-----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, J9HpZWlnEo7IJbDJIXJl7SCoGNzu1TK1/SgTiVAhDN5A8x6rhpYU1HebxnpyjwAS Om3tz+6uP62di717z6InVA== 0001130319-02-000272.txt : 20020416 0001130319-02-000272.hdr.sgml : 20020416 ACCESSION NUMBER: 0001130319-02-000272 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 14 FILED AS OF DATE: 20020411 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALCAN INC CENTRAL INDEX KEY: 0000004285 STANDARD INDUSTRIAL CLASSIFICATION: PRIMARY PRODUCTION OF ALUMINUM [3334] IRS NUMBER: 000000000 STATE OF INCORPORATION: A6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-85998 FILM NUMBER: 02607677 BUSINESS ADDRESS: STREET 1: 1188 SHERBROOKE ST WEST CITY: MONTREAL QUEBEC CANA STATE: A8 ZIP: 00000 BUSINESS PHONE: 5148488000 MAIL ADDRESS: STREET 1: 1188 SHERBROOKE STREET WEST CITY: MONTREAL QUEBEC CANA STATE: A8 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: ALCAN ALUMINIUM LTD /NEW DATE OF NAME CHANGE: 19930519 FORMER COMPANY: FORMER CONFORMED NAME: ALUMINUM CO OF CANADA LTD DATE OF NAME CHANGE: 19870728 S-3 1 m06882ors-3.txt FORM S-3 Registration No. 333- AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 2002 _______________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ___________________ FORM S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ___________________ ALCAN INC. (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) ___________________ (Name, Address, including postal code, and telephone number, including area code, of agent for service) ROY MILLINGTON, SECRETARY ALCAN INC. 1188 SHERBROOKE STREET WEST MONTREAL, QUEBEC, CANADA H3A 3G2 514-848-8000 ___________________ Copies to: DONALD R. CRAWSHAW CHARLES S. WHITMAN, III SULLIVAN & CROMWELL DAVIS POLK & WARDWELL 125 BROAD STREET 450 LEXINGTON AVENUE NEW YORK, NEW YORK 10004-2498 NEW YORK, NEW YORK 10017 212-558-4000 (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. [X] 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] If this Form is filed to register additional securities for an offering pursuant to Rule 462 (b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462 (c) under the Securities Act, check the following box and list the Securities Act registration statement number earlier effective registration statement for the offering. [ ] If the delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE
==========================================++++++================================================================================== Title of each class of Amount to be Proposed maximum offering Proposed maximum Aggregate Amount of securities to be registered registered(6)(7) price per unit(8)(9) Offering price(5)(6)(7)(8) registration fee(10) - ---------------------------------------------------------------------------------------------------------------------------------- Senior Debt Securities (1)(2)(5) Subordinated Debt (1)(2)(5) Securities Preference Shares (1)(2)(5) Common Shares (1)(2)(5) Common Share Purchase Rights (1)(2)(3)(5) Warrants (1)(2)(4)(5) - ---------------------------------------------------------------------------------------------------------------------------------- Total $1,000,000,000 100% $1,000,000,000 $92,000 ==========================================++++++==================================================================================
(1) Such indeterminate number, principal amount or liquidation amount of senior debt securities, subordinated debt securities, preference shares, common shares (including associated common share purchase rights) and warrants of Alcan Inc. as may from time to time be issued at indeterminate prices. The securities registered hereunder shall not have an aggregate offering price which exceeds $1,000,000,000 in United States dollars or the equivalent in any other currency. (2) Also includes such indeterminate number of senior debt securities, subordinated debt securities and preference shares and common shares (including associated common share purchase rights) as may be issued upon conversion or exchange of any senior debt securities, subordinated debt securities or preference shares that provide for conversion or exchange into other securities or upon exercise of warrants for such securities. (3) Each Common Share includes one Common Share Purchase Right as described under "Description of Common Shares". No separate consideration will be received for the common share purchase rights. (4) Warrants may be sold separately or with senior debt securities, subordinated debt securities, preference shares or common shares. (5) No separate consideration will be received for the senior debt securities, subordinated debt securities, preference shares or common shares issuable upon conversion of or in exchange for senior debt securities, subordinated debt securities or preference shares. In addition, no separate consideration will be received for any preference shares redeemed for subordinated debt securities in lieu of cash. (6) In United States dollars or the equivalent thereof in any other currency, currency unit or units, or composite currency or currencies. (7) Such amount represents the principal amount of any senior debt securities or subordinated debt securities issued at their principal amount, the issue price rather than the principal amount of any senior debt securities or subordinated debt securities issued at an original issue discount, the liquidation preference of any preference shares, the amount computed pursuant to Rule 457(c) for any common stock, the issue price of any warrants and the exercise price of any securities issuable upon exercise of warrants. (8) Estimated solely for the purpose of computing the registration fee. (9) Exclusive of accrued interest and distributions, if any. (10) Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act. ___________________ 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 THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ________________________________________________________________________________ The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. Subject to Completion. Dated April 10, 2002. PROSPECTUS ALCAN INC. $1,000,000,000 SENIOR DEBT SECURITIES SUBORDINATED DEBT SECURITIES PREFERENCE SHARES COMMON SHARES WARRANTS ___________________ Alcan Inc. intends to offer at one or more times separately or in combination debt securities, equity securities and warrants with a total offering price not to exceed $1,000,000,000. 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. Alcan Inc. may sell the securities to or through underwriters, and also to other purchasers or through agents. The names of the underwriters or agents will be set forth in supplements to this prospectus. Alcan Inc.'s common shares are listed on the New York Stock Exchange and The Toronto Stock Exchange under the symbol "AL". ___________________ NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY HAS APPROVED OR DISAPPROVED OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. Prospectus dated April 10, 2002. TABLE OF CONTENTS Forward-Looking Statements.................................................... 3 About this Prospectus......................................................... 3 Where You Can Find More Information........................................... 4 About Alcan Inc............................................................... 5 Use of Proceeds............................................................... 5 Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and Preferred Stock Dividends...................................... 5 Description of Debt Securities................................................ 