-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Aal76tW+5mKM2Tql7Q4jzfyWcHGXumChQ6A7WdRmGVq5LEh+WiA7CXVDbgUmX9HB o48xG9uBPbvediPaYjckpw== 0000950123-99-003445.txt : 19990420 0000950123-99-003445.hdr.sgml : 19990420 ACCESSION NUMBER: 0000950123-99-003445 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 12 REFERENCES 429: 033-82754 FILED AS OF DATE: 19990419 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALCAN ALUMINIUM LTD /NEW CENTRAL INDEX KEY: 0000004285 STANDARD INDUSTRIAL CLASSIFICATION: PRIMARY PRODUCTION OF ALUMINUM [3334] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-76535 FILM NUMBER: 99596709 BUSINESS ADDRESS: STREET 1: 1188 SHERBROOKE ST WEST CITY: MONTREAL QUEBEC CANA STATE: A8 BUSINESS PHONE: 5148488000 S-3 1 ALCAN ALUMINUM LIMITED 1 Registration No. 333-__________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ______________ FORM S-3 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 ______________ ALCAN ALUMINIUM LIMITED (Exact Name of Registrant as Specified in its Charter) CANADA NOT APPLICABLE (Jurisdiction of Incorporation) (IRS Employer Identification No.)
1188 Sherbrooke Street West Montreal, Quebec, Canada H3A 3G2 514-848-8000 (Address of principal executive offices, including postal code, and telephone number, including area code) ______________ P.K. PAL, Secretary ALCAN ALUMINIUM LIMITED 1188 Sherbrooke Street West Montreal, Quebec, Canada H3A 3G2 514-848-8000 (Name, Address, including postal code, and telephone number, including area code, of agent for service) ______________ Copies to: DONALD B. BRANT, JR CHARLES S. WHITMAN, III Milbank, Tweed, Hadley & McCloy LLP Davis Polk & Wardwell 1 Chase Manhattan Plaza 450 Lexington Avenue New York, New York 10005 New York, New York 10017 (212) 530-5618 (212) 450-4000
______________ Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Title of each class of Amount to be offering price Aggregate Amount of securities to be registered Registered per unit* Offering price* registration fee Debt Securities, Preference Shares and Common Shares $700,000,000 100% $700,000,000 $ 194,600
* Estimated solely for the purpose of determining the registration fee. ______________ The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. The within prospectus contains the information required by Rule 429 under the Securities Act of 1933 with respect to $100,000,000 aggregate principal amount of debt and equity securities covered by Registration Statement No. 33-82754 on Form S-3. 2 PROSPECTUS ALCAN ALUMINIUM LIMITED $800,000,000 DEBT SECURITIES and EQUITY SECURITIES _____________________________________ Alcan Aluminium Limited intends to offer at one or more times debt securities and equity securities with a total offering price not to exceed $800,000,000. We will provide the specific terms of these securities in supplements to this prospectus. You should read this prospectus and the supplements carefully before you invest. ______________________________________ Neither the SEC nor any state securities commission has approved or disapproved or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense. 3 TABLE OF CONTENTS About this Prospectus..................................................... 2 Where You Can Find More Information....................................... 2 Use of Proceeds........................................................... 4 Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and Preferred Stock Dividends.............................................. 4 Description of Debt Securities............................................ 5 Description of Share Capital.............................................. 12 Tax Consequences.......................................................... 15 Experts................................................................... 17 Legal Opinions............................................................ 17 Plan of Distribution...................................................... 17
ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that we filed with the SEC utilizing a "shelf" registration process. Under this shelf process, we may, from time to time, sell any combination of the following securities described in this prospectus in one or more offerings with a total offering price not to exceed $800,000,000: - - debt securities; - - preference shares; - - common shares; and - - warrants, rights or other securities exchangeable for or convertible into equity securities. The common shares and the preference shares are referred to as the equity securities; the equity securities and the debt securities are referred to as the securities. This prospectus provides you with a general description of the debt securities and the equity securities. Each time we sell the debt securities and the equity securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information in this prospectus. The information in this prospectus is accurate as of __________, 1999. Unless otherwise stated in the prospectus supplement, an application will be made to the New York Stock Exchange to list any common shares relating to this prospectus. Please carefully read both this prospectus and any prospectus supplement together with additional information described under the heading "WHERE YOU CAN FIND MORE INFORMATION". WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports and other information with the SEC. You may read and copy any document we file at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms. Our SEC filings are also available to the public over the Internet at the SEC's web site at HTTP://WWW.SEC.GOV. The SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the following document we filed with the SEC and our future filings with the SEC under Sections 13(a), 13(c),14, or 15(d) of the Securities Exchange Act of 1934 until we or any underwriters sell all of the debt securities and the equity securities: - - Annual Report on Form 10-K for the year ended December 31, 1998. You may request a copy of these filings at no cost, by writing or calling us at the following address: 2 4 Alcan Aluminium Limited 1188 Sherbrooke Street West Montreal, Quebec, Canada H3A 3G2 (514) 848-8000 Attention: Secretary You should rely only on the information incorporated by reference or provided in this prospectus and any supplement. We have not authorized anyone else to provide you with different information. We are not making an offer of the securities in any state where the offer is not permitted. Unless otherwise stated in the prospectus supplement, we have not qualified the securities for sale under the securities laws of any Province or Territory of Canada and the securities are not being and may not be offered or sold in Canada in violation of the securities laws of any Province or Territory of Canada. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents. We are a Canadian corporation. Most of our directors and officers, as well as the experts named in this prospectus, are not citizens or residents of the United States and all or a substantial part of the assets of these individuals may be located outside the United States. Also, a large part of our assets are located outside the United States. As a result, it may be difficult for you to effect service of process within the United States upon these individuals or to realize against them or us within the United States upon judgments of courts of the United States predicated upon civil liabilities under the Securities Act of 1933. McCarthy Tetrault, our Canadian counsel, has advised us, however, that the civil liability provisions of that Act may be enforced in original actions taken in the Province of Quebec against us or any such individual, but judgments of United States courts predicated on such provisions will not be enforceable in the Province of Quebec unless they meet the requirements for the recognition and enforcement of foreign judgments under the Civil Code of Quebec. THE COMPANY We are a Canadian corporation which, together with our subsidiaries, related companies and joint ventures, is engaged in all significant aspects of the aluminum business on an international scale. Our operations include: - - the mining and processing of bauxite, the basic aluminum ore; - - the refining of bauxite into alumina; - - the generation of electricity for use in smelting aluminum; - - the smelting of aluminum from alumina; - - the recycling of used and scrap aluminum; - - the fabrication of aluminum, aluminum alloys and non-aluminum materials into semi-finished and finished products; - - the distribution and marketing of aluminum and non-aluminum products; and - - in connection with our aluminum operations, the production and sale of industrial chemicals. We operate our business internationally and we: - - have bauxite holdings in six countries; - - produce alumina in six countries; - - smelt primary aluminum in five countries; - - operate aluminum fabricating plants in thirteen countries; - - have sales outlets and maintain warehouse inventories in the larger markets of the world; and - - operate a global transportation network that includes freight trains, bulk cargo vessels and port facilities. 3 5 Our principal executive offices are located at 1188 Sherbrooke Street West, Montreal, Quebec, Canada H3A 3G2, and our telephone number is (514) 848-8000. USE OF PROCEEDS The net proceeds we will receive from the sale of the securities will be used for general corporate purposes. Funds that will not be used immediately for such purposes may be invested in short-term obligations. RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The following table shows our consolidated ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends for the periods indicated:
Year Ended December 31, ----------------------------------------------------- 1998 1997(3) 1996(3) 1995(3) 1994 ---- ------- ---- ---- ---- Ratio of Earnings to Fixed Charges (1)(2).... 5.87 7.13 5.37 4.78 2.00 Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends (1)(2)........ 5.23 6.30 4.57 4.09 1.77
__________ 1 The ratio of earnings to fixed charges is determined by dividing fixed charges (including capitalized interest) into income before fixed charges (excluding capitalized interest) and income taxes, eliminating undistributed income of less than 50% owned persons. The ratio of earnings to combined fixed charges and preferred stock dividends is determined by dividing the sum of fixed charges (including capitalized interest) and preferred stock dividends into income before fixed charges (excluding capitalized interest) and income taxes, eliminating undistributed income of less than 50% owned persons. Fixed charges consist of interest expenses and amortization of debt discount and expense and premium and that portion of rental payments which is considered as being representative of the interest factor implicit in our operating leases. Preferred stock dividend requirements are computed by increasing dividends on preferred and preference stocks by an amount representing the pre-tax earnings which would be required to cover such dividend requirements. 2 The ratios shown above were prepared in accordance with generally accepted accounting principles in Canada. The following table shows our consolidated ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends for the periods indicated prepared in accordance with generally accepted accounting principles in the United States.
Year Ended December 31, ----------------------------------------------------- 1998 1997(3) 1996(3) 1995(3) 1994 ---- ------- ---- ---- ---- Ratio of Earnings to Fixed Charges.......... 6.01 7.13 5.42 4.92 1.98 Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends.............. 5.35 6.29 4.61 4.21 1.75
3 Ratios for the years 1995-1997 have been restated to reflect financial statement reclassifications made in 1998. For further information regarding differences between Canadian and United States generally accepted accounting principles, see Note 5 to the Consolidated Financial Statements in our Annual Report on Form 10-K for the fiscal year ended December 31, 1998, which is incorporated herein by reference. 4 6 DESCRIPTION OF DEBT SECURITIES The debt securities covered by this prospectus will be issued in one or more series under an Indenture dated as of May 15, 1983, as supplemented (as supplemented, the "Indenture"), between us and Bankers Trust Company, as Trustee. We have summarized selected provisions of the Indenture below. This is a summary and is not complete. You should read the Indenture we filed as an exhibit to the registration statement. In the summary below, we have included references to section numbers of the Indenture so that you can easily locate the summarized provisions. Capitalized terms used in the summary have the meanings specified in the Indenture. GENERAL PROVISIONS The Indenture does not limit the amount of debt securities we may issue under the Indenture or otherwise. The prospectus supplement relating to any series of the debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following: - - the designation of the debt securities; - - the total principal amount of the debt securities; - - the percentage of the principal amount at which the debt securities will be issued; - - the date or dates on which the debt securities will mature; - - the rate or rates, if any, per year at which the debt securities will bear interest, or the method of determination of such rate or rates; - - the times on which the interest, if any, on the debt securities will be payable; - - provisions for a sinking, purchase or other similar fund, if any; - - the date or dates, if any, after which the debt securities may be redeemed at our option or the option of the holder and the redemption price or prices; and - - any other terms of the debt securities that are not inconsistent with the provisions of the Indenture. The Indenture provides that debt securities of a single series may be issued at various times, with different maturity dates and may bear interest at different rates. Principal, premium, if any, and interest, if any, will be payable, and the debt securities offered will be transferable, at the corporate trust office of Citibank, N.A., as registrar and paying agent (the "Paying Agent"), in New York, New York. The payment of interest, if any, may be made at our option by us mailing a check to the person entitled to receive the interest at the address listed in the debt security register. (Section 3.1) The debt securities will be unsecured and will rank equally with all of our other unsecured and unsubordinated indebtedness. The Indenture does not limit other indebtedness or securities which we may issue and contains no financial or similar restrictions on us except as described below. FORM AND EXCHANGE We will normally issue the debt securities in book-entry only form, which means that they will be represented by one or more permanent global certificates registered in the name of The Depository Trust Company, New York, New York ("DTC"), or its nominee. We will refer to this form here and in the prospectus supplement as "book-entry only." Alternatively, we may issue the debt securities in certificated form registered in the name of the holder. Under these circumstances, holders may receive certificates representing the debt securities. Debt securities in certificated form will be issued only in increments of $1,000 and multiples of $1,000 and will be exchangeable without charge except for 5 7 reimbursement of taxes or other governmental charges, if any. We will refer to this form in the prospectus supplement as "certificated." BOOK-ENTRY ONLY PROCEDURES The following discussion pertains to debt securities that are issued in book-entry only form. One or more global securities would be issued to DTC or its nominee. DTC would keep a computerized record of its participants (for example, your broker) whose clients have purchased the securities. The participant would then keep a record of its clients who purchased the securities. A global security may not be transferred, except that DTC, its nominees and their successors may transfer an entire global security to one another. Under book-entry only, we will not issue certificates to individual holders of the debt securities. Beneficial interests in global securities will be shown on, and transfers of global securities will be made only through, records maintained by DTC and its participants. DTC has provided us with the following information. DTC is: - - a limited-purpose trust company organized under the New York Banking Law; - - a "banking organization" within the meaning of the New York Banking Law; - - a member of the United States Federal Reserve System; - - a "clearing corporation" within the meaning of the New York Uniform Commercial Code; and - - a "clearing agency" registered under Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants ("Direct Participants") deposit with DTC. DTC also facilitates the settlement among Direct Participants of securities transactions, such as transfers and pledges, in deposited securities through computerized records for Direct Participants' accounts. This eliminates the need to exchange certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC's book-entry system is also used by other organizations such as securities brokers and dealers, banks and trust companies that work through a Direct Participant. The rules that apply to DTC and its participants are on file with the SEC. DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., The American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc. We will wire principal and interest payments to DTC's nominee. We and the Trustee will treat DTC's nominee as the owner of the global securities for all purposes. Accordingly, we and the Trustee will have no direct responsibility or liability to pay amounts due on the securities to owners of beneficial interests in the global securities. It is DTC's current practice, upon receipt of any payment of principal or interest, to credit Direct Participants' accounts on the payment date according to their respective holdings of beneficial interests in the global securities as shown on DTC's records as of the record date for such payment. In addition, it is DTC's current practice to assign any consenting or voting rights to Direct Participants whose accounts are credited with securities on a record date, by using an omnibus proxy. Payments by participants to owners of beneficial interests in the global securities, and voting by participants, will be governed by the customary practices between the participants and