who would thereafter own less than 3% if such person agrees to be bound by the standstill provisions of the Redemption Agreement summarized in paragraphs (a) through (g) 15 Page 15 of 27 Pages of this Item 6, (ii) dispositions to specified types of financial institutions if such institution would thereafter own less than 5%, and (iii) dispositions to broker dealers acting as principals if any such broker dealer would thereafter own less than 10%, except that if such broker dealer would thereafter own more than 3%, such broker dealer agrees to be bound by such standstill provisions. In addition, no disposition of Warrants may be effected prior to May 15, 1996. At any time that Seagram offers DuPont the right to purchase Warrants, DuPont may purchase such Warrants at their then fair market value calculated using the valuation methodology contemplated by the Redemption Agreement. At any such time, DuPont may elect to purchase the entire tranche relating to such Warrants, at the lesser of (i) their then fair market value and (ii) the fair market value of such Warrants as of April 6, 1995 plus 90% of any increase in such value. For such purposes, the parties agreed that the fair market value of the three tranches of Warrants as of April 6, 1995 was $135 million, $151.875 million and $151.875 million for the Warrants expiring in 1997, 1998 and 1999, respectively. The members of the Seagram Group may also tender Warrants or Common Stock into a tender offer recommended by a majority of DuPont's Board of Directors. With respect to a tender offer that is not recommended by a majority of DuPont's Board of Directors (an "Unsolicited Offer"), the 16 Page 16 of 27 Pages Seagram Group may tender its Common Stock and/or Warrants, subject to DuPont's right of first refusal, provided that (i) such Unsolicited Offer is for at least a majority of the Common Stock outstanding on a fully diluted basis and (ii) to the extent the Unsolicited Offer is for a percentage which is less than 100% of the outstanding Common Stock on a fully diluted basis, the Seagram Group may only tender up to that percentage of its Common Stock and/or Warrants (assuming full exercise thereof). Even if DuPont were to exercise its right of first refusal, DuPont would not be required to purchase Seagram's shares unless at least a majority of the fully diluted shares (excluding Common Stock or Warrants then held by Seagram) had been tendered into the Unsolicited Offer. Dispositions of the Retained Shares currently held by Developments are not subject to any transfer restrictions, unless, at the time of such disposition, the Seagram Group beneficially owns more than 5% of the Common Stock (excluding shares subject to unexercised Warrants). (h) At any time the Seagram Group beneficially owns more than 10% of the Common Stock (excluding shares subject to unexercised Warrants), Seagram may designate 6% of DuPont's Board of Directors and of its Strategic Direction Committee (or any successor thereto). If the Seagram Group beneficially owns more than 15%, 20%, or 24% of the Common Stock (excluding shares subject to unexercised Warrants), Seagram may designate 9%, 12%, or 15%, respectively, of the members of DuPont's Board and such committee. DuPont may 17 Page 17 of 27 Pages designate two members of Seagram's Board of Directors at any time that the Seagram Group beneficially owns more than 10% of the Common Stock (excluding shares subject to unexercised Warrants). Subject to exceptions, Seagram and DuPont must consult with each other prior to designating nominees to the other's Board of Directors. (i) DuPont shall not take or recommend to its stockholders any action which would impose limitations on the legal rights of the Seagram Group as DuPont stockholders other than those imposed pursuant to the express terms of the Redemption Agreement. (j) At any time that Seagram shall account for its investment in DuPont pursuant to the equity method, DuPont shall furnish to Seagram all information required to enable Seagram to account for its investment in such manner. To the extent reasonably requested by Seagram, DuPont shall provide information to Seagram so as to enable Seagram to prepare its financial statements and to comply with its reporting and disclosure obligations. The Redemption Agreement terminates on April 6, 2010. DuPont may terminate the Redemption Agreement if the members of the Seagram Group no longer beneficially own any Warrants and the members of the Seagram Group beneficially own less than 2% of the Common Stock. Seagram may terminate the Redemption Agreement (i) if DuPont breaches certain of its obligations or (ii) on or after the third anniversary of 18 Page 18 of 27 Pages the date on which all of the Warrants shall have expired unexercised or shall have been reacquired by DuPont. Pursuant to the Redemption Agreement, the parties terminated the 1986 Agreement and related agreements which were previously filed as exhibits to the Schedule 13D. The preceding summary of certain provisions of the Redemption Agreement and related agreements is not intended to be complete and is qualified in its entirety by reference to the full text of such agreements, copies of which are filed as Exhibits hereto. Except as set forth herein, neither Seagram or Developments, nor, to the best knowledge of Seagram or Developments, any director or executive officer of Seagram or Developments (or any other person or entity set forth in Schedule A), has any contract, arrangement, understanding or relationship (legal or otherwise) with any person with respect to any securities of DuPont, including, but not limited to, transfer or voting of any securities of DuPont, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss or the giving or withholding of proxies. Item 7. Material to be Filed as Exhibits. A. Redemption Agreement dated as of April 6, 1995 among DuPont, Seagram and Developments. B. Registration Rights Agreement dated as of April 6, 1995 among DuPont, Seagram and Developments. 19 Page 19 of 27 Pages C. Warrant Agreement dated as of April 6, 1995 between DuPont and Warco Transfer Corporation, as Warrant Agent. D. Forms of Warrants. E. Agreement dated as of April 6, 1995 among DuPont and certain stockholders of Seagram. F. Joint Filing Agreement dated as of April 10, 1995 between Seagram and Developments. 20 Page 20 of 27 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. DATED: April 10, 1995 JES DEVELOPMENTS, INC. By: /s/ Daniel R. Paladino ---------------------- Daniel R. Paladino Vice President THE SEAGRAM COMPANY LTD. By: /s/ Daniel R. Paladino ---------------------- Daniel R. Paladino Vice President, Legal and Environmental Affairs 21 Page 21 of 27 Pages SCHEDULE A ---------- 1. Set forth below are the names and positions with Developments of each director and executive officer of Developments. The name of each person who is a director of Developments is marked with an asterisk. The address, principal occupation or employment and citizenship of each person, except for Ann M. Giambusso, Paul Buscemi and Howard Miller, each of whom is a U.S. citizen and whose address is 800 Third Avenue, New York, New York 10022, is set forth in Part 2 below.
Name Position ---- -------- STEPHEN E. BANNER* President DANIEL R. PALADINO* Vice President ANN M. GIAMBUSSO* Vice President and Secretary PAUL BUSCEMI Vice President EDWARD FALKENBERG* Treasurer HOWARD MILLER Assistant Secretary
2. Set forth below are the name, business address, principal occupation or employment and citizenship of each director and executive officer of Seagram. The name of each person who is a director of Seagram is marked with an asterisk. Unless otherwise indicated, the business address of each person listed below is 375 Park Avenue, New York, New York 10152. 22 Page 22 of 27 Pages
Name and Principal Occupation Business Address or Employment Citizenship ---------------- -------------------- ----------- EDGAR M. BRONFMAN* Chairman of the Board of Seagram United States THE HON. CHARLES R. Co-Chairman of the Board and Chairman Canada BRONFMAN, P.C., C.C.* of the Executive Committee of Seagram 1170 Peel Street 8th Floor Montreal, Quebec Canada H3B 4P2 EDGAR BRONFMAN, JR.* Chief Executive Officer and President United States of Seagram SAMUEL BRONFMAN II* President of The Seagram Classics Wine United States 2600 Campus Drive Company (a division of a subsidiary of Suite 160 Seagram) San Mateo, CA 94403 STEPHEN E. BANNER* Senior Executive Vice President of United States Seagram DAVID M. CULVER, C.C.* Chairman of CAI Capital Corporation Canada 3429 Drummond Street (an equity investment fund) Suite 200 Montreal, Quebec Canada H3G 1X6 THE HON. WILLIAM G. Counsel to Tory Canada DAVIS, P.C., C.C., Tory DesLauriers & Binnington Q.C.* (attorneys) Suite 3000 Toronto-Dominion Center Toronto, Ontario Canada M5K 1N2 THE HON. PAUL DESMARAIS, Chairman and Chief Executive Officer Canada P.C., C.C.* of Power Corporation of Canada (a 751 Victoria Square holding and management company) Montreal, Quebec Canada H2Y 2J3 ALAIN DE GUNZBURG* Chairman of the Board of G.H. Mumm & France 17-19, avenue Montaigne Cie (a subsidiary of Seagram) Paris, France 75008
23 Page 23 of 27 Pages
Name and Principal Occupation Business Address or Employment Citizenship ---------------- -------------------- ----------- DAVID L. JOHNSTON, Professor of Law at McGill University Canada O.C.* (an educational institution) James Administration Building 845 Sherbrooke St. West Montreal, Quebec Canada H3A 2T5 THE HON. E. LEO KOLBER, Member of The Senate of Canada Canada SENATOR* 1170 Peel Street 8th Floor Montreal, Quebec Canada H3B 4P2 MARIE-JOSEE KRAVIS* Fellow of The Hudson Institute of Canada and Switzerland 666 Sherbrooke St. West Canada Inc. (a non-profit economics Suite 600 research institute) Montreal, Quebec Canada H3A 1E7 EDWARD F. McDONNELL* Executive Vice President of Seagram United States and President, The Seagram Spirits And Wine Group (a division of a subsidiary of Seagram) C. EDWARD MEDLAND* President of Beauwood Investments Inc. Canada 150 King Street West (a private investment company) Suite 1505 Toronto, Ontario Canada M5H 1J9 NEIL F. PHILLIPS, Resident Senior Counsel (New York) of Canada Q.C.* Goodman Phillips & Vineberg 430 Park Avenue (attorneys) 10th Floor New York, NY 10022 JOHN L. WEINBERG* Senior Chairman of Goldman, Sachs & United States 85 Broad Street Co. (investment bankers) New York, NY 10004 STEPHEN E. HERBITS Executive Vice President, Corporate United States Policy and External Affairs of Seagram
24 Page 24 of 27 Pages
Name and Principal Occupation Business Address or Employment Citizenship ---------------- -------------------- ----------- ELLEN R. MARRAM Executive Vice President of Seagram United States and President, The Seagram Beverage Group (a division of a subsidiary of Seagram) C. RICHARD COFFEY Senior Vice President, Human Resources United States of Seagram EDWARD FALKENBERG Vice President and Controller of United States 800 Third Avenue Seagram New York, NY 10022 JEANANNE K. HAUSWALD Vice President and Treasurer of United States Seagram GABOR JELLINEK Vice President, Production of Seagram Canada 1430 Peel Street and Executive Vice President, Montreal, Quebec Manufacturing, The Seagram Spirits and Canada H3A 1S9 Wine Group (a division of a subsidiary of Seagram) ARNOLD M. LUDWICK Vice President of Seagram and Canada 1170 Peel St. President and Chief Executive Officer 8th Floor of Claridge Inc. Montreal, Quebec Canada H3B 4P2 DANIEL R. PALADINO Vice President, Legal and United States Environmental Affairs of Seagram MICHAEL C.L. HALLOWS Secretary of Seagram Canada
3. The trustees of the trusts for the benefit of Edgar M. Bronfman and his descendants are Edgar M. Bronfman, Edgar Bronfman, Jr., Matthew Bronfman, Stephen E. Banner, Harold R. Handler and John L. Weinberg. The trustees of the trusts for the benefit of 25 Page 25 of 27 Pages Charles R. Bronfman and his descendants are Charles R. Bronfman, Phyllis Lambert, Stephen R. Bronfman, Ellen J. Bronfman, E. Leo Kolber, Samuel Minzberg, Robert S. Vineberg, Gary J. Gartner, Lawrence F. Gilberti, Steven H. Levin and Arnold M. Ludwick. The trustees of the trusts for the benefit of the family of the late Minda de Gunzburg are Stanley N. Bergman and Dr. Guido Goldman. The directors of the first charitable foundation referenced in Item 2 include Charles R. Bronfman, E. Leo Kolber and Arnold M. Ludwick, and the trustees of the second charitable foundation include Edgar M. Bronfman, Charles R. Bronfman, Samuel Bronfman II and Stephen E. Banner. Set forth below or under Part 2 above are the address, principal occupation or employment and citizenship of each person named in this Part 3.
Name and Principal Occupation Business Address or Employment Citizenship ---------------- -------------------- ----------- PHYLLIS LAMBERT Architect Canada 1920 Baile Street Montreal, Quebec Canada H3H 2S6 MATTHEW BRONFMAN Managing Individual, Bronfman United States 155 E. 71 Street Associates II (an investment New York, NY 10021 partnership) STEPHEN R. BRONFMAN Corporate Director Canada 1170 Peel Street 8th Floor Montreal, Quebec Canada H3B 4P2 ELLEN J. BRONFMAN Special Assistant to the Executive Canada 375 Park Avenue Vice President of Seagram New York, NY 10152
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Name and Principal Occupation Business Address or Employment Citizenship ---------------- -------------------- ----------- HAROLD R. HANDLER Attorney whose professional United States 425 Lexington Avenue corporation is a partner of Simpson New York, NY 10017 Thacher & Bartlett (attorneys) SAMUEL MINZBERG Partner of Goodman Phillips & Canada 5 Place Ville Marie Vineberg (barristers and solicitors) Montreal, Quebec Canada H3B 2G2 ROBERT S. VINEBERG Partner of Goodman Phillips & Vineberg Canada 5 Place Ville Marie (barristers and solicitors) Montreal, Quebec Canada H3B 2G2 GARY J. GARTNER Partner of Goodman Phillips & Vineberg Canada 430 Park Avenue (attorneys) 10th Floor New York, NY 10022 LAWRENCE F. GILBERTI Partner of Fischbein Badillo Wagner United States 909 Third Avenue Itzler (attorneys) 17th Floor New York, NY 10022 STEVEN H. LEVIN Partner of Goodman Phillips & Vineberg United States 430 Park Avenue (attorneys) 10th Floor New York, NY 10022 STANLEY N. BERGMAN Partner of Bergman, Horowitz & United States 157 Church Street Reynolds, P.C. (attorneys) New Haven, CT 06510 DR. GUIDO GOLDMAN Director of the Center for European United States First Spring Corporation Studies at Harvard University and 499 Park Avenue Chairman of First Spring Corporation New York, NY 10022 (an investment company)
27 Page 27 of 27 Pages EXHIBIT INDEX A. Redemption Agreement dated as of April 6, 1995 among DuPont, Seagram and Developments. B. Registration Rights Agreement dated as of April 6, 1995 among DuPont, Seagram and Developments. C. Warrant Agreement dated as of April 6, 1995 between DuPont and Warco Transfer Corporation, as Warrant Agent. D. Forms of Warrants. E. Agreement dated as of April 6, 1995 among DuPont and certain stockholders of Seagram. F. Joint Filing Agreement dated as of April 10, 1995 between Seagram and Developments. EX-99.A 2 REDEMPTION AGREEMENT 1 EXHIBIT A 2 AGREEMENT This Agreement, dated as of April 6, 1995, is among E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"), The Seagram Company Ltd., a Canadian corporation ("S"), and JES Developments, Inc., a Delaware corporation and a wholly-owned subsidiary of S ("Subsidiary"). WHEREAS, Subsidiary currently owns an aggregate of 164,222,031 shares of the Common Stock, par value $0.60 per share, of the Company (the "Common Stock"); and WHEREAS, the Company and S have determined that it is in their mutual best interests for the Company to acquire from Subsidiary certain shares of Common Stock held by Subsidiary, upon the terms and subject to the conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows. ARTICLE I THE REDEMPTION Section 1.1 Redeemed Shares. Simultaneously with the execution and delivery of this Agreement, Subsidiary is transferring, assigning and delivering to the Company an aggregate of 156,000,000 shares of Common Stock (the "Redeemed Shares"), and the Company is acquiring the Redeemed Shares at the closing described in Section 2.1 hereof (the "Closing"), free and clear of all liens, claims, options, proxies, voting agreements, security interests, charges and encumbrances. In consideration for such transfer, assignment and delivery, the Company is paying and delivering to Subsidiary (i) an aggregate of $1,000,000,000 in immediately available funds (the "Cash Price"), (ii) warrants of the Company, in the forms of Exhibits A, B and C to this Agreement, to purchase an aggregate of 156,000,000 shares of Common Stock (the "Warrants", such term to include any warrants of the Company issued, pursuant to the warrant agreement in the form of Exhibit D to this Agreement (the "Warrant Agreement"), in substitution or exchange for the warrants 3 being so delivered to Subsidiary) and (iii) promissory notes of the Company, in the form of Exhibit E to this Agreement, in an aggregate principal amount of $7,336,250,000 (the "Notes"). The foregoing transactions are collectively referred to in this Agreement as the "Redemption Transaction". ARTICLE II THE CLOSING Section 2.1 Time and Place. The Closing of the Redemption Transaction is taking place at the offices of Skadden, Arps, Slate, Meagher & Flom, at 919 Third Avenue, New York, New York 10022 or One Rodney Square, Wilmington, Delaware 19899, as specified by the Company, simultaneously with the execution and delivery of this Agreement. Section 2.2 Deliveries. At the Closing, (i) Subsidiary is delivering the Redeemed Shares to the Company, with documentation satisfactory to the Company evidencing the transfer of the Redeemed Shares, in form acceptable for transfer on the Company's books, (ii) the Company and Warco Transfer Corporation, as Warrant Agent ("Warco"), are executing and delivering the Warrant Agreement and (iii) the Company is (a) agreeing to cause the Cash Price to be transferred to an account of Subsidiary designated by Subsidiary not later than 12:00 Noon, New York City time, on April 7, 1995 and (b) delivering the Warrants and the Notes to Subsidiary. In addition, at the Closing, (i) S is delivering to the Company the written resignations of Edgar M. Bronfman, Charles R. Bronfman, Edgar Bronfman, Jr. and John L. Weinberg from the Company's Board of Directors, (ii) the Company is delivering to S the written resignations of Edgar S. Woolard, Jr. and Richard E. Heckert from S's Board of Directors, (iii) the Company, S and Subsidiary are executing and delivering the registration rights agreement in the form of Exhibit F to this Agreement (the "Registration Rights Agreement") and (iv) the Company and certain stockholders of S are entering into the agreement in the form of Exhibit G to this Agreement. ARTICLE III REPRESENTATIONS AND WARRANTIES OF S AND SUBSIDIARY 2 4 S and Subsidiary hereby jointly and severally represent and warrant to the Company as follows. Section 3.1 Organization. S is a corporation duly organized and validly existing under the laws of Canada and has been duly qualified for the transaction of business under the laws of the Province of Quebec. Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Section 3.2 Authority Relative to this Agreement. Each of S and Subsidiary has all necessary corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and perform its obligations hereunder and thereunder. The execution and delivery by each of S and Subsidiary of this Agreement and the Registration Rights Agreement and the performance by each of S and Subsidiary of its obligations hereunder and thereunder have been duly and validly authorized by the Board of Directors of each of S and Subsidiary, and by the sole stockholder of Subsidiary, and no other corporate proceedings on the part of S or Subsidiary are necessary to authorize the execution, delivery or performance of this Agreement or the Registration Rights Agreement. Section 3.3 Binding Agreement. This Agreement and the Registration Rights Agreement have been duly and validly executed and delivered by each of S and Subsidiary and constitute valid and binding agreements of each of S and Subsidiary, enforceable against each of S and Subsidiary in accordance with their respective terms. Section 3.4 Non-Contravention. The execution and delivery by S and Subsidiary of this Agreement and the Registration Rights Agreement do not, the performance by S and Subsidiary of their obligations hereunder and thereunder will not and the acquisition by Subsidiary of the Warrants and the Notes does not (i) contravene or conflict with the certificate of incorporation, by-laws or similar charter or other organizational documents of S or Subsidiary or (ii) contravene or conflict with or constitute a violation of or default under or give rise to a right of termination, cancellation or acceleration of any right or obligation of S or Subsidiary under any provision of applicable law or regulation of the United States 3 5 or Canada or any state or province thereof or of any agreement, contract, judgment, injunction, order, decree or other instrument binding upon S or Subsidiary, which contravention, conflict, violation, default or right of termination, cancellation or acceleration would result in the case of this clause (ii) in a material adverse effect on the business, assets, results of operations or financial condition of S and its subsidiaries, taken as a whole. Section 3.5 Ownership of Securities. Except for the Redeemed Shares, 8,222,031 additional shares of Common Stock owned by Subsidiary (the "Retained Shares") and an aggregate of not more than 500,000 additional shares of Common Stock, neither S nor any corporation or entity controlled by it (any such corporation or entity, an "Affiliate") Beneficially Owns (such term and like terms meaning "beneficially owns" within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) or has any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Voting Securities. As used in this Agreement, "Voting Securities" means any securities of the Company entitled, or which may be entitled, to vote (whether or not entitled to vote generally in the election of directors of the Company), or any securities convertible into or exercisable or exchangeable for such securities (whether or not the right to convert, exercise or exchange is subject to the passage of time or contingencies or both). Section 3.6 Title to Redeemed Shares. Subsidiary has good and marketable title to all of the Redeemed Shares, free and clear of all liens, claims, options, proxies, voting agreements, security interests, charges and encumbrances other than the Existing Standstill Agreement (as defined in Section 6.4 hereof), and has complete and unrestricted power to transfer, assign and deliver the Redeemed Shares to the Company. Upon transfer of the Redeemed Shares to the Company as provided herein, the Company will acquire good and marketable title to the Redeemed Shares, free and clear of all liens, claims, options, proxies, voting agreements, security interests, charges and encumbrances. 4 6 Section 3.7 Ownership of Subsidiary. S owns indirectly all of the outstanding capital stock of Subsidiary, free and clear of all liens, claims, options, proxies, voting agreements, security interests, charges and encumbrances. Section 3.8 Acquisition for Investment. Subject to Section 5.3(g) hereof, Subsidiary is acquiring the Warrants and the Notes solely for its own account for the purpose of investment and not with a view to or for sale in connection with any distribution thereof. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to S and Subsidiary as follows. Section 4.1 Organization. Each of the Company and Warco is a corporation duly organized, validly existing and in good standing under the laws of Delaware. Section 4.2 Authority Relative to this Agreement. The Company has all necessary corporate power and authority to execute and deliver this Agreement, the Warrant Agreement and the Registration Rights Agreement, to issue the Warrants and the Notes and to perform its obligations hereunder and thereunder. The execution and delivery by the Company of this Agreement, the Warrant Agreement and the Registration Rights Agreement, the issuance of the Warrants and the Notes and the performance by the Company of its obligations hereunder and thereunder have been duly and validly authorized by the Board of Directors of the Company and no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement, the Warrant Agreement or the Registration Rights Agreement, the issuance of the Warrants or the Notes or the performance by the Company of its obligations hereunder or thereunder. Warco has all necessary corporate power and authority to execute and deliver the Warrant Agreement and to perform its obligations thereunder. The execution and delivery by Warco of the Warrant Agreement and the performance by Warco of its obligations thereunder have been duly and validly authorized by the Board of Directors of Warco and no other corporate proceedings on 5 7 the part of Warco are necessary to authorize the execution and delivery of the Warrant Agreement or the performance by Warco of its obligations thereunder. Section 4.3 Binding Agreements. This Agreement, the Warrant Agreement, the Registration Rights Agreement, the Warrants and the Notes have been duly and validly executed and delivered by the Company and constitute valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms. The Warrant Agreement has been duly and validly executed and delivered by Warco and constitutes a valid and binding agreement of Warco, enforceable against Warco in accordance with its terms. Section 4.4 Non-Contravention. The execution and delivery by the Company of this Agreement, the Warrant Agreement and the Registration Rights Agreement and the issuance of the Warrants and the Notes do not, the performance by the Company of its obligations hereunder and thereunder will not, the execution and delivery by Warco of the Warrant Agreement do not, and the performance by Warco of its obligations thereunder will not (i) contravene or conflict with the certificate of incorporation or by-laws of the Company or Warco or (ii) contravene or conflict with or constitute a violation of or default under or give rise to a right of termination, cancellation or acceleration of any right or obligation of the Company, Warco or any of the Company's other subsidiaries under any provision of applicable law or regulation of the United States or any state thereof or of any agreement, contract, judgment, injunction, order, decree or other instrument binding upon the Company, Warco or any of the Company's other subsidiaries, which contravention, conflict, violation, default or right of termination, cancellation or acceleration would result in the case of this clause (ii) in a material adverse effect on the business, assets, results of operations or financial condition of the Company and its subsidiaries, taken as a whole. Section 4.5 Warrant Shares. The shares of Common Stock issuable upon exercise of the Warrants have been duly authorized by all necessary corporate action on the part of the Company and have been duly reserved for issuance. When shares of Common Stock are issued and 6 8 paid for upon exercise of the Warrants as provided therein, such shares will be validly issued, fully paid and nonassessable, and the issuance of such shares will not be subject to preemptive rights of any other stockholder of the Company. Section 4.6 Ownership of Warco. The Company owns directly all of the outstanding capital stock of Warco, free and clear of all liens, claims, options, proxies, voting agreements, security interests, charges and encumbrances. ARTICLE V ADDITIONAL AGREEMENTS Section 5.1 Standstill. During the period (the "Standstill Period") commencing on the date hereof and ending on the 15th anniversary of the date hereof (the "Termination Date"), S shall not, and shall cause its Affiliates not to, directly or indirectly, alone or in concert with others: (a) acquire, offer or propose to acquire or agree to acquire, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other "group" (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, Beneficial Ownership of any Voting Securities or any rights to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Voting Securities, other than the Warrants and other than as a result of the exercise of the Warrants or as a result of any stock dividends or other distributions or offerings made available by the Company to holders of Voting Securities generally; provided that any such Voting Securities shall be subject to the restrictions of this Agreement; provided, further, that the acquisition by Affiliates of S of Beneficial Ownership of not more than an aggregate of 500,000 additional shares of Common Stock shall not be deemed to breach this Section 5.1(a); (b) propose or seek to effect any merger, business combination, restructuring, recapitalization or 7 9 similar transaction involving the Company or any of its subsidiaries or the sale or other disposition of any material portion of the assets of the Company or any of its subsidiaries; provided that, subject to Section 5.2 hereof, nothing contained in this clause (b) shall limit the right to vote as a stockholder in connection with any such transaction; (c) deposit any Voting Securities in a voting trust or subject any Voting Securities to any arrangement or agreement with respect to the voting of such Voting Securities, except as to voting on specific matters as to which S or its Affiliates are permitted to solicit proxies pursuant to the proviso of Section 5.1(e) hereof; (d) seek election to, seek to place a representative on, or seek the removal of any member of, the Company's Board of Directors, except pursuant to Section 5.8 hereof; (e) engage in any "solicitation" (within the meaning of Rule 14a-1 under the Exchange Act) of proxies or consents (whether or not relating to the election or removal of directors) with respect to the Company, or become a "participant" in any "election contest" (within the meaning of Rule 14a-11 under the Exchange Act) or execute any written consent in lieu of a meeting of the holders of any class of Voting Securities; provided that (i) the limitation contained in this Section 5.1(e) shall not apply to any Significant Event (as defined in Section 5.2 hereof) that is initiated or proposed by the Company and (ii) if S opposes any solicitation by the Company's management with respect to any such Significant Event and neither S nor any of its Affiliates otherwise publishes or distributes solicitation material required to be filed with the Securities and Exchange Commission by Regulation 14A under the Exchange Act, the Company shall include in its proxy statement in connection with such solicitation by the Company's management the fact that S opposes such solicitation and a brief statement of S's reasons for such opposition; (f) call or seek to have called any meeting of the stockholders of the Company; 8 10 (g) initiate, propose or otherwise solicit stockholders for the approval of any stockholder proposal (as described in Rule 14a-8 under the Exchange Act or otherwise) with respect to the Company; (h) except for the purpose of voting on specific matters as to which S or its Affiliates are permitted to solicit proxies pursuant to the proviso of Section 5.1(e) hereof, form, join or in any way participate in or assist in the formation of a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities, other than any such "group" consisting exclusively of S and/or wholly-owned subsidiaries of S, and any Affiliates of S which shall have acquired additional shares of Common Stock not in breach of Section 5.1(a) hereof; provided, that any such subsidiary which is not incorporated under the laws of any state of the United States of America consents, pursuant to documentation reasonably satisfactory in form and substance to the Company, to the jurisdiction and venue of any state or federal court sitting in the Borough of Manhattan in the State of New York for purposes of enforcing this Agreement; (i) disclose any intention, plan or arrangement inconsistent with the foregoing; (j) advise, assist or encourage or finance any other persons in connection with any of the foregoing types of activities; or (k) request the Company (or its directors, officers, employees or agents) to amend or waive any provision of this Agreement unless the Company shall have previously notified S in writing that such request, if made, would not require public disclosure by the Company. Section 5.2 Voting. At all times during the Standstill Period, S shall, and shall cause each of its Affiliates to, vote all Voting Securities which they Beneficially Own for the slate of nominees proposed by the Board of Directors of the Company and on all other matters to be voted on by the holders of Voting Securities, in the same proportion as the votes cast by the other holders of Voting Securities; provided that Voting Securities Beneficially Owned by S or its Affiliates may 9 11 be voted as they determine in their sole discretion on any Significant Event. As used in this Agreement, "Significant Event" means any of the following, if stockholder approval thereof is required by the General Corporation Law of the State of Delaware, the rules of the New York Stock Exchange or the charter or by-laws of the Company: any charter or by-law amendment (other than a proposal to require cumulative voting in the election of directors), acquisition or disposition of assets (by way of merger, consolidation or otherwise), change in capitalization, liquidation, or other action out of the ordinary course of business of the Company; provided that "Significant Event" shall not mean or include any proposals to approve, adopt or amend any bonus, profit sharing, pension, retirement, thrift, savings, incentive, variable, stock purchase, stock ownership, stock appreciation, stock option, dividend reinvestment or other benefit or compensation plan, program, agreement or arrangement for employees or directors of the Company or any of its subsidiaries. At all times during the Standstill Period, S and its Affiliates, as the Beneficial Owners of Voting Securities, shall be present, in person or by proxy, at all meetings of stockholders of the Company, so that all Voting Securities which S or any of its Affiliates Beneficially Owns may be counted for the purpose of determining the presence of a quorum at all meetings of stockholders of the Company. Section 5.3 Dispositions. During the Standstill Period, S shall not, and shall cause its Affiliates not to, directly or indirectly (including, without limitation, through the disposition or transfer of control of another person), sell, assign, transfer, pledge, hypothecate, grant any option with respect to or otherwise dispose of any interest in (or enter into an agreement or understanding with respect to the foregoing) the Notes or any Voting Securities, including, without limitation, any of the Warrants (a "Disposition"), except as set forth below in this Section 5.3. Without limiting the generality of the foregoing, any sale of securities of S or any of its Affiliates which is currently (or following the passage of time, the occurrence of any event or the giving of notice), directly or indirectly, exchangeable or exercisable for, or convertible into, any Voting Securities (an "S Security Disposition") shall constitute a Disposition of such Voting Securities. 