6 Description of Share Capital..................................................19 Description of Preference Shares..............................................19 Description of Common Shares..................................................22 Description of Warrants.......................................................23 Tax Consequences..............................................................25 Experts.......................................................................25 Validity of Securities........................................................25 Plan of Distribution..........................................................25 FORWARD LOOKING STATEMENTS Some statements made or incorporated by reference in this prospectus are forward-looking statements. Terms such as "believes", "expects", "may", "will", "could", "should", "anticipates", "estimates" and "plans" and variations on terms such as these signify forward-looking statements. Because these forward-looking statements include risks and uncertainties, we caution you that actual results may differ materially from the results expressed in or implied by the statements. Adverse factors that could cause actual results or outcomes to differ from the results expressed or implied by forward-looking statements include, among other things: o changes in global aluminum supply and demand conditions; o changes in aluminum ingot prices; o changes in raw materials costs and availability; o cyclical demand and pricing within the principal markets for our products; o changes in government regulations, particularly those affecting environmental, health or safety compliance; o fluctuations in the supply of and prices for power in the areas in which we maintain production facilities; o the effect of integrating acquired businesses and the ability to attain expected benefits; o potential catastrophic damage, increased insurance and security costs and general uncertainties associated with the increased threat of terrorism; o the effect of international trade disputes on our ability to import materials, export our products and compete internationally; o economic, regulatory and political factors within the countries in which we operate or sell our products; and o factors affecting our operations, such as litigation, labor relations and fiscal regimes. We may note additional factors in this prospectus, in an accompanying prospectus supplement and in documents incorporated by reference into this prospectus and an accompanying prospectus supplement. We undertake no obligation to release publicly the results of any future revisions we may make to forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events. ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (SEC) utilizing a "shelf" registration, or continuous, 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 $1,000,000,000: o senior debt securities; o subordinated debt securities; o preference shares; o common shares (together with associated common shares purchase rights); and o warrants, rights or other securities exchangeable for or convertible into equity securities or debt securities. 3 The common shares and the preference shares are referred to as the equity securities; the senior debt securities and the subordinated debt securities are referred to as the debt securities; the equity securities, the debt securities and the warrants are referred to as the securities. Unless otherwise indicated, dollar amounts provided in this prospectus are denominated in U.S. dollars. This prospectus provides you with a general description of the securities. Each time we sell the securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. 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 documents 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 securities: o Annual Report on Form 10-K for the year ended December 31, 2001; and o those portions of Alcan Inc.'s Annual Report for the year ended December 31, 2001 and Management Proxy Circular for the annual meeting of shareholders to be held on April 25, 2002 that are expressly incorporated by reference in the Annual Report on Form 10-K. You may request a copy of these filings at no cost, by writing or calling us at the following address: Alcan Inc. 1188 Sherbrooke Street West Montreal, Quebec, Canada H3A 3G2 (514) 848-8000 Attention: Secretary Our common shares are traded on the New York Stock Exchange under the symbol "AL". You may inspect the reports and other information concerning us at the offices of the New York Stock Exchange, 11 Wall Street, New York, New York 10005. 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. Neither we nor any underwriter or agent will make an offer to sell these securities in any jurisdiction where the offer or sale 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 assume that the information appearing in this prospectus, as well as information we have previously filed with the SEC and incorporated by reference, is accurate only as of the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date. You should assume that the information appearing in a prospectus supplement, as well as information contained in a document incorporated by reference in a prospectus supplement, is accurate only as of the date of the prospectus supplement or incorporated document. 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 4 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. Roy Millington, Corporate Secretary, 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. ABOUT ALCAN INC. We are a Canadian corporation and the parent company of an international group operating in many aspects of the aluminium and speciality packaging businesses. Our operations include: o the mining and processing of bauxite, the basic aluminium ore; o the refining of bauxite into alumina; o the generation of electricity for use in smelting aluminium; o the smelting of aluminium from alumina; o the recycling of used and scrap aluminium; o the fabrication of aluminium, aluminium alloys and non-aluminium materials into semi-finished and finished products; o the production and conversion of specialty packaging and packaging products for many industries including the food, pharmaceutical, cosmetic, personal care and tobacco sectors; o the distribution and marketing of aluminium and non-aluminium packaging products; and o the production and sale of industrial chemicals. We have a network of operations in 38 countries with 50,000 dedicated employees, a global customer base, innovative products and advanced technologies. Our principal executive offices are located at 1188 Sherbrooke Street West, Montreal, Quebec, Canada H3A 3G2, and our telephone number is (514) 848-8000. Unless the context otherwise indicates, the terms "Alcan Inc." or "Alcan", "we", "us" or "our" mean Alcan Inc. and its controlled subsidiaries. USE OF PROCEEDS Unless otherwise indicated in an accompanying prospectus supplement, the net proceeds we will receive from the sale of the securities will be used for general corporate purposes. Unless otherwise indicated, funds that will not be used immediately for such purposes may be invested in short-term investments. 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, ----------------------------------- 2001 2000 1999 1998 1997(3) ---- ---- ---- ---- ------- Ratio of Earnings to Fixed Charges(1)(2) 1.09 5.54 5.88 5.87 7.13 Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends(1)(2) 1.05 5.07 5.30 5.23 6.30
5 - --------------- (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, and 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, and 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 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, ----------------------------------- 2001 2000 1999 1998 1997(3) ---- ---- ---- ---- ------- Ratio of Earnings to Fixed Charges 0.79 5.50 5.85 6.01 7.13 Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends 0.75 5.03 5.26 5.35 6.29