owners of beneficial interests, as is the case with securities held for the account of customers registered in "street name." However, these payments will be the responsibility of the participants and not of DTC, the Trustee, or us. Debt securities represented by a global security would be exchangeable for debt 6 8 securities certificates with the same terms in authorized denominations only if: - - DTC notifies us that it is unwilling or unable to continue as depository or if DTC ceases to be a clearing agency registered under applicable law; or - - we instruct the Trustee that the global security is now exchangeable; or - - an event of default has occurred and is continuing. LIMITATIONS ON LIENS We have agreed that we will not, nor will we permit any Subsidiary to, mortgage, hypothecate, charge, pledge, or otherwise encumber (collectively referred to as "mortgages") any of our Principal Properties or the capital stock or Funded Indebtedness of any Subsidiary which owns a Principal Property, to secure any Indebtedness, without securing the debt securities equally and ratably with, or prior to, such Indebtedness. This covenant has certain exceptions which permit, among other things: - - the giving or assumption of any Purchase Money Mortgage; - - any mortgage given by a Subsidiary to us or any other Subsidiary so long as the mortgage will be held for our benefit or for the benefit of a Subsidiary; - - mortgages on property, capital stock or Indebtedness of a corporation existing at the time the corporation becomes a Subsidiary; - - mortgages in favor of Canada or the United States or any Province or State thereof, or any department, agency, or instrumentality or political subdivision of Canada or the United States, to secure certain payments or other obligations; - - the sale or other transfer of production payments, mineral payments, ore payments and similar arrangements unless we or a Subsidiary have personally assumed or become generally liable for any Indebtedness in connection with the sale or transfer; and - - any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part of any mortgage permitted above, so long as the principal amount of Indebtedness secured will not exceed the principal amount of Indebtedness secured at the time of the extension, renewal or replacement, and that the extension, renewal or replacement will be limited to all or part of the property which secured the mortgage that was extended, renewed or replaced. In addition to these exceptions, we and our Subsidiaries may create or assume mortgages without equally and ratably securing the debt securities (mortgages which have been created or assumed being referred to as "Basket Mortgages"), so long as at the time of and after giving effect to such creation or assumption, the total amount of all Indebtedness secured by our Basket Mortgages less any Indebtedness concurrently retired plus the total amount of Attributable Debt in respect of certain sale and leaseback transactions (as defined in the Indenture) existing at the time do not exceed 10% of consolidated shareholders' equity as of a date not more than 135 days prior to such time. (Section 3.6) CERTAIN DEFINITIONS "Attributable Debt" means the present value of rents during the remaining term of leases. "Indebtedness" means: - all indebtedness for the repayment of money borrowed; - all liabilities under leases which must be capitalized under generally accepted 7 9 accounting principles in Canada on the lessee's balance sheet; and - all guarantees, endorsements, assumptions and other contingent obligations in respect of such indebtedness or liabilities. "Funded Indebtedness" means Indebtedness which matures by its terms or is renewable by the borrower to a date more than one year after the date of its original creation, assumption or guarantee. "Principal Property" means any mineral property, smelter, refinery, mill, fabricating plant or similar processing or manufacturing facility, or any electric generating plant of ours or any of our Subsidiaries constituting the primary source of power for any such facility, located in the United States or Canada and having a net book value of more than 0.5 percent of Consolidated Net Tangible Assets, unless our Board of Directors by resolution declares that the property, plant or facility is not important to our business as a whole. Principal Property may also include similar property we have designated to which we have applied the proceeds of sale and leaseback transactions. "Consolidated Net Tangible Assets" means (1) the total of all assets, including assets leased under capital lease obligations (less depreciation, obsolescence, amortization, valuation and other proper reserves), which in accordance with generally accepted accounting principles in Canada would appear on the asset side of our consolidated balance sheet as of a date not more than 135 days preceding the date on which Consolidated Net Tangible Assets are to be determined, after eliminating (A) franchises, licenses, permits, patents, patent applications, copyrights, trade names, goodwill, organizational expenses and other like intangibles and (B) unamortized debt discount and expense, less (2) the total of all consolidated current liabilities which would appear on the liability side of the balance sheet, as determined in accordance with generally accepted accounting principles in Canada. "Subsidiary" means any corporation of which we or one or more of our Subsidiaries owns at least a majority of the outstanding voting stock. "Purchase Money Mortgage" means any hypothec, mortgage, lien, pledge, security interest or other encumbrance (including conditional sale agreements or other title retention agreements or capital leases) upon property that has been or is to be acquired, constructed or improved by us or a Subsidiary and created prior to, contemporaneously with, or within six months after, the acquisition or the completion of the construction or improvement to secure the amount of the purchase price of the property or the cost of the construction or improvement, or any part thereof, or any hypothec, mortgage, lien, pledge, security interest or other encumbrance existing on the property at the time of the acquisition, whether the obligations secured are payable to the person from whom such property is acquired or otherwise. 8 10 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS Neither we nor any Subsidiary owning a Principal Property may enter into any Sale and Leaseback Transaction (which excludes leases expiring within three years of making, leases between us and a Subsidiary or between Subsidiaries and any lease of part of a Principal Property, which has been sold, for use in connection with the winding up or termination of the business conducted on such Principal Property) unless: - - we or any of our Subsidiaries could create or assume a mortgage on the Principal Property to be leased without equally and ratably securing the debt securities by reason of one of the exceptions described under "Limitation on Liens"; - - immediately prior to entering into such arrangement, we or a Subsidiary could create a mortgage on the Principal Property securing Indebtedness in an amount equal to the Attributable Debt relating to the particular Sale and Leaseback Transaction without equally and ratably securing the debt securities; or - - an amount equal to the net proceeds of the sale of the property leased is applied to the retirement, otherwise than by payment at maturity or pursuant to mandatory sinking fund requirements, of the debt securities or other Funded Indebtedness of ours or of a Subsidiary ranking on a parity with the debt securities or to the purchase, improvement or construction of Principal Properties. (Section 3.8) CONSOLIDATION OR MERGER We may consolidate or merge with any other corporation or transfer all or substantially all of our assets to any other person provided that: - - we are not in default under any covenant or provision under the Indenture, and - - the person or successor corporation expressly assumes our obligations under the Indenture by supplemental indenture satisfactory to the Trustee. (Section 9.1) Unless otherwise indicated in the prospectus supplement, certain of the covenants described above would not necessarily afford holders of debt securities protection in the event we were involved in a highly leveraged transaction, such as a leveraged buyout. EVENTS OF DEFAULT, WAIVER, AND NOTICE "Event of Default" means, with respect to any series of debt securities, any of the following: - - failure to pay interest on that series of debt securities for 30 days after payment is due; - - failure to pay principal and premium, if any, on that series of debt securities when due either at maturity, upon redemption, by declaration or otherwise; - - failure to perform any other covenants or agreements in the Indenture for 90 days after we are given notice of the failure; and - - certain events of bankruptcy, insolvency and reorganization relating to us. (Section 5.1) The Trustee may withhold notice to the holders of debt securities of any default, except a default in payment of principal of or interest or premium on the debt securities, if the Trustee considers it in the interest of the holders of the debt securities to do so. (Section 5. 11) 9 11 The Indenture provides that: - - if an Event of Default due to the default in the payment of principal, interest or premium, if any, on, or in the performance of any other of the covenants or agreements in the Indenture affecting any series of debt securities occurs and continues, the Trustee or holders of 25% of the principal amount outstanding of that series of debt securities may declare the principal of all that series of debt securities to be due and payable immediately, and - - if an Event of Default resulting from certain events of bankruptcy, insolvency and reorganization occurs and continues, the Trustee or the holders of 25% of the principal amount outstanding of all debt securities may declare the principal of all debt securities to be due and payable immediately. Under certain conditions such declarations may be rescinded and past defaults may be waived, except defaults in payment of principal of or interest or premium on the debt securities, by the holders of a majority of that series of debt securities then outstanding, or of all series, as the case may be. (Section 5.1) The holders of a majority in principal amount of the debt securities of any and all series affected and then outstanding, each voting as a separate class, have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee. This right is subject to certain exceptions and provided that the holders of the debt securities have offered to the Trustee reasonable indemnity against expenses and liabilities. (Sections 5.9 and 6.2) We are required to file with the Trustee an annual certificate as to the absence of certain defaults under the Indenture. (Section 3.5) DEFEASANCE AND COVENANT DEFEASANCE We may elect either: - - to be discharged from all of our obligations with respect to the debt securities under the Indenture, except for the obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of the debt securities and to hold moneys for payment in trust ("defeasance"), or - - to be discharged from all of our obligations with respect to the debt securities under certain sections of the Indenture, including the restrictions set forth in "Limitation on Liens" and "Limitations on Sale and Leaseback Transactions" above ("covenant defeasance"). In order for us to exercise either defeasance or covenant defeasance, we must deposit with the Trustee, in trust for such purpose, money and/or U.S. Government Obligations which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal of and interest on such debt securities not later than one day before the scheduled due dates. A trust may only be established if, among other things, we have delivered to the Trustee an opinion of counsel to the effect that the holders of the debt securities: - - will not recognize income, gain or loss for federal income tax purposes as a result of defeasance or covenant defeasance, and - - will be subject to federal income tax on the same amount, in the same manner and at the same time as would have been the case if such defeasance or covenant defeasance had not occurred. In the case of defeasance, the opinion must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable federal income tax law occurring after July 15, 1989. (Sections 13.1 through 13.4) 10 12 MODIFICATION OF THE INDENTURE Under the Indenture our rights and the rights of the holders of debt securities may be changed. Certain changes to the rights of the holders of the debt securities in the Indenture or any Supplemental Indenture require the consent of the holders of not less than 66 2/3% in principal amount of the debt securities of all series affected by such change at the time outstanding. However, the following changes may not be made without the consent of each holder of the debt securities affected: - - extending the final maturity of any debt security, or reducing the principal amount thereof, including in the case of a discounted debt security the amount payable thereon in the event of acceleration or the amount provable in bankruptcy, or any redemption premium thereon, or reducing the rate or extending the time of payment of interest thereon, or impairing or affecting the right of any holder of debt securities to institute suit for the payment thereof or the right of repayment, if any, at the option of the holder, or - - reducing the stated percentage of holders necessary to modify the Indenture. (Section 8.2) We may enter into one or more supplemental indentures without the consent of any holder of debt securities: - - to secure the debt securities; - - to evidence the succession to us of another corporation and the assumption by any such successor of our covenants contained in the Indenture and the debt securities; - - to add to the covenants contained in the Indenture and to add any additional Events of Default; - - to cure any ambiguity or to correct or supplement any provision of the Indenture which may be defective or inconsistent with any other provision of the Indenture, or to make other provisions which do not adversely affect the interests of the holders of debt securities; - - to establish the form or terms of debt securities of any series; and - - to evidence and provide for a successor Trustee under the Indenture for one or more series of debt securities and to provide for or facilitate the administration of the trusts under the Indenture by more than one Trustee. (Section 8.1) CONSENT TO JURISDICTION We agree that any legal suit, action or proceeding brought by the Trustee or any holder of debt securities in connection with the debt securities or the Indenture may be instituted in any state or federal court in the City or State of New York. REGARDING THE TRUSTEE Bankers Trust Company, Trustee under the Indenture, serves as a depositary of funds of, and performs services for, us and our Subsidiaries in the normal course of business and also makes loans to us and our Subsidiaries. 11 13 DESCRIPTION OF SHARE CAPITAL Present Issues
Authorized Outstanding* Preference Shares, issuable in series ............. unlimited of which the following series are outstanding: Floating Rate Cumulative Redeemable Preference Shares, Series C, 1984 ................ 4,200,000 4,200,000 Floating Rate Cumulative Redeemable Preference Shares, Series C, 1985 ................ 1,500,000 1,500,000 Cumulative Redeemable Preference Shares, Series E ................................ 3,000,000 3,000,000 Common Shares .................................... unlimited 226,087,811
* As at December 31, 1998 FUTURE ISSUES We may issue an unlimited number of additional common and preference shares from time to time upon approval by our Board of Directors for such consideration as the Board deems appropriate, without the need of further shareholder authorization. However, the Board is not allowed to create or issue any series of preference shares with voting rights, other than voting rights arising only in the event of non-payment of dividends, without the consent of the shareholders. The terms of any preference shares, including dividend rates, conversion and voting rights, if any, redemption prices and similar matters will be determined by the Board prior to issuance. SUMMARY OF CERTAIN PROVISIONS OF THE PREFERENCE SHARES - - The holders of preference shares will be entitled to receive cumulative cash dividends at the following rates: Series C, 1984 and 1985..... quarterly dividends in an amount determined by applying to Can. $25 per share one-quarter of the greater of (1) 72% of the average of the Canadian prime interest rates quoted by two major Canadian banks for stated periods, and (2) the lesser of 7.5% and the average of the Canadian prime interest rates quoted by two major Canadian banks for stated periods. Series E.................... quarterly dividends in an amount determined by applying to Can. $25 per share one-quarter of 75% of the average of the Canadian prime interest rates quoted by two major Canadian banks for stated periods. - - The holders of preference shares are not entitled to vote at meetings of shareholders unless we fail to pay six quarterly dividends. Thereafter, so long as such dividends remain in arrears, the holders will be entitled, voting separately as a class, to elect two members of the Board of Directors. - - In the event that we liquidate, dissolve or wind up or distribute our assets among shareholders for the purpose of winding up our affairs, the holders of the preference shares will be entitled to receive, in preference to holders of the common shares, the sum of Can. $25 per share for Series C and E plus all accrued and unpaid dividends. Additionally, if such distribution is voluntary, an additional amount equal to the premium, if any, will be payable on redemption. - - The preference shares are redeemable at our option at Can. $25 per share, plus a reducing premium in the case of Series C, and all accrued and unpaid dividends. - - So long as any preference shares are outstanding and unless all dividends then payable on the preference shares have been declared and paid or set apart for payment, 12 14 we will not (1) pay any dividends, other than stock dividends, or make any distributions on any shares ranking junior to the preference shares with respect to the payment of dividends or return of capital, (2) retire for value any shares ranking junior to the preference