10 12 (a) Dispositions may be made to wholly-owned subsidiaries of S; provided, that such subsidiaries agree in writing to be bound by this Agreement to the same extent as S and Subsidiary; provided, further, that any such subsidiary which is not incorporated under the laws of any state of the United States of America consents, pursuant to documentation reasonably satisfactory in form and substance to the Company, to the jurisdiction and venue of any state or federal court sitting in the Borough of Manhattan in the State of New York for purposes of enforcing this Agreement. (b) Dispositions of Voting Securities may be made pursuant to a public offering, effected in accordance with the Registration Rights Agreement, or in privately-negotiated transactions; provided that prior to any such Disposition, S and its Affiliates shall have complied with the provisions of Section 5.4(I) hereof and the Company shall have had the right pursuant to Section 5.4(I) hereof to purchase the Voting Securities proposed to be subject to such Disposition (or, in the case of Voting Securities issuable or deliverable in the future upon the exercise, exchange or conversion of securities of S or any Affiliate of S, to purchase the Voting Securities as to which a Section 5.4(I) Transfer Notice is deemed to have been delivered pursuant to Section 5.4(I)(a) hereof); provided, further, that (i) such Dispositions shall not be made to any person who or which, together with such person's affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act) and the members of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act) existing with respect to Voting Securities of which such person is a part (any such person and its affiliates, associates and group members being collectively referred to herein as a "Purchasing Person"), would immediately thereafter, to the knowledge of S or any of its Affiliates after reasonable inquiry, Beneficially Own Voting Securities representing 3% or more of the total combined voting power in the election of directors of the Company of all Voting Securities then outstanding; (ii) if any such Disposition is made to any Purchasing Person who would immediately thereafter, to the knowledge of S or any of its Affiliates after reasonable inquiry, Beneficially Own Voting Securities representing more than 1%, but less than 3%, of the total combined voting power in the election of directors of the Company of all Voting Securities 11 13 then outstanding, then, prior to and as a condition to the effectiveness of any such Disposition, S shall obtain the written agreement (which agreement shall be addressed to the Company and reasonably satisfactory in form and substance to the Company) of each such Purchasing Person to be bound by Article V of this Agreement (other than Section 5.6, Section 5.7 and Section 5.8 hereof) to the same extent as S as if references to S in such Article were to such Purchasing Person; and (iii) no such Disposition of Warrants shall be effected prior to May 15, 1996. Notwithstanding the foregoing provisions of this Section 5.3(b), Dispositions of Voting Securities to investment advisors, investment companies, insurance companies, mutual funds, pension funds, bank trust funds, foundations and charitable trusts ("Designated Institutions") or to registered broker dealers acting as principals ("Broker Principals") may be made pursuant to a public offering, effected in accordance with the Registration Rights Agreement, or in privately-negotiated transactions; provided that prior to any such Disposition, S and its Affiliates shall have complied with the provisions of Section 5.4(I) hereof and the Company shall have had the right pursuant to Section 5.4(I) hereof to purchase the Voting Securities proposed to be subject to such Disposition (or, in the case of Voting Securities issuable or deliverable in the future upon the exercise, exchange or conversion of securities of S or an Affiliate of S, to purchase the Voting Securities as to which a Section 5.4(I) Transfer Notice is deemed to have been delivered pursuant to Section 5.4(I)(a) hereof); provided, further, that (i) such Dispositions shall not be made to any Designated Institution or Broker Principal which, together with such Designated Institution's or Broker Principal's affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act) and the members of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act) existing with respect to Voting Securities of which such Designated Institution or Broker Principal, as the case may be, is a part, would immediately thereafter, to the knowledge of S or any of its Affiliates after reasonable inquiry, Beneficially Own Voting Securities representing 5% or more (in the case of any Designated Institution and its affiliates, associates and group members) or 10% or more (in the case of any Broker Principal and its affiliates, associates and group members) of the total combined voting power in the election of directors of the Company of all Voting Securities 12 14 then outstanding; (ii) if any such Disposition is made to any Broker Principal which (together with its affiliates, associates and group members) would immediately thereafter, to the knowledge of S or any of its Affiliates after reasonable inquiry, Beneficially Own Voting Securities representing more than 3%, but less than 10%, of the total combined voting power in the election of directors of the Company of all Voting Securities then outstanding, then, prior to and as a condition to the effectiveness of any such Disposition, S shall obtain the written agreement (which agreement shall be addressed to the Company and reasonably satisfactory in form and substance to the Company) of each such Broker Principal to be bound by Article V of this Agreement (other than Section 5.6, Section 5.7 and Section 5.8 hereof) to the same extent as S as if references to S in such Article were to such Broker Principal (except that, notwithstanding any such agreement of any such Broker Principal, any such Broker Principal may, without complying with the provisions of Section 5.4(I)(a) hereof, effect short sales of Voting Securities to any Purchasing Person who would not immediately thereafter, to the knowledge of such Broker Principal after reasonable inquiry, Beneficially Own Voting Securities representing more than 1% of the total combined voting power in the election of directors of the Company of all Voting Securities then outstanding); and (iii) no such Disposition of Warrants shall be effected prior to May 15, 1996. All Warrants Beneficially Owned by a Purchasing Person, Designated Institution or Broker Principal shall be assumed to have been fully exercised for purposes of calculating, as described above in this Section 5.3(b), the voting power represented by the Voting Securities Beneficially Owned by such Purchasing Person, Designated Institution or Broker Principal, as the case may be. (c) Dispositions of Voting Securities may be made pursuant to a dividend or other distribution to stockholders of S generally; provided that prior to any such Disposition, S and its Affiliates shall have complied with the provisions of Section 5.4(I) hereof and the Company shall have had the right pursuant to Section 5.4(I) hereof to purchase the Voting Securities proposed to be subject to such Disposition; provided, further, that (i) if any Purchasing Person who or which is an affiliate or associate (as such terms are defined in Rule 12b-2 under the Exchange Act) of S would receive in con- 13 15 nection with such Disposition more than 5% of the Voting Securities disposed of therein, then, prior to and as a condition to the effectiveness of any such Disposition, S shall obtain the written agreement (which agreement shall be addressed to the Company and reasonably satisfactory in form and substance to the Company) of each such Purchasing Person to be bound by Article V of this Agreement (other than Section 5.6, Section 5.7 and Section 5.8 hereof) to the same extent as S as if references to S in such Article were to such Purchasing Person; and (ii) no such Disposition of Warrants shall be effected prior to May 15, 1996. (d) Dispositions may be made (i) to the Company in accordance with Section 5.4 hereof and (ii) in accordance with Section 5.5 hereof. (e) Dispositions may be made pursuant to a tender offer or exchange offer or any other transaction which is recommended to stockholders of the Company by a least a majority of the entire Board of Directors of the Company. (f) Dispositions of Common Stock or Warrants may be made pursuant to a tender offer or exchange offer which is not recommended to stockholders of the Company by a least a majority of the entire Board of Directors of the Company (an "Unsolicited Offer"); provided, that such Unsolicited Offer is for at least a majority of the Common Stock outstanding on a fully diluted basis; provided, further, that prior to any such Disposition, S and its Affiliates shall have complied with the provisions of Section 5.4(II) hereof and the Company (and/or its designees) shall have had the right pursuant to Section 5.4(II) hereof to purchase the Common Stock and Warrants proposed to be subject to such Disposition. (g) After the 30th day following the date of this Agreement, a pledge or pledges of the Notes, to secure bona fide loans, may be made to any bank organized under the laws of the United States having stockholders' equity of at least $1 billion, and upon any foreclosure in connection therewith, the Notes may be transferred to the foreclosing bank or banks. 14 16 The Company, S and Subsidiary agree that (i) Dispositions of the Retained Shares shall not be subject to this Section 5.3, Section 5.4(I) or Section 5.4(II) unless at the time of such Disposition, the S Voting Power (as defined in Section 5.5 hereof) exceeds 5%; and (ii) neither S nor any of its Affiliates nor any Purchasing Person shall, in connection with any proposed Disposition, be required to make "reasonable inquiry" with respect to the Voting Securities Beneficially Owned by the proposed transferee in such Disposition unless the Voting Securities proposed to be subject to such Disposition represent more than 1/4 of 1% of the total combined voting power in the election of directors of the Company of all Voting Securities then outstanding (assuming full exercise of any Warrants included in such Voting Securities). Section 5.4 Company's Right to Purchase Voting Securities. (I) Prior to any Disposition of Voting Securities pursuant to Section 5.3(b) or Section 5.3(c) hereof, the Company shall have the right, exercisable in accordance with this Section 5.4(I), to purchase all, but not less than all, of the Voting Securities intended to be subject to such Disposition by S or any of its Affiliates; provided that with respect to any intended Disposition of fewer than all outstanding First S Warrants, Second S Warrants and/or Third S Warrants (as such terms are defined in the Warrant Agreement), the Company shall also have the right, exercisable in accordance with this Section 5.4(I), to purchase (i) in the case of any intended Disposition of fewer than all outstanding First S Warrants, all outstanding First S Warrants; (ii) in the case of any intended Disposition of fewer than all outstanding Second S Warrants, all outstanding Second S Warrants; and (iii) in the case of any intended Disposition of fewer than all outstanding Third S Warrants, all outstanding Third S Warrants. (a) If S or any of its Affiliates wishes to effect any Disposition of Voting Securities pursuant to Section 5.3(b) or Section 5.3(c) hereof, S shall give notice (a "Section 5.4(I) Transfer Notice") to the Company of such intended Disposition, specifying the Voting Securities to be subject to Disposition and the intended method of Disposition; provided that (i) any request for registration of Registrable Securities (as such term is defined in the Registration Rights Agreement) shall be 15 17 deemed a Section 5.4(I) Transfer Notice with respect to the Registrable Securities requested to be registered (except that a request for registration of Common Stock issuable or deliverable in the future upon the exercise, exchange or conversion of securities of S or an Affiliate of S shall be deemed a request to register (and shall require delivery of a Section 5.4(I) Transfer Notice with respect to) such number of Warrants and shares of Common Stock (allocated as S may specify in such request for registration among the First S Warrants, Second S Warrants and Third S Warrants then outstanding (provided that no S Warrants so specified will expire prior to the expiration of the Company's right to elect to purchase such S Warrants pursuant to this Section 5.4(I)(a)) and the issued and outstanding shares of Common Stock then Beneficially Owned by S and its Affiliates or, if no such allocation is specified by S, as shall be so allocated by the Company among such outstanding S Warrants and issued and outstanding shares of Common Stock then Beneficially Owned by S and its Affiliates upon notice to S) as shall equal the maximum number of shares of Common Stock so issuable or deliverable; provided that if any such allocation by either S or the Company includes Warrants and shares of Common Stock, such registration request shall be deemed (x) a request to register (and shall require delivery of a Section 5.4(I) Transfer Notice with respect to) all of the Warrants included in such allocation and (y) a separate request to register (and shall require delivery of a Section 5.4(I) Transfer Notice with respect to) all of the shares of Common Stock included in such allocation) and (ii) an S Security Disposition shall be deemed to be a Disposition of Warrants and/or Common Stock (and to require Section 5.4(I) Transfer Notices with respect thereto) to the same extent as is provided in the parenthetical exception to the preceding clause (i) in the case where such S Security Disposition was proposed to be effected as a registration of Registrable Securities; provided, further, that no Section 5.4(I) Transfer Notice with respect to any Warrants may be given prior to May 15, 1996. With respect to any intended Disposition of Voting Securities pursuant to Section 5.3(b) hereof (other than any intended Disposition of Warrants or any intended Disposition in a public offering effected in accordance with the Registration Rights Agreement), S must also set forth in the applicable Section 5.4(I) Transfer Notice the terms of a bona fide third party offer (a "Third Party Offer") to purchase 16 18 such Voting Securities theretofore received and then remaining open (including the identity of the offeror and the price offered). If the Company wishes to purchase the Voting Securities specified in the Section 5.4(I) Transfer Notice, then within fifteen business days following receipt of the Section 5.4(I) Transfer Notice, the Company shall deliver a written notice (a "Section 5.4(I) Acceptance Notice") to S indicating that the Company wishes to purchase such Voting Securities (which Voting Securities may consist of or include, as contemplated by the proviso to the first sentence of this Section 5.4(I), all of the outstanding First S Warrants, Second S Warrants and/or Third S Warrants)(such Voting Securities, the "Section 5.4(I) Securities"), a date for the closing of such purchase, which shall not be more than sixty days after delivery of such Section 5.4(I) Acceptance Notice (subject to extension as provided in Section 5.4(I)(f) hereof), and a place for the closing of such purchase (a "Section 5.4(I) Closing"). Upon delivery of a Section 5.4(I) Acceptance Notice, a binding agreement shall be deemed to exist providing for the purchase by the Company of the Section 5.4(I) Securities to which such Section 5.4(I) Acceptance Notice relates, upon the terms and subject to the conditions set forth in this Section 5.4(I); provided, that (i) the Company may rescind its Section 5.4(I) Acceptance Notice (in which event it will have no obligation to purchase such Section 5.4(I) Securities) at any time within two business days following any determination of (x) the value of any untraded securities pursuant to Section 5.4(I)(b)(ii) hereof or (y) fair market value pursuant to Section 5.4(I)(b)(iii) hereof; and (ii) S may rescind its Section 5.4(I) Transfer Notice (in which event it will have no obligation to sell such Section 5.4(I) Securities) at any time within two business days following any determination of fair market value pursuant to Section 5.4(I)(b)(iii) hereof if the closing price of the Common Stock (as determined in accordance with the second sentence of Section 5.4(I)(b)(i) hereof) on the date of such determination is less than 95% of the closing price of the Common Stock on the date that such Section 5.4(I) Transfer Notice is delivered to the Company. (b) The purchase price for any Section 5.4(I) Securities (the "Section 5.4(I) Price") shall be determined as set forth below. 17 19 (i) With respect to any Section 5.4(I) Securities (other than Warrants) for which no Third Party Offer is disclosed or for which a Third Party Offer consisting of other than solely cash and/or readily marketable securities is disclosed, in each case in the applicable Section 5.4(I) Transfer Notice (including, without limitation, Section 5.4(I) Securities requested to be registered pursuant to the Registration Rights Agreement), the Section 5.4(I) Price per share or other unit of such Section 5.4(I) Securities shall equal the lower of (A) the average closing price per share or per unit of the Section 5.4(I) Securities during the 30 consecutive trading days immediately preceding the Company's receipt of the Section 5.4(I) Transfer Notice and (B) the average closing price per share or per unit of Section 5.4(I) Securities during the ten consecutive trading days immediately following the Company's receipt of the Section 5.4(I) Transfer Notice. The closing price for each such day shall be the last sale price regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the New York Stock Exchange, or, if the Section 5.4(I) Securities are not listed or admitted to trading on such exchange, on the principal national securities exchange on which the Section 5.4(I) Securities are listed or admitted to trading, or, if the Section 5.4(I) Securities are not listed or admitted to trading on any national securities exchange but are designated as national market system securities by the National Association of Securities Dealers ("NASD"), the last sale price, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, in either case as reported on the NASD Automated Quotation/National Market System, or if the Section 5.4(I) Securities are not so designated as national market system securities, the average of the highest reported bid and lowest reported asked prices as furnished by the NASD or similar organization if the NASD is no longer reporting such information. 18 20 (ii) With respect to any Section 5.4(I) Securities (other than Warrants) for which a Third Party Offer is disclosed in the applicable Section 5.4(I) Transfer Notice which provides for consideration consisting solely of cash and/or marketable securities, the Section 5.4(I) Price per share or other unit of such Section 5.4(I) Securities shall equal the per share or per unit price specified in such Third Party Offer. The value of any readily marketable securities identified in such Third Party Offer shall equal the average closing price per share or per unit of such securities during the 30 consecutive trading days immediately preceding the Company's receipt of the Section 5.4(I) Transfer Notice. The closing price for each such day shall be the last sale price regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the New York Stock Exchange, or, if such securities are not listed or admitted to trading on such exchange, on the principal national securities exchange on which such securities are listed or admitted to trading, or, if such securities are not listed or admitted to trading on any national securities exchange but are designated as national market system securities by the NASD, the last sale price, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, in either case as reported on the NASD Automated Quotation/National Market System, or if such securities are not so designated as national market system securities, the average of the highest reported bid and lowest reported asked prices as furnished by the NASD or similar organization if the NASD is no longer reporting such information. In the case of any securities not theretofore traded, such securities must be issued or proposed to be issued by an entity which has been subject to the reporting requirements of the Exchange Act for at least one year, and the value of such securities shall be determined by two nationally recognized investment banking firms, one firm to be selected by each of S and the Compa- 19 21 ny, or in the event such firms are unable to agree, by a third nationally recognized investment banking firm selected by such firms. S and the Company shall use their best efforts to cause any such determination of value to be made within five business days following the Company's receipt of the applicable Section 5.4(I) Transfer Notice. In connection with any determination of fair market value pursuant to this Section 5.4(I)(b)(ii), each party will bear the fees and expenses of the investment banking firm selected by it and the parties will bear equally the fees and expenses of any third investment banking firm. (iii) With respect to any Warrants constituting Section 5.4(I) Securities, the Section 5.4(I) Price shall be the fair market value of such Warrants at the close of business on the Warrant Valuation Date (as determined below); provided that if the Company exercises its right pursuant to the proviso to the first sentence of this Section 5.4(I), or if the Warrants specified in the Section 5.4(I) Transfer Notice include all outstanding First S Warrants, Second S Warrants and/or Third S Warrants, the Section 5.4(I) Price for any such Warrants shall not exceed the sum of (A) the fair market value of such Warrants as of the date hereof plus (B) 90% of the positive difference, if any, between (x) the fair market value of such Warrants at the close of business on the Warrant Valuation Date minus (y) the fair market value of such Warrants as of the date hereof. For purposes of the foregoing, the parties agree that the aggregate fair market value of the First S Warrants, the Second S Warrants and the Third S Warrants issued as of the date hereof is, as of the date hereof, $135 million, $151.875 million and $151.875 million, respectively. The fair market value of the Warrants at the close of business on the Warrant Valuation Date shall be determined by two nationally recognized investment banking firms, one firm to be selected by each of S and the Company, or in the event such firms are unable to agree, by a third nationally recog- 20 22 nized investment banking firm selected by such firms as provided below. Such investment banking firms or firm shall be required to use the valuation methodology set forth in Exhibit H to this Agreement in determining the fair market value of the Warrants at the close of business on the Warrant Valuation Date. The parties will select their respective investment banking firms and instruct such firms to review and agree upon all data relevant to the valuation methodology set forth in Exhibit H to this Agreement on the business day following the Company's receipt of the applicable Section 5.4(I) Transfer Notice. In the event such firms do so agree, the Warrant Valuation Date shall be the 14th business day following the Company's receipt of such Section 5.4(I) Transfer Notice. If such firms have not so agreed by the 14th business day following such receipt, then on the 15th business day following such receipt, such firms shall select a third investment banking firm. Such third investment banking firm shall be required to determine the fair market value of the Warrants at the close of business on the 17th business day following the Company's receipt of such Section 5.4(I) Transfer Notice and in such event, the Warrant Valuation Date shall be the 17th business day following the Company's receipt of such Section 5.4(I) Transfer Notice. In connection with any determination of fair market value pursuant to this Section 5.4(I)(b)(iii), each party will bear the fees and expenses of the investment banking firm selected by it and the parties will bear equally the fees and expenses of any third investment banking firm. (iv) The purchase price for any Section 5.4(I) Securities with respect to which S or any of its Affiliates wishes to effect a Disposition and which are deemed to have been requested to be registered or are deemed to have been subject to Disposition pursuant to the first sentence of Section 5.4(I)(a) shall, notwithstanding anything to the contrary contained in this Section 5.4(I), be determined in accordance with Section 5.4(I)(b)(iii) in the 21 23 case of Warrants and Section 5.4(I)(b)(i) in the case of Section 5.4(I) Securities other than Warrants. (c) At any Section 5.4(I) Closing, the Company shall pay to S (or its designees) the aggregate Section 5.4(I) Price for the Section 5.4(I) Securities by wire transfer of immediately available funds, and S shall deliver or cause to be delivered to the Company such Section 5.4(I) Securities, with documentation satisfactory to the Company evidencing the transfer of such Section 5.4(I) Securities, in form acceptable for transfer on the Company's books. In the event a Section 5.4(I) Closing occurs after the 30th day following delivery of the applicable Section 5.4(I) Acceptance Notice, then, in addition to the aggregate Section 5.4(I) Price, the Company shall pay to S (or its designees) interest on the aggregate Section 5.4(I) Price for the period from and after such 30th day to and including the date of such Section 5.4(I) Closing. Such interest shall accrue at the Federal Funds Rate (as defined in the Notes) as in effect from time to time, plus 1/4 of 1%. Such interest shall not be compounded and shall be calculated on the basis of a 360-day year and the actual number of days elapsed. (d) If the Company does not exercise its right to purchase Voting Securities specified in a Section 5.4(I) Transfer Notice, or if the Company exercises its right to rescind as described in the proviso to the last sentence of Section 5.4(I)(a) hereof, or if any agreement deemed to exist with respect to Voting Securities upon delivery of the applicable Section 5.4(I) Acceptance Notice is terminated pursuant to Section 5.4(I)(f) hereof, then the party giving such Section 5.4(I) Transfer Notice shall be free to effect the Disposition of such Voting Securities, subject to Section 5.3 hereof (other than the restrictions contained therein relating to the Company's purchase rights under this Section 5.4); provided that, with respect to any such Disposition other than a public offering of Voting Securities pursuant to the Registration Rights Agreement, such Disposition is completed within 60 days following the expiration of the period in which the Company had the right to elect to purchase such Voting Securities or such rescission or termination, as the case may be (which 60 22 24 day period may be extended day by day by S if as of such 60th day or any day thereafter on which such period is extended (x) all waiting periods, if any, applicable to such Disposition under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), shall not have expired or been terminated or (y) any statute, rule, regulation, executive order, decree, ruling, injunction or other order shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits such Disposition or makes such Disposition illegal, provided that no such extension shall be for more than 60 days in the aggregate); provided, further, that such Disposition is effected in accordance with the intended method of Disposition described in the applicable Section 5.4(I) Transfer Notice; provided, further, that with respect to any such Disposition of Voting Securities (other than Warrants) for which a Third Party Offer is disclosed in the applicable Section 5.4(I) Transfer Notice, the Disposition of such Voting Securities is to the third party offeror identified in such Section 5.4(I) Transfer Notice at the price specified therein or at any price in excess thereof. If any such Disposition (other than a public offering of Voting Securities pursuant to the Registration Rights Agreement) is not completed within the 60 day period specified in the first proviso of the preceding sentence, any Voting Securities specified in the applicable Section 5.4(I) Transfer Notice and not disposed of in such Disposition shall again be subject to the Company's purchase rights under this Section 5.4, to the extent provided in Section 5.3 hereof. In the case of a Disposition intended to be effected through a public offering pursuant to the Registration Rights Agreement, the Company's purchase rights under this Section 5.4, to the extent provided in Section 5.3 hereof, shall again apply to (i) all Voting Securities specified in the applicable Section 5.4(I) Transfer Notice, if S or any of its Affiliates declines to proceed with such public offering and (ii) any Voting Securities which remain unsold at the time the Company is entitled to terminate the effectiveness of the Registration (as defined in the Registration Rights Agreement) with respect to such Voting Securities. (e) Without limiting the provisos of Section 5.3(b) and 5.3(c) hereof, if any Disposition is made in accordance with Section 5.3(b) or Section 5.3(c) 23 25 hereof to any Purchasing Person (other than a Designated Institution or Broker Principal) who immediately thereafter Beneficially Owns Voting Securities representing more than 1% of the total combined voting power in the election of directors of the Company of all Voting Securities then outstanding, then such person shall be deemed to have consented to be bound by Article V of this Agreement (other than Section 5.6, Section 5.7 and Section 5.8 hereof) to the same extent as S as if references to S in such Article were to such Purchasing Person. All Warrants Beneficially Owned by a Purchasing Person shall be assumed to have been fully exercised for purposes of calculating, as described above in this Section 5.4(I)(e), the voting power represented by the Voting Securities Beneficially Owned by such Purchasing Person. (f) The obligations of the parties to effect any Section 5.4(I) Closing shall be subject to the satisfaction of the following conditions: (i) all waiting periods, if any, applicable to the transactions occurring at such Section 5.4(I) Closing under the HSR Act, shall have expired or been terminated and (ii) no statute, rule, regulation, executive order, decree, ruling, injunction or other order shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits such transactions or makes such transactions illegal. If, as of any date on which a Section 5.4(I) Closing is scheduled to occur, the foregoing conditions relating thereto have not been satisfied, then such Section 5.4(I) Closing shall occur as promptly as practicable following such satisfaction, and the parties shall use their reasonable best efforts to cause the satisfaction of such conditions; provided that if the foregoing conditions relating to any Section 5.4(I) Closing are not satisfied within 120 days following the delivery of the applicable Section 5.4(I) Acceptance Notice, then S or the Company may terminate the agreement deemed to exist upon delivery of the applicable Section 5.4(I) Acceptance Notice. (II) Prior to any Disposition of Common Stock or Warrants pursuant to Section 5.3(f) hereof, the Company (and/or its designees) shall have the right, exercisable in accordance with this Section 5.4(II), to purchase all of the Common Stock and/or Warrants permitted to be subject to such Disposition by S or any of its Affiliates. 