- --------------- (3) Ratios for the year 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 6 to the Consolidated Financial Statements in our Annual Report on Form 10-K for the fiscal year ended December 31, 2001, which is incorporated by reference into this prospectus. DESCRIPTION OF DEBT SECURITIES RANK AND UNSECURED STATUS We may issue senior or subordinated debt securities from time to time. Neither the senior debt securities nor the subordinated debt securities will be secured by any of our property or assets. Thus by owning a debt security, you are one of our unsecured creditors. The senior debt securities will constitute part of our senior debt and will rank equally with all of our other unsecured and unsubordinated debt. The subordinated debt securities will constitute part of our subordinated debt and will be subordinate in right of payment to all of our senior indebtedness, as that term is defined in the Indenture. The prospectus supplement for any series of subordinated debt securities will indicate the approximate amount of senior indebtedness outstanding as of the end of our most recent fiscal quarter. We will not be limited in our ability to subsequently incur additional senior indebtedness. We use the term debt securities in this prospectus to refer to both the senior debt securities and the subordinated debt securities. INDENTURE FOR 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 so supplemented, the Indenture), between us and Bankers Trust Company, as Trustee. The Indenture is a contract governed by the laws of the State of New York. 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 of which this prospectus forms a part. The Indenture contains the full legal text of the matters described in this section describing its terms. 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. 6 GENERAL PROVISIONS The prospectus supplement relating to any series of the debt securities being offered will include specific terms relating to the debt securities offered. These terms will include some or all of the following: o whether the debt securities are senior debt securities or subordinated debt securities o the series designation of the debt securities; o the total principal amount of the debt securities; o the percentage of the principal amount at which the debt securities will be issued; o the date or dates on which the debt securities will mature; o 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; o the times on which the interest, if any, on the debt securities will be payable; o if interest payments are subject to interest deferral provisions, specific information about such deferral provisions; o if we may pay interest or principal through issuances of equity or debt securities, a description of such terms; o the record dates for payments of interest, if any, and principal; o provisions for a sinking, purchase or other similar fund, if any; o the date or dates or circumstances if any, triggering the right to redeem the debt securities at our option or the option of the holder, and the redemption price or prices; o if the debt securities may be converted into or exercised or exchanged for our common shares or preferred shares or any other of our securities, the terms on which conversion, exercise or exchange may occur, including whether conversion, exercise or exchange is mandatory, at the option of the holder or at our option, the period during which conversion, exercise or exchange may occur, the initial conversion, exercise or exchange price or rate and the circumstances or manner in which the amount of common shares or preferred shares or other securities issuable upon conversion, exercise or exchange may be adjusted; and o 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. Unless otherwise indicated in a prospectus supplement, 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, in New York, New York. The payment of interest, if any, may be made at our option by our mailing a check to the person entitled to receive the interest at the address listed in the debt security register. (Section 3.1) 7 We will establish a record date for the payment of interest, if any, on the debt securities of each series. If no record date is established and interest payment dates fall on the first day of a calendar month, the record date will be the fifteenth day of the calendar month preceding the interest payment date. If no record date is established and interest payment dates fall on the fifteenth day of a calendar month, the record date will be the first day of the calendar month. (Section 2.7) WE ARE NOT LIMITED FROM ISSUING ADDITIONAL DEBT AND OTHER SECURITIES The Indenture does not limit other indebtedness or securities which we may issue, under the Indenture or otherwise, and contains no financial or similar restrictions on us except as described below. The Indenture does not limit our ability to occur additional indebtedness senior to any subordinated debt securities we may issue. FORM AND EXCHANGE Unless otherwise indicated in a prospectus supplement, we will 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 debt securities in this form here and in the prospectus supplement as book-entry only. If specified in the related prospectus supplement, a holder of a series of offered debt securities may also hold its debt securities through Clearstream or Euroclear in Europe, if it is a participant of these systems, or through such other clearing systems as may specify. 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. Unless otherwise indicated in a prospectus supplement, senior debt securities in certificated form will be issued only in increments of $1,000 and subordinated debt securities in certificated form will be issued only in increments of $25 and multiples of $25. Debt securities multiples of $1,000 and will be exchangeable without charge except for reimbursement of taxes or other governmental charges, if any. We will refer to debt securities in this form in the prospectus supplement as certificated. BOOK-ENTRY ONLY PROCEDURES CLEARANCE AND SETTLEMENT THROUGH DTC We may issue the debt securities contemplated by this prospectus in the form of one or more fully registered global securities, which represent offered securities. These global securities will be deposited with DTC and registered in the name of its nominee. The global securities are traded in units which are beneficial interests representing fractional portions of the global security. DTC (or its nominee) will hold each global security in book-entry form, as described below, for the benefit of institutions that have accounts with DTC (participants). DTC has advised us that it is: o a limited-purpose trust company organized under the laws of the state of New York; o a member of the Federal Reserve System; o a "clearing corporation" within the meaning of the New York Uniform Commercial Code; and o a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions among its participants through electronic book-entry changes in participants' accounts. DTC's participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom (and/or their representatives) own DTC. Others, such as banks, brokers, dealers and trust companies that either directly or indirectly clear through or maintain a collateral relationship with a participant, also have access to DTC's book-entry system. DTC administers its book-entry system in accordance with its rules and bylaws and legal requirements. 