shares with respect to payment of dividends or return of capital, or (3) except in connection with the exercise of a retraction privilege, retire less than all of a series of preference shares. SUMMARY OF CERTAIN PROVISIONS OF THE COMMON SHARES ATTRIBUTES The common shares are subject to the rights of the holders of the preference shares, as described above, and of any other senior securities issued in the future. The holders of the common shares are entitled to receive pro rata dividends, from time to time, as may be declared by the Board of Directors. They are entitled to one vote per share and have no preemptive, redemption or conversion rights. If we liquidate, dissolve or wind up or distribute our assets among the shareholders for the purpose of winding up our affairs, holders of the common shares will receive our assets pro rata, to the extent available after the payment of all our obligations and any required distribution to the holders of senior securities. The provisions of the Canada Business Corporations Act require that the amendment of certain rights of holders of any class of shares, including the common shares, must be approved by not less than two-thirds of the votes cast by the holders of such shares voting at a special meeting of the shareholders. A quorum for a special meeting of the holders of common shares is 40% of the common shares then outstanding. Therefore, it is possible for the rights of the holders of common shares to be changed other than by the affirmative vote of the holders of the majority of the outstanding common shares. In circumstances where the rights of holders of common shares may be amended, however, holders of common shares will have the right, under the Canada Business Corporations Act, to dissent from such amendment and require us to pay them the then fair value of their common shares. Shareholders are also entitled to rights and privileges under the shareholder rights plan ("Rights Plan") summarized below. THE RIGHTS PLAN The Rights Plan is embodied in the Shareholder Rights Agreement ("Agreement") between us and CIBC Mellon Trust Company, as trustee ("Rights Agent") dated December 14, 1989, as amended and restated as of April 24, 1995. The Rights Plan will remain in effect until December 14, 1999, unless terminated earlier. Capitalized terms used in this summary have the meanings specified in the Rights Plan. The Agreement provides that one right ("Right") to purchase additional securities, subject to the terms and conditions of the Agreement, has been issued for each common share ("Share") outstanding on and after December 14, 1989. Rights will likewise be issued until the Separation Time (as defined below) or until the termination of the Rights Plan. The Rights are not exercisable until the Separation Time. After the Separation Time, each Right entitles the holder to purchase from us one Share at the price of $100.00 per Share, or its equivalent in Canadian currency ("Exercise Price"), subject to adjustment as provided below. Until the Separation Time, or earlier termination or expiration of the Rights, the Rights are evidenced by the certificates for the Shares to which the Rights attach. The Rights are transferred with, and only with, the associated Shares. Furthermore, until the Separation Time, Share certificates issued will contain a notation incorporating the Agreement by reference. As soon as practicable following the Separation Time, separate certificates 13 15 evidencing the Rights ("Rights Certificates") will be mailed to holders of record of Shares as of the close of business at the Separation Time and, thereafter, the separate Rights Certificates alone will evidence the Rights. The Rights will separate and trade separately after the Separation Time. The Exercise Price and the number of Rights outstanding are subject to adjustment from time to time to prevent dilution: - in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Shares, - upon the grant to shareholders of certain rights or warrants to subscribe for or purchase the Shares or convertible securities at less than 95% of the Market Price per Share, or - upon distribution to shareholders of evidences of indebtedness or assets, other than a Regular Periodic Cash Dividend or a dividend paid in Shares, or of rights or warrants, other than those referred to above. Subject to the prior consent of the holders of Voting Shares or Rights, as applicable, the Board acting in good faith may, at its option, at any time prior to the occurrence of a Flip-in Event, elect to redeem all the Rights at a redemption price of $0.01 per Right ("Redemption Price"), adjusted as set out in the Agreement. The Board may also, upon notice delivered to the Rights Agent, determine to waive the application of the provisions of the Flip-in Event section of the Agreement to a particular Flip-in Event, but only if such Flip-in Event would occur as a result of a Take-Over Bid made by way of the Take-Over Bid circular to all holders of Voting Shares of record. However, the waiver will automatically be deemed to be a waiver of the application of such provisions to any other Flip-in Event that would occur as a result of a Take-Over Bid made by means of a Take-Over Bid circular to all holders of Voting Shares of record prior to the expiration of any Take-Over Bid for which a waiver is granted. Furthermore, in the event that prior to the occurrence of a Flip-in Event a Person acquires outstanding Voting Shares, pursuant to a Permitted Bid, a Competing Permitted Bid or an Exempt Acquisition, then the Board will immediately, upon the consummation of such acquisition, be deemed to have elected to redeem the Rights at the Redemption Price. Any Person who makes a Take-Over Bid in compliance with the provisions of a Permitted Bid or a Competing Permitted Bid will not become an Acquiring Person. The requirements of a Permitted Bid include the following: - - the Take-Over Bid, which may be for all or part of the Voting Shares, must be made to all holders, other than the Person making the Take-Over Bid; - - the Take-Over Bid must remain outstanding for a minimum period of 75 days after which period the Voting Shares may be taken up and paid for only if more than 50% of the Voting Shares held by Independent Shareholders have been tendered and not withdrawn; - - if more than 50% of the Voting Shares held by Independent Shareholders have been tendered and not withdrawn, a public announcement of this fact must be made and the Take-Over Bid must then remain open for an additional 10 days. - - A Competing Permitted Bid may proceed: - if it is made before the expiration of the initial Permitted Bid; - if it satisfies all the conditions of a Permitted Bid; and - provided that no Voting Shares will be taken up and paid for prior to the earlier of 21 days after the date of the Take-Over Bid and the 75th day following the date of the initial Permitted Bid. 14 16 We may, from time to time, amend the Agreement in order to correct a clerical or typographical error with the approval of the Rights Agent but without the consent of the holders of Rights or Voting Shares. We may also amend the Agreement in order to maintain the validity of the Agreement as a result of a change in applicable legislation or regulation so long as this change is approved by the Rights Agent and subsequently approved by the holders of Voting Shares or Rights, as applicable. Until a Right is exercised, the holder will have no rights as a shareholder including, without limitation, the right to vote or to receive dividends. The Board, on the advice of outside counsel, has the exclusive power and authority to administer the Agreement and to exercise all rights and powers specifically granted to the Board or to us including, subject to the consent of the holders of Voting Shares or Rights, to redeem or not to redeem the Rights or to amend the Agreement. CERTAIN DEFINITIONS "Voting Shares" means the Shares and any other shares entitled to vote generally in the election of directors. "Separation Time" means the close of business on the earlier of: - 10 days after a person or group of affiliated or associated persons ("Person") has acquired beneficial ownership of 20% or more of the Voting Shares (such Person being referred to as an "Acquiring Person") or - the 10th day, or such later date as may be established by the Board at any time prior to any Person becoming an Acquiring Person, following the commencement of, or first public announcement of an intention to commence, a Take-Over Bid, other than a Permitted Bid or a Competing Permitted Bid. "Flip-In Event" occurs when a Person becomes an Acquiring Person. Upon the occurrence of a Flip-In Event, each Right (except for Rights beneficially owned by an Acquiring Person, or a Person acting in concert with an Acquiring Person or certain transferees of an Acquiring Person, which Rights shall be void) shall constitute the right to receive from us (at the then current Exercise Price of the Right) Shares having an aggregate Market Price on the date of consummation or occurrence of such Flip-in Event equal to twice the Exercise Price. For example, if at the time of the Flip-in Event, the Exercise Price is $100 and the Shares have a Market Price of $25, the holder of each Right will be entitled to receive $200 in market value of the Shares (8 Shares) for $100, i.e. at a 50% discount. TAX CONSEQUENCES CANADIAN TAXATION We have been advised by McCarthy Tetrault, our Canadian counsel, of the following tax considerations under the laws of Canada and Quebec as currently in effect and under the current administrative practices of the Canadian and Quebec tax authorities: - there will be no non-resident withholding taxes payable under the laws of Canada in respect of the debt securities or the interest thereon if (1) the debt security is not part of a series more than 25% of the principal amount of which we may under any circumstances (other than default or illegality) be obligated to pay within five years from the date of issue, and (2) the beneficial owner of the debt security is a person with whom we deal at arm's length; - there will be no non-resident withholding taxes payable under the laws of Quebec in respect of the debt securities or any interest on the debt securities; - there will be no taxes on income or capital gains payable under the laws of 15 17 Canada or of Quebec in respect of the debt securities or the interest on the debt securities by any owner who is not, and is not deemed to be, a resident of Canada and who does not, and is not deemed to, use or hold the debt securities in carrying on a business in Canada; and - there will be no estate taxes or succession duties imposed by Canada or Quebec in respect of the debt securities or any interest on the debt securities. The prospectus supplement will specify if any of these considerations are not applicable to a particular series of debt securities. Dividends paid on equity securities to shareholders residing in the United States will generally be subject to a 15% Canadian non-resident withholding tax. Provided the equity securities do not constitute taxable Canadian property to a shareholder, the shareholder will not be subject to tax in Canada or Quebec on a disposition (other than to us as described below) of an equity security. Generally, the equity securities will not be taxable Canadian property to a shareholder at a given date so long as such shareholder does not use or hold the equity securities in connection with carrying on a business in Canada and the shareholder, persons with whom such shareholder does not deal at arm's length, or the shareholder and such persons, have not owned, or had under any option, 25% or more of the issued shares of any class or series of our capital stock at any time within the five years preceding such date. A shareholder whose preference shares are redeemed will be deemed to have received a dividend equal to the amount, if any, that the redemption proceeds exceed the paid-up capital at the time of the share redemption; such a deemed dividend will be subject to withholding tax as described above. Prospective investors should contact their own tax advisers for specific advice relative to their particular tax situations. UNITED STATES TAXATION The following discussion is based on the advice of Milbank, Tweed, Hadley & McCloy LLP with respect to the United States federal income tax laws presently in force. The discussion summarizes certain United States federal income tax consequences of an investment in the securities and assumes that the securities will be capital assets in the hands of holders. The accompanying prospectus supplement sets forth any additional United States federal income tax consequences applicable to particular securities. Prospective investors should consult their own tax advisers about the United States federal, state, local and foreign tax consequences to them of an investment in the securities. As used here, "U.S. holder" means: - a beneficial owner of securities that is a United States citizen or resident; - a domestic corporation or partnership; - an estate the income of which is subject to United States federal income taxation regardless of its source; - a trust, if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust; or - any other person with income from the securities that is effectively connected with a trade or business conducted through a fixed place of business in the United States. A debt security may bear original issue discount ("OID") to the extent that its stated redemption price at maturity exceeds its issue price. A U.S. holder generally must include OID in income on a yield to maturity basis over 16 18 the term of the debt security. Interest and OID will be income from sources outside the United States. Special rules for debt securities with OID and debt securities purchased at a market discount or premium will be described in the applicable prospectus supplement. Cash dividends paid on the equity securities (plus the amount of any Canadian taxes withheld in respect of the dividend paid) generally will be includible in the gross income of a U.S. holder as ordinary income. Dividends paid in Canadian dollars will be includible in a United States dollar amount based on the exchange rate in effect on the date of receipt by the U.S. holder or the U.S. holder's agent. Canadian withholding tax on dividends will be eligible, subject to generally applicable limitations and conditions, for credit against a U.S. holder's federal income tax liability. A U.S. holder will recognize gain or loss on the sale or other disposition of securities. Gain or loss generally will equal the difference between a U.S. holder's tax basis in the securities and the amount realized (not including any amount attributable to accrued but unpaid interest, which will be treated as ordinary interest income) by the holder on the sale or other disposition. The gain or loss generally will be capital gain or loss, although certain short-term debt securities and debt securities with market discount are subject to special rules that will be described in the applicable prospectus supplement. Any gain recognized by a U.S. holder will be treated as United States source income. If we must redeem the preference shares after a specified period of time at a price higher than the issue price for such shares, a U.S. holder may be required to include such premium in income as a dividend over the period of time during which the shares cannot be redeemed. EXPERTS The financial statements incorporated in this prospectus by reference to our Annual Report on Form 10-K for the fiscal year ended December 31, 1998 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given upon their authority as experts in auditing and accounting. LEGAL OPINIONS Each of McCarthy Tetrault, Montreal, Quebec, Canada and Milbank, Tweed, Hadley & McCloy LLP, New York, New York will issue an opinion about the validity of the debt securities and equity securities. Davis Polk & Wardwell, New York, New York will issue an opinion on certain legal matters for the agents or underwriters. PLAN OF DISTRIBUTION We may sell any series of securities: - - through underwriters or dealers; - - through agents; or - - directly to one or more purchasers. The prospectus supplement will include: - - the initial public offering price; - - the names of any underwriters, dealers or agents; - - the purchase price of the securities; - - our proceeds from the sale of the securities; - - any underwriting discounts or agency fees and other underwriters' or agents' compensation; - - any discounts or concessions allowed or reallowed or paid to dealers; and - - the place and time of delivery of the securities. If underwriters are used in the sale, they will buy the securities for their own account. The underwriters may then resell the securities in one or more transactions, at any time or times at a fixed public offering price or at varying prices. 17 19 The underwriters may change from time to time any fixed public offering price and any discounts or commissions allowed or re-allowed or paid to dealers. Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act of 1933. Any discounts or commissions that we pay them and any profit they receive when they resell the securities may be treated as underwriting discounts and commissions under that Act. We may have agreements with underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities under the Securities Act of 1933, or to contribute with respect to payments which they may be required to make. Underwriters, dealers and agents may engage in transactions with us or perform services for us in the ordinary course of business. 18 20 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission registration fee . . $194,600 Trustee fees and expenses . . . . . . . . . . . . . . . 25,000* Rating agency fee . . . . . . . . . . . . . . . . . . . 100,000* Listing fees. . . . . . . . . . . . . . . . . . . . . . 58,000* Printing and engraving. . . . . . . . . . . . . . . . . 85,000* Accounting fees . . . . . . . . . . . . . . . . . . . . 30,000* Legal fees. . . . . . . . . . . . . . . . . . . . . . . 75,000* Miscellaneous . . . . . . . . . . . . . . . . . . . . . 8,400* -------- Total . . . . . . . . . . . . . . . . . . . . . . . . $576,000* ========