24 26 (a) If S or any of its Affiliates wishes to effect any Disposition of Common Stock or Warrants pursuant to Section 5.3(f) hereof, S shall give notice (a "Section 5.4(II) Transfer Notice") to the Company of such intended Disposition at least seven business days prior to the latest date, as provided below, on which the Company (and/or its designees) is entitled to exercise its right to purchase the securities specified in such Section 5.4(II) Transfer Notice; provided that S may rescind such Section 5.4(II) Transfer Notice at any time prior to delivery of a Section 5.4(II) Acceptance Notice (as defined below). The Section 5.4(II) Transfer Notice shall specify the Common Stock and/or Warrants to be subject to Disposition, which Common Stock and/or Warrants (assuming full exercise thereof) shall represent not more than that percentage of the total number of shares of Common Stock Beneficially Owned by S and its Affiliates which equals the percentage of the shares of Common Stock outstanding on a fully diluted basis that the bidder in the Unsolicited Offer is offering to purchase; provided that a Section 5.4(II) Transfer Notice shall not so specify any Warrants unless Warrants are being tendered for by the bidder in the Unsolicited Offer; provided, further, that all shares of Common Stock specified in a Section 5.4(II) Transfer Notice shall be issued and outstanding (which shares may be shares issued in connection with the accelerated exercise of Warrants pursuant to the terms thereof). If the Company (and/or its designees) wishes to purchase the securities specified in the Section 5.4(II) Transfer Notice, then not later than 24 hours prior to the latest time by which such securities must be tendered in order to be accepted in the Unsolicited Offer, the Company shall deliver a written notice (a "Section 5.4(II) Acceptance Notice") to S specifying that the Company (and/or its designees) wishes to purchase such securities (such securities, the "Section 5.4(II) Securities"), a date for the closing of such purchase, which shall not be more than sixty days after delivery of such Section 5.4(II) Acceptance Notice (subject to extension as provided in Section 5.4(II)(e) hereof), and a place for the closing of such purchase (a "Section 5.4(II) Closing"). Upon delivery of a Section 5.4(II) Acceptance Notice, a binding agreement shall be deemed to exist providing for the purchase by the Company (and/or its designees) of the Section 5.4(II) Securities to which such Section 5.4(II) Acceptance Notice relates, upon the terms and subject to the conditions set forth in this 25 27 Section 5.4(II); provided, that if following delivery of a Section 5.4(II) Acceptance Notice, the price per share of Common Stock or the price per Warrant offered in the Unsolicited Offer is increased, the Company may, not later than 24 hours prior to the latest time by which Common Stock and/or Warrants must be tendered in order to be accepted in the Unsolicited Offer, rescind its Section 5.4(II) Acceptance Notice (in which event it will have no obligation to purchase such Section 5.4(II) Securities). Notwithstanding anything to the contrary contained in this Section 5.4(II), for so long as the agreement deemed to exist upon delivery of a Section 5.4(II) Acceptance Notice remains in effect, S shall not and shall cause its Affiliates not to, tender any shares of Common Stock or Warrants pursuant to the Unsolicited Offer. (b) The purchase price for any Section 5.4(II) Securities (the "Section 5.4(II) Price") shall be the per share price of Common Stock paid in the Unsolicited Offer (in the case of Common Stock) or the excess of the per share price of Common Stock paid in the Unsolicited Offer over the exercise price of the Warrants (in the case of Warrants). The value of any securities offered in the Unsolicited Offer shall equal the average closing price per share or per unit of such securities during the 30 consecutive trading days immediately preceding the Company's receipt of the Section 5.4(II) Transfer Notice. The closing price for each such day shall be the last sale price regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the New York Stock Exchange, or, if such securities are not listed or admitted to trading on such exchange, on the principal national securities exchange on which such securities are listed or admitted to trading, or, if such securities are not listed or admitted to trading on any national securities exchange but are designated as national market system securities by the NASD, the last sale price, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, in either case as reported on the NASD Automated Quotation/National Market System, or if such securities are not so designated as national market system securities, the average of the highest reported bid and lowest reported asked prices as furnished by the NASD or similar organization if the NASD is no longer reporting such information. In the case of any securities not thereto- 26 28 fore traded, the value of such securities shall be determined by two nationally recognized investment banking firms, one firm to be selected by each of S and the Company, or in the event such firms are unable to agree, by a third nationally recognized investment banking firm selected by such firms. S and the Company shall use their best efforts to cause any such determination of value to be made within five business days following the Company receipt of a Section 5.4(II) Transfer Notice. In connection with any determination of value pursuant to this Section 5.4(II)(b), each party will bear the fees and expenses of the investment banking firm selected by it and the parties will bear equally the fees and expenses of any third investment banking firm. (c) At any Section 5.4(II) Closing, the Company (and/or its designees) shall pay to S (or its designees) the aggregate Section 5.4(II) Price for the Section 5.4(II) Securities by wire transfer of immediately available funds, and S shall deliver or cause to be delivered to the Company (and/or its designees) such Section 5.4(II) Securities, with documentation satisfactory to the Company evidencing the transfer of such Section 5.4(II) Securities, in form acceptable for transfer on the Company's books. In the event a Section 5.4(II) Closing occurs after the 30th day following delivery of the applicable Section 5.4(II) Acceptance Notice, then, in addition to the aggregate Section 5.4(II) Price, the Company (and/or its designees) shall pay to S (or its designees) interest on the aggregate Section 5.4(II) Price for the period from and after such 30th day to and including the date of such Section 5.4(II) Closing. Such interest shall accrue at the Federal Funds Rate (as defined in the Notes) as in effect from time to time, plus 1/4 of 1%. Such interest shall not be compounded and shall be calculated on the basis of a 360-day year and the actual number of days elapsed. (d) If the Company (and/or its designees) does not exercise its right to purchase the securities specified in a Section 5.4(II) Transfer Notice, then the party giving such Section 5.4(II) Transfer Notice shall be free to effect the Disposition pursuant to the Unsolicited Offer of such securities, but only such securities, so specified in such Section 5.4(II) Transfer Notice (without being subject to the restrictions contained in Section 5.3(f) hereof relating to the Company's 27 29 purchase rights under this Section 5.4(II)); provided that (i) such Disposition is effected at a price equal to or in excess of the price offered in the Unsolicited Offer at the time that the Company's right to purchase such securities expires and (ii) the foregoing shall not apply with respect to any shares as to which the Company shall have delivered a Section 5.4(II) Acceptance Notice in the event that the agreement deemed to exist with respect to such securities upon delivery of the applicable Section 5.4(II) Acceptance Notice is terminated pursuant to Section 5.4(II)(e) hereof. If any such Disposition is not completed within 60 days following the expiration of the Company's right to purchase the securities specified in a Section 5.4(II) Transfer Notice, any securities specified in such Section 5.4(II) Transfer Notice and not disposed of in such Disposition shall again be subject to the Company's purchase rights under this Section 5.4(II), to the extent provided in Section 5.3(f) hereof. (e) The obligations of the parties to effect any Section 5.4(II) Closing shall be subject to the satisfaction of the following conditions: (i) all waiting periods, if any, applicable to the transactions occurring at such Section 5.4(II) Closing under the HSR Act, shall have expired or been terminated and (ii) no statute, rule, regulation, executive order, decree, ruling, injunction or other order shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits such transactions or makes such transactions illegal. The obligation of the Company (and/or its designees) to effect any Section 5.4(II) Closing shall be further subject to the condition that a majority of the shares of Common Stock outstanding on a fully diluted basis (excluding for purposes of calculating such number of shares outstanding on a fully diluted basis all issued and outstanding shares of Common Stock Beneficially Owned by S and its Affiliates and all shares of Common Stock issuable upon exercise of S Warrants) shall have been paid for or shall simultaneously with such Section 5.4(II) Closing be paid for pursuant to the Unsolicited Offer. If, as of any date on which a Section 5.4(II) Closing is scheduled to occur, the foregoing conditions relating thereto have not been satisfied, then such Section 5.4(II) Closing shall occur as promptly as practicable following such satisfaction, and, with respect to 28 30 the conditions set forth in the first sentence of this Section 5.4(II)(e), the parties shall use their reasonable best efforts to cause the satisfaction of such conditions. If (x) the conditions relating to any Section 5.4(II) Closing are not satisfied within 120 days following the delivery of the applicable Section 5.4(II) Acceptance Notice, or (y) the Unsolicited Offer is terminated without the condition set forth in the second sentence of this Section 5.4(II)(e) being satisfied, then S or the Company in the case of the preceding clause (x), or the Company in the case of the preceding clause (y), may terminate the agreement deemed to exist upon delivery of the applicable Section 5.4(II) Acceptance Notice by delivering written notice to the other. Section 5.5 Required Dispositions. (a) If at any time S Voting Power (as defined below) is at least 24% and as a result of a repurchase of Common Stock by the Company ("Company Repurchase"), S Voting Power immediately following such Company Repurchase S Voting Power shall be greater than S Voting Power immediately prior to such Company Repurchase, then, if and to the extent requested by the Company by written notice to S, S shall, within six months after such request, dispose of or cause its Affiliates to dispose of (a "Required Disposition") such number of shares of Common Stock (to such parties and in such manner as shall be requested by the Company) as shall be necessary to reduce S Voting Power to no more than S Voting Power immediately prior to such Company Repurchase; provided, that in no event shall S or any of its Affiliates be required to dispose of any of the Retained Shares; provided, further, that if any Required Disposition during such six-month period would result in liability to S or any of its Affiliates under Section 16(b) of the Exchange Act or any similar successor statute by reason of the purchase of Common Stock upon exercise of the Warrants, then such six-month period shall begin on the first date on which such Required Disposition may be effected without liability under Section 16(b) of the Exchange Act. As used in this Agreement, "S Voting Power" means, as of any particular time, the percentage of all of the then issued and outstanding shares of Common Stock represented by the issued and outstanding shares of Common Stock which are then Beneficially Owned by S and its Affiliates (it being agreed that, for pur- 29 31 poses of calculating the S Voting Power, the issued and outstanding shares of Common Stock Beneficially Owned by S and its Affiliates shall specifically exclude any shares subject to unexercised Warrants). (b) The Company agrees to indemnify S and its Affiliates against any Loss (as defined below) incurred by them as a result of any Required Disposition. For purposes of this Section 5.5, shares of Common Stock disposed of in a Required Disposition shall be deemed to be the shares (other than the Retained Shares) purchased at the earliest time by S or its Affiliates. "Loss" means the amount, if any, by which (i) the purchase price of the Common Stock disposed of by S or its Affiliates in a Required Disposition (excluding any out-of-pocket expenses incurred in connection with such purchase), exceeds (ii) the proceeds received by S and its Affiliates from the sale of such Common Stock in such Required Disposition (net of any out-of-pocket expenses incurred in connection with such sale); provided, that if the Company Repurchase is effected through a tender offer, and the Company in its sole discretion shall have consented in writing (which consent may be rescinded at any time) to the tender pursuant to such offer by S and its Affiliates of all of the shares of Common Stock owned by them, and S and its Affiliates tender pursuant to such offer fewer than all of the shares of Common Stock owned by them (other than as a result of the rescission of such consent), then, with respect to each share sold in such Required Disposition, such Required Disposition shall be deemed to have been effected at the price per share paid in such tender offer (but only if greater than the average price per share actually received in such Required Disposition); provided, further, that if the Company Repurchase is effected through an open market purchase program and the Company in its sole discretion shall have consented in writing (which consent may be rescinded at any time) to the sale by S and its Affiliates of a greater number of shares than S and its Affiliates actually sell during such program (and such consent remains effective for at least 30 days during such program), then, with respect to each share sold in such Required Disposition, such Required Disposition shall be deemed to have been effected at the average price per share paid by the Company during such program (but only if greater than the average price per share actually received in such Required Disposition). 30 32 Section 5.6 No Restrictions. So long as Section 5.1, Section 5.2, Section 5.3, Section 5.4, Section 5.5 and Section 5.9 hereof are in full force and effect, the Company will not take or recommend to its stockholders any action during the term of this Agreement which would (i) impose limitations on the legal rights of S or its Affiliates as Company stockholders other than those imposed pursuant to the express terms of this Agreement, including, without limitation, any action which would impose restrictions (A) based upon the size of security holding, nationality of a security holder, the business in which a security holder is engaged or other considerations applicable to S or its Affiliates and not to security holders generally, or (B) with reference to Common Stock generally, by means of the issuance of or proposal to issue any other class of securities having voting power disproportionately greater than the equity investment in the Company represented by such securities; (ii) involve the issuance or corporate action providing for the issuance of any warrant, capital stock or other security (A) which is, or under specified circumstances will become, convertible into or represent the right to acquire any securities of S or its Affiliates (other than pursuant to customary provisions for adjusting the securities for which any such warrant is exercisable or into which any such stock or security is convertible) or (B) any other rights of which (including rights of redemption) are dependent upon the amount of Voting Securities owned by S or its Affiliates; (iii) deny any benefit to S or its Affiliates proportionately as holders of any class of Voting Securities that is made available to other holders of the same class of Voting Securities generally; or (iv) alter voting or other rights of the holders of any class of Voting Securities so that any such rights (or the vote required with respect to any matter) are determined with reference to the amount of Voting Securities held by S or its Affiliates; provided, that this Section 5.6 shall not prohibit the Company from taking any action otherwise prohibited hereby (including, without limitation, adopting a stockholder rights plan or similar plan), so long as S and its Affiliates are, either expressly or as part of a class of stockholders which includes S and its Affiliates, exempted from such action or the limitations on legal rights imposed thereby. Section 5.7 Information. 31 33 (a) At any time that S shall account for its investment in the Company pursuant to the equity method, the Company will furnish to S all information that is required by generally accepted accounting principles to enable S to account for its investment in such manner. To the extent reasonably requested by S, the Company will, and will cause its employees, independent public accountants and other representatives to, provide information regarding the Company to, and otherwise cooperate with, S so as to enable S to prepare financial statements in accordance with accounting principles generally accepted in the United States and/or Canada, and to comply with its reporting requirements and other disclosure obligations under applicable United States and Canadian securities laws and regulations. (b) If the Company so requests, S shall deliver to the Company, no less frequently than quarterly, accurate written reports as to the amount of each class of Voting Securities then Beneficially Owned by S and its Affiliates. The Company shall be entitled to rely on the most recently delivered such report for all purposes of this Agreement. (c) If S so requests, the Company shall deliver to S no less frequently than quarterly accurate written reports as to the amount of each class of Voting Securities then outstanding. S shall be entitled to rely on the most recently delivered such report for all purposes of this Agreement. (d) Each of the Company, S and Subsidiary will provide the other, and shall cause each of their respective subsidiaries to provide the other, with such assistance as may reasonably be requested by them in connection with the preparation of any tax return, any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to liability for taxes relating to the Redemption Transaction, and each will retain and provide the other with any records or information which may be relevant to such return, audit or examination, proceedings or determination. The party requesting assistance hereunder shall reimburse the other party for all reasonable expenses incurred in providing such assistance, including any expenses of third parties. Any information obtained pursuant to this Section 5.7(d) shall be kept strictly 32 34 confidential by the parties hereto. Notwithstanding the foregoing, neither the Company nor any of its affiliates shall have any obligation to make available or provide a copy of any tax return filed by the Company or its affiliates or any related materials. Section 5.8 Board Representation. (a) So long as Section 5.1, Section 5.2, Section 5.3, Section 5.4, Section 5.5 and Section 5.9 hereof are in full force and effect, if at any time the S Voting Power is increased to more than 10% as a result of the exercise of Warrants, and for so long thereafter as the S Voting Power is more than 10%, S shall be entitled to designate up to such number of persons for election to the Company's Board of Directors and the Strategic Direction Committee (or any successor thereto) of the Company's Board of Directors as shall be equal to 6% (rounded to the nearest whole number, but not less than one) of the total numbers of members of such board and committee, respectively, at each annual meeting of stockholders of the Company after the date hereof. The numbers of persons S shall be entitled to designate for election to the Company's Board of Directors and the Strategic Direction Committee (or any successor thereto) of such Board shall be increased to the whole number closest to the following applicable percentage of the total numbers of members of such Board and committee, respectively: (i) 9%, if the S Voting Power is increased to more than 15% as a result of the exercise of Warrants and for so long thereafter as the S Voting Power is more than 15%, (ii) 12%, if the S Voting Power is increased to more than 20% as a result of the exercise of Warrants and for so long thereafter as the S Voting Power is more than 20%, or (iii) 15%, if the S Voting Power is increased to more than 24% as a result of the exercise of Warrants and for so long thereafter as the S Voting Power is more than 24% 33 35 (b) The designation by S of any person for election to the Company's Board of Directors, other than those persons serving on such Board immediately prior to the date hereof, shall be made after consultation with the Company, and any person designated by S for election to the Strategic Direction Committee (or any successor thereto) of the Company's Board of Directors, other than Edgar M. Bronfman, Charles R. Bronfman and Edgar Bronfman, Jr. (or if none of them are directors of the Company, the person serving as chairman of the board or chief executive officer of S), shall be a person agreed to by the Company (which agreement will not be unreasonably withheld). The Company's nominating committee shall recommend to the Company's Board of Directors that all persons designated by S for election to the Company's Board of Directors in accordance with the provisions of this Section 5.8 (and any additional designees as the parties may agree) be included in the slate of nominees recommended by such Board to the Company's stockholders for election as directors at each annual meeting of the stockholders of the Company, and there shall be a recommendation to the Board of Directors that all persons designated by S for election to the Strategic Direction Committee (or any successor thereto) of the Company's Board of Directors in accordance with the provisions of this Section 5.8 (and any additional designees as the parties may agree) be elected to such committee. In the event that any designee of S for election to the Company's Board of Directors or its Strategic Direction Committee (or any successor thereto) pursuant to the foregoing provisions shall cease to serve as a director or committee member for any reason, the vacancy resulting therefrom shall be filled according to the procedures described above. (c) At any time that the S Voting Power is increased to more than 10%, and for so long thereafter as the S Voting Power is more than 10%, S's management shall recommend to its Board of Directors that the person serving as the chief executive officer of the Company and one other person designated by such chief executive officer after consultation with S, or any two other persons designated by the Company after consultation with S (and any additional designees as the parties may agree) be included in the slate of nominees recommended by the Board of Directors of S to shareholders for election as directors at each annual meeting of shareholders of S. 34 36 In the event that any of such designees shall cease to serve as a director for any reason, the vacancy resulting thereby shall be filled according to the procedures described above. (d) The Company will furnish to S's designees on the Company's Board of Directors all information that is provided to the other directors of the Company. S will furnish to the Company's designees on S's Board of Directors all information that is provided to the other directors of S. Section 5.9 Spinoff Distributions. In the event that the Company makes any Spinoff Distribution, then, whether or not Spinoff Warrants are issued in connection therewith, effective as of the date of such Spinoff Distribution, without any action on the part of the Company, the Spinoff Company or S, there shall be deemed to exist between S and the Spinoff Company a binding agreement (the "Spinoff Agreement") containing provisions substantially identical to Article V and Article VI hereof, including the definitions of any capitalized terms used in such Articles but defined in other Articles of this Agreement; provided that, for purposes of the Spinoff Agreement, (i) references to the Company shall mean the Spinoff Company; (ii) references to the Common Stock, the Warrants and the Warrant Agreement shall mean the common stock of the Spinoff Company, the Spinoff Warrants (if any) and the warrant agreement pursuant to which the Spinoff Warrants (if any) are issued, respectively, and references to the Notes, the Retained Shares, the Existing Standstill Agreement and the Existing Registration Rights Agreement shall be disregarded; (iii) references to "the date hereof" and "the date of this Agreement" shall mean the date of the Spinoff Distribution; (iv) references to the General Corporation Law of the State of Delaware and the New York Stock Exchange in the definition of Significant Event shall mean, respectively, the general corporation law of the state in which the Spinoff Company is incorporated and the rules of the principal national securities exchange on which the common stock of the Spinoff Company is listed or admitted to trading (or, if the common stock of the Spinoff Company is not listed or admitted to trading on any national securities exchange but is designated as a national market system security by the NASD, the NASD 35 37 rules applicable to companies so designated); (v) references to the fair market value of the Warrants as of the date hereof (as contemplated by Section 5.4(I)(b)(iii) hereof) shall mean the fair market value of the Spinoff Warrants (if any) as of the date of the Spinoff Distribution, as determined by two nationally recognized investment banking firms, one firm to be selected by each of S and the Company, or in the event such firms are unable to agree, by a third nationally recognized investment banking firm selected by such firms; (vi) the reference to valuation methodology (as contemplated by Section 5.4 (b)(iii) hereof) shall mean valuation methodology relating to the Spinoff Warrants (if any), as determined by two nationally recognized investment banking firms, one firm to be selected by each of S and the Company, or in the event such firms are unable to agree, by a third nationally recognized investment banking firm selected by such firms (which valuation methodology shall in any event be consistent with the valuation methodology set forth in Exhibit H to this Agreement, except as appropriate to reflect differences between the Company and the Spinoff Company or their respective equity securities); (vii) the Termination Date shall be the 15th anniversary of the date of this Agreement; and (viii) if Spinoff Warrants are not issued in connection with the Spinoff Distribution, then, in addition to the termination rights contemplated by Section 6.1 hereof, the Spinoff Company in its discretion may terminate the Spinoff Agreement by written notice to S at any time after the first anniversary of the Spinoff Distribution. Prior to any Spinoff Distribution, S shall, and the Company shall cause the Spinoff Company to, enter into an agreement memorializing the Spinoff Agreement. Capitalized terms used but not defined in this Section 5.9 shall have the meanings assigned to such terms in the Warrant Agreement. ARTICLE VI MISCELLANEOUS Section 6.1 Termination. This Agreement shall terminate on the Termination Date; provided that the Company shall have the right to terminate this Agreement in whole or in part upon written notice to S if, at the time such notice is given, (i) neither S nor any of its Affiliates Beneficially Owns any Warrants which are or may thereafter be exercisable in accordance with their 36 38 terms and (ii) the S Voting Power is less than 2%; provided, further, that S shall have the right to terminate this Agreement upon written notice to the Company if the Company materially breaches any of its obligations hereunder (other than Section 6.11 hereof) or under the Notes; provided, further, that S shall have the right to terminate this Agreement upon written notice to the Company given on or after third anniversary of the date on which all of the Warrants shall have expired unexercised or shall have been reacquired by the Company. In the event of any such termination of this Agreement, unless the parties otherwise agree, S and the Company shall cause all of their respective designees serving on the Board of Directors or any committee thereof of the other party pursuant to Section 5.8 hereof, if any, to resign from such Board of Directors and committee, effective as of the date of such termination. Section 6.2 Survival of Representations and Warranties. The representations and warranties made herein shall survive through the term of this Agreement. Section 6.3 Legends. If requested in writing by the Company, S shall present or cause to be presented promptly all certificates representing Voting Securities Beneficially Owned by S or any of its Affiliates, for the placement thereon of a legend substantially to the following effect, which legend will remain thereon as long as such Voting Securities are subject to the restrictions contained in this Agreement: "The securities represented by this certificate are subject to the provisions of an Agreement, dated as of April 6, 1995, among E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES Developments, Inc. and may not be sold, pledged, hypothecated or otherwise transferred except in accordance therewith. A copy of said Agreement is on file at the office of the Corporate Secretary of E.I. du Pont de Nemours and Company." The Company may enter a stop transfer order with the transfer agent or agents of Voting Securities against any Disposition not in compliance with the provisions of this Agreement. 37 39 Section 6.4 Entire Agreement; Termination of Existing Agreement. This Agreement, the Warrant Agreement, the Registration Rights Agreement, the Warrants and the Notes constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Without limiting the foregoing, upon the execution and delivery of this Agreement by the parties hereto, the Existing Standstill Agreement and the Existing Registration Rights Agreement shall terminate; provided that termination of the Existing Standstill Agreement and the Existing Registration Rights Agreement shall not relieve any party thereto from liability for breach of any provision thereof prior to such termination. As used in this Agreement, (i) "Existing Standstill Agreement" means the agreement, dated as of October 2, 1981, as amended and restated as of March 26, 1986, between the Company and S, and (ii) "Existing Registration Rights Agreement" means the registration rights agreement, dated as of October 2, 1981, between the Company and S. Section 6.5 Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or in equity. Section 6.6 Expenses. Except as otherwise expressly provided herein, all costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such expenses. Section 6.7 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors by operation of law, but may not otherwise be assigned by any party hereto without the prior written consent of the other parties hereto. Section 6.8 Validity. If any provision of this Agreement, or the application thereof to any person or circumstance is held invalid or unenforceable, the re- 38 40 mainder of this Agreement, and the application of such provision to other persons or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable. Section 6.9 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given if so given) by delivery in person, by fax (receipt of which is confirmed), or by reputable overnight courier (receipt of which is confirmed) to the other party as follows: if to the Company: E.I. du Pont de Nemours and Company 1007 Market Street Wilmington, Delaware 19898 Telephone: (302) 773-0177 Fax: (302) 773-4679 Attention: General Counsel with a copy to: Skadden, Arps, Slate, Meagher & Flom 919 Third Avenue New York, New York 10022 Attn: Roger S. Aaron, Esq. and Lou R. Kling, Esq. Telephone: (212) 735-3000 Fax: (212) 735-2000 if to S or Subsidiary to: The Seagram Company Ltd. 1430 Peel Street Montreal, Quebec Canada H3A 1S9 Attn: Laura Falk Scott, Esq. Telephone: (514) 849-5271 Fax: (514) 849-1430 and 39 41 JES Developments, Inc. c/o Joseph E. Seagram & Sons, Inc. 375 Park Avenue New York, New York 10152 Attn: Daniel R. Paladino, Esq. Vice President and General Counsel Telephone: (212) 572-1345 Fax: (212) 572-1398 with a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 Attn: Edgar M. Masinter, Esq. and Sarah E. Cogan, Esq. Telephone: (212) 455-2000 Fax: (212) 455-2502 or to such other address as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above. Section 6.