8 When a global security representing offered securities are issued, DTC will credit (on its book-entry registration and transfer system) the principal amount to participants' accounts, in varying amounts as subscribed by the participants. DTC will maintain ownership records for participants' interests, and the participants will maintain a collateral relationship with a participant, also have access to DTC's book-entry system. DTC administers its book-entry system in accordance with its rules and bylaws and legal requirements. So long as DTC (or its nominee) is the registered holder of a global security, DTC (or its nominee) will be considered, for all purposes the sole owner and holder of the related securities. Except as described below, you will not be entitled to: o have the securities registered in your name; or o receive physical delivery of your securities in definitive form. The laws of some jurisdictions may require that certain purchasers take physical delivery of securities in definitive form. These laws may restrict or prevent the transfer of beneficial interests in a global security. Each person owning a beneficial interest in a global security must rely on DTC's procedures (and, if that person holds through a participant, on the participant's procedures) to exercise any rights of a holder of offered securities under the global security or the indentures. The indentures provide that DTC may grant proxies and otherwise authorize participants to take any action which DTC is entitled to take under the indentures or the global security. We understand that under existing industry practice, if we request any action of holders, or an owner of a beneficial interest in a global security desires to take any action, that DTC (as the holder of the global security) is entitled to take, DTC would authorize the participants to take that action and the participants would authorize the beneficial owners to take the action or would otherwise act upon the instructions of the beneficial owners. We will make payments to DTC. We expect that when DTC receives any payment, it will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests. We also expect that payments by participants to owners of beneficial interests in a global security held through them will be governed by standing instructions and customary practices (as is the case with securities held by brokers for customers' accounts in street name). If we redeem the securities represented by any global security, we will notify DTC of the redemption and will make final payment to DTC. We expect that DTC and the participants will in turn notify the respective beneficial holders and distribute payment to them accordingly. We or any trustee will not be responsible or liable for: o any aspect of the records relating to, or payments made on account of, beneficial ownership interests in a global security for any securities; o the maintenance, supervision, or review of any records relating to any beneficial ownership interests; o any other aspect of the relationship between DTC and its participants; or o the relationship between the participants and the beneficial owners. The global securities may not be transferred except as a whole between DTC and its nominee, unless they are exchanged for global securities of the same aggregate denomination to be registered in DTC's or its nominee's name, or unless they are exchanged in whole or in part for certificated securities in definitive form. The securities of any series represented by a global security may be exchanged for certificated securities in definitive form only if: o DTC notifies us that it is unwilling or unable to continue as depositary for the global security or if at any time it ceases to be a clearing agency registered under the Securities Exchange Act of 1934; o we notify the Trustee that we have decided not to have the securities of that series represented by a global security; or o an event of default has occurred and is continuing with respect to the debt securities. If there is such an exchange, we will issue certificated securities in authorized denominations and registered in such names as DTC directs. 9 CLEARANCE AND SETTLEMENT THROUGH CLEARSTREAM, EUROCLEAR AND OTHER CLEARING SYSTEMS Unless otherwise indicated in a prospectus supplement, the following information will apply if we use book entry systems operated by Clearstream Banking, Societe Anonyme, Euroclear Bank S.A./N.V. or any other clearing system for any series of debt securities in addition to or instead of DTC. In addition to or in lieu of DTC we may use book-entry systems operated by Clearstream Banking, Societe Anonyme, or Clearstream, Luxembourg, in Luxembourg and Euroclear Bank S.A./N.V., or Euroclear, in Brussels, Belgium. These systems have established electronic securities and payment transfer, processing depositary and custodial links among themselves, DTC and others, either directly or through custodians and depositaries. These links allow securities to be issued, held and transferred among the clearing systems without the physical transfer of certificates. Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market. Where payments for debt securities we issue in global form will be made in U.S. dollars, these procedures can be used for cross-market transfers and the securities will be cleared and settled on a delivery against payment basis. Global securities will be registered in the name of a nominee for, and accepted for settlement and clearance by, one or more of, Euroclear, Clearstream, Luxembourg or any other clearing system identified in the applicable prospectus supplement. Cross-market transfers of debt securities that are not in global form may be cleared and settled in accordance with other procedures that may be established among the clearing systems for these securities. Investors in debt securities that are issued outside of the United States, its territories and possessions must initially hold their interests through Euroclear, Clearstream, Luxembourg or the clearance system that is described in the applicable prospectus supplement. The policies of DTC, Clearstream, Luxembourg and Euroclear will govern payments, transfers, exchange and other matters relating to the investors' interests in securities held by them. This will also be the case for any other clearance system that may be named in a prospectus supplement. Euroclear and Clearstream, Luxembourg hold interests on behalf of their participants through customers' securities accounts in Euroclear's and Clearstream, Luxembourg's names on the books of their respective depositaries which, in the case of securities for which a global security in registered form is deposited with DTC, in turn hold such interests in customers' securities accounts in the depositaries' names on the books of DTC. We have no responsibility for any aspect of the actions of DTC, Clearstream, Luxembourg or Euroclear or any of their direct or indirect participants. We have no responsibility for any aspect of the records kept by DTC, Clearstream, Luxembourg or Euroclear or any of their direct or indirect participants. We also do not supervise these systems in any way. This is also the case for any other clearing system indicated in a prospectus supplement. Clearstream, Luxembourg, Euroclear and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. You should be aware that they are not obligated to perform these procedures and may modify them or discontinue them at any time. The description of the clearing systems in this section reflects our understanding of the rules and procedures of Clearstream, Luxembourg and Euroclear as they are currently in effect. Those systems could change their rules and procedures at any time. CLEARSTREAM, LUXEMBOURG With respect to Clearstream, Luxembourg our understanding is as follows: o Clearstream, Luxembourg is a duly licensed bank organized as a societe anonyme incorporated under the laws of Luxembourg and is subject to regulation by the Luxembourg Commission for the supervision of the financial sector (Commission de surveillance du secteur financier.) 