_____________________ * Estimated Item 15. Indemnification of Directors and Officers. The Canada Business Corporations Act (the "Act"), the governing Act to which the Company is subject, provides that, except in the case of an action taken by the Company or of a derivative action taken by a shareholder on behalf of the Company as provided below, a Director or Officer may be indemnified by the Company against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment if (i) he acted honestly and in good faith with a view to the best interests of the Company; and (ii) in the case of a criminal or administrative action or proceeding he had reasonable grounds for believing that his conduct was lawful. The right of indemnification is more limited where Directors and Officers are sued by the Company or on its behalf by a shareholder. In those cases, the Company may with the approval of a court indemnify Directors and Officers against all costs, charges and expenses but not the amount of the judgment or settlement of an action, provided he fulfills the conditions of (i) and (ii) above. A Director or Officer must be indemnified for costs, charges and expenses if he was substantially successful on the merits in his defense and fulfills the conditions of (i) and (ii) above. The Directors' Standing Resolution pertaining to indemnification of Directors and Officers of the Company represents, in general terms, the extent to which Directors and Officers may be indemnified by the Company under the Act. This resolution provides as follows: "18. INDEMNITY. Subject to the limitations contained in the governing Act but without limit to the right of the Corporation to indemnify as provided for in the Act, the Corporation shall indemnify a Director or Officer, a former Director or Officer, or a person who acts or acted at the Corporation's request as a director or officer of a body corporate of which the Corporation is or was a shareholder or creditor (or a person who undertakes or has undertaken any liability on behalf of the Corporation or at the Corporation's request on behalf of any such body corporate) and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of 21 being or having been a Director or Officer of the Corporation or such body corporate or by reason of having undertaken such liability, if (a) he acted honestly and in good faith with a view to the best interests of the Corporation; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful." The Company also has an insurance policy covering Directors and Officers of the Company and of its subsidiaries against certain liabilities which might be incurred by them in their capacities as such, but excluding those claims for which such insured persons could be indemnified by the Company or its subsidiaries. Item 16. Exhibits 1.1 Form of Underwriting Agreement. 4.1 Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-3 (No. 33-29761) filed with the Commission on July 7, 1989). 4.2 First Supplemental Indenture dated as of January 1, 1986 to the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-3 (No. 33-29761) filed with the Commission on July 7, 1989). 4.3 Second Supplemental Indenture dated as of June 30, 1989 to the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-3 (No. 33-29761) filed with the Commission on July 7, 1989). 4.4 Third Supplemental Indenture dated as of July 19, 1989 to the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit (4)(a) to the Company's Current Report on Form 8-K dated July 26, 1989 filed with the Commission on July 26, 1989 (Commission File Number 1-3677)). 4.5 Fourth Supplemental Indenture dated as of July 17, 1990 to the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.5 to the Company's Registration Statement on Form S-3 (No. 33-35977) filed with the Commission on July 20, 1990). 4.6 Fifth Supplemental Indenture dated as of January 1, 1995 to the Indenture dated May 15, 1983 between the Company and Bankers Trust Company, as Trustee. 4.7 Specimen Form of Debt Security (included in Exhibit 4.1). II-2 22 4.8 Specimen Form of Common Share Certificate (incorporated by reference to Exhibit 4.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 1989 filed with the Commission on March 29, 1990 (Commission File Number 1-3677)). 5.1 Opinion of McCarthy Tetrault. 5.2 Opinion of Milbank, Tweed, Hadley & McCloy LLP. 12.1 Computation of ratios of earnings to fixed charges (generally accepted accounting principles in Canada). 12.2 Computation of ratios of earnings to fixed charges (generally accepted accounting principles in the United States). 12.3 Computation of ratios of earnings to combined fixed charges and preferred stock dividends (generally accepted accounting principles in Canada). 12.4 Computation of ratios of earnings to combined fixed charges and preferred stock dividends (generally accepted accounting principles in the United States). 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of McCarthy Tetrault (included in Exhibit 5.1). 23.3 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in Exhibit 5.2). 24.1 Powers of Attorney executed by persons who signed this Registration Statement on behalf of the Company. 25.1 Statement of Eligibility and Qualification on Form T-1 of Bankers Trust Company, as Trustee under the Indenture. Item 17. Undertakings. (a) The undersigned registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement and (iii) to include any material information with respect to the plan of distribution not previously disclosed in II-3 23 the Registration Statement or any material change to such information in the Registration Statement, provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 24 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Montreal, Province of Quebec, Canada on the 19th day of April, 1999. ALCAN ALUMINIUM LIMITED By: /s/ Jacques Bougie* -------------------------------------- (President and Chief Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date Director April 19, 1999 - ----------------------------- Sonja I. Bata Director April 19, 1999 - ----------------------------- W.R.C. Blundell /s/ Jacques Bougie* Director, President and Chief April 19, 1999 - ----------------------------- Executive Officer Jacques Bougie (Principal Executive Officer) /s/ Warren Chippindale* Director April 19, 1999 - ----------------------------- Warren Chippindale /s/ Travis Engen* Director April 19, 1999 - ----------------------------- Travis Engen /s/ John R. Evans* Chairman of the Board April 19, 1999 - ----------------------------- John R. Evans Director April 19, 1999 - ----------------------------- Allan E. Gotlieb /s/ J.E. Newall* Director April 19, 1999 - ----------------------------- J.E. Newall /s/ Peter H. Pearse* Director April 19, 1999 - ----------------------------- Peter H. Pearse
II-6 25 /s/ Sir George Russell* Director April 19, 1999 - ----------------------------- Sir George Russell /s/ Guy Saint-Pierre* Director April 19, 1999 - ----------------------------- Guy Saint-Pierre /s/ Gerhard Schulmeyer* Director April 19, 1999 - ----------------------------- Gerhard Schulmeyer Director April 19, 1999 - ----------------------------- Paul M. Tellier /s/ Suresh Thadhani* Executive Vice President and April 19, 1999 - ----------------------------- Chief Financial Officer Suresh Thadhani (Principal Financial Officer) /s/ Richard Genest* Chief Accountant (Principal April 19, 1999 - ----------------------------- Accounting Officer) Richard Genest /s/ William H. Jairrels* Authorized Representative in April 19, 1999 - ----------------------------- the United States of America William H. Jairrels /s/ Sanford Yosowitz* Authorized Representative in April 19, 1999 ----------------------------- the United States of America Sanford Yosowitz *By /s/ Serge Fecteau --------------------------------- Serge Fecteau as Attorney-in-fact
II-6 26 EXHIBIT INDEX Description
Exhibit No. Page 1.1 Form of Underwriting Agreement. 4.1 Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-3 (No. 33-29761) filed with the Commission on July 7, 1989). 4.2 First Supplemental Indenture dated as of January 1, 1986 to the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-3 (No. 33-29761) filed with the Commission on July 7, 1989). 4.3 Second Supplemental Indenture dated as of June 30, 1989 to the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-3 (No. 33-29761) filed with the Commission on July 7, 1989). 4.4 Third Supplemental Indenture dated as of July 19, 1989 to the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit (4)(a) to the Company's Current Report on Form 8-K dated July 26, 1989 filed with the Commission on July 26, 1989 (Commission File Number 1-3677)). 4.5 Fourth Supplemental Indenture dated as of July 17, 1990 to the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.5 to the Company's Registration Statement on Form S-3 (No. 33-35977) filed with the Commission on July 20, 1990). 4.6 Fifth Supplemental Indenture dated as of January 1, 1995 to the Indenture dated May 15, 1983 between the Company and Bankers Trust Company, as Trustee. 4.7 Specimen Form of Debt Security (included in Exhibit 4.1). 4.8 Specimen Form of Common Share Certificate (incorporated by reference to Exhibit 4.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 1989 filed with the Commission on March 29, 1990 (Commission File Number 1-3677)). 5.1 Opinion of McCarthy Tetrault. 5.2 Opinion of Milbank, Tweed, Hadley & McCloy LLP.
II-7 27 12.1 Computation of ratios of earnings to fixed charges (generally accepted accounting principles in Canada). 12.2 Computation of ratios of earnings to fixed charges (generally accepted accounting principles in the United States). 12.3 Computation of ratios of earnings to combined fixed charges and preferred stock dividends (generally accepted accounting principles in Canada). 12.4 Computation of ratios of earnings to combined fixed charges and preferred stock dividends (generally accepted accounting principles in the United States). 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of McCarthy Tetrault (included in Exhibit 5.1). 23.3 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in Exhibit 5.2). 24.1 Powers of Attorney executed by persons who signed this Registration Statement on behalf of the Company. 25.1 Statement of Eligibility and Qualification on Form T-1 of Bankers Trust Company, as Trustee under the Indenture. II-8 EX-1.1 2 FORM OF UNDERWRITING AGREEMENT 1 Exhibit 1.1 , 1999 [Managing Underwriters] Ladies and Gentlemen: Alcan Aluminium Limited, a Canadian corporation (the "Company"), proposes to issue U.S. $ in principal amount of its % Debentures due , , (the "Securities") to be issued pursuant to the provisions of the Indenture dated as of May 15, 1983, as supplemented (as so supplemented, the "Indenture"), between the Company and Bankers Trust Company, as Trustee (the "Trustee"). The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement including a prospectus relating to up to U.S. $800,000,000 in principal amount of debt securities and will file with, or mail for filing to, the Commission a prospectus supplement specifically relating to the Securities pursuant to Rule 424 under the Securities Act of 1933. The term "Registration Statement" means the registration statement as amended to the date hereof. The term "Basic Prospectus" means the prospectus included in the Registration Statement. The term "Prospectus" means the Basic Prospectus together with the prospectus supplement specifically relating to the Securities, as filed with, or mailed for filing to, the Commission pursuant to Rule 424. The term "preliminary prospectus" means a preliminary prospectus supplement specifically relating to the Securities together with the Basic Prospectus. As used herein, the terms "Registration Statement", "Basic Prospectus", and "premilinary prospectus" shall include in each case the material incorporated by reference therein. I. The Company hereby agrees to sell to the several Underwriters named in Schedule A hereto and the Underwriters, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agree to purchase from the Company, severally and not jointly, the principal amounts of the Securities set forth below opposite their names in Schedule A at, % of the principal amount (the "Purchase Price") and accrued interest from 1999, to the date of payment and delivery. As compensation for the services of the Underwriters in connection with the transactions contemplated by this Agreement for investment banking and advisory services rendered to the Company by the Underwriters, and for the Underwriters acting as financial advisors to the Company, assisting in the preparation of the Prospectus and the prospectus supplement, managing the sale of the Securities and distributing the Securities to the public both directly and through brokers and dealers, the Company hereby agrees to pay to the Underwriters, on the Closing Date (as defined below), a commission in the amount of U.S.$ . Such commission shall be paid to the Underwriters by wire transfer of immediately available funds to an account specified by . Such commission shall be paid without set-off or counterclaim, and free and clear of, and without deduction or withholding for or on account of, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, imposed by Canada or any Province or Territory thereof, or by any department, agency or other political subdivision or taxing authority either thereof or therein, and all interest, penalties or similar liabilities with respect thereto ("Canadian Taxes"). If any Canadian Taxes are required by law to be deducted or withheld in connection with the payment of such commission, the Company will increase the amount paid to 2 the Underwriters so that the Underwriters receive the full amount of such commission. The obligations of the Company contained in this paragraph shall survive the delivery of the Securities to the Underwriters. II. The Company is advised by you that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after this Agreement is entered into as in your judgment is advisable. The Company is further advised by you that the Securities are to be offered to the public initially at % of the principal amount (the "Public Offering Price") and accrued interest, and to certain dealers at a price which represents a concession of not in excess of % of the principal amount under their Public offering Price; that the Underwriters and such dealers may allow a discount, not in excess of % of the principal amount, to certain other dealers; and that the Public Offering Price and concession and discount to dealers may be changed by the Underwriters. Each Underwriter represents that it has not offered or sold, and agrees that it will not offer or sell, any of the Securities purchased by it hereunder, directly or indirectly, in Canada in contravention of the securities laws of Canada or of any Province or Territory thereof. III. Payment for the Securities shall be made by wire transfer of immediately available funds to an account specified by the Company. Delivery to the Underwriters of the Securities in global form and registered in the name of the Depository Trust Company or its nominee shall take place at the office of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017, at 10:00 o'clock A.M., New York time, on , or at such other time on the same or such other date, not later , as shall be designated by you and the Company. The time and date of such payment and delivery are herein referred to as the "Closing Date". IV. The several obligations of the Underwriters hereunder are subject to the following conditions: (a) (i) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; (ii) there shall not have occurred any downgrading in the rating accorded any debt securities of the Company by Standard & Poor's Corporation or Moody's Investors Service, Inc., or any public announcement by either such organization of an intended or potential downgrading; and (iii) there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus; and you shall have received, on the Closing Date, a certificate, dated the Closing Date and signed by an officer of the Company, to the foregoing effect. The officer making such certificate may rely upon the best of his knowledge as to proceedings pending or threatened. 