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Section 6.11 Registration Rights Agreement. The Company will comply in all material respects with all of its obligations under the Registration Rights Agreement. Section 6.12 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Section 6.13 No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. Without 40 42 limiting the generality of the foregoing, and notwithstanding anything in this Agreement to the contrary, the parties expressly agree that the rights, benefits and remedies conferred upon S and its Affiliates under Section 5.6, Section 5.7 and Section 5.8 hereof are conferred exclusively upon S and its Affiliates, and accordingly, the Company shall not be obligated to confer any of such rights, benefits or remedies upon, and none of such rights, benefits or remedies shall be enforceable by or on behalf of, any other person or entity. Section 6.14 Investment Banking Firms. The parties agree that whenever investment banking firms are to be selected pursuant to this Agreement or the Registration Rights Agreement, (i) the Company may so select from among James D. Wolfensohn Incorporated or The First Boston Corporation (or any other firm reasonably acceptable to S); and (ii) S and its Affiliates may so select from among Goldman, Sachs & Co. and Lazard Freres & Co. (or any other firm reasonably acceptable to the Company). Section 6.15 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. 41 43 IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its representatives thereunto duly authorized, all as of the day and year first above written. E.I. du Pont de Nemours and Company By /s/ Edgar S. Woolard, Jr. --------------------------------- Name: Edgar S. Woolard, Jr. Title:Chairman of the Board and Chief Executive Officer The Seagram Company Ltd. By /s/ Edgar Bronfman, Jr. --------------------------------- Name: Edgar Bronfman, Jr. Title:President and Chief Executive Officer JES Developments, Inc. By /s/ Daniel R. Paladino --------------------------------- Name: Daniel R. Paladino Title:Vice President 42 EX-99.B 3 REGISTRATION RIGHTS AGREEMENT 1 EXHIBIT B 2 REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement, dated as of April 6, 1995 (this "Agreement"), is among E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"), The Seagram Company Ltd., a Canadian corporation ("S"), and JES Developments, Inc., a Delaware corporation and a wholly-owned subsidiary of S ("Subsidiary"). WHEREAS, pursuant to an Agreement, of even date herewith (the "Redemption Agreement"), among the Company, S and Subsidiary, Subsidiary is transferring to the Company certain shares of Common Stock, par value $0.60 per share, of the Company (the "Common Stock"), in part in exchange for Warrants (as defined in the Redemption Agreement); and WHEREAS, in connection with the Redemption Agreement, the Company, S and Subsidiary have agreed to enter into this registration rights agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows. Section 1. Definitions. (a) Capitalized terms used but not defined in this Agreement have the meanings assigned to such terms in the Redemption Agreement. (b) "Holder" means any holder of Registrable Securities (other than the Company). (c) "Registrable Securities" means each of the following: (i) the Warrants; (ii) any shares of Common Stock or other securities issued upon exercise of the Warrants; (iii) the Retained Shares; and (iv) any other securities of the Company issued in respect of any of the foregoing securities, by way of stock dividend, stock split or other distribution, recapitalization or reclassification. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities if (i) any Disposition of such securities shall have been effected (other than a Disposition pursu- 3 ant to Section 5.3(a) of the Redemption Agreement); (ii) a registration statement with respect to such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement; or (iii) such securities shall have ceased to be outstanding or, in the case of any Warrants and any shares of Common Stock or other securities issuable upon exercise of such Warrants, such Warrants shall have expired unexercised. (d) "S Securities" means any options, rights, warrants or securities issued by S or an Affiliate thereof. (e) "SEC" means the United States Securities and Exchange Commission. (f) "Securities Act" means the Securities Act of 1933, as amended. Section 2. Request for Registration. (a) At any time after the date hereof, S may make a written request to the Company for registration under the Securities Act with respect to all or part of the Registrable Securities (a "Registration"); provided, that in the case of Registrable Securities consisting of securities other than Warrants, the Company shall not be required to effect a Registration of part of such Registrable Securities unless the Registrable Securities requested to be registered have a fair market value of at least $500 million; provided, further, that in the case of Warrants, the Company shall not be required to effect a Registration of part of such Warrants unless the Warrants requested to be registered have a fair market value of at least $40 million. For purposes of this Section 2, the fair market value of Registrable Securities shall be based on the closing price per share or per unit of such Registrable Securities during the 20 consecutive trading days immediately preceding the Company's receipt of the request for a Registration of such Registrable Securities. The closing price for each such day shall be the last sale price regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the New York Stock Exchange, or, if such Registrable Securities are not listed or admitted to trading on such exchange, 2 4 on the principal national securities exchange on which such Registrable Securities are listed or admitted to trading, or if such Registrable Securities are not listed or admitted to trading on any national securities exchange but are designated as national market system securities by the National Association of Securities Dealers ("NASD"), the last sale price, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, in either case as reported on the NASD Automated Quotation/National Market System, or, if the Registrable Securities are not so designated as national market system securities, the average of the highest reported bid and lowest reported asked prices as furnished by the NASD or similar organization if the NASD is no longer reporting such information. If none of the foregoing market data is available for the Warrants, the fair market value of the Warrants shall be determined by two nationally recognized investment banking firms, one firm to be selected by each of S and the Company, or in the event such firms are unable to agree, by a third nationally recognized investment banking firm selected by such firms. Such determination shall be made using the valuation methodology set forth in Exhibit H to the Redemption Agreement and such fair market value shall be as of the date of the Company's receipt of the request for a Registration of such Warrants. In connection with any determination of fair market value pursuant to this Section 2(a), each party will bear the fees and expenses of the investment banking firm selected by it and the parties will bear equally the fees and expenses of any third investment banking firm. No request for registration shall be made pursuant to this Section 2(a), (x) in respect of any Registrable Securities unless S believes in good faith, based on consultation with the proposed managing underwriter (or, if none has then been chosen, a nationally recognized investment bank), that S or its Affiliates will be able to sell such Registrable Securities (or S Securities exchangeable or exercisable therefor) pursuant to such registration and (y) except with respect to Retained Shares, prior to May 15, 1996. (b) Each Registration (other than a Shelf Registration permitted by subsection (d) below) shall be effected through an offering underwritten on a "firm commitment" basis by one or more nationally recognized investment banking firms (an "Underwritten Registration"). 3 5 (c) If S or an Affiliate thereof offers any options, rights, warrants or other securities issued by S or an Affiliate thereof that are offered with, or convertible into or exercisable or exchangeable for any Registrable Securities (an "S Offering"), then such Registrable Securities shall be eligible for Registration hereunder. (d) At the request of S, a Registration shall be a shelf registration pursuant to Rule 415 under the Securities Act or any successor rule thereto (a "Shelf Registration"); provided that such Shelf Registration relates to (i) Registrable Securities issuable upon exercise of Non-S Warrants (as such term is defined in the Warrant Agreement); (ii) Registrable Securities which are deliverable by S or any of its Affiliates upon conversion, exercise or exchange of S Securities previously sold; (iii) S Warrants which S or any of its Affiliates has the right to dispose of following the Company's failure to exercise its right to purchase such S Warrants pursuant to Section 5.4(I) of the Redemption Agreement; or (iv) any other Registrable Securities deliverable by S or any of its Affiliates upon conversion, exercise or exchange of S Securities which are themselves being registered on a shelf registration. Section 3. Number of Registrations. The Company shall not be obligated to effect more than (i) ten Registrations with respect to the Warrants or (ii) two Registrations during any 12 consecutive month period with respect to Registrable Securities other than Warrants. The Company shall not be deemed to have effected a Registration unless and until such Registration is declared effective. Section 4. Selection of Underwriters. The Company will select the investment banker or bankers to administer the offering (other than an S Offering) made in connection with each Underwritten Registration; provided, that such investment banker or bankers shall be reasonably satisfactory to S. S will select the investment banker or bankers to administer any underwritten S Offering made in connection with a Registration; provided, that such investment banker or bankers shall be reasonably satisfactory to the Company. 4 6 Section 5. Registration Statements. Subject to the Company's right, to the extent applicable pursuant to the Redemption Agreement, to purchase all of the Registrable Securities requested to be registered (the "Company Repurchase Right"), the Company agrees to file as soon as reasonably practicable after a request for a Registration, but in no event later than the later of (x) sixty days after such request for a Registration and (y) in the event the Company exercises its privilege to delay the filing of a registration statement pursuant to Section 6 hereof, the end of the period during which the Company delays such filing, a registration statement on any appropriate form with respect to all of the Registrable Securities requested to be included in such Registration. Subject to Section 6 hereof, the Company agrees to use its reasonable best efforts to have the Registration declared effective as soon as practicable after such filing and to keep the Registration continuously effective (i) in the case of a Registration other than a Shelf Registration, until the ninetieth day following the date on which such Registration is declared effective; (ii) in the case of a Shelf Registration described in Section 2(d)(i), for so long as the Non-S Warrants to which such Shelf Registration relates are exercisable; (iii) in the case of a Shelf Registration described in Section 2(d)(ii), April 1, 2000; (iv) in the case of a Shelf Registration described in Section 2(d)(iii), until the 60th day following the last day on which the Company had the right to deliver a Section 5.4(I) Acceptance Notice with respect to such S Warrants; and (v) in the case of a Shelf Registration described in Section 2(d)(iv), until the earlier of (a) six months after a registration statement with respect to such Shelf Registration is filed and (b) the sale of all S Securities registered in such shelf registration; provided, that the period in clause (v) shall be extended in respect of any Registrable Securities issuable upon exercise, exchange or conversion of the S Securities registered under the Shelf Registration referred to in Section 2(d)(iv) to the date on which a Shelf Registration described in Section 2(d)(ii) in respect of such Registrable Securities is required to remain effective pursuant to clause (iii) above so long as the Shelf Registration described in Section 2(d)(iv) could, under the rules, regulations and policies of the SEC, be used in lieu of one described in Section 2(d)(ii); provided further, that if for any reason the effectiveness of a Registration is suspended, the period 5 7 during which such Registration is required to be kept effective shall be extended by the aggregate number of days of each such suspension; provided, further, that any Registration may be terminated at such time as all of the Registrable Securities included therein cease to be Registrable Securities. Section 6. Company's Ability to Postpone. The Company shall have the right to delay the filing of a registration statement under Section 5 hereof if the Company furnishes S with a certificate signed by the Chief Executive Officer of the Company stating that the Company has commenced registration procedures with respect to, or intends in good faith to effect, a primary offering of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock). In such event, the Company may delay such filing under Section 5 hereof until the 90th day following the completion of the Company's offering (but not more than 180 days in total). The Company shall also have the right to delay the filing of a registration statement under Section 5 hereof, or the filing of any amendments to any registration statement filed under Section 5 hereof (other than amendments effected by the filing of reports and documents incorporated by reference in such registration statement), and shall not be obligated to request or obtain effectiveness of any registration statement filed under Section 5 hereof, for up to 90 days if the Company furnishes S with a certificate signed by the Chief Executive Officer of the Company stating that he has determined in good faith that effecting the registration at such time is reasonably likely to interfere with a financing (other than a primary offering of Common Stock (or securities convertible into or exchangeable or exercisable for Common Stock)), acquisition, disposition of assets or stock, merger or other transaction. Section 7. Holdback Agreements. The Company agrees not to effect (except pursuant to a registration of securities on Form S-4 or Form S-8, or any successor form) any public sale or distribution of any securities similar to those being registered or issued, as the case may be, or any securities convertible into or exchangeable or exercisable for such securities, during the period from the (i) filing of a registration statement pursuant to Section 5 hereof until 90 days after the date on which such registration statement is first declared 6 8 effective; (ii) filing of a registration statement by S or any Affiliate of S (other than a shelf registration pursuant to Rule 415 under the Securities Act or any successor rule thereto (an "S Shelf")) in connection with an S Offering, until 90 days after the date on which such registration statement is first declared effective; and (iii) issuance of S Securities in an S Offering pursuant to an S Shelf, until 90 days after such issuance; provided that such issuances shall be effected so as to permit the Company during at least two 90 consecutive day periods in any 365 consecutive day period to effect the public sale or distribution of securities similar to those being registered or issued, as the case may be, or securities convertible into or exchangeable or exercisable for such securities. Section 8. Registration Procedures. Subject to Section 6 hereof and to the Company Repurchase Right, whenever S has requested that any Registrable Securities be registered pursuant to Section 2 of this Agreement, the Company will use its reasonable best efforts to effect the registration of such Registrable Securities in accordance with the intended method of disposition thereof as promptly as practicable and, in connection with any such request, the Company will: (a) prepare and file with the SEC a registration statement, on any appropriate form, with respect to such Registrable Securities and use its reasonable best efforts to cause such registration statement to become effective; (b) prepare and file with the SEC such amendments and post-effective amendments to the registration statement as may be necessary to keep the registration statement effective for as long as such Registration is required to remain effective pursuant to the terms hereof; cause the prospectus included therein to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and use its best efforts to comply with all provisions of the Securities Act, the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder applicable to it with respect to the disposition of all securities covered by such registration statement in accordance with the in- 7 9 tended methods of disposition thereof set forth in such registration statement; (c) furnish to S and each underwriter at least one signed copy of the registration statement and any post-effective amendment thereto, and such number of conformed copies thereof and such number of copies of the prospectus included therein (including each preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein, as S or any underwriter may request; (d) on or prior to the date on which the registration statement is declared effective, use its reasonable best efforts to register or qualify the Registrable Securities covered thereby under such other securities or blue sky laws of such jurisdictions as S or any underwriter reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to permit the disposition in such jurisdictions of such Registrable Securities; provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to general taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction; (e) notify S and each underwriter, at any time when a prospectus relating to Registrable Securities is required to be delivered by S or such underwriter under the Securities Act, of the happening of any event as a result of which the prospectus included in the registration statement relating to such Registrable Securities contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (f) notify S and each underwriter (i) when the registration statement or any post-effective 8 10 amendment to the registration statement, shall have become effective, or any amendment or supplement to the prospectus shall have been filed, (ii) of the receipt of any comments from the SEC, (iii) of any request of the SEC to amend the registration statement or amend or supplement the prospectus or for additional information and (iv) of any stop order issued or threatened by the SEC in connection with the registration statement and take all reasonable actions required to prevent the entry of any such stop order or to remove it if entered; (g) enter into customary agreements (including, if appropriate, an underwriting agreement containing provisions relating to indemnification of, and by, the Company, S and the underwriters) in form customary for the Company and other issuers of similar size and quality or otherwise reasonably acceptable to the Company) and take such other customary actions as S reasonably requests in order to expedite or facilitate the disposition of such Registrable Securities; (h) use its reasonable best efforts to obtain a "cold comfort" letter from the Company's independent public accountants in form customary for the Company and other issuers of similar size and quality and covering such matters as are customarily covered by "cold comfort" letters in connection with the registration of securities of the Company and other issuers of similar size and quality; (i) use its reasonable best efforts to obtain an opinion or opinions from counsel for the Company in form customary for the Company and other issuers of similar size and quality; (j) make available to its security holders, as soon as reasonably practicable, earnings statements (which need not be audited), covering a period of twelve months, beginning within three months after the effective date of the registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; (k) cooperate with S and each underwriter to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration 9 11 statement and enable such securities to be in such amounts and registered in such names as S and each underwriter may request; (l) make available for inspection by representatives of S, by any underwriter participating in any disposition to be effected pursuant to such registration statement and by any attorney, accountant or other agent retained by S or any underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees to supply all information reasonably requested by S, such underwriter, attorney, accountant or agent in connection with the registration statement; provided, however, that (i) all non-public, confidential or proprietary information disclosed by the Company shall be held by S, the participating underwriters and their respective representatives, agents, employees, accountants and attorneys in confidence and not disclosed to any other party except as required by law and (ii) the Company shall not be required to disclose any information which it is prohibited by law, rule or regulation or agreement from disclosing, or which could in its judgment result in a waiver or loss of any attorney-client privilege to which it may be entitled; and (m) if requested by the managing underwriter or agent or S, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or S reasonably requests to be included therein, including, without limitation, with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment. The Company may require S to furnish to the Company such information regarding the distribution of Registrable Securities and such other information relating to S and the Holders as the Company may from time to time reasonably request in writing. 10 12 S agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 8(e) hereof, S will, and will cause each Holder to, forthwith discontinue disposition of Registrable Securities, if any, held by S or such Holders pursuant to the registration statement covering such Registrable Securities until S's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(e) hereof and, if so directed by the Company, S will deliver to the Company all copies, other than permanent file copies, of the prospectus covering such Registrable Securities that is current at the time of receipt of such notice. In the event the Company shall give any such notice, the Company shall extend the period during which such registration statement is required to be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice pursuant to Section 8(e) hereof to and including the date S shall have received the copies of the supplemented or amended prospectus contemplated by Section 8(e) hereof. Section 9. Registration Expenses. All expenses incident to the Company's performance of or compliance with this Agreement (excluding all underwriting discounts, commissions or fees attributable to the sale of the Registrable Securities, all registration and filing fees, all fees and expenses of counsel, accountants and consultants for S and the Holders, and all fees and expenses associated with filings required to be made with the NASD (including, if applicable, the fees and expenses of any "qualified independent underwriter" as such term is defined in Schedule E to the By-laws of the NASD, and of its counsel)), including expenses of compliance with securities or blue sky laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities), printing expenses (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with the Depositary Trust Company and of printing prospectuses), messenger and delivery expenses, and the fees and expenses of counsel for the Company and its independent certified public accountants (including the expenses of any special audit or "cold comfort" letters required by or incident to such performance) will be borne by the Company. 11 13 Section 10. Indemnification; Contribution (a) The Company agrees to indemnify S and the Holders of Registrable Securities included in a registration statement effected pursuant to this Agreement (other than any registration statement covering S Securities offered in an S Offering) and each person who controls S or such Holders (within the meaning of the Securities Act) and each of their respective directors, officers, employees, agents, affiliates and general and limited partners (including any director, officer, affiliate, employee, agent and controlling person thereof) against any and all losses, claims, damages and liabilities, joint or several, and expenses to which S, such Holder, any such director, officer, employee, agent, affiliate or general or limited partner or any such controlling person may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages and liabilities (or actions or proceedings in respect thereof, whether or not such indemnified party is a party thereto) arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in any such registration statement or any prospectus or preliminary prospectus included therein, or any amendment or supplement thereto or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of a prospectus or preliminary prospectus, in light of the circumstances under which they are made), except to the extent that such untrue or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information furnished in writing by S, any Affiliate of S or any Holder or any such controlling person to the Company specifically for inclusion therein. (b) S agrees to indemnify the Company and each person who controls the Company (within the meaning of the Securities Act) and each of their respective directors, officers, employees, agents, affiliates and general and limited partners (including any director, officer, affiliate, employee, agent and controlling person thereof) against any and all losses, claims, damages and liabilities, joint or several, and expenses to which the Company or any such director, officer, employee, agent, affiliate or general or limited partner 12 14 or any such controlling person may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages and liabilities (or actions or proceedings in respect thereof, whether or not such indemnified party is a party thereto) arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in any registration statement covering S Securities offered in an S Offering or any prospectus or preliminary prospectus included therein, or any amendment or supplement thereto or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of a prospectus or preliminary prospectus, in light of the circumstances under which they are made), except to the extent that such untrue or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information furnished in writing by the Company or any such controlling person to S or any such Affiliate specifically for inclusion therein. (c) S and the Holders of Registrable Securities covered by a registration statement effected pursuant to this Agreement (other than any registration statement covering S Securities offered in an S Offering) jointly and severally agree to indemnify the Company and each person who controls the Company (within the meaning of the Securities Act) and each of their respective directors, officers, employees, agents, affiliates and general and limited partners (including any director, officer, employee, agent, affiliate and controlling person thereof) against any and all losses, claims, damages and liabilities, joint or several, and expenses to which the Company or any such director, officer, employee, agent, affiliate or general or limited partner or any such controlling person may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages and liabilities (or actions or proceedings in respect thereof, whether or not such indemnified party is a party thereto) arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in any such registration statement or any prospectus or preliminary prospectus included therein, or any amendment or supplement thereto or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of a 13 15 prospectus or preliminary prospectus, in light of the circumstances under which they are made), to the extent that such untrue or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information furnished in writing by S, any Holder or any person controlling S to the Company specifically for inclusion therein. (d) The Company agrees to indemnify S or any Affiliate of S and each person who controls S or such Affiliate (within the meaning of the Securities Act), and each of their respective directors, officers, employees, agents and general and limited partners (including any director, officer, affiliate, employee, agent and controlling person thereof) against any and all losses, claims, damages and liabilities, joint or several, and expenses to which S may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages and liabilities (or actions or proceedings in respect thereof, whether or not such indemnified party is a party thereto) arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in any registration statement covering S Securities offered in an S Offering or any prospectus or preliminary prospectus included therein, or any amendment or supplement thereto or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of a prospectus or preliminary prospectus, in light of the circumstances under which they are made), to the extent that such untrue or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information furnished in writing by the Company to S or such Affiliate specifically for inclusion therein. (e) Any person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such person of any written notice of the commencement of any action, suit or proceeding with respect to which a claim for indemnification may be made pursuant to this Agreement; provided, that the failure to give, or any delay in giving, such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is prejudiced by such failure or delay. Unless in the reasonable judgment of such 14 16 indemnified party a conflict of interest may exist between such indemnified party and the indemnifying party with respect to such action, suit or proceeding, the indemnified party shall permit the indemnifying party to assume the defense of such action, suit or proceeding with counsel reasonably satisfactory to such indemnified party. If the indemnifying party is not entitled to, or elects not to, assume the defense thereof, then the indemnified party shall have the right to undertake such defense; provided, that the indemnifying party will not be obligated to pay the fees and expenses of more than one counsel to the indemnified party with respect to such defense. No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability. The indemnifying party will not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld. (f) If the indemnification provided for in this Section 10 is unavailable to, or insufficient to hold harmless, an indemnified party hereunder in respect of any losses, claims, damages or liabilities referred to herein by reason other than those set forth in the exceptions and provisos in Section 10(a) and (b) hereof, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative benefits received by, and the relative fault of, the indemnifying party and indemnified party in connection with the actions or inactions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the indemnifying party on the one hand and the indemnified party on the other hand shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The parties hereto agree that it 15 17 would not be just and equitable if contribution pursuant to this Section 10(f) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The amount paid or payable by the indemnified party as a result of the losses, claims, damages or liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigations, preparing to defend or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Section 11. Spinoff Distributions. In the event that the Company issues Spinoff Warrants, then, effective as of the date of such Spinoff Distribution, without any action on the part of the Company, the Spinoff Company or S, there shall be deemed to exist between S and the Spinoff Company a binding agreement (the "Spinoff Registration Rights Agreement") substantially identical to this Agreement; provided that, for purposes of the Spinoff Registration Rights Agreement, (i) references to the Company shall mean the Spinoff Company; (ii) references to the Common Stock, the Warrants and the Warrant Agreement shall mean the common stock of the Spinoff Company, the Spinoff Warrants and the warrant agreement pursuant to which the Spinoff Warrants are issued, respectively, and references to the Redemption Agreement shall mean the Spinoff Agreement deemed to exist between S and the Spinoff Company pursuant to Section 5.9 of the Redemption Agreement; and (iii) references to "the date hereof" and "the date of this Agreement" shall mean the date of the Spinoff Distribution. Capitalized terms used but not defined in this Section 11 shall have the meanings assigned to such terms in the Warrant Agreement. Prior to any such Spinoff Distribution, S shall, and the Company shall cause such Spinoff Company to, enter into an agreement memorializing such Spinoff Registration Rights Agreement. Section 12. Termination by the Company. The Company may terminate this Agreement at any time by giving written notice of such termination to S; provided, that simultaneously with such notice of termination, the 16 18 Company irrevocably waives all restrictions on the transfer of Registrable Securities contained in the Redemption Agreement; provided, further, that the aggregate fair market value of the Registrable Securities (including Common Stock issuable upon exercise of Warrants) held by S and the Holders (determined in a manner consistent with Section 2 hereof and, with respect to Registrable Securities for which market data is available, during the 20 consecutive trading days immediately preceding delivery of notice of termination) is less than $100 million. Notwithstanding the termination of this Agreement, (i) no existing Shelf Registration shall be terminated prior to the time provided for in Section 5 hereof and (ii) the provisions of Section 10 with respect to misstatements and omissions (actual or alleged) occurring prior to such termination shall survive such termination. Section 13. Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity. Section 14. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors by operation of law, but may not otherwise be assigned by any party hereto without the prior written consent of the other parties hereto; provided, that without the consent of the Company, S or any Holder may assign its rights hereunder to any wholly owned subsidiary of S if S or any Holder shall have effected a Disposition of Registrable Securities to such subsidiary in compliance with Section 5.3 of the Redemption Agreement provided, further, that without the consent of the Company, S and Subsidiary may assign to any holders of Non-S Warrants their rights hereunder to request a Shelf Registration pursuant to Section 2(d)(i) hereof. Section 15. Validity. If any provision of this Agreement, or the application thereof to any person or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other persons or circumstances, shall not be 17 19 affected thereby, and to such end, the provisions of this Agreement are agreed to be severable. Section 16. Notices. All notices and other communications under this Agreement shall be in writing and shall be given in the manner set forth in the Redemption Agreement. Section 17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Section 18. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Section 19. Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. Section 20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. 18 20 IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its representatives thereunto duly authorized, all as of the day and year first above written. E.I. du Pont de Nemours and Company By /s/ Edgar S. Woolard, Jr. ---------------------------------- Name: Edgar S. Woolard, Jr. Title:Chairman of the Board and Chief Executive officer The Seagram Company Ltd. By /s/ Edgar Bronfman, Jr. ---------------------------------- Name: Edgar Bronfman, Jr. Title President and Chief Executive Officer JES Developments, Inc. By /s/ Daniel R. Paladino ---------------------------------- Name: Daniel R. Paladino Title: Vice President 19 EX-99.C 4 WARRANT AGREEMENT 1 EXHIBIT C 2 WARRANT AGREEMENT This Warrant Agreement, dated as of April 6, 1995, is between E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"), and Warco Transfer Corporation, a Delaware corporation and a wholly-owned subsidiary of the Company, as Warrant Agent (the "Warrant Agent"). WHEREAS, simultaneously with the execution and delivery of this Agreement, the Company, The Seagram Company Ltd., a Canadian corporation ("S"), and JES Developments, Inc., a Delaware corporation and a wholly-owned subsidiary of S ("Subsidiary"), are entering into an agreement (the "Redemption Agreement") which provides for, among other things, the Company to acquire from Subsidiary certain shares of the Common Stock, par value $0.60 per share (the "Common Stock"), of the Company; WHEREAS, pursuant to the Redemption Agreement, the Company proposes to issue to Subsidiary warrants entitling Subsidiary to purchase an aggregate of 156,000,000 shares of Common Stock; and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance of the certificates evidencing such warrants and other matters as provided herein. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows: Section 1. Certain Definitions. As used in this Agreement, the following terms, unless otherwise expressly provided, shall have the following meanings: (a) "Acceleration Event Period" shall mean (a) the period commencing on the tenth Business Day (but not earlier than the second Business Day following public announcement of the record date hereinafter described) and ending on the third Business Day preceding 3 the record date established by the Company for purposes of determining the stockholders of the Company who are (i) entitled to vote on any Significant Event or on any Significant Distribution which is submitted to a vote of the stockholders of the Company or (ii) entitled to receive a Significant Distribution which is not submitted to a vote of the stockholders of the Company; provided that if, in connection with a Spinoff Distribution which is not submitted to a vote of the stockholders of the Company, the Company elects to issue Spinoff Warrants to the registered holders of one or more classes of Warrants, as provided in Section 13 hereof, then no Acceleration Event Period shall be deemed to occur with respect to any S Warrants of such class or classes; (b) the period commencing on the first Business Day following commencement of an Unsolicited Offer (as defined in the Redemption Agreement) which satisfies the requirements of the first proviso contained in Section 5.3(f) thereof and ending upon the termination or expiration of such Unsolicited Offer; and (c) the period commencing on the first Business Day following commencement of a tender or exchange offer which is recommended to stockholders of the Company by at least a majority of the entire Board of Directors of the Company and ending upon the termination or expiration of such offer. (b) "Affiliate" shall mean any corporation or entity controlled by S; provided that if, in accordance with Section 5.3(c) of the Redemption Agreement, a Disposition of any Warrants is made pursuant to a dividend or other distribution to stockholders of S generally, then "Affiliate" shall also mean and include any affiliate or associate (as such terms are defined in Rule 12b-2 under the Exchange Act) of S who or which, together with such affiliate's or associate's respective affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act) and the members of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to securities of S of which such affiliate or associate is a part, Beneficially Owns securities of S representing more than 5% of the total combined voting power in the election of directors of S of all securities of S outstanding immediately prior to such Disposition. 2 4 (c) "Beneficially Owns" and like terms shall mean "beneficially owns" within the meaning of Rule 13d-3 under the Exchange Act. (d) "Business Day" shall mean any day other than a Saturday or a Sunday or a day on which commercial banking institutions in the City of New York are authorized by law to be closed. Any reference in this Agreement to "days" (unless Business Days are specified) shall mean calendar days. (e) "Derivative Exercise Period" shall mean any period during which an outstanding Derivative S Security is exchangeable or exercisable for, or convertible into, shares of Common Stock. (f) "Derivative S Security" shall mean any security of S or any Affiliate thereof which is currently (or following the passage of time, the occurrence of any event or the giving of notice), directly or indirectly, exchangeable or exercisable for, or convertible into, Common Stock, and in respect of which the Company had been entitled to purchase (but did not purchase), prior to the Disposition of such security by S or an Affiliate thereof, Warrants exercisable for the Common Stock deliverable upon exercise, exchange or conversion of such security. (g) "Disposition" shall mean any direct or indirect (including, without limitation, through the disposition or transfer of control of another person), sale, assignment, transfer, pledge, hypothecation, granting of any option with respect to or other disposition of any interest in (or the entering into of an agreement or understanding with respect to the foregoing) any Warrants. (h) "European Exercise Period" shall mean (i) with respect to the First S Warrants, the period commencing on August 6, 1997 and ending at the Expiration Time, (ii) with respect to the Second S Warrants, the period commencing on August 6, 1998 and ending at the Expiration Time and (iii) with respect to the Third S Warrants, the period commencing on August 6, 1999 and ending at the Expiration Time. 3 5 (i) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (j) "Exercise Price" shall mean, subject to adjustment as provided in this Agreement, (i) $89.33 in the case of each First Warrant, (ii) $101.14 in the case of each Second Warrant and (iii) $113.63 in the case of each Third Warrant. (k) "Expiration Time" shall mean 5:00 P.M., New York City time, on (i) October 6, 1997, in the case of the First Warrants, (ii) October 6, 1998, in the case of the Second Warrants and (iii) October 6, 1999, in the case of the Third Warrants. (l) "First Warrants", "Second Warrants" and "Third Warrants" shall have the respective meanings assigned to such terms in Section 3 hereof. (m) "First Non-S Warrants", "Second Non-S Warrants" and "Third Non-S Warrants" shall have the respective meanings assigned to such terms in Section 3 hereof. (n) "First S Warrants", "Second S Warrants" and "Third S Warrants" shall have the respective meanings assigned to such terms in Section 3 hereof. (o) "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. (p) "Non-S Person" shall mean any person or entity which is not an S Group Member. (q) "Non-S Warrant" shall mean any Warrant which is, and the Shares issuable upon exercise of which would be, Beneficially Owned exclusively by one or more Non-S Persons. (r) "S Group Member" shall mean S or any of its Affiliates, including, without limitation, Subsidiary. (s) "S Warrant" shall mean any Warrant which is, or the Shares issuable upon exercise of which 4 6 (whether or not such Warrant is exercisable at such time) would be, Beneficially Owned by one or more S Group Members. (t) "Shares" shall mean the Common Stock issuable upon exercise of any Warrant. (u) "Significant Distribution" shall mean any distribution to all holders of Common Stock which requires an adjustment to the Exercise Price pursuant to Section 12(c) hereof, whether or not such distribution is submitted to a vote of the stockholders of the Company. (v) "Significant Event" shall mean any of the following which are submitted to a vote of the stockholders of the Company, if stockholder approval thereof is required by the General Corporation Law of the State of Delaware or the rules of the New York Stock Exchange or the charter or by-laws of the Company: any charter or by-law amendment (other than a proposal to require cumulative voting in the election of directors), acquisition or disposition of assets (by way of merger, consolidation or otherwise), change in capitalization, liquidation, or other action out of the ordinary course of business of the Company; provided that "Significant Event" shall not mean or include any proposals to approve, adopt or amend any bonus, profit sharing, pension, retirement, thrift, savings, incentive, variable, stock purchase, stock ownership, stock appreciation, stock option, dividend reinvestment or other benefit or compensation plan, program, agreement or arrangement for employees or directors of the Company or any of its subsidiaries; provided, further, that "Significant Event" shall not mean or include any Significant Distribution. (w) "Spinoff Company" shall mean the corporation or other entity the capital stock or other equity interests of which are distributed in a Spinoff Distribution. (x) "Spinoff Distribution" shall mean any Significant Distribution in which the Company distributes capital stock of or other equity interests in any corporation or entity other than Company. 5 7 (y) "Spinoff Warrants" shall have the meaning set forth in Section 13(a) hereof. (z) "Voting Securities" shall mean any securities of the Company entitled, or which may be entitled, to vote (whether or not entitled to vote generally in the election of directors of the Company), or any securities convertible into or exercisable or exchangeable for such securities (whether or not the right to convert, exercise or exchange is subject to the passage of time or contingencies or both). (aa) "Warrants" shall mean the warrants initially issued to Subsidiary pursuant to the Redemption Agreement and initially exercisable for an aggregate of 156,000,000 shares of Common Stock, and any warrants issued upon transfer, division or combination thereof or in substitution thereof pursuant to this Agreement. (ab) "Warrant Certificates" shall mean the certificates evidencing the Warrants, as more particularly described in Section 2 hereof. Section 2. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth hereinafter in this Agreement, and the Warrant Agent hereby accepts such appointment. Section 3. Form of Warrant Certificates. The Warrant Certificates to be delivered pursuant to this Agreement shall be in registered form only. The Warrant Certificates evidencing the S Warrants shall be substantially in the forms set forth in Exhibit S-1 (such S Warrants, the "First S Warrants"), Exhibit S-2 (such S Warrants, the "Second S Warrants") or Exhibit S-3 (such S Warrants, the "Third S Warrants") attached hereto, as applicable. The Warrant Certificates evidencing the Non-S Warrants, if any, shall be substantially in the forms set forth in Exhibit NS-1 (such Non-S Warrants, the "First Non-S Warrants"), Exhibit NS- 2 (such Non-S Warrants, the "Second Non-S Warrants") or Exhibit NS-3 (such Non-S Warrants, the "Third Non-S Warrants") attached hereto, as applicable. The First S Warrants and any 6 8 First Non-S Warrants are collectively referred to herein as the "First Warrants", the Second S Warrants and any Second Non-S Warrants are collectively referred to herein as the "Second Warrants", and the Third S Warrants and any Third Non-S Warrants are collectively referred to herein as the "Third Warrants." Section 4. Execution of Warrant Certificates. (a) Warrant Certificates shall be signed on behalf of the Company by its Chairman of the Board, President, Vice Chairman, Senior Vice President-Finance or Vice President and Treasurer and by its Secretary or an Assistant Secretary under its corporate seal. Each such signature upon the Warrant Certificates may be in the form of a facsimile signature of the present or any future Chairman of the Board, President, Vice Chairman, Senior Vice President-Finance, Vice President and Treasurer, Secretary or Assistant Secretary and may be imprinted or otherwise reproduced on the Warrant Certificates and for that purpose the Company may adopt and use the facsimile signature of any person who shall have been Chairman of the Board, President, Vice Chairman, Senior Vice President-Finance, Vice President and Treasurer, Secretary or an Assistant Secretary notwithstanding the fact that at the time the Warrant Certificates shall be countersigned and delivered or disposed of he shall have ceased to hold such office. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates. (b) In case any officer of the Company who shall have signed any of the Warrant Certificates shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned by the Warrant Agent pursuant to Section 5 hereof, or disposed of by the Company, such Warrant Certificates nevertheless may be countersigned and delivered or disposed of as though such person had not ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company to sign such Warrant Certificate, although at the date of the execution of 7 9 this Warrant Agreement any such person was not such officer. (c) Warrant Certificates shall be dated the date of countersignature by the Warrant Agent pursuant to Section 5 hereof. Section 5. Registration and Countersignature. Warrant Certificates distributed as provided in Section 12 shall be registered in the names of the record holders of the Warrant Certificates to whom they are to be distributed. Warrant Certificates shall be manually countersigned by the Warrant Agent and shall not be valid for any purpose unless so countersigned. The Company and the Warrant Agent may deem and treat the registered holder of a Warrant Certificate as the absolute owner thereof (notwithstanding any notation of ownership or other writing thereon made by anyone), for the purpose of any exercise thereof and any distribution to the holder thereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Section 6. Registration of Transfers and Exchanges. (a) Subject to the transfer restrictions contained in the Redemption Agreement, the Warrant Agent shall from time to time register the transfer of any outstanding Warrant Certificates upon the records to be maintained by it for that purpose, upon surrender thereof accompanied by (i) a written instrument of transfer in the form of the assignment appearing at the end of the forms of the Warrant Certificates, duly executed by the registered holder or holders thereof or by the duly appointed legal representative thereof or by a duly authorized attorney and (ii) in the case of any transfer by an S Group Member, or by any other party bound by any of the provisions of Article V of the Redemption Agreement, (A) an officer's certificate, in form and substance reasonably satisfactory to the Warrant Agent and the Company, certifying that such transfer would not violate any provision of the Redemption Agreement and (B) duly executed consents to jurisdiction and/or agreements of Purchasing Persons (as such term is defined in the Re- 8 10 demption Agreement), to the extent required by Section 5.3(a), Section 5.3(b) or Section 5.3(c) of the Redemption Agreement. Upon any such registration of transfer, a new Warrant Certificate of like tenor and representing in the aggregate a like number of Warrants shall be issued to the transferee and the surrendered Warrant Certificate shall be cancelled by the Warrant Agent. For purposes of this Agreement, but without limiting the provisions of Section 2 of this Agreement, the Warrant Certificates in the forms set forth in Exhibits S-1 and NS-1 attached hereto shall be deemed "of like tenor", the Warrant Certificates in the forms set forth in Exhibits S-2 and NS-2 shall be deemed "of like tenor", and the Warrant Certificates set forth in Exhibits S-3 and NS-3 shall be deemed "of like tenor". S Group Members may only hold S Warrants; holders of Warrants who are Non-S Persons will have the right to exchange First S Warrants for First Non-S Warrants, Second S Warrants for Second Non-S Warrants and Third S Warrants for Third Non-S Warrants, in each case representing the same number of Warrants and Shares subject thereto as that exchanged. (b) Warrant Certificates may be exchanged at the option of the holders thereof, when surrendered to the Warrant Agent at its office maintained for the purpose of exchanging, transferring or exercising the Warrants in Wilmington, Delaware or such other office in New York, New York, in either case as the Warrant Agent may designate from time to time (the "Warrant Agent Office"), for another Warrant Certificate or other Warrant Certificates of like tenor and representing in the aggregate a like number of Warrants. Warrant Certificates surrendered for exchange, transfer or exercise shall be cancelled by the Warrant Agent. Warrant Certificates cancelled as provided in this Section 6 shall then be disposed of by the Warrant Agent in a manner satisfactory to the Company. (c) The Warrant Agent is hereby authorized to countersign, in accordance with the provisions of this Section 6 and of Section 5, the new Warrant Certificates required pursuant to the provisions of such Sections, and for the purpose of any distribution of Warrant Certificates contemplated by Section 12. 9 11 Section 7. Duration and Exercise of Warrants. (a) S Warrants may be exercised only (i) during an Acceleration Event Period, (ii) to the extent necessary to enable S or an Affiliate thereof to obtain shares of Common Stock which it is required at such time to deliver upon the exchange, exercise or conversion of an outstanding Derivative S Security held by a Non-S Person during a Derivative Exercise Period (to the extent either such period in (i) or (ii) occurs prior to the respective Expiration Times of the S Warrants) or (iii) during the respective European Exercise Periods of the S Warrants. Non-S Warrants may be exercised at any time or from time to time until their respective Expiration Times (the "American Exercise Period"). Notwithstanding the foregoing, if at any time a registration statement shall be in effect with respect to Shares issuable upon exercise of any Non-S Warrants, then the Company shall have the right to suspend the exercisability of such Non-S Warrants for up to 30 days if the Company furnishes the Warrant Agent with an opinion of counsel to the Company (who may be an employee of the Company) to the effect that the prospectus included in such registration statement is reasonably likely to be deemed to contain a material misstatement or omission by reason of its failure to disclose material information concerning a pending or contemplated financing, acquisition, disposition of assets or stock, merger or other transaction, which information was not at such time otherwise publicly disclosed. (b) Subject to the provisions of this Agreement, including Section 12, on or after the date of this Agreement the holder of each Warrant shall have the right to purchase from the Company (and the Company shall issue and sell to such holder) one fully paid and non-assessable Share at the Exercise Price, upon the surrender to the Warrant Agent at the Warrant Agent Office of the Warrant Certificate evidencing such Warrant, with the form of election to purchase on the reverse thereof properly completed and executed, together with any other documents required by this Agreement, and upon payment of the Exercise Price in lawful money of the United States of America. Any Warrants evidenced by a Warrant Certificate may be exercised either as an entirety or from time 10 12 to time for part of the number of Warrants specified in such Warrant Certificate. In the event that less than all the Warrants evidenced by a Warrant Certificate surrendered upon the exercise of Warrants are exercised, a new Warrant Certificate or Certificates of like tenor will be issued for the remaining number of Warrants evidenced by the Warrant Certificate so surrendered. Except as otherwise expressly provided in this Agreement, no adjustments shall be made for any cash dividends on Shares issuable on the exercise of a Warrant. (c) Subject to Section 7(b) and Section 8 hereof, upon such surrender of a Warrant Certificate, delivery of any such documents and payment of the Exercise Price, the Warrant Agent shall cause to be issued and delivered to or upon the written order of the registered holder of such Warrant Certificate and in such name or names as such registered holder may designate, a certificate for the Share or Shares issuable upon the exercise of the Warrant or Warrants evidenced by such Warrant Certificate. Such certificate shall be deemed to have been issued and any person so designated to be named therein shall be deemed to have become the holder of record of such Share or Shares as of close of business on the date of the surrender of such Warrant Certificate and payment of the Exercise Price. The Warrant Agent is hereby authorized to countersign any required new Warrant Certificate or Certificates pursuant to the provisions of this Section 7 and of Section 5. (d) The obligation of the Company and the Warrant Agent to issue and deliver shares of Common Stock upon any exercise of Warrants shall be subject to the satisfaction of the following conditions: (i) all waiting periods, if any, applicable to such issuance and delivery under the HSR Act shall have expired or been terminated and (ii) no statute, rule, regulation, executive order, decree, ruling, injunction or other order shall have been enacted, entered, promulgated or enforced by any court or governmental authority of competent jurisdiction which prohibits such issuance and delivery or makes such issuance and delivery illegal. Section 8. Payment of Taxes. The Company will pay taxes and other governmental charges that may be 11 13 imposed by the laws of the United States of America or any state thereof with respect to the initial issuance of Shares upon the exercise of Warrants, unless such tax or charge is imposed by law upon the holder of any Warrant, in which case such taxes or charges shall be paid by such holder; provided that the Company shall not be required to pay any tax or taxes which may be payable in respect of any transfer involved in the issue of any Warrant Certificates or any certificates for Shares in a name other than that of the registered holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and the Company shall not be required to issue or deliver such Warrant Certificates or certificates unless and until the person or entity requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Section 9. Mutilated or Missing Warrant Certificates. In case any Warrant Certificate shall be mutilated, lost, stolen or destroyed, the Company shall issue, and the Warrant Agent shall countersign, in exchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or in lieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor and representing an equivalent number of Warrants, but only upon receipt of evidence reasonably satisfactory to the Company and the Warrant Agent of such loss, theft or destruction of such Warrant Certificate and indemnity or bond, if requested, also reasonably satisfactory to them (it being understood that the written agreement of S shall be sufficient indemnity); provided, in the case of mutilation, no indemnity shall be required if the Warrant Certificate or Warrant Certificates in identifiable form are surrendered to the Warrant Agent for cancellation. Applicants for such substitute Warrant Certificates shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company or the Warrant Agent may prescribe. Section 10. Reservation of Shares. (a) The Company will at all times reserve and keep available, free from preemptive rights, out of 12 14 Common Stock held in its treasury and/or its authorized but unissued Common Stock, for the purpose of enabling it to satisfy any obligation to issue Shares upon exercise of Warrants, the number of Shares deliverable upon the exercise of all outstanding unexercised Warrants. The Warrant Agent is hereby irrevocably authorized to requisition from time to time from the Transfer Agent for the Common Stock certificates issuable upon exercise of Warrants, and the Company will supply such Transfer Agent with duly executed stock certificates for such purpose. (b) Before taking any action which would cause an adjustment pursuant to Section 12 in either the Exercise Price or the number of Shares issuable upon exercise of such Warrant, the Company will take any corporate action which may, in the opinion of its counsel (which may be counsel employed by the Company), be necessary in order that the Company may validly and legally issue fully paid and nonassessable Shares at the Exercise Price as so adjusted. (c) The Company represents and warrants that all Shares will, upon issuance in accordance with the terms of this Agreement, be fully paid and nonassessable and, except for any applicable restrictions contained in the Redemption Agreement, will be free and clear from all taxes, liens, charges, security interests or other encumbrances created by the Company with respect to the issuance thereof. Section 11. Stock Exchange Listing. The Company agrees, at its expense, to ensure that all Shares are, prior to issuance, listed on the New York Stock Exchange or, if the Shares are no longer listed on the New York Stock Exchange, the principal national securities exchange or national market system on which the Shares are primarily traded or quoted, as specified in Section 12(d). Section 12. Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants. The Exercise Price and the number of shares of Common Stock purchasable upon the exercise of each Warrant are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 12. 