10 o Clearstream, Luxembourg holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through electronic book-entry transfers between the accounts of its customers. This eliminates the need for physical movement of the certificates. o Clearstream, Luxembourg provides other services to its customers, including safekeeping, administration, clearance and settlement of internationally traded securities and lending and borrowing of securities. It interfaces with the domestic markets in over 30 countries through established depositary and custodial relationships. o Clearstream, Luxembourg's customers include worldwide securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other professional financial intermediaries. Its U.S. customers are limited to securities brokers and dealers and banks. o Indirect access to the Clearstream, Luxembourg system is also available to others that clear through Clearstream, Luxembourg customers or that have custodial relationships with its customers, such as banks, brokers, dealers and trust companies. EUROCLEAR With respect to Euroclear our understanding is as follows: o Euroclear is incorporated under the laws of Belgium as a bank and is subject to regulation by the Belgian Banking and Finance Commission (Commission Bancaire et Financiere) and the National Bank of Belgium (Banque Nationale de Belgique). o Euroclear holds securities for its participants and facilitates the clearance and settlement of securities transactions among them. It does so through simultaneous electronic book-entry delivery against payments, thereby eliminating the need for physical movement of certificates. o Euroclear provides other services to its participants, including credit, custody, lending and borrowing of securities and tri-party collateral management. It interfaces with the domestic markets of several countries. o Euroclear customers include banks, including central banks, securities brokers and dealers, banks, trust companies and clearing corporations and certain other professional financial intermediaries. o Indirect access to the Euroclear system is also available to others that clear through Euroclear customers or that have custodial relationships with Euroclear customers. o All securities in Euroclear are held on a fungible basis. This means that specific certificates are not matched to specific securities clearance accounts. OTHER CLEARING SYSTEMS We may choose any other clearing system for a particular series of debt securities. The clearance and settlement procedures for the clearing system we choose will be described in the applicable prospectus supplement. PRIMARY DISTRIBUTION The distribution of the debt securities will be cleared through one or more of the clearing systems that we have described above or any other clearing system that is specified in the applicable prospectus supplement. Payment for securities will be made on a delivery versus payment or free delivery basis. These payment procedures will be more fully described in the applicable prospectus supplement. Clearance and settlement procedures may vary from one series of debt securities to another according to the currency that is chosen for the specific series of securities. Customary clearance and settlement procedures are described below. We will submit applications to the relevant system or systems for the securities to be accepted for clearance. The clearance numbers that are applicable to each clearance system will be specified in the prospectus supplement. CLEARANCE AND SETTLEMENT PROCEDURES We understand that investors that hold their debt securities through Euroclear or Clearstream, Luxembourg accounts will follow the settlement procedures that are applicable to conventional Eurobonds in registered form. 11 Debt securities will be credited to the securities custody accounts of Euroclear and Clearstream, Luxembourg participants on the business day following the settlement date, for value on the settlement date. They will be credited either free of payment or against payment for value on the settlement date. SECONDARY MARKET TRADING TRADING BETWEEN EUROCLEAR AND/OR CLEARSTREAM, LUXEMBOURG PARTICIPANTS We understand that secondary market trading between Euroclear and/or Clearstream, Luxembourg participants will occur in the ordinary way following the applicable rules and operating procedures of Euroclear and Clearstream, Luxembourg. Secondary market trading will be settled using procedures applicable to conventional Eurobonds in registered form. TRADING BETWEEN A DTC SELLER AND A EUROCLEAR OR CLEARSTREAM, LUXEMBOURG PURCHASER A purchaser of debt securities that are held in the account of a DTC participant must send instructions to Euroclear or Clearstream, Luxembourg at least one business day prior to settlement. The instructions will provide for the transfer of the securities from the selling DTC participant's account to the account of the purchasing Euroclear or Clearstream, Luxembourg participant. Euroclear or Clearstream, Luxembourg, as the case may be, will then instruct the common depositary for Euroclear or Clearstream, Luxembourg to receive the securities either against payment or free of payment. The interests in the securities will be credited to the respective clearing system. The clearing system will then credit the account of the participant, following its usual procedures. Credit for the securities will appear on the next day, European time. Cash debit will be back-valued to, and the interest on the securities will accrue from, the value date, which would be the preceding day, when settlement occurs in New York. If the trade fails and settlement is not completed on the intended date, the Euroclear or Clearstream, Luxembourg cash debit will be valued as of the actual settlement date instead. Euroclear participants or Clearstream, Luxembourg participants will need the funds necessary to process same-day funds settlement. The most direct means of doing this is to pre-position funds for settlement, either from cash or from existing lines of credit, as for any settlement occurring within Euroclear or Clearstream, Luxembourg. Under this approach, participants may take on credit exposure to Euroclear or Clearstream, Luxembourg until the securities are credited to their accounts one business day later. As an alternative, if Euroclear or Clearstream, Luxembourg has extended a line of credit to them, participants can choose not to pre-position funds and will instead allow that credit line to be drawn upon to finance settlement. Under this procedure, Euroclear participants or Clearstream, Luxembourg participants purchasing securities would incur overdraft charges for one business day (assuming they cleared the overdraft as soon as the securities were credited to their accounts). However, interest on the debt securities would accrue from the value date. Therefore, in many cases, the investment income on securities that is earned during that one business day may substantially reduce or offset the amount of the overdraft charges. This result will, however, depend on each participant's particular cost of funds. Because the settlement will take place during New York business hours, DTC participants will use their usual procedures to deliver securities to the depositary on behalf of Euroclear participants or Clearstream, Luxembourg participants. The sale proceeds will be available to the DTC seller on the settlement date. For the DTC participants, then, a cross-market transaction will settle no differently than a trade between two DTC participants. SPECIAL TIMING CONSIDERATIONS You should be aware that investors will only be able to make and receive deliveries, payments and other communications involving the debt securities through Clearstream, Luxembourg and Euroclear on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States. In addition, because of time-zone differences, there may be problems with completing transactions involving Clearstream, Luxembourg and Euroclear on the same business day as in the United States. U.S. investors who wish to transfer their interests in the debt securities, or to receive or make a payment or delivery of the debt securities, on a particular day, may find that the transactions will not be performed until the next business day in Luxembourg or Brussels, depending on whether Clearstream, Luxembourg or Euroclear is used. 12 INDENTURE COVENANTS The Indenture contains promises by us, called "covenants" for the benefit of the holders of the debt securities. The covenants described under the headings "Limitations on Liens" and "Limitation on Sale Leaseback Transactions" are made for the benefit of holders of our senior debt securities only. THE HOLDERS OF OUR SUBORDINATED DEBT SECURITIES WILL NOT RECEIVE THE BENEFITS OF THESE COVENANTS. LIMITATIONS ON LIENS We have agreed in the Indenture 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: o the giving or assumption of any Purchase Money Mortgage; o 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; o mortgages on property, capital stock or Indebtedness of a corporation existing at the time the corporation becomes a Subsidiary; o 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; o 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 o 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) 13 DEFINED TERMS The following terms used above have the following meanings. (Section 1.1): "Attributable Debt" means the present value of rents during the remaining term of leases. "Indebtedness" means: o all indebtedness for the repayment of money borrowed; o all liabilities under leases which must be capitalized under generally accepted accounting principles in Canada on the lessee's balance sheet; and o 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. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS The Indenture imposes restrictions on our ability to enter into sale 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: o 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"; 14 o 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 o 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) SUBORDINATION PROVISIONS Direct holders of subordinated debt securities should recognize that contractual provisions in the Indenture may prohibit us from making payments on those securities. Subordinated debt securities are subordinate and junior in right of payment, to the extent and in the manner stated in the Indenture, to all of our senior indebtedness, as defined in the Indenture, including all of the senior debt securities we have issued and will issue under the Indenture. Under the Indenture, "senior indebtedness" includes all of our obligations to pay principal, premium, interest, penalties, fees and other charges: o for borrowed money; o in the form of or evidenced by other instruments, including obligations incurred in connection with our purchase of property, assets or businesses; o under capital leases; o under letters of credit, bankers' acceptances or similar facilities; o issued or assumed in the form of a deferred purchase price of property or services, such as master leases; o under swaps and other hedging arrangements; o pursuant to our guarantee of another entity's obligations and all dividend obligations guaranteed by us; and o to satisfy the expenses and fees of the Trustee under the Indenture. The following types of our indebtedness will not rank senior to the subordinated debt securities: o indebtedness we owe to a subsidiary of ours; o indebtedness which, by its terms, expressly provides that it does not rank senior to the subordinated debt securities; o indebtedness incurred in the form of trade accounts payable or accrued liabilities arising in the ordinary course of business; and o indebtedness we may incur in violation of the Indenture. 15 The Indenture provides that, unless all principal of and any premium or interest on the senior indebtedness has been paid in full, no payment or other distribution may be made in respect of any subordinated debt securities in the following circumstances: o in the event of any insolvency or bankruptcy proceedings, or any receivership, liquidation, reorganization, assignment for creditors or other similar proceedings or events involving us or our assets; or o (1) in the event and during the continuation of any default in the payment of principal, premium, if any, or interest on any senior indebtedness beyond any applicable grace period or (2) in the event that any event of default with respect to any senior indebtedness has occurred and is continuing, permitting the direct holders of that senior indebtedness (or a trustee) to accelerate the maturity of that senior indebtedness, whether or not the maturity is in fact accelerated (unless, in the case of (1) or (2), the payment default or event of default has been cured or waived or ceased to exist and any related acceleration has been rescinded) or (3) in the event that any judicial proceeding is pending with respect to a payment default or event of default described in (1) or (2). If the Trustee under the Indenture or any direct holders of the subordinated debt securities receive any payment or distribution that is prohibited under the subordination provisions, then the Trustee or the direct holders will have to repay that money to the direct holders of our senior indebtedness. Even if the subordination provisions prevent us from making any payment when due on the subordinated debt securities of any series, we will be in default on our obligations under that series if we do not make the payment when due. This means that the Trustee under the Indenture and the direct holders of that series can take action against us, but they will not receive any money until the claims of the direct holders of senior indebtedness have been fully satisfied. 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: o we are not in default under any covenant or provision under the Indenture, and o the person or successor corporation, which must be organized under the laws of Canada or any Province, the United States or any State or the District of Columbia, 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: o failure to pay interest on that series of debt securities for 30 days after payment is due; o 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; o failure to perform any other covenants or agreements in the Indenture for the benefit of the holders of the applicable series for 90 days after we are given notice of the failure; and o certain events of bankruptcy, insolvency and reorganization relating to us. (Section 5.1) 16 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) The Indenture provides that: o 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 o 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) Investors holding debt securities in book entry form should consult with their banks or brokers for information on how to give notice or direction to or make a request of the trustee and to make or cancel a declaration of acceleration. 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: o 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 o 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: o will not recognize income, gain or loss for federal income tax purposes as a result of defeasance or covenant defeasance, and 17 o 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) 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: o 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 o 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: o to secure the debt securities; o 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; o to add to the covenants contained in the Indenture and to add any additional Events of Default; o 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; o to establish the form or terms of debt securities of any series; and o 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 corporate trust and commercial banking services for us and our subsidiaries from time to time in the normal course of business and also makes loans to us and our subsidiaries. In addition, we have two-long-term, global, multi-year and multi-currency borrowing facilities with a syndicate of major international 18 banks each amounting to $1 billion. Deutsche Bank, the parent of Bankers Trust Company, Trustee has a $30 million participation under one long-term facility and has a $50 million participation under the other long-term facility. As of March 31, 2002 we did not have any amounts outstanding under either facility. Bankers