2 3 (b) You shall have received on and as of the Closing Date a favorable opinion of McCarthy Tetrault, Canadian counsel for the Company, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation under the laws of Canada and has received a certificate of compliance dated as of a recent date under the Canada Business Corporations Act; (ii) the Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company; (iii) the Securities have been authorized by all necessary corporate action and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute valid and binding obligations of the Company; (iv) this Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, except as rights to indemnity and contribution hereunder may be limited by applicable law; (v) no consent, approval or authorization of, or registration, recordation or filing with, any governmental body in Canada is required for the issuance and sale of the Securities to the Underwriters pursuant to this Agreement and the Indenture, except such as have been obtained under the Canada Business Corporations Act and the Securities Act (Quebec); (vi) neither the issuance and sale of the Securities hereunder nor the fulfillment of the terms thereof will contravene any provision of applicable law in Canada or the Restated Articles of Incorporation or By-law of the Company; (vii) no registration of the Securities under the securities and other similar laws of Canada or of any Province or Territory of Canada or of any political subdivision thereof, and no approval, permit, order or filing thereunder, is required in connection with the authorization, execution, delivery and performance by the Company of this Agreement and the issue, offer and sale (other than in Canada) of the Securities in the manner contemplated by this Agreement except for any approval which has been obtained and filings which have been made under the Canada Business Corporations Act and the Securities Act (Quebec); (viii) no taxes are payable under the laws of Canada or of any Province or Territory of Canada in connection with the execution and delivery of the Indenture or the issuance of the Securities in accordance with this Agreement; (ix) no registration, recording or filing of the Indenture is required under the laws of Canada or of any Province or Territory of Canada or of any political subdivision thereof in connection with the authorization, execution, delivery and performance by the Company of the Indenture except for an exemption which has been obtained and filings which have been made under the Canada Business Corporations Act; 3 4 (x) as of the Closing Date, their opinion as set forth in the Prospectus under the caption "Canadian Taxation" is true and correct; and (xi) as of the Closing Date, their opinion as summarized in the Prospectus regarding enforceability of U.S. securities laws is true and correct; (c) You shall have received on and as of the Closing Date a favorable opinion of Esq., Counsel of the Company, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation under the laws of Canada, has received a certificate of compliance dated as of a recent date under the Canada Business Corporations Act and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership or leasing of its property requires such qualification and in which failure to qualify would have a material adverse effect on the businesses, operations, properties or financial condition of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates or representations of officers or senior employees of the Company, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions, certificates and representations); (ii) neither the issuance and sale of the Securities hereunder nor the fulfillment of the terms thereof will contravene any provision of applicable law in Canada or the Restated Articles of Incorporation or By-law of the Company or, to the best knowledge of such counsel, any agreement or other instrument binding upon the Company; (iii) except as set forth in the Prospectus and the documents incorporated by reference therein, there are no material pending legal proceedings known to such counsel to which the Company or any of its subsidiaries is a party or of which property of the Company or any of its subsidiaries is the subject and to the best knowledge of such counsel no such proceeding is contemplated; (iv) the statements in the Prospectus under the captions "Description of Securities" and "Description of the Debentures" and in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, as amended, under the caption "Item 3 -- Legal Proceedings", insofar as such statements constitute a summary of the documents and proceedings referred to therein, fairly present the information called for with respect to such documents and proceedings; and (v) such counsel has no reason to believe that the Registration Statement on the date it became effective and the Prospectus on the date of this Agreement (in either case, as amended or supplemented, if applicable, and except for the financial statements and schedules included therein, as to which such counsel need express no belief) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus (as amended or supplemented, if applicable, except for the financial statements and schedules included therein, as to which such counsel need express no belief) contains any untrue statement of a material fact or omits to state a 4 5 material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (d) You shall have received on and as of the Closing Date a favorable opinion or opinions of Milbank, Tweed, Hadley & McCloy, United States counsel for the Company, covering the matters in (ii), (iii) and (iv) of (b) above, in (iii) and (v) of (c) above and to the effect that: (i) the Registration Statement has become effective under the Securities Act of 1933 and the Indenture has been duly qualified under the Trust Indenture Act of 1939 and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened; (ii) the statements in the Prospectus under the captions "Description of Securities", "Description of the Debentures", and "Plan of Distribution", insofar as such statements constitute a summary of the documents referred to therein, fairly present the information called for with respect thereto; (iii) no consent, approval or authorization of, or registration, recordation or filing with, any governmental body in the United States is required for the execution, delivery and performance of this Agreement and the Indenture or the issuance and sale of the Securities to the Underwriters pursuant to this Agreement and the Indenture, except such as have been obtained under the Securities Act of 1933, as amended, and the Trust Indenture Act of 1939, as amended, and such as may be required under the securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters; (iv) such counsel is of the opinion that (A) each document filed pursuant to the Securities Exchange Act of 1934 (except for the financial statements and schedules included therein, as to which such counsel need express no opinion) and incorporated by reference in the Prospectus complied when so filed as to form in all material respects with the Securities Exchange Act of 1934, together with the applicable rules and regulations of the Commission thereunder and (B) the Registration Statement and the Prospectus and any supplements or amendments thereto (except for the financial statements included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the Securities Act of 1933 and the rules and regulations of the Commission thereunder; (v) such counsel does not know of any contract or other document of a character required to be filed as an exhibit to the Regulation Statement or required to be described in the Registration Statement and the Prospectus which is not filed or described as required; and (vi) neither the issuance and sale of the Securities hereunder nor the fulfillment of the terms thereof will contravene, to the best knowledge of such counsel, any agreement or other instrument for borrowed money binding upon the Company. (e) You shall have received on the Closing Date an opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the Closing Date, covering the matters in (ii), (iii) and (iv) in (b) above, in (v) in (c) above and in (i), (ii) and (iv)(B) of (d) above. 5 6 It is understood that Milbank, Tweed, Hadley & McCloy and Davis Polk & Wardwell may base their opinions as to all matters relating to the laws of Canada or any Province or Territory thereof upon the opinions of McCarthy Tetrault and Roy Millington, Esq. It is further understood that McCarthy Tetrault and Roy Millington, Esq. may, except to the extent specified above, limit their opinions to the Federal laws of Canada and, for the opinion of Roy Millington, Esq., the laws of the Province of Quebec and, for the opinion of McCarthy Tetrault, the laws of the Provinces of Quebec, Ontario and Alberta, and may base their opinions upon (i) the opinions of local counsel as to all matters relating to Canadian law other than such Federal and provincial laws and (ii) the opinion of Milbank, Tweed, Hadley & McCloy as to all matters relating to the laws of the United States or the State of New York. Counsel may state that with respect to (c) (v) and (d) (iv) (B) and (v) above their belief or opinion, as the case may be, is based upon their participation in the preparation of the Registration Statement and the Prospectus and any supplements and amendments thereto and review and discussion of the contents thereof, but is without independent check or verification except as specified. (f) You shall have received on the Closing Date a letter dated the Closing Date, in form and substance satisfactory to you, from Pricewaterhouse Coopers LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement and the Prospectus. V. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows: (a) to furnish you, without charge, three signed copies of the Registration Statement (including exhibits and documents incorporated by reference therein) and to each other Underwriter a copy of the Registration Statement (without exhibits but including documents incorporated by reference therein) and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, the documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request. The terms "supplement" and "amendment" or "amend" as used in this Agreement shall include all documents filed by the Company after the date of the Basic Prospectus pursuant to the Securities Exchange Act of 1934, which are deemed to be incorporated by reference in the Registration Statement and the Prospectus; (b) before amending or supplementing the Registration Statement or the Prospectus with respect to the Securities, to furnish you a copy of each such proposed amendment or supplement; (c) if, during such period after the first date of the public offering of the Securities as in the opinion of your counsel the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with law, forthwith to prepare and furnish, at its 6 7 own expense,to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law; (d) to endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions of the United States as you shall reasonably request and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Securities for investment under the laws of such jurisdictions as you may designate; provided, however, that the Company shall not be required to qualify as a foreign corporation or file a general consent to service of process in any jurisdiction; (e) to make generally available to the Company's security holders as soon as practicable an earnings statement covering a twelve-month period beginning after the date hereof, which shall satisfy the provisions of Section 11(a) of the Securities Act of 1933 and the rules and regulations of the Commission thereunder; and (f) during the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any United States dollar-denominated debt securities of the Company which are substantially similar to the Securities, without your prior consent, which consent shall not be unreasonably withheld. VI. The Company represents and warrants to each Underwriter that (i) each document filed or to be filed pursuant to the Securities Exchange Act of 1934 and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with such Act and the rules and regulations thereunder, (ii) each part of the registration statement (including the documents incorporated by reference therein), filed with the Commission pursuant to the Securities Act of 1933 relating to the Securities, when such part became effective, did not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) each preliminary prospectus, if any, filed pursuant to Rule 424 under the Securities Act of 1933 complied when so filed in all material respects with such Act and the applicable rules and regulations thereunder, (iv) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act of 1933 and the applicable rules and regulations thereunder and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; except that these representations and warranties do not apply to statements or omissions in the Registration Statement, any preliminary prospectus or the Prospectus based upon information furnished to the Company in writing by any Underwriter expressly for use therein. 7 8 The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus or the Prospectus (if used within the period set forth in paragraph (c) of Article V hereof and as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Company by any Underwriter expressly for use therein; provided that the foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased the Securities or of any person controlling such Underwriter, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Securities to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its Directors, its Officers and its authorized representative or representatives in the United States who sign the Registration Statement and any person controlling the Company to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to information relating to such Underwriter furnished in writing by such Underwriter expressly for use in the Registration Statement, any preliminary prospectus or the Prospectus. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties. Such firm shall be designated in writing by you in the case of parties indemnified pursuant to the second preceding paragraph and by the Company in the case of parties indemnified pursuant to the first 8 9 preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. If the indemnification provided for in the second and third paragraphs of this Article VI is unavailable as a matter of law to an indemnified party in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under either such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company and of the Underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Article VI were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VI, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Article VI are several in proportion to their respective underwriting percentages (as defined in the Agreement Among Underwriters) and not joint. 9 10 The indemnity and contribution agreements contained in this Article VI and the representations and warranties of the Company in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling the Company and (iii) acceptance of and payment for the Securities. The Company agrees that any legal suit, action or proceeding brought by any Underwriter to enforce the indemnity or contribution agreements contained in this Article VI may be instituted in any state or Federal court in The City of New York, State of New York, waives to the fullest extent permitted by law any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding. The Company hereby irrevocably designates and appoints CT Corporation System (or any successor corporation) as the Company's authorized agent to accept and acknowledge on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such court and agrees that service of process upon CT Corporation System (or said successor corporation) at its office at 1633 Broadway, New York, New York 10019 (or such other address in the Borough of Manhattan, The City of New York, as the Company may designate by written notice to you) and written notice of said service to the Company, mailed or delivered to Alcan Aluminium Limited, 1188 Sherbrooke Street West, Montreal, Quebec, Canada, H3A 3G2, Attn.: Secretary, shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Company. Said designation and appointment shall be irrevocable until the principal of and interest on the Securities and all other sums owing by the Company in accordance with the provisions of the Securities and the Indenture have been paid in full by the Company in accordance with the provisions thereof. The Company agrees to take all action as may be necessary to continue the designation and appointment of CT Corporation System or any successor corporation in full force and effect so that the Company shall at all times have an agent for service of process for the above purposes in The City of New York, State of New York, United States of America. Nothing in this Article VI shall affect the right of any Underwriter to serve process in any manner permitted by law or limit the right of any Underwriter to bring proceedings against the company in the courts of any jurisdiction or jurisdictions. VII. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Securities, the other Underwriters shall be obligated, severally in the propositions which the amounts of Securities set forth opposite their names in Schedule A hereto bear to the aggregate principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase; provided that in no event shall the principal amount of Securities which any Underwriter has agreed to purchase pursuant to Article I be increased pursuant to this Article VII by an amount in excess of one-ninth of such principal amount of Securities, without the written consent of such Underwriter. 10 11 If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Securities which it or they agreed to purchase hereunder, and the aggregate principal amount of Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of the Securities and arrangements satisfactory to you and the Company for the purchase of such Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or of the Company. In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph or any such termination shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. This Agreement shall be subject to termination in your absolute discretion, by notice given to the Company, if prior to the Closing Date (i) trading in securities generally in the New York Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iii) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to the make it, in your judgment, impracticable to market the Securities. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by them in connection with the Securities. This Agreement may be executed in one or more counterparts and it is not necessary that signatures of all parties appear on the same counterpart, but such counterparts together shall constitute but one and the same agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, ALCAN ALUMINIUM LIMITED By: ----------------------------------- Accepted, , 1999 By: ----------------------------------- 11 12 SCHEDULE A
Principal Amount of the Name Securities ---- ----------