13 15 (a) In case the Company shall at any time after the date of this Agreement (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) other than in a transaction to which Section 12(i) applies, issue any shares of its capital stock in a reclassification of the Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation), the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date shall be proportionately adjusted so that the holder of any Warrant upon exercising such Warrant after such time shall be entitled to receive the aggregate number and kind of shares of capital stock which, if such Warrant had been exercisable and exercised immediately prior to such date, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. Such adjustment shall be made successively whenever any event listed above in this Section 12(a) shall occur. (b) In case the Company shall issue rights, warrants, options or other securities to all holders of Common Stock entitling them (for a period expiring within 60 calendar days after the date of issuance) to subscribe for or purchase Common Stock (or securities convertible into Common Stock) at a price per share of Common Stock (or having a conversion price per share of Common Stock, if a security convertible into Common Stock) less than the current market price per share of Common Stock (as defined in Section 12(d) hereof) on the record date mentioned below, the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, of which the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so to be offered (or the aggregate initial conver- 14 16 sion price of the convertible securities so to be offered) would purchase at such current market price and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock to be offered for subscription or purchase (or into which the convertible securities to be offered are initially convertible). In case such subscription price may be paid in a consideration part or all of which shall be in a form other than cash, the value of such consideration shall be determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Warrant Agent. Shares of Common Stock owned by or held for the account of the Company or any majority-owned subsidiary of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights, warrants, options or other securities are not so issued, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. In the event that any of such rights, warrants, options or other securities expire or otherwise terminate and shall not have been exercised, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such unexercised rights, warrants, options or other securities had not been issued. (c) In case the Company shall fix a record date for the making of a distribution to all holders of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidences of indebtedness or assets (other than ordinary cash dividends or ordinary cash distributions payable out of surplus or net profits or dividends payable in Common Stock) or subscription rights or warrants (excluding those referred to in Section 12(b) hereof), the Exercise Price to be in effect after such record date shall be determined by multiplying the Exercise Price in effect immediately prior to such record date by a fraction, of which the numerator shall be the current market price per share of Common Stock (as defined in Section 12(d) hereof) on such record date, less the fair market value (as 15 17 determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Warrant Agent) of the portion of the assets or evidence of indebtedness so to be distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of Common Stock; provided, that in case the Company shall fix a record date for the making of a distribution to all holders of Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of cash or evidences of indebtedness (other than ordinary cash dividends or ordinary cash distributions payable out of surplus or net profits), then, at the option of the Company, and upon notice to S and the Warrant Agent prior to such record date, in lieu of the foregoing adjustment to the Exercise Price and any adjustment to the number of shares of Common Stock issuable upon exercise of the Warrants pursuant to Section 12(g) hereof, the Exercise Price to be in effect after such record date shall be the Exercise Price in effect immediately prior to such record date minus the amount of cash or the face amount of indebtedness so to be distributed applicable to one share of Common Stock. The adjustments set forth in this Section 12(c) shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such record date had not been fixed. (d) For the purpose of any computation under Section 12(b) and Section 12(c), the current market price per share of Common Stock on any date shall be deemed to be the average of the closing prices for the five consecutive trading days on the New York Stock Exchange commencing seven trading days before such date. The closing price for each day shall be the last sale price regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the New York Stock Exchange, or, if the Common Stock is not listed or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is 16 18 listed or admitted to trading, or, if the Common Stock is not listed or admitted to trading on any national securities exchange but is designated as a national market system security by the National Association of Securities Dealers ("NASD"), the last sale price, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, in either case as reported on the NASD Automated Quotation/National Market System, or, if the Common Stock is not so designated as a national market system security, the average of the highest reported bid and lowest reported asked prices as furnished by the NASD or similar organization if the NASD is no longer reporting such information. (e) No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, that any adjustments which by reason of this Section 12(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; provided, further, that any such adjustment of less than 1% which is so carried forward shall be given effect at the time the aggregate of all such adjustments is at least 1% and any Warrant is exercised if any such adjustments had not theretofore been given effect. All calculations under this Section 12 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be, but in no event shall the Company be obligated to issue any fractional share of Common Stock upon exercise of any Warrant. (f) In the event that at any time, as a result of an adjustment made pursuant to Section 12(a) hereof, the holder of any Warrant shall become entitled to receive any shares of capital stock of the Company other than shares of Common Stock, thereafter the number of such other shares of capital stock so receivable upon exercise of such Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Section 12(a) through Section 12(c) hereof, inclusive, and the provisions of Sections 7, 8, 10, 11, 12(e), 12(i), 13 and 14 hereof with respect to the Common Stock shall apply on like terms to any such other shares. 17 19 (g) Upon each adjustment of the Exercise Price as a result of the calculations made in Section 12(a), Section 12(b) or Section 12(c) hereof (subject to the proviso in Section 12(c) hereof), each Warrant outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase (during any Acceleration Event Period, Derivative Exercise Period, European Exercise Period or American Exercise Period, as the case may be), at the adjusted Exercise Price, that number of shares of Common Stock (calculated to the nearest hundredth) obtained by (A) multiplying the number of shares purchasable upon exercise of such Warrant immediately prior to such adjustment of the number of shares by the Exercise Price in effect immediately prior to such adjustment of the Exercise Price and (B) dividing the product so obtained by the Exercise Price in effect immediately after such adjustment of the Exercise Price; provided that if, in connection with a Spinoff Distribution, the Company elects to issue Spinoff Warrants to the registered holders of one or more classes of Warrants, as provided in Section 13 hereof, then no adjustment pursuant to this Section 12(g) shall be made to any Warrants of such class or classes. (h) The Company may elect on or after the date of any adjustment of the Exercise Price to adjust the number of Warrants, in substitution for an adjustment in the number of Shares purchasable upon the exercise of a Warrant as provided in Section 12(g) hereof; provided that if, in connection with a Spinoff Distribution, the Company elects to issue Spinoff Warrants to the registered holders of one or more classes of Warrants, as provided in Section 13 hereof, then no adjustment pursuant to this Section 12(h) shall be made to any Warrants of such class or classes. The Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issued pursuant to any such adjustment or substitute Warrant Certificates to replace all outstanding Warrant Certificates. (i) In case of any capital reorganization of the Company, or of any reclassification of the Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, 18 20 or as a result of subdivision or combination), or in the case of consolidation of the Company with or the merger of the Company with or into any other corporation or of the sale of the properties and assets of the Company as, or substantially as, an entirety to any other corporation, each Warrant shall after such reorganization, reclassification, consolidation, merger or sale be exercisable (but only during any Acceleration Event Period, Derivative Exercise Period, European Exercise Period or American Exercise Period, as the case may be), upon the terms and conditions specified in this Agreement, for the number of shares of stock or other securities or property to which a holder of the number of shares of Common Stock purchasable (at the time of such reorganization, reclassification, consolidation, merger or sale) upon exercise of such Warrant would have been entitled upon such reorganization, reclassification, consolidation, merger or sale; and in any such case, if necessary, the provisions set forth in this Section 12 with respect to the rights and interests thereafter of the holders of Warrants shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to any shares of stock or other securities or property thereafter deliverable on the exercise of the Warrants; provided that this Section 12(i) shall not apply to any Spinoff Distribution which is effected by means of any such reclassification, consolidation or merger (it being agreed that any such Spinoff Distribution shall be subject to Section 12(c) hereof and, to the extent the Company so elects, Section 13 hereof). The subdivision or combination of shares of Common Stock at any time outstanding into a greater or lesser number of shares shall not be deemed to be a reclassification of the Common Stock for the purposes of this Section 12(i). The Company shall not effect any such consolidation, merger or sale, unless prior to or simultaneously with the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger or the corporation purchasing such assets or other appropriate corporation or entity shall assume, by written instrument executed and delivered to the Warrant Agent, the due and punctual performance of every covenant and obligation in this Agreement to be performed and observed by the Company and all other liabilities and obligations of the Company hereunder, including without limitation the obligation to 19 21 deliver to the holder of each Warrant such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to purchase under this Agreement. (j) In any case in which this Section 12 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuing to the holder of any Warrant exercised after such record date the Shares and other capital stock of the Company, if any, issuable upon such exercise over and above the Shares and other capital stock of the Company, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment; provided, that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such holder's right to receive such additional shares upon the occurrence of the event requiring such adjustment. (k) If, during the period commencing on the date of this Agreement and ending on the date that is three months thereafter, the Company intends in good faith to make any public or private offering of Voting Securities for cash, other than an offering of Voting Securities to a "Flexitrust" or employee benefit plan or trust (an "Offering"), and if at such time any S Warrants are outstanding and unexercised, then the Company shall promptly notify the Warrant Agent and S of such intended Offering (the "Offering Notice"). The Offering Notice shall describe the Voting Securities intended to be sold in the Offering and the anticipated timing of the Offering. If, in connection with any such Offering, S desires that the Exercise Price and the number of Shares subject to such S Warrants be adjusted as described below, then S shall so notify the Company within five Business Days following delivery of the Offering Notice. Any such election by S Group shall be irrevocable. If S elects to have such adjustment made, then, as of the time at which the Offering is consummated, each S Warrant shall be adjusted as follows: (i) the Exercise Price shall be increased to equal the product of the Exercise Price in effect immediately prior to the consummation of the Offering, multiplied by a fraction (the "Adjustment 20 22 Fraction"), the numerator of which is the number of shares of Common Stock outstanding on a fully diluted basis immediately following the consummation of the Offering and the denominator of which is the number of shares of Common Stock outstanding on a fully diluted basis immediately prior to the consummation of the Offering and (ii) the number of Shares issuable upon exercise of each S Warrant shall be increased to equal the product of the number of the Shares issuable upon exercise of such S Warrant immediately prior to the consummation of such Offering, multiplied by the Adjustment Fraction. Adjustments to the S Warrants pursuant to this Section 12(k) shall be made successively if the Company consummates more than one Offering and S requests such adjustments in accordance with the terms hereof. Notwithstanding the foregoing provisions of this Section 12(k), (i) no such adjustment shall be made in connection with any Offering if the Company does not file a registration statement relating to such Offering with the Securities and Exchange Commission within three months following the date of this Agreement and (ii) no such adjustment in connection with any particular Offering shall be made if such Offering is consummated more than five months following the date of this Agreement. (l) In case the Company shall, by dividend or otherwise, at any time, distribute to all holders of its Common Stock cash (including any distribution of cash out of the retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring an adjustment pursuant to Section 12(c)) in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of the Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to Section 12(c) or pursuant to this Section 12(l) has been made and (ii) the portion of the aggregate of any cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a statement filed with the Warrant Agent) of consideration payable in respect of any tender offer by the Company for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution 21 23 that is in excess of an amount equal to the product of (x) the number of shares of Common Stock with respect to which the aggregate tender offer consideration is payable times (y) the current market price of Common Stock on the tenth business day next succeeding the date of expiration of the tender offer, exceeds 12 1/2 % of the product of the current market price per share on the date fixed for stockholders entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (excluding shares held in the treasury of the Company), the Exercise Price after such payment shall be equal to the Exercise Price determined by multiplying the Exercise Price in effect immediately prior to the effectiveness of the change contemplated by this Section 12(l) by a fraction of which the numerator shall be the current market price per share of the Common Stock on the date of such effectiveness less the amount of cash so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock on the date of such distribution, such reduction to become effective immediately prior to the opening of business on the day following the date fixed for the payment of such distribution. (m) If the Company becomes subject to a third party tender offer followed by a merger or any other action of the Company the result of which is to entitle holders of the Common Stock to receive cash or other property such that the Common Stock ceases to exist, each Warrant will terminate on the date the Common Stock ceases to exist and be unwound at its fair market value based on the unexpired term of the Warrant. The settlement price of each such Warrant shall be payable promptly after such termination and will be determined using the valuation methodology described in Exhibit H to the Redemption Agreement, using the tender price per share as the prevailing price of Common Stock. To the extent property other than cash is offered in the tender offer, the parties agree that such property will be valued in accordance with the provisions of Section 5.4(II)(b) of the Redemption Agreement. Section 13. Special Provisions Relating to Spinoff Distributions. 22 24 (a) In connection with any Spinoff Distribution, the Company shall have the right, but not the obligation, to cause the Spinoff Company to issue warrants to purchase capital stock or other equity interests of the Spinoff Company ("Spinoff Warrants") to the registered holders of one class, two classes or all three classes of Warrants (the classes of Warrants for purposes of this Agreement being the First Warrants, the Second Warrants and the Third Warrants), in the Company's sole and absolute discretion; provided that Spinoff Warrants, if issued to the registered holders of any class of Warrants, shall be issued to all of the registered holders of such class of Warrants. If Spinoff Warrants are issued to the registered holders of any class of Warrants, then no adjustment to the number of Shares purchasable upon the exercise of any Warrant of such class or to the number of Warrants comprising such class shall be made pursuant to Section 12(g) or Section 12(h) hereof, respectively, as a result of the Spinoff Distribution. If Spinoff Warrants are issued in connection with a Spinoff Distribution, then the Company shall cause to be filed with the Warrant Agent and shall cause to be given to each of the registered holders of the Warrant Certificates written notice of such election (which notice may, where appropriate, be included as a part of any notice required to be given pursuant to Section 15(b) or 15(c) hereof). Such notice shall be given not later than 10 calendar days prior to the record date established by the Company for purposes of determining the stockholders of the Company who are (i) entitled to vote on any Spinoff Distribution which is submitted to a vote of the stockholders of the Company or (ii) entitled to receive a Spinoff Distribution which is not submitted to a vote of the stockholders of the Company. Any such election shall be irrevocable and binding upon the Company. (b) The Spinoff Warrants shall have terms and conditions substantially similar to the terms and conditions of the class or respective classes of Warrants to the registered holders of which Spinoff Warrants are issued (including, without limitation, terms and conditions relating to exercisability, antidilution and expiration as set forth in this Agreement). The number of shares of capital stock or other equity interests of a 23 25 Spinoff Company issuable upon exercise of each Spinoff Warrant shall equal the number of such shares or interests to which a holder of the number of Shares purchasable (at the time of such Spinoff Distribution) upon exercise of one Warrant of the applicable class would have been entitled upon such Spinoff Distribution. The exercise price of each Spinoff Warrant shall equal the amount by which the Exercise Price of the applicable class of Warrants is reduced pursuant to Section 12(c) hereof as a result of the Spinoff Distribution. The Company shall deliver certificates evidencing the Spinoff Warrants to the registered holders of Warrants entitled thereto concurrently with the notice required by Section 15(a) hereof. (c) Notwithstanding anything in this Agreement to the contrary, no S Warrant of a particular class may be exercised in connection with any Spinoff Distribution which is not submitted to a vote of the stockholders of the Company if Spinoff Warrants are issued as provided in this Section 13 to the registered holders of the class of Warrants of which such S Warrant is a part; provided that this Section 13(c) shall not limit the exercisability of any S Warrants during their respective European Exercise Periods. Section 14. Fractional Warrants and Fractional Shares. (a) The Company shall not be required to issue fractions of Warrants on any distribution of Warrants to holders of Warrant Certificates pursuant to Section 12(h) hereof or to distribute Warrant Certificates which evidence fractional Warrants. In lieu of such fractional Warrants there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants would otherwise be issuable, an amount in cash equal to the same fraction of the fair market value of a full Warrant (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Warrant Agent). (b) Notwithstanding an adjustment pursuant to Section 12(g) hereof in the number of Shares pur- 24 26 chasable upon the exercise of a Warrant, the Company shall not be required to issue fractions of Shares upon exercise of the Warrants or to distribute certificates which evidence fractional Shares. In lieu of fractional Shares, there shall be paid to the registered holders of Warrant Certificates at the time the Warrants evidenced by such Warrant Certificates are exercised as herein provided an amount in cash equal to the same fraction of the current market value of a share of Common Stock. For purposes of this Section 14(b), the current market value of a share of Common Stock shall be determined in the manner set forth in Section 12(d) hereof Section 15. Notice to Warrantholders. (a) Upon any adjustment of the Exercise Price pursuant to Section 12 hereof, the Company within 20 Business Days thereafter shall (i) cause to be filed with the Warrant Agent a certificate of a firm of independent public accountants of recognized standing selected by the Board of Directors of the Company (who may be the regular auditors of the Company) setting forth the Exercise Price after such adjustment and setting forth in reasonable detail the method of calculation and the facts upon which such calculations are based and setting forth the number of Shares purchasable upon exercise of a Warrant after such adjustment in the Exercise Price, which certificate shall be conclusive evidence of the correctness of the matters set forth therein (except as otherwise provided in the second succeeding sentence) and (ii) cause to be given to each of the registered holders of the Warrant Certificates written notice of such adjustments. Where appropriate, such notice may be given in advance and included as a part of the notice required to be mailed under the other provisions of this Section 15. In the event that any registered holder of S Warrants disagrees with any such adjustment, it shall notify the Company and the Warrant Agent thereof and any disagreement shall be resolved jointly by two independent accounting firms of recognized standing, one such firm to be selected by each of the Company and S, or, in the event such firms are unable to agree, by a third independent accounting firm of recognized standing to be selected by such firms. Each of the Company and S shall bear all of the fees and expenses of the accounting firm 25 27 selected by it, and shall bear 50% of the fees and expenses of any third accounting firm. (b) In case: (i) the Company shall authorize the issuance to all holders of Common Stock of rights or warrants to subscribe for or purchase capital stock of the Company or of any other subscription rights or warrants; (ii) the Company shall authorize the distribution to all holders of Common Stock of evidences of its indebtedness or assets (other than cash dividends or cash distributions payable out of consolidated earnings or earned surplus or dividends payable in Common Stock); (iii) of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required, or of the conveyance or transfer of the properties and assets of the Company substantially as an entirety, or of any capital reorganization or any reclassification of the Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination); (iv) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or (v) the Company proposes to take any other action which would require an adjustment of the Exercise Price pursuant to Section 12 hereof; then the Company shall cause to be filed with the Warrant Agent and shall cause to be given to each of the registered holders of the Warrant Certificates, at least 10 calendar days prior to the applicable record date herein- 26 28 after specified, a written notice stating (i) the date as of which the holders of record of shares of Common Stock to be entitled to receive any such rights, warrants or distribution are to be determined or (ii) the date on which any such consolidation, merger, conveyance, transfer, reorganization, reclassification, dissolution, liquidation, or winding up is expected to become effective, and the date as of which it is expected that holders of record of shares of Common Stock shall be entitled to exchange such shares for securities or other property, if any, deliverable upon such consolidation, merger, conveyance, transfer, reorganization, reclassification, dissolution, liquidation or winding up. Where appropriate, such notice may be included as a part of any notice required under Section 15(c) hereof. (c) Without limiting the provisions of Section 15(a) or Section 15(b) hereof, so long as any S Warrants are outstanding and unexercised, the Company shall cause to be filed with the Warrant Agent and shall cause to be given to each of the registered holders of Warrant Certificates evidencing Warrants, written notice of the commencement of any Acceleration Event Period. Any such notice shall be so filed and given not later than the fifth Business Day preceding the date of such commencement. S shall give the Company and the Warrant Agent notice at least five Business Days prior to the Commencement of any Derivative Exercise Period and prompt notice following expiration of any Derivative Exercise Period. (d) The failure to give any notice required by Section 13 hereof or this Section 15 or any defect in any such notice shall not affect the legality or validity of any distribution, right, warrant, consolidation, merger, conveyance, transfer, reorganization, reclassification, dissolution, liquidation, or winding up or the vote upon any action. (e) Nothing contained in this Agreement or in any of the Warrant Certificates shall be construed as conferring upon the holders thereof the right to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of 27 29 directors of the Company or any other matter, or any rights whatsoever as stockholders of the Company. Section 16. Legends. (a) Each Warrant Certificate evidencing S Warrants shall be stamped or otherwise imprinted with a legend in substantially the following form: "These Warrants and any shares of capital stock or other securities issuable upon the exercise of these Warrants have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state. The sale, pledge, hypothecation or other transfer of these Warrants and such shares or other securities is subject to compliance with applicable securities laws. The sale, pledge, hypothecation or other transfer of these Warrants and such shares or other securities is also subject to certain restrictions contained in the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES Developments, Inc. The holder of these Warrants by acceptance hereof agrees to be bound by such restrictions. A copy of the Redemption Agreement is on file with the Corporate Secretary of E.I. du Pont de Nemours and Company." (b) Each Warrant Certificate evidencing Non-S Warrants shall be stamped or otherwise imprinted with a legend in substantially the following form: "These Warrants and any shares of capital stock or other securities issuable upon the exercise of these Warrants have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state. The sale, pledge, hypothecation or other transfer of these Warrants and such shares or other securities is subject to compliance with applicable securities laws. The sale, pledge, hypothecation or other transfer of these Warrants and such shares or other securities 28 30 may also be subject to certain restrictions contained in the Agreement, dated as of April 6, 1995 (the "Redemption Agree- ment"), among E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES Developments, Inc. The holder of these Warrants by acceptance hereof agrees to be bound by such restrictions. A copy of the Redemption Agreement is on file with the Corporate Secretary of E.I. du Pont de Nemours and Company." (c) Each certificate for Common Stock (or other securities) issued upon the exercise of S Warrants shall be stamped or otherwise imprinted with a legend in substantially the following form: "These securities have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state. The sale, pledge, hypothecation or other transfer of these securities is subject to compliance with applicable securities laws. The sale, pledge, hypothecation or other transfer of these securities is also subject to certain restrictions contained in the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES Developments, Inc. The holder of these securities by acceptance hereof agrees to be bound by such restrictions. A copy of the Redemption Agreement is on file with the Corporate Secretary of E.I. du Pont de Nemours and Company." (d) Each certificate for Common Stock (or other securities) issued upon the exercise of Non-S Warrants shall be stamped or otherwise imprinted with a legend in substantially the following form: "These securities have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state. The sale, pledge, hypothecation or other transfer of these securities is subject to compliance with applicable securities laws. 29 31 The sale, pledge, hypothecation or other transfer of these securities may also be subject to certain restrictions contained in the Agreement, dated as of April 6, 1995 (the "Redemption Agreement"), among E.I. du Pont de Nemours and Company, The Seagram Company Ltd. and JES Developments, Inc. The holder of these securities by acceptance hereof agrees to be bound by such restrictions, if applicable. A copy of the Redemption Agreement is on file with the Corporate Secretary of E.I. du Pont de Nemours and Company." (e) Notwithstanding the provisions of Section 16(a), Section 16(b), Section 16(c) and Section 16(d) hereof, (i) the Warrant Agent shall deliver Warrant Certificates or certificates for shares of Common Stock, as the case may be, without the first paragraph of the legend set forth in any such Section if the securities referred to in such paragraph shall have been registered under the Securities Act or if such legend is otherwise not required under the Securities Act, and if such legend has been set forth on any previously delivered certificates, such legend shall be removed from any certificate at the request of the holder thereof if the securities referred to in such paragraph shall have been registered under the Securities Act of 1933, or if such legend is otherwise not required under the Securities Act, and (ii) the Company shall cause the Warrant Agent to issue certificates without the second paragraph of the legend set forth in any such Section if the Company receives evidence reasonably satisfactory to it that the securities referred to in such paragraph are not subject to any restrictions contained in the Redemption Agreement. The Company agrees that it will provide the Warrant Agent with notice of the effectiveness of any registration statement relating to Registrable Securities (as defined below), which notice shall identify the Registrable Securities registered pursuant thereto. Section 17. Registration Rights. Subject to the terms of the Registration Rights Agreement, dated as of April 6, 1995 (the "Registration Rights Agreement"), among the Company, S and Subsidiary, the Warrants and the Shares issuable upon exercise of the Warrants shall con- 30 32 stitute Registrable Securities (as such term is defined in the Registration Rights Agreement). Section 18. Merger, Consolidation or Change of Name of Warrant Agent. (a) Any corporation into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to the business of the Warrant Agent, shall be the successor to the Warrant Agent hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Warrant Agent under the provisions of Section 21 hereof. In case at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement, and in case at that time any of the Warrant Certificates shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent; and in case at that time any of the Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificates either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. (b) In case at any time the name of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt the countersignature under its prior name, and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name, and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement. 31 33 Section 19. Warrant Agent. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound: (a) The statements contained herein and in the Warrant Certificates shall be taken as statements of the Company and the Warrant Agent assumes no responsibility for the correctness of any of the same except such as describe the Warrant Agent or action taken or to be taken by it. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrant Certificates except as herein otherwise provided. (b) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrant Certificates to be complied with by the Company. (c) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be counsel for the Company) and the Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or the advice of such counsel. (d) The Warrant Agent shall incur no liability or responsibility to the Company or to any holder of any Warrant Certificate for any action taken in reliance on any notice, resolution, waiver, consent, order, certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties. (e) The Company agrees to pay to the Warrant Agent reasonable compensation for all services rendered by the Warrant Agent in the performance of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and governmental charges and other charges of any kind and nature incurred by the Warrant Agent in the execution of this Agreement and to indemnify the Warrant 32 34 Agent and save it harmless against any and all liabilities, including judgments, costs and counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of its negligence or bad faith. (f) The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company or one or more registered holders of Warrant Certificates shall furnish the Warrant Agent with reasonable security and indemnity for any costs and expenses which may be incurred, but this provision shall not affect the power of the Warrant Agent to take such action as it may consider proper, whether with or without any such security or indemnity. All rights of action under this Agreement or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of the Warrant Certificates or the production thereof at any trial or other proceeding relative thereto, and any such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as Warrant Agent, and any recovery of judgment shall be for the ratable benefit of the registered holders of the Warrants, as their respective rights or interests may appear. (g) The Warrant Agent, and any stockholder, director, officer or employee thereof, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. (h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the provisions hereof. The Warrant Agent shall not be liable for anything which it may do or refrain from doing in connection with this Agreement except for its own negligence or bad faith. 