Trust is currently trustee of four series of outstanding senior debt securities issued under the Indenture in an aggregate principal amount of $1.1 billion. Under the Trust Indenture Act of 1939, upon the occurrence of a default under any series of debt securities under the Indenture, if the Trustee has a conflicting interest, as defined in the Trust Indenture Act, the Trustee must, within 90 days, either eliminate the conflicting interest or resign, unless the default is cured, waived or otherwise eliminated within the 90-day period. Under the Trust Indenture Act, the Trustee will be considered to have a conflicting interest if the Trustee is a creditor of Alcan Inc. In addition, in the event we have outstanding one or more series of senior debt securities and subordinated debt securities for which the Trustee acts as trustee and a default occurs under the terms of either or both types of series, the Trustee would be considered to have a conflicting interest under the Trust Indenture Act and would be required to resign as trustee under either the senior debt securities or the subordinated debt securities. If the Trustee fails to either eliminate the conflicting interest or to resign within ten days after the expiration of the 90 day period, the Trustee will be required to notify the holders to this effect and any holder who has been a bona fide holder for at least six months may petition a court to remove the Trustee and to appoint a successor trustee. DESCRIPTION OF SHARE CAPITAL OUTSTANDING SERIES OF SHARE CAPITAL
Authorized Outstanding* ---------- ------------ Common Shares unlimited 321,104,209 Preference Shares, issuable in series, of which the following series are outstanding: unlimited 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
- --------------- * As at March 31, 2002. AUTHORIZED CAPITAL We may issue an unlimited number of additional Common Shares and preference shares from time to time upon approval by our Board of Directors for such consideration as the Board of Directors decides appropriate, without the need of further shareholder authorization. However, the Board of Directors 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 our Common shareholders, given by way of special resolution. DESCRIPTION OF PREFERENCE SHARES DESCRIPTION OF TERMS OF PREFERENCE SHARES WE MAY OFFER The terms of each series of preference shares will be determined by the Board of Directors prior to issuance. The Board of Directors may not 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 holders of our common shares, given in the form of a special resolution. Unless otherwise indicated in a prospectus supplement, all preference shares to be issued from time to time under this Prospectus will be fully paid and nonassessable. The prospectus supplement relating to the particular series of preference shares will contain a description of the specific terms of that series as fixed by our board of directors, including, as applicable: o the offering price at which we will issue the preference shares; o the title, designation of number of shares and stated value of the preference shares; 19 o the dividend rate or method of calculation, the payment dates for dividends and the place or places where the dividends will be paid, whether dividends will be cumulative or noncumulative, and, if cumulative, the dates from which dividends will begin to cumulate; o any conversion or exchange rights; o whether the preference shares will be subject to redemption and the redemption price and other terms and conditions relative to the redemption rights; o any liquidation rights; o any sinking fund provisions; o any voting rights; and o any other rights, preferences, privileges, limitations and restrictions that are not inconsistent with the terms of our restated articles of incorporation. REDEMPTION If so specified in the applicable prospectus supplement, a series of preference shares may be redeemable at any time, in whole or in part, at our option or the holder's, and may be mandatorily redeemed by us. Any restriction on the repurchase or redemption by us of our preference shares while we are in arrears in the payment of dividends will be described in the applicable prospectus supplement. Any partial redemptions of preference shares will be made in the discretion of our board of directors. Unless we default in the payment of the redemption price, dividends will cease to accrue after the redemption date on preference shares called for redemption and all rights of holders of these shares will terminate except for the right to receive the redemption price. DIVIDENDS Holders of each series of preference shares will be entitled to receive dividends when, as and if declared by our board of directors from funds legally available for payment of dividends. The rates and dates of payment of dividends will be set forth in the applicable prospectus supplement relating to each series of preference shares. Dividends will be payable to holders of record of preference shares as they appear on our books on the record dates fixed by the board of directors. Dividends on any series of preference shares may be cumulative or noncumulative, as set forth in the applicable prospectus supplement. We may not declare, pay or set apart funds for payment of dividends on a particular series of preference shares unless full dividends on any other series of preference shares that ranks equally with or senior to the series of preference shares have been paid or sufficient funds have been set apart for payment for either of the following: o all prior dividend periods of the other series of preference shares that pay dividends on a cumulative basis; or o the immediately preceding dividend period of the other series of preference shares that pay dividends on a noncumulative basis. Partial dividends declared on shares of any series of preference shares and other series of preference shares ranking on an equal basis as to dividends will be declared pro rata. A pro rata declaration means that the ratio of dividends declared per share to accrued dividends per share will be the same for each series of preference shares. CONVERSION OR EXCHANGE RIGHTS The prospectus supplement relating to any series of preference shares that is convertible, exercisable or exchangeable will state the terms on which shares of that series are convertible into or exercisable or exchangeable for our common shares, another series of our preference shares or our other securities or debt or equity securities of third parties. LIQUIDATION PREFERENCE In the event of our voluntary or involuntary liquidation, dissolution or winding-up, holders of each series of our preference shares will have the right to receive distributions upon liquidation in the amount described in the applicable prospectus supplement relating to each series of preference shares, plus an amount equal to any accrued and unpaid dividends. These distributions will be made before any distribution is made on the common stock or on any securities ranking junior to the preference shares upon liquidation, dissolution or winding-up. 20 If the liquidation amounts payable relating to the preference shares of any series and any other securities ranking on a parity regarding liquidation rights are not paid in full, the holders of the preference shares of that series and the other securities will have the right to a ratable portion of our available assets, up to the full liquidation preference of each security. Holders of these series of preference shares or other securities will not be entitled to any other amounts from us after they have received their full liquidation preference. VOTING RIGHTS The holders of shares of preference shares will have no voting rights, except: o as otherwise stated in the applicable prospectus supplement; o as otherwise stated in the certificate of designations establishing the series; or o as required by applicable law. SUMMARY OF SPECIFIC PROVISIONS OF OUTSTANDING PREFERENCE SHARES We currently have the following preference shares outstanding: Floating Rate Cumulative Redeemable Preference Shares Series C, 1984 and 1985 and Cumulative Redeemable Preference Shares Series E. The holders of each class 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 C$ 25 per share 25% 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 C$ 25 per share 25% of 75% of the average of the Canadian prime interest rates quoted by two major Canadian banks for stated periods. The holders of outstanding preference shares are not entitled to vote at meetings of shareholders unless we fail to pay six quarterly dividends on such preference shares. 