EX-4.6 3 FIFTH SUPPLEMENTAL INDENTURE 1 Exhibit 4.6 ALCAN ALUMINIUM LIMITED and BANKERS TRUST COMPANY, Trustee ________________________________ Fifth Supplemental Indenture Dated as of January 1, 1995 ________________________________ Supplemental to the Indenture dated as of May 15, 1983, as supplemented by a First Supplemental Indenture dated as of January 1, 1986, a Second Supplemental Indenture dated as of June 30, 1989, a Third Supplemental Indenture dated as of July 19, 1989, and a Fourth Supplemental Indenture dated as of July 17, 1990 2 THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of January 1, 1995, between Alcan Aluminium Limited, a corporation duly organized and existing under the laws of Canada (the "New Issuer"), and Bankers Trust Company, a banking corporation duly organized and existing under the laws of the State of New York (the "Trustee"), W I T N E S S T H: WHEREAS, Alcan Aluminium Limited, a corporation duly organized and existing under the laws of Canada (the "Old Issuer"), has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of the Indenture dated as of May 15, 1983 between the Old Issuer and the Trustee, as amended by the First Supplemental Indenture thereto dated as of January 1, 1986, a Second Supplemental Indenture thereto dated as of June 30, 1989, a Third Supplemental Indenture thereto dated as of July 19, 1989, and a Fourth Supplemental Indenture thereto dated as of July 17, 1990 (as so amended, the "Indenture"), and to provide, among other things, for the authentication, delivery and administration thereof, the Old Issuer duly authorized the execution and delivery of the Indenture; WHEREAS, ten series of Securities, the Old Issuer's $100,000,000 in aggregate principal amount of 9 7/8% Debentures Due 1998, the Old Issuer's $150,000,000 in aggregate principal amount of 9 5/8% Sinking Fund Debentures Due 2019, the Old Issuer's $100,000,000 in aggregate principal amount of 9 1/2% Debentures Due 2010, the Old Issuer's $150,000,000 in aggregate principal amount of 9.40% Debentures Due 1995, the Old Issuer's $125,000,000 in aggregate principal amount of 9.70% Debentures Due 1996, the Old Issuer's $150,000,000 in aggregate principal amount of 9.20% Debentures Due 2001, the Old Issuer's $125,000,000 in aggregate principal amount of 9.10% Debentures Due 1998, the Old Issuer's $150,000,000 in aggregate principal amount of 8.20% Debentures Due 1996, the Old Issuer's $150,000,000 in aggregate principal amount of 8 7/8% Debentures Due 2022, and the Old Issuer's $150,000,000 in aggregate principal amount of 5 7/8% Debentures Due 2000, have been issued pursuant to the Indenture; WHEREAS, pursuant to a vertical short-form amalgamation effected under the Canada Business Corporations Act on the date hereof (the "Amalgamations"), Alcan Aluminium Holdings Limited, a wholly-owned subsidiary of the Old Issuer ("Holdings") was amalgamated with the Old Issuer, with the corporation resulting from the Amalgamation being the New Issuer; WHEREAS, Section 9.1 of the Indenture provides that the Old Issuer shall not amalgamate with any other corporation unless, INTER ALIA, the corporation formed by such amalgamation expressly assumes by supplemental indenture the due and punctual payment of the principal of and interest on all the Securities and the performance of every covenant of the Indenture to be performed or observed by the Old Issuer; and WHEREAS, the New Issuer is duly authorized to execute and deliver this Fifth Supplemental Indenture, and all other things necessary to make the Indenture, as hereby supplemented and amended, a valid indenture and agreement according to its terms have been done; NOW, THEREFORE, In consideration of the premises and of the covenants contained in the Indenture, the New Issuer has executed and delivered this Fifth Supplemental Indenture. 3 SECTION 1. DEFINITIONS. All references to the "Issuer" shall, pursuant to the definition thereof in Section 1.1 of the Indenture, hereafter mean the New Issuer. SECTION 2. ASSUMPTION OF OBLIGATIONS. The New Issuer, as the corporation resulting from the Amalgamation and successor corporation to the Old Issuer under Section 9.3 of the Indenture, hereby assumes the performance of every covenant to be performed or observed by the Old Issuer under the Indenture and the due and punctual payment of the principal of and interest on all the Securities outstanding on the date hereof. SECTION 3. RATIFICATION OF THE INDENTURE. As hereby amended and supplemented, the Indenture is hereby ratified and its provisions confirmed in all respects. The recitals contained herein shall be taken as the statements of the New Issuer and the Trustee assumes no responsibility for the correctness of such recitals. The Trustee makes no representation as to the validity of this Fifth Supplemental Indenture. IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the date first above written. ALCAN ALUMINIUM LIMITED By /s/ P.K. Pal ----------------------------- Title: Vice President (Corporate Seal) Attest: By /s/ Serge Fecteau ----------------------------- Title: Assistant Secretary BANKERS TRUST COMPANY, as Trustee By /s/ ------------------------------- Title: ASSISTANT VICE PRESIDENT (Corporate Seal) Attest: By /s/ ----------------------------- Title: Official Assistant 4 CANADA ) PROVINCE OF QUEBEC ) s.s.: DISTRICT OF MONTREAL ) On this 16th day of December, 1994 before me personally came P.K. Pal, to me personally known, who, being by me duly sworn, did depose and say that he resides at 3181 Glencoe, Montreal, PQ, that he is Vice President of Alcan Aluminium Limited, one of the corporations described in and which executed the above instrument; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. (SEAL) /s/ Rita L. Stuart -------------------------- Commissioner of Oaths STATE OF NEW YORK ) s.s.: COUNTY OF NEW YORK ) On this 24th day of January, 1995 before me personally came Mark A. Woodward, to me personally known, who, being by me duly sworn, did depose and say that he resides at New York, NY , that he is an Asst. V.P. of Bankers Trust Company, one of the corporations described in and which executed the above instrument; and that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. (NOTARIAL SEAL) /s/ Margaret Bereza -------------------------- Notary Public MARGARET BEREZA [STAMP] Notary Public State of New York No.------------ Qualified in New York County Commission Expires 2/22/96 5 OFFICER'S CERTIFICATE Each of the undersigned, a Vice President and an Assistant Secretary, respectively, of Alcan Aluminium Limited, a Canadian corporation (the "Company"), does hereby certify as follows: 1. I am familiar with the Indenture dated as of May 15, 1983 between the Company and Bankers Trust Company, as Trustee, as supplemented by the First Supplemental Indenture dated as of January 1, 1986, the Second Supplemental Indenture dated as of June 30, 1989, the Third Supplemental Indenture dated as of July 19, 1989 and the Fourth Supplemental Indenture dated as of July 17, 1990 (such Indenture, as so supplemented, being referred to herein as the "Indenture"), and have read Sections 8.1, 8.3, 8.4, 9.1, 9.3 and 11.5 thereof. 2. I have reviewed resolutions approved by the Board of Directors of the Company at its October 27, 1994 meeting and the actions of officers of the Company in executing and delivering the Fifth Supplemental Indenture dated as of January 1, 1995 to the Indenture (the "Fifth Supplemental Indenture"). 3. In my opinion, I have made such examinations or investigations as is necessary to enable me to opine on the matter discussed in paragraph 4 below. 4. In my opinion, (i) the amalgamation of the Company and Alcan Aluminium Holdings Limited, a wholly-owned subsidiary of the Company (the "Amalgamation"), and the Fifth Supplemental Indenture comply with Article 9 of the Indenture, and (ii) the conditions of the applicable provisions of the Indenture have been complied with in connection with the Amalgamation and the execution and delivery of the Fifth Supplemental Indenture. IN WITNESS WHEREOF, each of the undersigned has executed this Certificate this 1st day of January, 1995. /s/ P.K. Pal ------------------------------------- Name: P.K. Pal Title: Vice President /s/ Serge Fecteau ------------------------------------- Name: Serge Fecteau Title: Assistant Secretary EX-5.1 4 OPINION OF MCCARTHY TETRAULT 1 Exhibit 5.1 McCarthy Tetrault AVOCATS - AGENTS DE BREVETS & MARQUES DE COMMERCE BARRISTERS & SOLICITORS - PATENT & TRADEMARK AGENTS "LE WINDSOR", 1170 PEEL, MONTREAL QUEBEC, CANADA H3B 4S8 FAX (514) 875-6246 - TELEPHONE (514) 397-4100 Direct line (514) 397-4184 April 19, 1999 ALCAN ALUMINIUM LIMITED 1188 Sherbrooke St. West Montreal, Quebec H3A 3G2 Dear Sirs: We submit this opinion in connection with the proposed public offering from time to time pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Act"), of up to U.S.$800,000,000 in aggregate offering price of debt securities (the "Debt Securities") and/or certain classes of equity securities of Alcan Aluminium Limited (the "Issuer"), as contemplated in the Issuer's Registration Statement on Form S-3 being filed on the date hereof with the Securities and Exchange Commission (the "Commission") under the Act (the "Registration Statement"). The Debt Securities will be issued under an Indenture dated as of May 15, 1983, as supplemented (as so supplemented, the "Indenture"), between the Issuer and Bankers Trust Company, as Trustee. We hereby consent to the use of this opinion in the Registration Statement and to the references to us on page 3 of the Prospectus forming a part of the Registration Statement and under the headings "Canadian Taxation" and "Legal Opinions". We have examined originals, or copies certified to our satisfaction of such corporate records of the Issuer, agreements and other instruments, certificates of public officials, certificates of officers and representatives of the Issuer and other documents as we have deemed it necessary to require as a basis for the opinions hereinafter expressed. In such examination we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity with the originals of all documents sent to us as copies and the authenticity of the originals of such latter documents. As to various questions of fact material to such opinions we have, when relevant facts were not independently established, relied upon certifications by officers of the Issuer and other appropriate persons and statements contained in the Registration Statement. Based on the foregoing and having regard to legal considerations we deem relevant, we are of the opinion that (i) the Debt Securities, when executed by the Issuer and authenticated by or on behalf of the Trustee, pursuant to the terms of the Indenture, and issued for value, will be legally issued, binding obligations of the Issuer and (ii) the Equity Securities, upon due authorization by the Board of Directors of the Issuer, due execution by proper officers of the Issuer and due 2 authentication by the Issuer's transfer agent and registrar of certificates representing the Equity Securities and delivery thereof against payment of the purchase price thereof, will be legally issued, fully paid and non-assessable. We do not express any opinion herein as to any matters governed by any law other than the laws of Canada and the Province of Quebec. Insofar as the opinion expressed herein relates to or is dependent upon matters governed by the laws of the State of New York or the Federal law of the United States of America, we have relied upon the opinion of Milbank, Tweed, Hadley & McCloy, United States counsel to the Issuer, which is being delivered to you and filed with the Commission on the date hereof as an exhibit to the Registration Statement. Yours truly, /s/ McCarthy Tetrault EX-5.2 5 OPINION OF MILBANK, TWEED, HADLEY & MCCLOY LLP 1 Exhibit 5.2 MILBANK, TWEED, HADLEY & McCLOY LLP 1 CHASE MANHATTAN PLAZA LOS ANGELES NEW YORK, N.Y. 10005-1413 TOKYO 212-092-4000 __________ 812-2504-1080 FAX: 213-629-5043 FAX: 812-3595-2790 212-530-5000 WASHINGTON, D.C. FAX: 212-530-5213 HONG KONG 202-825-7500 852-2971-4888 FAX: 202-935-7580 FAX: 852-2040-0732 LONDON SINGAPORE 44-171-440-3000 65-420-2400 FAX: 44-171-448-2023 FAX: 65-420-2500 MOSCOW 7-501-266-5015 FAX: 7-501-258-5014 April 19, 1999 Alcan Aluminium Limited 1188 Sherbrooke Street West Montreal, Quebec, Canada H3A 3G2 Dear Ladies and Gentlemen: We submit this opinion in connection with the proposed public offering from time to time pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Act"), of up to $800,000,000 in aggregate principal amount of debt securities (the "Debt Securities") and/or certain classes of equity securities (the "Equity Securities") of Alcan Aluminium Limited (the "Issuer"), as contemplated in the Issuer's Registration Statement on Form S-3 being filed on the date hereof with the Securities and Exchange Commission (the "Commission") under the Act (the "Registration Statement"). The Debt Securities will be issued under an Indenture dated as of May 15, 1983, as supplemented (as so supplemented, the "Indenture"), between the Issuer and Bankers Trust Company, as Trustee. We hereby consent to the use of this opinion in the Registration Statement and to the reference to us under the heading "Legal Opinions". We have examined originals, or copies certified to our satisfaction of such corporate records of the Issuer, agreements and other instruments, certificates of public officials, certificates of officers and representatives of the Issuer and other documents as we have deemed it necessary to require as a basis for the opinions hereinafter expressed. In such examination we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity with the originals of all documents sent to us as copies and the authenticity of the originals of such latter documents. As to various questions of fact material to such opinions we have, when relevant facts were not independently established, relied upon certifications by officers of the Issuer and other appropriate persons and statements contained in the Registration Statement. 2 Alcan Aluminium Limited April 14, 1999 Page Two Based on the foregoing and having regard to legal considerations we deem relevant, we are of the opinion that (i) the Debt Securities, when executed by the Issuer and authenticated by or on behalf of the Trustee, pursuant to the terms of the Indenture, and issued for value, will be legally issued, binding obligations of the Issuer and (ii) the Equity Securities, upon due authorization by the Board of Directors of the Issuer, due execution by proper officers of the Issuer and due authentication by the Issuer's transfer agent and registrar of certificates representing the Equity Securities and delivery thereof against payment of the purchase price thereof, will be legally issued, fully paid and non-assessable. We are members of the Bar of the State of New York and do not express any opinion herein as to any matters governed by any law other than the law of the State of New York and the Federal law of the United States of America. Insofar as the opinion expressed herein relates to or is dependent upon matters governed by the laws of Canada or the Province of Quebec, we have relied without independent investigation upon the opinion of McCarthy Tetrault, Canadian counsel to the Issuer, which is being delivered to you and filed with the Commission on the date hereof as an exhibit to the Registration Statement. Very truly yours, /s/ Milbank, Tweed, Hadley & McCloy LLP DBB EX-12.1 6 COMPUTATION RE EARNINGS TO FIXED CHARGES 1 Exhibit 12.1 ALCAN ALUMINIUM LIMITED COMPUTATION OF EARNINGS TO FIXED CHARGES CANADIAN GAAP (IN MILLIONS OF US DOLLARS)
1998 1997 1996 1995 1994 ---- ---- ---- ---- ---- CONSOLIDATED NET INCOME (LOSS) BEFORE EXTRAORDINARY ITEM 399 468 410 543 96 Less: Equity income of less than 50% owned companies (48) (33) (10) (3) (34) Plus: Dividends received from less than 50% owned companies 5 6 11 9 21 Plus: Minority interest of subsidiaries that have fixed charges (4) 4 1 (4) 3 Subtotal 448 511 432 551 154 Fixed Charges: Amount representative of interest factor in rentals 28 23 27 31 31 Amount representative of interest factor in rentals, 50% owned companies 0 0 0 0 0 Interest expense - net 92 101 125 204 219 Interest expense, 50% owned companies 0 0 0 0 1 Capitalized interest 15 2 0 2 16 Capitalized interest, 50% owned companies 0 0 0 0 0 TOTAL FIXED CHARGES [A] 135 126 152 237 267 Less: Capitalized interest 15 2 0 2 16 Fixed charges added to income/(loss) 120 124 152 235 251 Plus: Amortization of capitalized interest 15 16 20 21 18 Income taxes 210 248 212 326 112 EARNINGS BEFORE FIXED CHARGES AND INCOME TAXES [B] 793 899 816 1,133 535 RATIO OF EARNINGS TO FIXED CHARGES {[B]/[A]} 5.87 7.13 5.37 4.78 2.00
EX-12.2 7 COMPUTATION RE EARNINGS TO FIXED CHARGES 1 Exhibit 12.2 ALCAN ALUMINIUM LIMITED COMPUTATION OF EARNINGS TO FIXED CHARGES US GAAP (IN MILLIONS OF US DOLLARS)
1998 1997 1996 1995 1994 ----- ----- ----- ----- ----- CONSOLIDATED NET INCOME (LOSS) BEFORE EXTRAORDINARY ITEM 417 504 420 561 175 Less: Equity income of less than 50% owned companies (48) (33) (10) (3) (34) Plus: Dividends received from less than 50% owned companies 5 6 11 9 21 Plus: Minority interest of subsidiaries that have fixed charges (4) 4 1 (4) 3 Subtotal 466 547 442 569 233 Fixed Charges: Amount representative of interest factor in rentals 28 23 27 31 31 Amount representative of interest factor in rentals, 50% owned companies 0 0 0 0 0 Interest expense - net 92 101 125 204 219 Interest expense, 50% owned companies 0 0 0 0 1 Capitalized interest 15 2 0 2 16 Capitalized interest, 50% owned companies 0 0 0 0 0 TOTAL FIXED CHARGES [A] 135 126 152 237 267 Less: Capitalized interest 15 2 0 2 16 Fixed charges added to income/(loss) 120 124 152 235 251 Plus: Amortization of capitalized interest 15 16 20 21 18 Income taxes 210 211 210 340 27 EARNINGS BEFORE FIXED CHARGES AND INCOME TAXES [B] 811 898 824 1,165 529 RATIO OF EARNINGS TO FIXED CHARGES [B]/[A] 6.01 7.13 5.42 4.92 1.98
EX-12.3 8 COMPUTATION RE EARNINGS TO COMBINED FIXED CHARGES 1 Exhibit 12.3 ALCAN ALUMINIUM LIMITED COMPUTATION OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS CANADIAN GAAP (IN MILLIONS OF US DOLLARS)
1998 1997 1996 1995 1994 ---- ---- ---- ---- ---- CONSOLIDATED NET INCOME (LOSS) BEFORE EXTRAORDINARY ITEM 399 468 410 543 96 Less: Equity income of less than 50% owned companies (48) (33) (10) (3) (34) Plus: Dividends received from less than 50% owned companies 5 6 11 9 21 Plus: Minority interest of subsidiaries that have fixed charges (4) 4 1 (4) 3 Subtotal 448 511 432 551 154 Fixed Charges: Amount representative of interest factor in rentals 28 23 27 31 31 Amount representative of interest factor in rentals, 50% owned companies 0 0 0 0 0 Interest expense - net 92 101 125 204 219 Interest expense, 50% owned companies 0 0 0 0 1 Capitalized interest 15 2 0 2 16 Capitalized interest, 50% owned companies 0 0 0 0 0 TOTAL FIXED CHARGES [A] 135 126 152 237 267 Less: Capitalized interest 15 2 0 2 16 Fixed charges added to income/(loss) 120 124 152 235 251 Plus: Amortization of capitalized interest 15 16 20 21 18 Income taxes 210 248 212 326 112 EARNINGS BEFORE FIXED CHARGES AND INCOME TAXES [B] 793 899 816 1,133 535 Total Fixed Charges [A] 135 126 152 237 267 Preference dividends 10 10 16 24 21 1 minus tax rate of 40% 0.6 0.6 0.6 0.6 0.6 preference dividends pre tax 17 17 27 40 35 TOTAL [C] 152 143 179 277 302 RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS {[B]/[C]} 5.23 6.30 4.57 4.09 1.77
EX-12.4 9 COMPUTATION RE EARNINGS TO COMBINED FIXED CHARGES 1 Exhibit 12.4 ALCAN ALUMINIUM LIMITED COMPUTATION OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS US GAAP (IN MILLIONS OF US DOLLARS)