33 35 (i) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement. Subject to the provisions of the Registration Rights Agreement and the other provisions of this Agreement, if the Company is required under applicable federal or state securities laws to deliver a prospectus upon exercise of Warrants, the Company will furnish to the Warrant Agent sufficient copies of a prospectus, and the Warrant Agent agrees that upon the exercise of any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to such holder, prior to or concurrently with the delivery of the certificate or certificates for the Shares issued upon such exercise, a copy of the prospectus. Section 20. Disposition of Proceeds of Exercise of Warrants. The Warrant Agent shall account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all moneys received by the Warrant Agent on the purchase of Shares through the exercise of Warrants. Section 21. Change of Warrant Agent. If the Warrant Agent shall become incapable of acting as Warrant Agent, the Company shall appoint a successor. If at the time of such incapacity any Non-S Warrants are outstanding and unexercised and the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such incapacity by the incapacitated Warrant Agent or by any registered holder of a Warrant Certificate, then the registered holder of any Warrant Certificate may apply to any court of competent jurisdiction for the appointment of a successor to the incapacitated Warrant Agent. Pending appointment of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the Warrant Agent shall be carried out by the Company. Any successor warrant agent whether appointed by the Company or by such a court, shall be a bank or trust company, in good standing, incorporated under the laws of the State of New York or of the United States of America, and having its principal 34 36 office in the Borough of Manhattan, The City of New York, State of New York and must have at the time of its appointment as warrant agent a combined capital and surplus of at least one billion dollars. After appointment the successor warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent without further act or deed; but the former Warrant Agent shall deliver and transfer to the successor warrant agent any property at the time held by it hereunder and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice provided for in this Section 21, however, or any defect therein, shall not affect the legality or validity of the removal of the Warrant Agent or the appointment of a successor warrant agent as the case may be. Section 22. Methods of Giving Notices. (a) Any notice pursuant to this Agreement to be given to the Company shall be given (and shall be deemed to have been duly given if so given) by delivery in person, by fax (receipt of which is confirmed), or by reputable overnight courier (receipt of which is confirmed) as follows: E.I. du Pont de Nemours and Company 1007 Market Street Wilmington, Delaware 19898 Telephone: (302) 773-0177 Fax: (302) 773-4679 Attention: General Counsel and so long as any S Warrants are outstanding and unexercised, with a copy to: Skadden, Arps, Slate, Meagher & Flom 919 Third Avenue New York, New York 10022 Attn: Roger S. Aaron, Esq. and Lou R. Kling, Esq. Telephone: (212) 735-3000 Fax: (212) 735-2000 35 37 or to such other address as the person to whom notice is given may have previously furnished to S and the Warrant Agent in writing in the manner set forth herein. (b) Any notice pursuant to this Agreement to be given to any S Group Member or any registered holder of S Warrants shall be given (and shall be deemed to have been duly given if so given) by delivery in person, by fax (receipt of which is confirmed), or by reputable overnight courier (receipt of which is confirmed) as follows: JES Developments, Inc. c/o Joseph E. Seagram & Sons, Inc. 375 Park Avenue New York, New York 10152 Attn: Daniel R. Paladino, Esq. Vice President and General Counsel Telephone: (212) 572-1345 Fax: (212) 572-1398 with a copy to: Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 Attn: Edgar M. Masinter, Esq. and Sarah E. Cogan, Esq. Telephone: (212) 455-2000 Fax: (212) 455-2502 or to such other address as the person to whom notice is given may have previously furnished to the Company and the Warrant Agent in writing in the manner set forth herein. (c) Any notice pursuant to this Agreement to be given to the Warrant Agent shall be given (and shall be deemed to have been duly given if so given) by delivery in person, by fax (receipt of which is confirmed), or by reputable overnight courier (receipt of which is confirmed) as follows:: 36 38 Warco Transfer Corporation c/o E.I. du Pont de Nemours and Company 1007 Market Street Wilmington, Delaware 19898 Telephone: (302) 773-0177 Fax: (302) 773-4679 Attention: General Counsel or to such other address as the Warrant Agent may have previously furnished to the Company and S in writing in the manner set forth herein. (d) Any notice pursuant to this Agreement to be given to any registered holder of Warrant Certificates evidencing Non-S Warrants shall be given by first-class mail, postage pre-paid, to such holder at his address appearing on the Warrant register (and shall be deemed to have been duly given if so mailed). Section 23. Supplements and Amendments. The Company and the Warrant Agent may from time to time supplement or amend this Agreement without the approval of any holders of Warrant Certificates in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary or desirable and which shall not adversely affect the interests of the holders of Warrant Certificates. In addition, (i) prior to the issuance of any Non-S Warrants, any provision of this Agreement and the S Warrants may be amended with the written consent of the Company and S and (ii) following the issuance of any Non-S Warrants, any provision of this Agreement and any Warrant may be amended with the consent of (a) the Company, (b) if any S Warrants are then outstanding, S, and (c) the holders of a majority of the Non-S Warrants (calculated by reference to the numbers of shares subject thereto) whose rights and obligations specified herein or in the Warrants are adversely affected by such amendment; provided that no such amendment shall adversely affect the rights and obligations of the Warrant Agent without its consent. 37 39 Section 24. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. Section 25. Termination. This Agreement shall terminate at the close of business on October 6, 1999. Notwithstanding the foregoing, this Agreement will terminate on any earlier date if all Warrants have been exercised or acquired by the Company or cancelled in accordance with the terms hereof. The provisions of Section 19 shall survive such termination. Section 26. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THEREOF. Section 27. Benefits of This Agreement. Nothing in this Agreement shall be construed to give to any person or corporation other than the Company, the Warrant Agent and the registered holders of the Warrant Certificates any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of the Warrant Certificates. Section 28. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. 38 40 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written. E.I. du Pont de Nemours and Company By /s/ Edgar S. Woolard, Jr. ------------------------------- Name: Edgar S. Woolard, Jr. Title: Chairman of the Board and Chief Executive Officer Warco Transfer Corporation By /s/ Louise B. Lancaster ------------------------------- Name: Louise B. Lancaster Title: Corporate Secretary 39 EX-99.D 5 FORMS OF WARRANTS 1 EXHIBIT D 2 EXHIBIT S-1 [Form of Warrant Certificate for First S Warrants] [Face] THESE WARRANTS AND ANY SHARES OF CAPITAL STOCK OR OTHER SECURITIES ISSUABLE UPON THE EXERCISE OF THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES LAWS. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS ALSO SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN THE AGREEMENT, DATED AS OF APRIL 6, 1995 (THE "REDEMPTION AGREEMENT"), AMONG E.I. DU PONT DE NEMOURS AND COMPANY, THE SEAGRAM COMPANY LTD. AND JES DEVELOPMENTS, INC. THE HOLDER OF THESE WARRANTS BY ACCEPTANCE HEREOF AGREES TO BE BOUND BY SUCH RESTRICTIONS. A COPY OF THE REDEMPTION AGREEMENT IS ON FILE WITH THE CORPORATE SECRETARY OF E.I. DU PONT DE NEMOURS AND COMPANY. __________Warrants Warrant Certificate E.I. du Pont de Nemours and Company This Warrant Certificate certifies that ______________, or registered permitted assigns, is the registered holder of __________ Warrants (the "Warrants") to purchase shares of Common Stock, $0.60 par value per share, of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"). Each Warrant entitles the holder to purchase from the Company one fully paid and nonassessable share of Common Stock, $0.60 par value per share, of the Company (the "Shares") at the initial exercise price (the "Exercise Price") of $_____ payable in lawful money of the United States of America upon S-1-1 3 surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set forth herein and in the Warrant Agreement. The Exercise Price and number of Shares purchasable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. Capitalized terms used but not defined in this Warrant Certificate have the meanings assigned to such terms in the Warrant Agreement. The Warrants evidenced hereby are First S Warrants and, accordingly, are exercisable only (i) during an Acceleration Event Period, (ii) to the extent necessary to enable S or an Affiliate thereof to obtain shares of Common Stock which it is required at such time to deliver upon the exchange, exercise or conversion of an outstanding Derivative S Security held by a Non-S Person during a Derivative Exercise Period (to the extent either such period in (i) or (ii) occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii) during the European Exercise Period. No Warrant may be exercised after its Expiration Time. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place. S-1-2 4 This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. WITNESS the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. Dated: E.I. du Pont de Nemours and Company By___________________ Name: Title: By___________________ Name: Title: Countersigned: Warco Transfer Corporation as Warrant Agent By_________________________ Authorized Signature S-1-3 5 [Form of Warrant Certificate for First S Warrants] [Reverse] E.I. du Pont de Nemours and Company The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants to purchase 156,000,000 shares of Common Stock, $0.60 par value per share, of the Company, and are issued pursuant to the Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company to Warco Transfer Corporation, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. The Warrants evidenced hereby are First S Warrants and, accordingly, are exercisable only (i) during an Acceleration Event Period, (ii) to the extent necessary to enable S or an Affiliate thereof to obtain shares of Common Stock which it is required at such time to deliver upon the exchange, exercise or conversion of an outstanding Derivative S Security held by a Non-S Person during a Derivative Exercise Period (to the extent either such period in (i) or (ii) occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii) during the European Exercise Period, at the Exercise Price set forth on the face hereof, subject to adjustment, as hereinafter referred to. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering the Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price and delivery of any other documents required by the Warrant Agreement at the Warrant Agent Office. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced S-1-4 6 hereby, there shall be issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised. Except as otherwise expressly provided in the Warrant Agreement, no adjustment shall be made for any cash dividends on any Shares issuable upon exercise of this Warrant. No Warrant may be exercised after its Expiration Time. The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise Price is adjusted, the Warrant Agreement provides that, at the election of the Company and except as otherwise provided therein, either (i) the number of Shares purchasable upon the exercise of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be adjusted to become a different number of Warrants. In the latter event, the Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issuable pursuant to the adjustment, or substitute Warrant Certificates to replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no adjustment to such number of Shares or Warrants shall be made upon the occurrence of a Spinoff Distribution if Spinoff Warrants are issued in connection therewith to the registered holder hereof. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash determined pursuant to the Warrant Agreement. Warrant Certificates, when surrendered at the Warrant Agent Office, by the registered holder thereof in person or by legal representative or by attorney duly authorized in writing may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of S-1-5 7 like tenor evidencing in the aggregate a like number of Warrants. Upon due presentment for registration of transfer of this Warrant Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. S-1-6 8 [Form of Election to Purchase] (To be executed upon exercise of Warrant) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ..... Shares and herewith tenders payments for such Shares in the amount of $.......... in accordance with the terms hereof. The undersigned requests that a certificate representing such Shares be registered in the name of ............... whose address is .......... ............... and that such certificate be delivered to ............... whose address is ............... If said number of Shares is less than all the Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of the Shares be registered in the name of ............... whose address is .................... and that such Warrant Certificate be delivered to ............... whose address is .................... Any cash payments to be paid in lieu of a fractional Share should be made to ............... whose address is .................... and the check representing payment thereof should be delivered to ............... whose address is .................... Dated: ..............., 19.. [Social Security Box] Name of holder of Warrant Certificate: ...................................... (Please print) Address: ............................. ............................. Signature: ........................... Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever and if the certificate representing the Shares is to be registered in a name other than that in which this S-1-7 9 Warrant Certificate is registered, the signature of the holder hereof must be guaranteed. Signature Guaranteed: S-1-8 10 [Form of Assignment] For value received ............... hereby sells, assigns and transfers unto .................... all right, title and interest in the within Warrant Certificate with respect to ........ Shares, and does hereby irrevocably constitute and appoint .................... attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated: .........., 19__. . . . . . . . . . . . . . . . . . . . . . . Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever. Signature Guaranteed: S-1-9 11 EXHIBIT S-2 [Form of Warrant Certificate for Second S Warrants] [Face] THESE WARRANTS AND ANY SHARES OF CAPITAL STOCK OR OTHER SECURITIES ISSUABLE UPON THE EXERCISE OF THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES LAWS. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS ALSO SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN THE AGREEMENT, DATED AS OF APRIL 6, 1995 (THE "REDEMPTION AGREEMENT"), AMONG E.I. DU PONT DE NEMOURS AND COMPANY, THE SEAGRAM COMPANY LTD. AND JES DEVELOPMENTS, INC. THE HOLDER OF THESE WARRANTS BY ACCEPTANCE HEREOF AGREES TO BE BOUND BY SUCH RESTRICTIONS. A COPY OF THE REDEMPTION AGREEMENT IS ON FILE WITH THE CORPORATE SECRETARY OF E.I. DU PONT DE NEMOURS AND COMPANY. __________Warrants Warrant Certificate E.I. du Pont de Nemours and Company This Warrant Certificate certifies that ______________, or registered permitted assigns, is the registered holder of __________ Warrants (the "Warrants") to purchase shares of Common Stock, $0.60 par value per share, of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"). Each Warrant entitles the holder to purchase from the Company one fully paid and nonassessable share of Common Stock, $0.60 par value per share, of the Company (the "Shares") at the initial exercise price (the "Exercise Price") of $_____ payable S-2-1 12 in lawful money of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set forth herein and in the Warrant Agreement. The Exercise Price and number of Shares purchasable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. Capitalized terms used but not defined in this Warrant Certificate have the meanings assigned to such terms in the Warrant Agreement. The Warrants evidenced hereby are Second S Warrants and, accordingly, are exercisable only (i) during an Acceleration Event Period, (ii) to the extent necessary to enable S or an Affiliate thereof to obtain shares of Common Stock which it is required at such time to deliver upon the exchange, exercise or conversion of an outstanding Derivative S Security held by a Non-S Person during a Derivative Exercise Period (to the extent either such period in (i) or (ii) occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii) during the European Exercise Period. No Warrant may be exercised after its Expiration Time. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place. S-2-2 13 This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. WITNESS the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. Dated: E.I. du Pont de Nemours and Company By___________________ Name: Title: By___________________ Name: Title: Countersigned: Warco Transfer Corporation as Warrant Agent By_________________________ Authorized Signature S-2-3 14 [Form of Warrant Certificate for Second S Warrants] [Reverse] E.I. du Pont de Nemours and Company The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants to purchase 156,000,000 shares of Common Stock, $0.60 par value per share, of the Company, and are issued pursuant to the Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company to Warco Transfer Corporation, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. The Warrants evidenced hereby are Second S Warrants and, accordingly, are exercisable only (i) during an Acceleration Event Period, (ii) to the extent necessary to enable S or an Affiliate thereof to obtain shares of Common Stock which it is required at such time to deliver upon the exchange, exercise or conversion of an outstanding Derivative S Security held by a Non-S Person during a Derivative Exercise Period (to the extent either such period in (i) or (ii) occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii) during the European Exercise Period, at the Exercise Price set forth on the face hereof, subject to adjustment, as hereinafter referred to. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering the Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price and delivery of any other documents required by the Warrant Agreement at the Warrant Agent Office. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be S-2-4 15 issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised. Except as otherwise expressly provided in the Warrant Agreement, no adjustment shall be made for any cash dividends on any Shares issuable upon exercise of this Warrant. No Warrant may be exercised after its Expiration Time. The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise Price is adjusted, the Warrant Agreement provides that, at the election of the Company and except as otherwise provided therein, either (i) the number of Shares purchasable upon the exercise of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be adjusted to become a different number of Warrants. In the latter event, the Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issuable pursuant to the adjustment, or substitute Warrant Certificates to replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no adjustment to such number of Shares or Warrants shall be made upon the occurrence of a Spinoff Distribution if Spinoff Warrants are issued in connection therewith to the registered holder hereof. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash determined pursuant to the Warrant Agreement. Warrant Certificates, when surrendered at the Warrant Agent Office, by the registered holder thereof in person or by legal representative or by attorney duly authorized in writing may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of S-2-5 16 like tenor evidencing in the aggregate a like number of Warrants. Upon due presentment for registration of transfer of this Warrant Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. S-2-6 17 [Form of Election to Purchase] (To be executed upon exercise of Warrant) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ..... Shares and herewith tenders payments for such Shares in the amount of $.......... in accordance with the terms hereof. The undersigned requests that a certificate representing such Shares be registered in the name of ............... whose address is .......... ............... and that such certificate be delivered to ............... whose address is ............... If said number of Shares is less than all the Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of the Shares be registered in the name of ............... whose address is .................... and that such Warrant Certificate be delivered to ............... whose address is .................... Any cash payments to be paid in lieu of a fractional Share should be made to ............... whose address is .................... and the check representing payment thereof should be delivered to ............... whose address is .................... Dated: ..............., 19.. [Social Security Box] Name of holder of Warrant Certificate: ...................................... (Please print) Address: ............................. ............................. Signature: ........................... Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever and if the certificate representing the Shares is to be registered in a name other than that in which this S-2-7 18 Warrant Certificate is registered, the signature of the holder hereof must be guaranteed. Signature Guaranteed: S-2-8 19 [Form of Assignment] For value received ............... hereby sells, assigns and transfers unto .................... all right, title and interest in the within Warrant Certificate with respect to ......Shares, and does hereby irrevocably constitute and appoint .................... attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated: .........., 19__. . . . . . . . . . . . . . . . . . . . . . . Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever. Signature Guaranteed: S-2-9 20 EXHIBIT S-3 [Form of Warrant Certificate for Third S Warrants] [Face] THESE WARRANTS AND ANY SHARES OF CAPITAL STOCK OR OTHER SECURITIES ISSUABLE UPON THE EXERCISE OF THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES LAWS. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS ALSO SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN THE AGREEMENT, DATED AS OF APRIL 6, 1995 (THE "REDEMPTION AGREEMENT"), AMONG E.I. DU PONT DE NEMOURS AND COMPANY, THE SEAGRAM COMPANY LTD. AND JES DEVELOPMENTS, INC. THE HOLDER OF THESE WARRANTS BY ACCEPTANCE HEREOF AGREES TO BE BOUND BY SUCH RESTRICTIONS. A COPY OF THE REDEMPTION AGREEMENT IS ON FILE WITH THE CORPORATE SECRETARY OF E.I. DU PONT DE NEMOURS AND COMPANY. __________Warrants Warrant Certificate E.I. du Pont de Nemours and Company This Warrant Certificate certifies that ______________, or registered permitted assigns, is the registered holder of __________ Warrants (the "Warrants") to purchase shares of Common Stock, $0.60 par value per share, of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"). Each Warrant entitles the holder to purchase from the Company one fully paid and nonassessable share of Common Stock, $0.60 par value per share, of the Company (the "Shares") at the initial exercise price (the "Exercise Price") of $_____ payable in lawful money of the United States of America upon S-3-1 21 surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set forth herein and in the Warrant Agreement. The Exercise Price and number of Shares purchasable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. Capitalized terms used but not defined in this Warrant Certificate have the meanings assigned to such terms in the Warrant Agreement. The Warrants evidenced hereby are Third S Warrants and, accordingly, are exercisable only (i) during an Acceleration Event Period, (ii) to the extent necessary to enable S or an Affiliate thereof to obtain shares of Common Stock which it is required at such time to deliver upon the exchange, exercise or conversion of an outstanding Derivative S Security held by a Non-S Person during a Derivative Exercise Period (to the extent either such period in (i) or (ii) occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii) during the European Exercise Period. No Warrant may be exercised after its Expiration Time. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place. S-3-2 22 This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. WITNESS the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. Dated: E.I. du Pont de Nemours and Company By___________________ Name: Title: By___________________ Name: Title: Countersigned: Warco Transfer Corporation as Warrant Agent By_________________________ Authorized Signature S-3-3 23 [Form of Warrant Certificate for Third S Warrants] [Reverse] E.I. du Pont de Nemours and Company The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants to purchase ____________ shares of Common Stock, $0.60 par value per share, of the Company, and are issued pursuant to the Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company to Warco Transfer Corporation, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. The Warrants evidenced hereby are Third S Warrants and, accordingly, are exercisable only (i) during an Acceleration Event Period, (ii) to the extent necessary to enable S or an Affiliate thereof to obtain shares of Common Stock which it is required at such time to deliver upon the exchange, exercise or conversion of an outstanding Derivative S Security held by a Non-S Person during a Derivative Exercise Period (to the extent either such period in (i) or (ii) occurs prior to the Expiration Time of the Warrants evidenced hereby) or (iii) during the European Exercise Period, at the Exercise Price set forth on the face hereof, subject to adjustment, as hereinafter referred to. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering the Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price and delivery of any other documents required by the Warrant Agreement at the Warrant Agent Office. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be S-3-4 24 issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised. Except as otherwise expressly provided in the Warrant Agreement, no adjustment shall be made for any cash dividends on any Shares issuable upon exercise of this Warrant. No Warrant may be exercised after its Expiration Time. The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise Price is adjusted, the Warrant Agreement provides that, at the election of the Company and except as otherwise provided therein, either (i) the number of Shares purchasable upon the exercise of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be adjusted to become a different number of Warrants. In the latter event, the Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issuable pursuant to the adjustment, or substitute Warrant Certificates to replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no adjustment to such number of Shares or Warrants shall be made upon the occurrence of a Spinoff Distribution if Spinoff Warrants are issued in connection therewith to the registered holder hereof. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash determined pursuant to the Warrant Agreement. Warrant Certificates, when surrendered at the Warrant Agent Office, by the registered holder thereof in person or by legal representative or by attorney duly authorized in writing may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of S-3-5 25 like tenor evidencing in the aggregate a like number of Warrants. Upon due presentment for registration of transfer of this Warrant Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. S-3-6 26 [Form of Election to Purchase] (To be executed upon exercise of Warrant) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ..... Shares and herewith tenders payments for such Shares in the amount of $.......... in accordance with the terms hereof. The undersigned requests that a certificate representing such Shares be registered in the name of ............... whose address is .......... ............... and that such certificate be delivered to ............... whose address is ............... If said number of Shares is less than all the Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of the Shares be registered in the name of ............... whose address is .................... and that such Warrant Certificate be delivered to ............... whose address is .................... Any cash payments to be paid in lieu of a fractional Share should be made to ............... whose address is .................... and the check representing payment thereof should be delivered to ............... whose address is .................... Dated: ..............., 19.. [Social Security Box] Name of holder of Warrant Certificate: ...................................... (Please print) Address: ............................. ............................. Signature: ........................... Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever and if the certificate representing the Shares is to be registered in a name other than that in which this S-3-7 27 Warrant Certificate is registered, the signature of the holder hereof must be guaranteed. Signature Guaranteed: S-3-8 28 [Form of Assignment] For value received ............... hereby sells, assigns and transfers unto .................... all right, title and interest in the within Warrant Certificate with respect to ..... Shares, and does hereby irrevocably constitute and appoint .................... attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated: .........., 19__. . . . . . . . . . . . . . . . . . . . . . . Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever. Signature Guaranteed: S-3-9 29 EXHIBIT NS-1 [Form of Warrant Certificate for First Non-S Warrants] [Face] THESE WARRANTS AND ANY SHARES OF CAPITAL STOCK OR OTHER SECURITIES ISSUABLE UPON THE EXERCISE OF THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES LAWS. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES MAY ALSO BE SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN THE AGREEMENT, DATED AS OF APRIL 6, 1995 (THE "REDEMPTION AGREEMENT"), AMONG E.I. DU PONT DE NEMOURS AND COMPANY, THE SEAGRAM COMPANY LTD. AND JES DEVELOPMENTS, INC. THE HOLDER OF THESE WARRANTS BY ACCEPTANCE HEREOF AGREES TO BE BOUND BY SUCH RESTRICTIONS. A COPY OF THE REDEMPTION AGREEMENT IS ON FILE WITH THE CORPORATE SECRETARY OF E.I. DU PONT DE NEMOURS AND COMPANY. __________Warrants Warrant Certificate E.I. du Pont de Nemours and Company This Warrant Certificate certifies that ______________, or registered permitted assigns, is the registered holder of __________ Warrants (the "Warrants") to purchase shares of Common Stock, $0.60 par value per share, of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"). Each Warrant entitles the holder to purchase from the Company one fully paid and nonassessable share of Common Stock, $0.60 par value per share, of the Company (the "Shares") at the initial NS-1-1 30 exercise price (the "Exercise Price") of $_____ payable in lawful money of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set forth herein and in the Warrant Agreement. The Exercise Price and number of Shares purchasable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. Capitalized terms used but not defined in this Warrant Certificate have the meanings assigned to such terms in the Warrant Agreement. The Warrants evidenced hereby are First Non-S Warrants and, accordingly, are exercisable at any time or from time to time until their Expiration Time. Notwithstanding the foregoing, if at any time a registration statement shall be in effect with respect to Shares issuable upon exercise of the Warrants evidenced hereby, then the Company shall have the right to suspend the exercisability of such Warrants for up to 30 days if the Company furnishes the Warrant Agent with an opinion of counsel to the Company (who may be an employee of the Company) to the effect that the prospectus included in such registration statement could reasonably be deemed to contain a material misstatement or omission by reason of its failure to disclose material information concerning a pending or contemplated financing, acquisition, disposition of assets or stock, merger or other transaction, which information was not at such time otherwise publicly disclosed. No Warrant may be exercised after its Expiration Time. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place. NS-1-2 31 This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. WITNESS the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. Dated: E.I. du Pont de Nemours and Company By___________________ Name: Title: By___________________ Name: Title: Countersigned: Warco Transfer Corporation as Warrant Agent By_________________________ Authorized Signature NS-1-3 32 [Form of Warrant Certificate for First Non-S Warrants] [Reverse] E.I. du Pont de Nemours and Company The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants to purchase 156,000,000 shares of Common Stock, $0.60 par value per share, of the Company, and are issued pursuant to the Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company to Warco Transfer Corporation, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. The Warrants evidenced hereby are First Non-S Warrants and, accordingly, may be exercised to purchase Shares from the Company at any time or from time to time until their Expiration Time at the Exercise Price set forth on the face hereof, subject to adjustment, as hereinafter referred to. Notwithstanding the foregoing, if at any time a registration statement shall be in effect with respect to Shares issuable upon exercise of the Warrants evidenced hereby, then the Company shall have the right to suspend the exercisability of such Warrants for up to 30 days if the Company furnishes the Warrant Agent with an opinion of counsel to the Company (who may be an employee of the Company) to the effect that the prospectus included in such registration statement could reasonably be deemed to contain a material misstatement or omission by reason of its failure to disclose material information concerning a pending or contemplated financing, acquisition, disposition of assets or stock, merger or other transaction, which information was not at such time otherwise publicly disclosed. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering the NS-1-4 33 Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price and delivery of any other documents required by the Warrant Agreement at the Warrant Agent Office. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised. Except as otherwise expressly provided in the Warrant Agreement, no adjustment shall be made for any cash dividends on any Shares issuable upon exercise of this Warrant. No Warrant may be exercised after its Expiration Time. The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise Price is adjusted, the Warrant Agreement provides that, at the election of the Company and except as other wise provided therein, either (i) the number of Shares purchasable upon the exercise of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be adjusted to become a different number of Warrants. In the latter event, the Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issuable pursuant to the adjustment, or substitute Warrant Certificates to replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no adjustment to such number of Shares or Warrants shall be made upon the occurrence of a Spinoff Distribution if Spinoff Warrants are issued in connection therewith to the registered holder hereof. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash determined pursuant to the Warrant Agreement. NS-1-5 34 Warrant Certificates, when surrendered at the Warrant Agent Office, by the registered holder thereof in person or by legal representative or by attorney duly authorized in writing may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants. Upon due presentment for registration of transfer of this Warrant Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. NS-1-6 35 [Form of Election to Purchase] (To be executed upon exercise of Warrant) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ..... Shares and herewith tenders payments for such Shares in the amount of $.......... in accordance with the terms hereof. The undersigned requests that a certificate representing such Shares be registered in the name of ............... whose address is .......... ............... and that such certificate be delivered to ............... whose address is ............... If said number of Shares is less than all the Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of the Shares be registered in the name of ............... whose address is .................... and that such Warrant Certificate be delivered to ............... whose address is .................... Any cash payments to be paid in lieu of a fractional Share should be made to ............... whose address is .................... and the check representing payment thereof should be delivered to ............... whose address is .................... Dated: ..............., 19.. [Social Security Box] Name of holder of Warrant Certificate: ...................................... (Please print) Address: ............................. ............................. Signature: ........................... Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever and if the certificate representing the Shares or any Warrant Certificate representing Warrants not exer- NS-1-7 36 cised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature of the holder hereof must be guaranteed. Signature Guaranteed: NS-1-8 37 [Form of Assignment] For value received ............... hereby sells, assigns and transfers unto .................... all right, title and interest in the within Warrant Certificate with respect to ..... Shares, and does hereby irrevocably constitute and appoint .................... attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated: .........., 19__. . . . . . . . . . . . . . . . . . . . . . . Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever. Signature Guaranteed: NS-1-9 38 EXHIBIT NS-2 [Form of Warrant Certificate for Second Non-S Warrants] [Face] THESE WARRANTS AND ANY SHARES OF CAPITAL STOCK OR OTHER SECURITIES ISSUABLE UPON THE EXERCISE OF THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES LAWS. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES MAY ALSO BE SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN THE AGREEMENT, DATED AS OF APRIL 6, 1995 (THE "REDEMPTION AGREEMENT"), AMONG E.I. DU PONT DE NEMOURS AND COMPANY, THE SEAGRAM COMPANY LTD. AND JES DEVELOPMENTS, INC. THE HOLDER OF THESE WARRANTS BY ACCEPTANCE HEREOF AGREES TO BE BOUND BY SUCH RESTRICTIONS. A COPY OF THE REDEMPTION AGREEMENT IS ON FILE WITH THE CORPORATE SECRETARY OF E.I. DU PONT DE NEMOURS AND COMPANY. __________Warrants Warrant Certificate E.I. du Pont de Nemours and Company This Warrant Certificate certifies that ______________, or registered permitted assigns, is the registered holder of __________ Warrants (the "Warrants") to purchase shares of Common Stock, $0.60 par value per share, of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"). Each Warrant entitles the holder to purchase from the Company one fully paid and nonassessable share of Common Stock, $0.60 par value per share, of the Company (the "Shares") at the initial NS-2-1 39 exercise price (the "Exercise Price") of $_____ payable in lawful money of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set forth herein and in the Warrant Agreement. The Exercise Price and number of Shares purchasable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. Capitalized terms used but not defined in this Warrant Certificate have the meanings assigned to such terms in the Warrant Agreement. The Warrants evidenced hereby are Second Non-S Warrants and, accordingly, are exercisable at any time or from time to time until their Expiration Time. Notwithstanding the foregoing, if at any time a registration statement shall be in effect with respect to Shares issuable upon exercise of the Warrants evidenced hereby, then the Company shall have the right to suspend the exercisability of such Warrants for up to 30 days if the Company furnishes the Warrant Agent with an opinion of counsel to the Company (who may be an employee of the Company) to the effect that the prospectus included in such registration statement could reasonably be deemed to contain a material misstatement or omission by reason of its failure to disclose material information concerning a pending or contemplated financing, acquisition, disposition of assets or stock, merger or other transaction, which information was not at such time otherwise publicly disclosed. No Warrant may be exercised after its Expiration Time. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place. NS-2-2 40 This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. WITNESS the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. Dated: E.I. du Pont de Nemours and Company By___________________ Name: Title: By___________________ Name: Title: Countersigned: Warco Transfer Corporation as Warrant Agent By_________________________ Authorized Signature NS-2-3 41 [Form of Warrant Certificate for Second Non-S Warrants] [Reverse] E.I. du Pont de Nemours and Company The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants to purchase 156,000,000 shares of Common Stock, $0.60 par value per share, of the Company, and are issued pursuant to the Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company to Warco Transfer Corporation, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. The Warrants evidenced hereby are Second Non-S Warrants and, accordingly, may be exercised to purchase Shares from the Company at any time or from time to time until their Expiration Time at the Exercise Price set forth on the face hereof, subject to adjustment, as hereinafter referred to. Notwithstanding the foregoing, if at any time a registration statement shall be in effect with respect to Shares issuable upon exercise of the Warrants evidenced hereby, then the Company shall have the right to suspend the exercisability of such Warrants for up to 30 days if the Company furnishes the Warrant Agent with an opinion of counsel to the Company (who may be an employee of the Company) to the effect that the prospectus included in such registration statement could reasonably be deemed to contain a material misstatement or omission by reason of its failure to disclose material information concerning a pending or contemplated financing, acquisition, disposition of assets or stock, merger or other transaction, which information was not at such time otherwise publicly disclosed. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering the NS-2-4 42 Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price and delivery of any other documents required by the Warrant Agreement at the Warrant Agent Office. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised. Except as otherwise expressly provided in the Warrant Agreement, no adjustment shall be made for any cash dividends on any Shares issuable upon exercise of this Warrant. No Warrant may be exercised after its Expiration Time. The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise Price is adjusted, the Warrant Agreement provides that, at the election of the Company and except as otherwise provided therein, either (i) the number of Shares purchasable upon the exercise of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be adjusted to become a different number of Warrants. In the latter event, the Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issuable pursuant to the adjustment, or substitute Warrant Certificates to replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no adjustment to such number of Shares or Warrants shall be made upon the occurrence of a Spinoff Distribution if Spinoff Warrants are issued in connection therewith to the registered holder hereof. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash determined pursuant to the Warrant Agreement. NS-2-5 43 Warrant Certificates, when surrendered at the Warrant Agent Office, by the registered holder thereof in person or by legal representative or by attorney duly authorized in writing may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants. Upon due presentment for registration of transfer of this Warrant Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. NS-2-6 44 [Form of Election to Purchase] (To be executed upon exercise of Warrant) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ..... Shares and herewith tenders payments for such Shares in the amount of $.......... in accordance with the terms hereof. The undersigned requests that a certificate representing such Shares be registered in the name of ............... whose address is .......... ............... and that such certificate be delivered to ............... whose address is ............... If said number of Shares is less than all the Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of the Shares be registered in the name of ............... whose address is .................... and that such Warrant Certificate be delivered to ............... whose address is .................... Any cash payments to be paid in lieu of a fractional Share should be made to ............... whose address is .................... and the check representing payment thereof should be delivered to ............... whose address is .................... Dated: ..............., 19.. [Social Security Box] Name of holder of Warrant Certificate: ...................................... (Please print) Address: ............................. ............................. Signature: ........................... Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever and if the certificate representing the Shares or any Warrant Certificate representing Warrants not exer- NS-2-7 45 cised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature of the holder hereof must be guaranteed. Signature Guaranteed: NS-2-8 46 [Form of Assignment] For value received ............... hereby sells, assigns and transfers unto .................... all right, title and interest in the within Warrant Certificate with respect to ..... Shares, and does hereby irrevocably constitute and appoint .................... attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated: .........., 19__. . . . . . . . . . . . . . . . . . . . . . . Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever. Signature Guaranteed: NS-2-9 47 EXHIBIT NS-3 [Form of Warrant Certificate for Third Non-S Warrants] [Face] THESE WARRANTS AND ANY SHARES OF CAPITAL STOCK OR OTHER SECURITIES ISSUABLE UPON THE EXERCISE OF THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES IS SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES LAWS. THE SALE, PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THESE WARRANTS AND SUCH SHARES OR OTHER SECURITIES MAY ALSO BE SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN THE AGREEMENT, DATED AS OF APRIL 6, 1995 (THE "REDEMPTION AGREEMENT"), AMONG E.I. DU PONT DE NEMOURS AND COMPANY, THE SEAGRAM COMPANY LTD. AND JES DEVELOPMENTS, INC. THE HOLDER OF THESE WARRANTS BY ACCEPTANCE HEREOF AGREES TO BE BOUND BY SUCH RESTRICTIONS. A COPY OF THE REDEMPTION AGREEMENT IS ON FILE WITH THE CORPORATE SECRETARY OF E.I. DU PONT DE NEMOURS AND COMPANY. __________Warrants Warrant Certificate E.I. du Pont de Nemours and Company This Warrant Certificate certifies that ______________, or registered permitted assigns, is the registered holder of __________ Warrants (the "Warrants") to purchase shares of Common Stock, $0.60 par value per share, of E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"). Each Warrant entitles the holder to purchase from the Company one fully paid and nonassessable share of Common Stock, $0.60 par value per share, of the Company (the "Shares") at the initial NS-3-1 48 exercise price (the "Exercise Price") of $_____ payable in lawful money of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent (the "Warrant Agent Office"), subject to the conditions set forth herein and in the Warrant Agreement. The Exercise Price and number of Shares purchasable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement. Capitalized terms used but not defined in this Warrant Certificate have the meanings assigned to such terms in the Warrant Agreement. The Warrants evidenced hereby are Third Non-S Warrants and, accordingly, are exercisable at any time or from time to time until their Expiration Time. Notwithstanding the foregoing, if at any time a registration statement shall be in effect with respect to Shares issuable upon exercise of the Warrants evidenced hereby, then the Company shall have the right to suspend the exercisability of such Warrants for up to 30 days if the Company furnishes the Warrant Agent with an opinion of counsel to the Company (who may be an employee of the Company) to the effect that the prospectus included in such registration statement could reasonably be deemed to contain a material misstatement or omission by reason of its failure to disclose material information concerning a pending or contemplated financing, acquisition, disposition of assets or stock, merger or other transaction, which information was not at such time otherwise publicly disclosed. No Warrant may be exercised after its Expiration Time. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place. NS-3-2 49 This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. WITNESS the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. Dated: E.I. du Pont de Nemours and Company By___________________ Name: Title: By___________________ Name: Title: Countersigned: Warco Transfer Corporation as Warrant Agent By_________________________ Authorized Signature NS-3-3 50 [Form of Warrant Certificate for Third Non-S Warrants] [Reverse] E.I. du Pont de Nemours and Company The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants to purchase 156,000,000 shares of Common Stock, $0.60 par value per share, of the Company, and are issued pursuant to the Warrant Agreement dated as of April 6, 1995 (the "Warrant Agreement"), duly executed and delivered by the Company to Warco Transfer Corporation, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words "holders" or "holder" meaning the registered holders or registered holder) of the Warrants. The Warrants evidenced hereby are Third Non-S Warrants and, accordingly, may be exercised to purchase Shares from the Company at any time or from time to time until their Expiration Time at the Exercise Price set forth on the face hereof, subject to adjustment, as hereinafter referred to. Notwithstanding the foregoing, if at any time a registration statement shall be in effect with respect to Shares issuable upon exercise of the Warrants evidenced hereby, then the Company shall have the right to suspend the exercisability of such Warrants for up to 30 days if the Company furnishes the Warrant Agent with an opinion of counsel to the Company (who may be an employee of the Company) to the effect that the prospectus included in such registration statement could reasonably be deemed to contain a material misstatement or omission by reason of its failure to disclose material information concerning a pending or contemplated financing, acquisition, disposition of assets or stock, merger or other transaction, which information was not at such time otherwise publicly disclosed. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering the NS-3-4 51 Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price and delivery of any other documents required by the Warrant Agreement at the Warrant Agent Office. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his assignee a new Warrant Certificate evidencing the number of Warrants not exercised. Except as otherwise expressly provided in the Warrant Agreement, no adjustment shall be made for any cash dividends on any Shares issuable upon exercise of this Warrant. No Warrant may be exercised after its Expiration Time. The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price set forth on the face hereof may, subject to certain conditions, be adjusted. If the Exercise Price is adjusted, the Warrant Agreement provides that, at the election of the Company and except as otherwise provided therein, either (i) the number of Shares purchasable upon the exercise of each Warrant shall be adjusted or (ii) each outstanding Warrant shall be adjusted to become a different number of Warrants. In the latter event, the Company will cause to be distributed to registered holders of Warrant Certificates either Warrant Certificates representing the additional Warrants issuable pursuant to the adjustment, or substitute Warrant Certificates to replace all outstanding Warrant Certificates. Notwithstanding the foregoing, no adjustment to such number of Shares or Warrants shall be made upon the occurrence of a Spinoff Distribution if Spinoff Warrants are issued in connection therewith to the registered holder hereof. The Company shall not be required to issue fractions of Warrants or fractions of Shares or any certificates which evidence fractional Warrants or fractional Shares. In lieu of such fractional Warrants and fractional Shares there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants or fractional Shares would otherwise be issuable an amount in cash determined pursuant to the Warrant Agreement. NS-3-5 52 Warrant Certificates, when surrendered at the Warrant Agent Office, by the registered holder thereof in person or by legal representative or by attorney duly authorized in writing may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants. Upon due presentment for registration of transfer of this Warrant Certificate at the Warrant Agent Office, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith. The Company and the Warrant Agent may deem and treat the registered holder hereof as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. NS-3-6 53 [Form of Election to Purchase] (To be executed upon exercise of Warrant) The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase ..... Shares and herewith tenders payments for such Shares in the amount of $.......... in accordance with the terms hereof. The undersigned requests that a certificate representing such Shares be registered in the name of ............... whose address is .......... ............... and that such certificate be delivered to ............... whose address is ............... If said number of Shares is less than all the Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the balance of the Shares be registered in the name of ............... whose address is .................... and that such Warrant Certificate be delivered to ............... whose address is .................... Any cash payments to be paid in lieu of a fractional Share should be made to ............... whose address is .................... and the check representing payment thereof should be delivered to ............... whose address is .................... Dated: ..............., 19.. [Social Security Box] Name of holder of Warrant Certificate: ...................................... (Please print) Address: ............................. ............................. Signature: ........................... Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever and if the certificate representing the Shares or any Warrant Certificate representing Warrants not exer- NS-3-7 54 cised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature of the holder hereof must be guaranteed. Signature Guaranteed: NS-3-8 55 [Form of Assignment] For value received ............... hereby sells, assigns and transfers unto .................... all right, title and interest in the within Warrant Certificate with respect to ...... Shares, and does hereby irrevocably constitute and appoint .................... attorney, to transfer said Warrant Certificate on the books of the within-named Company, with full power of substitution in the premises. Dated: .........., 19__. . . . . . . . . . . . . . . . . . . . . . . Note: The above signature must correspond with the name as written upon the face of this Warrant Certificate in every particular, without alteration or enlargement or any change whatever. Signature Guaranteed: NS-3-9 EX-99.E 6 AGMT. AMONG DUPONT AND CERTAIN SEAGRAM STOCKHLDRS. 1 EXHIBIT E 2 AGREEMENT This Agreement, dated as of April 6, 1995, is among E.I. du Pont de Nemours and Company, a Delaware corporation (the "Company"), and the individuals and entities listed on the signature pages hereto (each a "Family Representative" and collectively, the "Family Representatives"). WHEREAS, simultaneously with the execution and delivery of this Agreement, the Company, The Seagram Company Ltd., a Canadian corporation ("S"), and JES Developments, Inc., a Delaware corporation and a wholly-owned subsidiary of S ("Subsidiary"), are entering into an agreement (the "Redemption Agreement"), pursuant to which, among other things, Subsidiary is transferring to the Company an aggregate of 156,000,000 shares of the Common Stock, par value $0.60 per share, of the Company (the "Common Stock"); and WHEREAS, in order to induce the Company to enter into the Redemption Agreement and acquire shares of Common Stock as provided therein, the Family Representatives are willing to agree to certain restrictions with respect to the Company, as set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows. Section 1. Capitalized Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Redemption Agreement. Section 2. Representation of Family Representatives. Each Family Representative represents and warrants as of the date hereof to the Company that, except for the Redeemed Shares, the Retained Shares and the Warrants, neither such Family Representative nor, to the knowledge of such Family Representative, any of his, her or its Affiliates (as hereinafter defined), Beneficially Owns or has any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Voting Securities. The foregoing representation and warranty shall survive through 3 the term of this Agreement. As used in this Agreement, "Affiliate" means, with respect to any Family Representative, any corporation or entity controlled by such Family Representative, or by such Family Representative and one or more other Family Representatives. Section 3. Standstill. During the Standstill Period, each Family Representative agrees that, except for the possible acquisition by the Family Representatives of not more than an aggregate of 300,000 shares of Common Stock, he, she or it shall not, and shall use his, her or its best efforts (to the extent consistent with his, her or its legal obligations) to cause his, her or its respective Affiliates not to, directly or indirectly, alone or in concert with others, take any action which S is prohibited from taking pursuant to Section 5.1 of the Redemption Agreement or the corresponding section of any Spinoff Agreement; provided that the acquisition of Voting Securities by any such Family Representative in connection with a distribution by S to its stockholders pursuant to Section 5.3(c) of the Redemption Agreement shall not be deemed a breach of this Section 3. Section 4. Termination. This Agreement shall terminate upon the termination of the Redemption Agreement in accordance with its terms. Section 5. Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to specific performance of the terms hereof, in addition to any other remedy at law or in equity. Section 6. Entire Agreement; Termination of Existing Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Without limiting the foregoing, upon the execution and delivery of this Agreement by the parties hereto, the Existing Family Representative Standstill Agreement shall terminate; provided that termination of the Existing Family Representative Standstill Agreement shall 2 4 not relieve any party thereto from liability for breach of any provision thereof prior to such termination. As used in this Agreement, "Existing Family Representative Standstill Agreement" means the agreement, dated as of October 2, 1981, among the Company and the Family Representatives. Section 7. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors by operation of law, but may not otherwise be assigned by any party hereto without the prior written consent of the other parties hereto. Section 8. Validity. If any provision of this Agreement, or the application thereof to any person or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other persons or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable. Section 9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Section 10. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Section 11. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. 3 5 IN WITNESS WHEREOF, each of the parties has executed or caused this Agreement to be executed on its behalf by its representatives thereunto duly authorized, all as of the day and year first above written. E.I. du Pont de Nemours and Company By /s/ Edgar S. Woolard, Jr. -------------------------------- Name: Edgar S. Woolard, Jr. Title:Chairman of the Board and Chief Executive Officer /s/ Edgar M. Bronfman ----------------------------------- Edgar M. Bronfman (individually and as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) /s/ Charles R. Bronfman ----------------------------------- Charles R. Bronfman (individually and as trustee under a trust for the benefit of the descendants of the late Samuel Bronfman) /s/ Phyllis Lambert ----------------------------------- Phyllis Lambert (individually and as trustee under a trust for the benefit of the descendants of the late Samuel Bronfman) /s/ Edgar Bronfman, Jr. ----------------------------------- Edgar Bronfman, Jr. (individually and as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) /s/ Matthew Bronfman ----------------------------------- Matthew Bronfman (individually and as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) 4 6 /s/ Stephen R. Bronfman ----------------------------------- Stephen R. Bronfman (individually and as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) /s/ Ellen J. Bronfman ----------------------------------- Ellen J. Bronfman (individually and as trustee under a trust for the benefit of the descendants of the late Samuel Bronfman) /s/ Stephen E. Banner ----------------------------------- Stephen E. Banner (as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) /s/ Harold R. Handler ----------------------------------- Harold R. Handler (as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) /s/ John L. Weinberg ----------------------------------- John L. Weinberg (as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) /s/ E. Leo Kolber ----------------------------------- E. Leo Kolber (as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) /s/ Samuel Minzberg ----------------------------------- Samuel Minzberg (as trustee under a trust for the benefit of the descendants of the late Samuel Bronfman) 5 7 /s/ Robert S. Vineberg ----------------------------------- Robert S. Vineberg (as trustee under trusts for the benefit of the descendants of the late Samuel Bronfman) /s/ Gary J. Gartner ----------------------------------- Gary J. Gartner (as trustee under a trust for the benefit of the descendants of the late Samuel Bronfman) /s/ Lawrence F. Gilberti ----------------------------------- Lawrence F. Gilberti (as trustee under a trust for the benefit of the descendants of the late Samuel Bronfman) /s/ Steven H. Levin ----------------------------------- Steven H. Levin (as trustee under a trust for the benefit of the descendants of the late Samuel Bronfman) /s/ Arnold M. Ludwick ----------------------------------- Arnold M. Ludwick (as trustee under a trust for the benefit of the descendants of the late Samuel Bronfman) 6 EX-99.F 7 JOINT FILING AGREEMENT 1 EXHIBIT F 2 AGREEMENT --------- By this Agreement, the undersigned agree that the Amendment No. 9 to Schedule 13D being filed on or about this date, with respect to the ownership of shares of common stock of E.I. du Pont de Nemours and Company, and any subsequent amendment to such Schedule 13D filed by any of the undersigned, is being filed on behalf of each of us. Dated: April 10, 1995 JES DEVELOPMENTS, INC. By: /s/ Daniel R. Paladino ---------------------- Daniel R. Paladino Vice President THE SEAGRAM COMPANY LTD. By: /s/ Daniel R. Paladino ---------------------- Daniel R. Paladino Vice President, Legal and Environmental Affairs -----END PRIVACY-ENHANCED MESSAGE-----