1998 1997 1996 1995 1994 ---- ---- ---- ---- ---- CONSOLIDATED NET INCOME (LOSS) BEFORE EXTRAORDINARY ITEM 417 504 420 561 175 Less: Equity income of less than 50% owned companies (48) (33) (10) (3) (34) Plus: Dividends received from less than 50% owned companies 5 6 11 9 21 Plus: Minority interest of subsidiaries that have fixed charges (4) 4 1 (4) 3 Subtotal 466 547 442 569 233 Fixed Charges: Amount representative of interest factor in rentals 28 23 27 31 31 Amount representative of interest factor in rentals, 50% owned companies 0 0 0 0 0 Interest expense - net 92 101 125 204 219 Interest expense, 50% owned companies 0 0 0 0 1 Capitalized interest 15 2 0 2 16 Capitalized interest, 50% owned companies 0 0 0 0 0 TOTAL FIXED CHARGES [A] 135 126 152 237 267 Less: Capitalized interest 15 2 0 2 16 Fixed charges added to income/(loss) 120 124 152 235 251 Plus: Amortization of capitalized interest 15 16 20 21 18 Income taxes 210 211 210 340 27 EARNINGS BEFORE FIXED CHARGES AND INCOME TAXES [B] 811 898 824 1,165 529 Total Fixed Charges 135 126 152 237 267 Preference dividends 10 10 16 24 21 1 minus statutory tax rate of 40% 0.6 0.6 0.6 0.6 0.6 Preference dividends pre tax 17 17 27 40 35 TOTAL [C] 152 143 179 277 302 RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS {[B]/[C]} 5.35 6.29 4.61 4.21 1.75
EX-23.1 10 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 [LOGO] Exhibit 23.1 PricewaterhouseCoopers LLP Chartered Accountants 1250 Rene-Levesque Blvd West Suite 3500 Montreal Quebec Canada H3B 2G4 Telephone + 1 (514) 205 5000 Facsimile +1 (514) 938 5709 CONSENT OF INDEPENDENT ACCOUNTANTS To the Directors of Alcan Aluminium Limited We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our report dated February 11, 1999, which appears on page 40 of the 1998 Annual Report to Shareholders of Alcan Aluminium Limited. Our report is incorporated by reference in Alcan Aluminium Limited's Annual Report on Form 10-K for the year ended December 31, 1998. We also consent to the incorporation by reference of our Comments for U.S. Readers on Canada - U.S. Reporting Differences, which appears on page 29 of such Annual Report on Form 10-K. We also consent to the reference to us under the caption "Experts" in such Prospectus. Montreal, Canada /s/ PricewaterhouseCoopers LLP April 19, 1999 ------------------------------- PricewaterhouseCoopers LLP EX-24.1 11 POWERS OF ATTORNEY 1 Exhibit 24.1 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ Jacques Bougie --------------------------- Name: Jacques Bougie Title: Director, President and Chief Executive Officer 2 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ Warren Chippindale ------------------------- Name: Warren Chippindale Title: Director 3 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ Travis Engen ------------------------- Name: Travis Engen Title: Director 4 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ John R. Evans ------------------------- Name: John R. Evans Title: Director, Chairman 5 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ J. E. Newall ------------------------- Name: J. E. Newall Title: Director 6 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ Peter H. Pearse ------------------------- Name: Peter H. Pearse Title: Director 7 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ George Russell ------------------------- Name: George Russell Title: Director 8 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ Guy Saint-Pierre ---------------------------- Name: Guy Saint-Pierre Title: Director 9 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March 1999. /s/ Gerhard Schulmeyer ------------------------- Name: Gerhard Schulmeyer Title: Director 10 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes shortly to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933 as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 14th day of April 1999. /s/ Suresh Thadhani ------------------------- Name: Suresh Thadhani Title: Executive Vice President and Chief Financial Officer 11 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes shortly to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933 as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in each of the undersigned's offices and capacities as an Officer and/or a Director of the Corporation, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of April 1999. /s/ Richard Genest --------------------------- Name: Richard Genest Title: Chief Accountant 12 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Authorised Representative of the Corporation in the United States of America as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in the undersigned's office and capacity as Authorised Representative of the Corporation in the United States of America, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 7th day of April 1999. /s/ William H. Jairrels ------------------------------ Name: William H. Jairrels Authorised Representative in the United States of America 13 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN ALUMINIUM LIMITED, a Canadian corporation (the "Corporation"), proposes to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-3 with respect to the issue of USD 700,000,000 in aggregate principal amount of debentures, notes and/or other debt obligations (collectively "Debt Securities") and/or additional Common Shares, Preference Shares or other equity securities, and/or warrants, rights or other securities exchangeable for or convertible into equity securities (collectively, "Equity Securities"; and together with the Debt Securities, the "Securities"), such Securities to be sold from time to time pursuant to Rule 415 under the Act; WHEREAS, the Prospectus contained in said Registration Statement will also relate to USD 100,000,000 in aggregate principal amount of Securities covered by the Corporation's Registration Statement No. 33-82754 on Form S-3 dated 1 September 1994; and WHEREAS, the undersigned is an Authorised Representative of the Corporation in the United States of America as indicated below. NOW, THEREFORE, the undersigned hereby constitutes and appoints P. K. Pal and Serge Fecteau, and each of them, as attorneys for the undersigned and in the undersigned's name, place and stead, and in the undersigned's office and capacity as Authorised Representative of the Corporation in the United States of America, to execute and file such Registration Statement, including the related Prospectus, and thereafter to execute and file any amended Registration Statement or Statements (including post-effective amendments) and amended prospectus or prospectuses or amendments or supplements to any of the foregoing, hereby giving and granting to said attorneys full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the undersigned might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorneys may or shall lawfully do, or cause to be done, by virtue hereof. IN WITNESS WHEREOF, I have hereunto set my hand this 7th day of April 1999. /s/ Sanford Yosowitz --------------------------- Name: Sanford Yosowitz Authorised Representative in the United States of America EX-25.1 12 FORM T-1 1 Exhibit 25.1 _______________________________________________________________________________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ____________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________ ______________________________ BANKERS TRUST COMPANY (Exact name of trustee as specified in its charter) NEW YORK 13-4941247 (Jurisdiction of Incorporation or (I.R.S. Employer organization if not a U.S. national bank) Identification no.) FOUR ALBANY STREET NEW YORK, NEW YORK 10006 (Address of principal (Zip Code) executive offices)
BANKERS TRUST COMPANY LEGAL DEPARTMENT 130 LIBERTY STREET, 31ST FLOOR NEW YORK, NEW YORK 10006 (212) 250-2201 (Name, address and telephone number of agent for service) _________________________________ ALCAN ALUMINIUM LIMITED (Exact name of Registrant as specified in its charter) CANADA NOT APPLICABLE (State or other jurisdiction of (I.R.S. employer identification no.) Incorporation or organization)
1188 SHERBROOKE STREET WEST MONTREAL, QUEBEC, CANADA H3A 3G2 (514) 848-8000 (Address, including zip code, and telephone number of principal executive offices) DEBT SECURITIES (Title of the indenture securities) 2 ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee. (a) Name and address of each examining or supervising authority to which it is subject.
NAME ADDRESS ---- ------- Federal Reserve Bank (2nd District) . . New York, NY Federal Deposit Insurance Corporation . Washington, D.C. New York State Banking Department . . . Albany, NY
(b) Whether it is authorized to exercise corporate trust powers. Yes. ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. None. ITEM 3.-15. NOT APPLICABLE Item 16. LIST OF EXHIBITS. EXHIBIT 1 - Restated Organization Certificate of Bankers Trust Company dated August 7, 1990, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 33-65171, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 20, 1996, incorporate by referenced to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-25843 and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated June 19, 1997, copy attached. EXHIBIT 2 - Certificate of Authority to commence business - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047. EXHIBIT 3 - Authorization of the Trustee to exercise corporate trust powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047. EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended on November 18, 1997. Copy attached. -2- 3 EXHIBIT 5 - Not applicable. EXHIBIT 6 - Consent of Bankers Trust Company required by Section 321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 22-18864. EXHIBIT 7 - The latest report of condition of Bankers Trust Company dated as of September 30, 1998. Copy attached. EXHIBIT 8 - Not Applicable. EXHIBIT 9 - Not Applicable. -3- 4 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bankers Trust Company, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 6th day of April, 1999 BANKERS TRUST COMPANY By: /s/ Susan Johnson ------------------------- Susan Johnson Assistant Vice President -4- 5 State of New York, Banking Department I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION 8005 OF THE BANKING LAW," dated June 19, 1997, providing for an increase in authorized capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par value of $10 each designated as Common Stock and 600 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $2,001,666,670 consisting of 100,166,667 shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of $1,000,000 each designated as Series Preferred Stock. WITNESS, my hand and official seal of the Banking Department at the City of New York, this 27th day of June in the Year of our Lord one thousand nine hundred and ninety-seven. Manuel Kursky _______________________________ Deputy Superintendent of Banks 6 CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST Under Section 8005 of the Banking Law _____________________________ We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and an Assistant Secretary of Bankers Trust Company, do hereby certify: 1. The name of the corporation is Bankers Trust Company. 2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of march, 1903. 3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith. 4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows: "III. The amount of capital stock which the corporation is hereafter to have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par value of $10 each designated as Common Stock and 600 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." is hereby amended to read as follows: "III. The amount of capital stock which the corporation is hereafter to have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par value of $10 each designated as Common Stock and 1000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." 7 5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon. IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th day of June, 1997. /s/ James T. Byrne, Jr. ---------------------------- James T. Byrne, Jr. Managing Director /s/ Lea Lahtinen ----------------------------- Lea Lahtinen Assistant Secretary State of New York ) ) ss: County of New York ) Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true. /s/ Lea Lahtinen ----------------------- Lea Lahtinen Sworn to before me this 19th day of June, 1997. /s/ Sandra L. West - ------------------------------ Notary Public SANDRA L. WEST Notary Public State of New York No. 31-4942101 Qualified in New York County Commission Expires September 19, 1998 8 BY-LAWS NOVEMBER 18, 1997 BANKERS TRUST COMPANY NEW YORK 9 BY-LAWS OF BANKERS TRUST COMPANY ARTICLE I MEETINGS OF STOCKHOLDERS SECTION 1. The annual meeting of the stockholders of this Company shall be held at the office of the Company in the Borough of Manhattan, City of New York, on the third Tuesday in January of each year, for the election of directors and such other business as may properly come before said meeting. SECTION 2. Special meetings of stockholders other than those regulated by statute may be called at any time by a majority of the directors. It shall be the duty of the Chairman of the Board, the Chief Executive Officer or the President to call such meetings whenever requested in writing to do so by stockholders owning a majority of the capital stock. SECTION 3. At all meetings of stockholders, there shall be present, either in person or by proxy, stockholders owning a majority of the capital stock of the Company, in order to constitute a quorum, except at special elections of directors, as provided by law, but less than a quorum shall have power to adjourn any meeting. SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive Officer or, in his absence, the President or, in their absence, the senior officer present, shall preside at meetings of the stockholders and shall direct the proceedings and the order of business. The Secretary shall act as secretary of such meetings and record the proceedings. ARTICLE II DIRECTORS SECTION 1. The affairs of the Company shall be managed and its corporate powers exercised by a Board of Directors consisting of such number of directors, but not less than ten nor more than twenty-five, as may from time to time be fixed by resolution adopted by a majority of the directors then in office, or by the stockholders. In the event of any increase in the number of directors, additional directors may be elected within the limitations so fixed, either by the stockholders or within the limitations imposed by law, by a majority of directors then in office. One-third of the number of directors, as fixed from time to time, shall constitute a quorum. Any one or more members of the Board of Directors or any Committee thereof may participate in a meeting of the Board of Directors or Committee thereof by means of a conference telephone or similar communications equipment which allows all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at such a meeting. 10 All directors hereafter elected shall hold office until the next annual meeting of the stockholders and until their successors are elected and have qualified. No person who shall have attained age 72 shall be eligible to be elected or re-elected a director. Such director may, however, remain a director of the Company until the next annual meeting of the stockholders of Bankers Trust New York Corporation (the Company's parent) so that such director's retirement will coincide with the retirement date from Bankers Trust New York Corporation. No Officer-Director who shall have attained age 65, or earlier relinquishes his responsibilities and title, shall be eligible to serve as a director. SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term. SECTION 3. The Chairman of the Board shall preside at meetings of the Board of Directors. In his absence, the Chief Executive Officer or, in his absence, such other director as the Board of Directors from time to time may designate shall preside at such meetings. SECTION 4. The Board of Directors may adopt such Rules and Regulations for the conduct of its meetings and the management of the affairs of the Company as it may deem proper, not inconsistent with the laws of the State of New York, or these By-Laws, and all officers and employees shall strictly adhere to, and be bound by, such Rules and Regulations. SECTION 5. Regular meetings of the Board of Directors shall be held from time to time on the third Tuesday of the month. If the day appointed for holding such regular meetings shall be a legal holiday, the regular meeting to be held on such day shall be held on the next business day thereafter. Special meetings of the Board of Directors may be called upon at least two day's notice whenever it may be deemed proper by the Chairman of the Board or, the Chief Executive Officer or, in their absence, by such other director as the Board of Directors may have designated pursuant to Section 3 of this Article, and shall be called upon like notice whenever any three of the directors so request in writing. SECTION 6. The compensation of directors as such or as members of committees shall be fixed from time to time by resolution of the Board of Directors. 11 ARTICLE III COMMITTEES SECTION 1. There shall be an Executive Committee of the Board consisting of not less than five directors who shall be appointed annually by the Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his absence, the Chief Executive Officer or, in his absence, such other member of the Committee as the Committee from time to time may designate shall preside at such meetings. The Executive Committee shall possess and exercise to the extent permitted by law all of the powers of the Board of Directors, except when the latter is in session, and shall keep minutes of its proceedings, which shall be presented to the Board of Directors at its next subsequent meeting. All acts done and powers and authority conferred by the Executive Committee from time to time shall be and be deemed to be, and may be certified as being, the act and under the authority of the Board of Directors. A majority of the Committee shall constitute a quorum, but the Committee may act only by the concurrent vote of not less than one-third of its members, at least one of whom must be a director other than an officer. Any one or more directors, even though not members of the Executive Committee, may attend any meeting of the Committee, and the member or members of the Committee present, even though less than a quorum, may designate any one or more of such directors as a substitute or substitutes for any absent member or members of the Committee, and each such substitute or substitutes shall be counted for quorum, voting, and all other purposes as a member or members of the Committee. SECTION 2. There shall be an Audit Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of directors, who are not also officers of the Company, as may from time to time be fixed by resolution adopted by the Board of Directors. The Chairman shall be designated by the Board of Directors, who shall also from time to time fix a quorum for meetings of the Committee. Such Committee shall conduct the annual directors' examinations of the Company as required by the New York State Banking Law; shall review the reports of all examinations made of the Company by public authorities and report thereon to the Board of Directors; and shall report to the Board of Directors such other matters as it deems advisable with respect to the Company, its various departments and the conduct of its operations. In the performance of its duties, the Audit Committee may employ or retain, from time to time, expert assistants, independent of the officers or personnel of the Company, to make studies of the Company's assets and liabilities as the Committee may request and to make an examination of the accounting and auditing methods of the Company and its system of internal protective controls to the extent considered necessary or advisable in order to determine that the operations of the Company, including its fiduciary departments, are being audited by the General Auditor in such a manner as to provide prudent and adequate protection. The Committee also may direct the General Auditor to make such investigation as it deems necessary or advisable with respect to the Company, its various departments and the conduct of its operations. The Committee shall hold regular quarterly meetings and during the intervals thereof shall meet at other times on call of the Chairman. 12 SECTION 3. The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors. ARTICLE IV OFFICERS SECTION 1. The Board of Directors shall elect from among their number a Chairman of the Board and a Chief Executive Officer; and shall also elect a President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or more Executive Vice Presidents, one or more Senior Managing Directors, one or more Managing Directors, one or more Senior Vice Presidents, one or more Principals, one or more Vice Presidents, one or more General Managers, a Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate General Counsels, a General Auditor, a General Credit Auditor, and one or more Deputy Auditors, who need not be directors. The officers of the corporation may also include such other officers or assistant officers as shall from time to time be elected or appointed by the Board. The Chairman of the Board or the Chief Executive Officer or, in their absence, the President, the Senior Vice Chairman or any Vice Chairman, may from time to time appoint assistant officers. All officers elected or appointed by the Board of Directors shall hold their respective offices during the pleasure of the Board of Directors, and all assistant officers shall hold office at the pleasure of the Board or the Chairman of the Board or the Chief Executive Officer or, in their absence, the President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors may require any and all officers and employees to give security for the faithful performance of their duties. SECTION 2. The Board of Directors shall designate the Chief Executive Officer of the Company who may also hold the additional title of Chairman of the Board, President, Senior Vice Chairman or Vice Chairman and such person shall have, subject to the supervision and direction of the Board of Directors or the Executive Committee, all of the powers vested in such Chief Executive Officer by law or by these By-Laws, or which usually attach or pertain to such office. The other officers shall have, subject to the supervision and direction of the Board of Directors or the Executive Committee or the Chairman of the Board or, the Chief Executive Officer, the powers vested by law or by these By-Laws in them as holders of their respective offices and, in addition, shall perform such other duties as shall be assigned to them by the Board of Directors or the Executive Committee or the Chairman of the Board or the Chief Executive Officer. The General Auditor shall be responsible, through the Audit Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit Committee on all matters concerning the internal audit 13 program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit Committee may request. Additionally, the General Auditor shall have the duty of reporting independently of all officers of the Company to the Audit Committee at least quarterly on any matters concerning the internal audit program and the adequacy of the system of internal controls of the Company that should be brought to the attention of the directors except those matters responsibility for which has been vested in the General Credit Auditor. Should the General Auditor deem any matter to be of special immediate importance, he shall report thereon forthwith to the Audit Committee. The General Auditor shall report to the Chief Financial Officer only for administrative purposes. The General Credit Auditor shall be responsible to the Chief Executive Officer and, through the Audit Committee, to the Board of Directors for the systems of internal credit audit, shall perform such other duties as the Chief Executive Officer may prescribe, and shall make such examinations and reports as may be required by the Audit Committee. The General Credit Auditor shall have unrestricted access to all records and may delegate such authority to subordinates. SECTION 3. The compensation of all officers shall be fixed under such plan or plans of position evaluation and salary administration as shall be approved from time to time by resolution of the Board of Directors. SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or any person authorized for this purpose by the Chief Executive Officer, shall appoint or engage all other employees and agents and fix their compensation. The employment of all such employees and agents shall continue during the pleasure of the Board of Directors or the Executive Committee or the Chairman of the Board or the Chief Executive Officer or any such authorized person; and the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or any such authorized person may discharge any such employees and agents at will. 14 ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of the New York Banking Law, indemnify any person who is or was made, or threatened to be made, a party to an action or proceeding, whether civil or criminal, whether involving any actual or alleged breach of duty, neglect or error, any accountability, or any actual or alleged misstatement, misleading statement or other act or omission and whether brought or threatened in any court or administrative or legislative body or agency, including an action by or in the right of the Company to procure a judgment in its favor and an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company is servicing or served in any capacity at the request of the Company by reason of the fact that he, his testator or intestate, is or was a director or officer of the Company, or is serving or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement, and costs, charges and expenses, including attorneys' fees, or any appeal therein; provided, however, that no indemnification shall be provided to any such person if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled. SECTION 2. The Company may indemnify any other person to whom the Company is permitted to provide indemnification or the advancement of expenses by applicable law, whether pursuant to rights granted pursuant to, or provided by, the New York Banking Law or other rights created by (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, it being expressly intended that these By-Laws authorize the creation of other rights in any such manner. SECTION 3. The Company shall, from time to time, reimburse or advance to any person referred to in Section 1 the funds necessary for payment of expenses, including attorneys' fees, incurred in connection with any action or proceeding referred to in Section 1, upon receipt of a written undertaking by or on behalf of such person to repay such amount(s) if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled. SECTION 4. Any director or officer of the Company serving (i) another corporation, of which a majority of the shares entitled to vote in the election of its directors is held by the Company, or (ii) any employee benefit plan of the Company or any corporation referred to in clause (i) in any capacity shall be deemed to be doing so at the request of the Company. In all other cases, the provisions of this Article V will apply (i) only if the person serving another corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise so served at the specific request of the Company, evidenced by a written communication signed by the Chairman of the Board, the Chief Executive Officer or the 15 President, and (ii) only if and to the extent that, after making such efforts as the Chairman of the Board, the Chief Executive Officer or the President shall deem adequate in the circumstances, such person shall be unable to obtain indemnification from such other enterprise or its insurer. SECTION 5. Any person entitled to be indemnified or to the reimbursement or advancement of expenses as a matter of right pursuant to this Article V may elect to have the right to indemnification (or advancement of expenses) interpreted on the basis of the applicable law in effect at the time of occurrence of the event or events giving rise to the action or proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time indemnification is sought. SECTION 6. The right to be indemnified or to the reimbursement or advancement of expense pursuant to this Article V (i) is a contract right pursuant to which the person entitled thereto may bring suit as if the provisions hereof were set forth in a separate written contract between the Company and the director or officer, (ii) is intended to be retroactive and shall be available with respect to events occurring prior to the adoption hereof, and (iii) shall continue to exist after the rescission or restrictive modification hereof with respect to events occurring prior thereto. SECTION 7. If a request to be indemnified or for the reimbursement or advancement of expenses pursuant hereto is not paid in full by the Company within thirty days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled also to be paid the expenses of prosecuting such claim. Neither the failure of the Company (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of or reimbursement or advancement of expenses to the claimant is proper in the circumstance, nor an actual determination by the Company (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant is not entitled to indemnification or to the reimbursement or advancement of expenses, shall be a defense to the action or create a presumption that the claimant is not so entitled. SECTION 8. A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Section 1 shall be entitled to indemnification only as provided in Sections 1 and 3, notwithstanding any provision of the New York Banking Law to the contrary. 16 ARTICLE VI SEAL SECTION 1. The Board of Directors shall provide a seal for the Company, the counterpart dies of which shall be in the charge of the Secretary of the Company and such officers as the Chairman of the Board, the Chief Executive Officer or the Secretary may from time to time direct in writing, to be affixed to certificates of stock and other documents in accordance with the directions of the Board of Directors or the Executive Committee. SECTION 2. The Board of Directors may provide, in proper cases on a specified occasion and for a specified transaction or transactions, for the use of a printed or engraved facsimile seal of the Company. ARTICLE VII CAPITAL STOCK SECTION 1. Registration of transfer of shares shall only be made upon the books of the Company by the registered holder in person, or by power of attorney, duly executed, witnessed and filed with the Secretary or other proper officer of the Company, on the surrender of the certificate or certificates of such shares properly assigned for transfer. ARTICLE VIII CONSTRUCTION SECTION 1. The masculine gender, when appearing in these By-Laws, shall be deemed to include the feminine gender. ARTICLE IX AMENDMENTS SECTION 1. These By-Laws may be altered, amended or added to by the Board of Directors at any meeting, or by the stockholders at any annual or special meeting, provided notice thereof has been given. 17
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98 ST-BK: 36-4840 FFIEC 031 Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1 City, State ZIP: New York, NY 10006 11 FDIC Certificate No.: 0 0 6 2 3 CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1998 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, reported the amount outstanding as of the last business day of the quarter. Schedule RC--Balance Sheet C400 Dollar Amounts in Thousands RCFD Bil Mil Thou ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) ............................... 0081 2,291,000 1.a. b. Interest-bearing balances (2) ........................................................ 0071 2,636,000 1.b. 2. Securities: a. Held-to-maturity securities (from Schedule RC-B, column A) ........................... 1754 0 2.a. b. Available-for-sale securities (from Schedule RC-B, column D).......................... 1773 6,617,000 2.b. 3. Federal funds sold and securities purchased under agreements to resell................... 1350 32,734,000 3. 4. Loans and lease financing receivables: a. Loans and leases, net of unearned income (from Schedule RC-C)....RCFD 2122 20,227,000 4.a. b. LESS: Allowance for loan and lease losses........................RCFD 3123 619,000 4.b. c. LESS: Allocated transfer risk reserve ...........................RCFD 3128 0 4.c. d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b and 4.c) .................................. 2125 19,608,000 4.d. 5. Trading Assets (from schedule RC-D) .................................................... 3545 49,545,000 5. 6. Premises and fixed assets (including capitalized leases) ................................ 2145 885,000 6. 7. Other real estate owned (from Schedule RC-M) ............................................ 2150 115,000 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 391,000 8. 9. Customers' liability to this bank on acceptances outstanding ............................ 2155 392,000 9. 10. Intangible assets (from Schedule RC-M) .................................................. 2143 266,000 10. 11. Other assets (from Schedule RC-F)........................................................ 2160 5,884,000 11. 12. Total assets (sum of items 1 through 11)................................................. 2170 121,364,000 12. __________________________ (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading.
18 Legal Title of Bank: Bankers Trust Company Call Date: 09/30/98 ST-BK: 36-4840 FFIEC 031 Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2 City, State Zip: New York, NY 10006 12 FDIC Certificate No.: 0 0 6 2 3 SCHEDULE RC--CONTINUED Dollar Amounts in Thousands Bil Mil Thou LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 22,231,000 13.a. (1) Noninterest-bearing(1) ............................ RCON 6631 3,040,000 13.a.(1) (2) Interest-bearing ................................... RCON 6636 19,191,000 13.a.(2) b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E part II) RFCN22220 21,231,000 13.b. (1) Noninterest-bearing ................................ RCFN 6631 2,423,000 13.b.(1) (2) Interest-bearing ................................... RCFN 6636 19,509,000 13.b.(2) 14. Federal funds purchased and securities sold under agreements to repurchase ............... RCFD 2800 14,360,000 14. 15. a. Demand notes issued to the U.S. Treasury .............................................. RCON 2840 0 15.a. b. Trading liabilities (from Schedule RC-D)............................................... RCFD 3548 32,890,000 15.b. 16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): a. With a remaining maturity of one year or less ......................................... RCFD 2332 7,653,000 16.a b. With a remaining maturity of more than one year through three years........................ A547 3,707,000 16.b. c. With a remaining maturity of more than three years......................................... A548 3,034,000 16.c 17. Not Applicable. 17. 18. Bank's liability on acceptances executed and outstanding ..................................RCFD 2920 392,000 18. 19. Subordinated notes and debentures (2)......................................................RCFD 3200 1,533,000 19. 20. Other liabilities (from Schedule RC-G) ....................................................RCFD 2930 6,595,000 20. 21. Total liabilities (sum of items 13 through 20) ............................................RCFD 2948 114,327,000 21. 22. Not Applicable 22. EQUITY CAPITAL 23. Perpetual preferred stock and related surplus .............................................RCFD 3838 1,500,000 23. 24. Common stock ..............................................................................RCFD 3230 2,002,000 24. 25. Surplus (exclude all surplus related to preferred stock) ..................................RCFD 3839 540,000 25. 26. a. Undivided profits and capital reserves .................................................RCFD 3632 3,421,000 26.a. b. Net unrealized holding gains (losses) on available-for-sale securities .................RCFD 8434 ( 46,000) 26.b. 27. Cumulative foreign currency translation adjustments .......................................RCFD 3284 ( 380,000) 27. 28. Total equity capital (sum of items 23 through 27) .........................................RCFD 3210 7,037,000 28. 29. Total liabilities and equity capital (sum of items 21 and 28)..............................RCFD 3300 121,364,000 29. Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes Number the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 1997.........................................................RCFD 6724 1 M. 1 = Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank's parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 4 = Directors' examination of the bank performed by other external auditors (may be required by state chartering authority) 5 = Review of the bank's financial statements by external auditors 6 = Compilation of the bank's financial statements by external auditors 7 = Other audit procedures (excluding tax preparation work) 8 = No external audit work ______________________ (1) Including total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited-life preferred stock and related surplus.
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