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. All of our outstanding preference shares are fully paid and nonassessable. 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 C$ 25 per preference 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 outstanding preference shares are redeemable at our option at C$ 25 per preference share plus all accrued and unpaid dividends. Unless all dividends then payable on the outstanding preference shares have been declared and paid or set apart for payment, we will not (1) pay any dividends, other than stock dividends, or make any distributions on any shares ranking junior to the outstanding preference shares with respect to the payment of dividends or return of capital, (2) retire for value any shares ranking junior to the outstanding 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. The outstanding preference shares are listed on The Toronto Stock Exchange. The transfer agent for the outstanding preference shares is CIBC Mellon Trust Company. 21 DESCRIPTION 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 preferred securities issued in the future. The holders of Common Shares are entitled to one vote per Common Share at all meetings of Shareholders, to participate ratably in any dividends which may be declared on Common Shares by our Board of Directors and, in the event of our liquidation, dissolution or winding-up or other distribution of our assets or property, to a pro rata share of our assets after payment of all liabilities and obligations. The Common Shares have no pre-emptive, redemption or conversion rights. All of our outstanding Common Shares and all of our common shares to be issued from time to time under this prospectus will be fully paid and nonassessable. The provisions of the Canada Business Corporations Act (CBCA) 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. A quorum for any 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 certain 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. The transfer agents for the common shares are CIBC Mellon Trust Company in Canada, Mellon Investor Services L.L.C. in New York, and CIBC Mellon Trust Company in England. Shareholders are also entitled to rights and privileges under the shareholder rights plan summarized below. Shareholder Rights Plan In 1990, Shareholders approved a plan whereby each of our Common Shares carries one right to purchase additional Common Shares. The plan, with certain amendments, was reconfirmed by the Shareholders at the 1995 Annual Meeting, and further amendments were approved at the 1999 Annual Meeting. The terms of the rights are contained in an agreement called the Shareholder Rights Agreement, made as of December 14, 1989 between us and CIBC Mellon Trust Company, which is the rights agent under the agreement. The agreement is governed by the laws of Ontario and Canada. A copy of the plan, as amended to date, is attached as Schedule B of the Management Proxy Circular filed as Exhibit 99 to our Annual Report on Form 10-K for the year ended December 31, 1998. The rights expire in 2008, subject to re-confirmation at the Annual Meeting of Shareholders in 2002 and 2005. The rights under the plan are not currently exercisable, nor may they be separated from the common shares. Subject to specified exceptions and qualifications, on the tenth business day after the first to occur of: o the acquisition by a person or group of affiliated or associated persons of beneficial ownership of 20% or more of our outstanding voting shares; or o a bid to acquire 20% or more of our outstanding voting shares, holders of rights, with the exception of the acquiring or bidding party, will be entitled to purchase from us, upon payment of the exercise price (currently U.S.$200.00), the number of common shares that can be purchased for double the exercise price, based on the market value of our common shares at the time the rights become exercisable. At and after such time the rights will also be transferable separately from the common shares. The exercise price mentioned above is subject to adjustment according to the terms of the rights plan to account for, among other things, adjustments to our common shares such as stock splits, stock dividends and distributions to shareholders. The rights agreement has a permitted bid feature which allows a take-over bid to proceed without the rights becoming exercisable, provided that the bid meets specified minimum specified standards of fairness and disclosure, even if our Board of Directors does not support the bid. The rights may be redeemed by our Board of Directors prior to the expiration or reauthorization of the rights agreement, with the prior consent of the holders of rights or common shares, for U.S.$0.01 per right. In addition, under specified conditions, our Board of Directors may waive the application of the rights agreement for particular share acquisitions or take-over bids, and in that event the Board will be deemed to have elected to redeem the rights at U.S.$0.01 per right. 22 DESCRIPTION OF WARRANTS GENERAL We may from time to time offer warrants in one or more series to purchase our common shares, preference shares or debt securities, or any combination of these instruments. We may offer warrants either alone or together with the underlying instruments, and the warrants may be attached or separate from the underlying instruments. Each series of warrants will be issued under a separate warrant agreement, which, together with the warrants themselves, will contain the terms of the warrants. Each warrant agreement will be between us and a warrant agent we will retain for the applicable series of warrants. The warrant agent will act exclusively as our agent in connection with the warrants of the applicable series and will not have any obligation or relationship of agency for or with the holders or beneficial owners of the warrants. The following describes some of the general terms and provisions of the warrants we may offer. Additional terms of the warrants and the applicable warrant agreement will be described in the applicable prospectus supplement. The following description of the terms of the warrants and the supplemental description contained in a prospectus supplement may not be complete and is subject to and qualified in its entirety by reference to the terms of the applicable warrant agreement. We have included a form of warrant agreement as an exhibit to the registration statement of which this prospectus forms a part. The prospectus supplement relating to a series of warrants will describe the terms of the series of warrants, including the following: o the series designation of the warrants; o the price or prices at which the warrants will be offered; o the total number of warrants to be offered; o the designation and the terms of the securities to be purchased on exercise of the warrants; o the date on which the right to purchase the underlying securities will begin, and the date on which the purchase right will expire; o the exercise price of the securities to be purchased on exercise of the warrants; o information about the warrant agent; o the procedures and conditions for exercising the warrants; o if applicable, information with respect to book-entry procedures; o if applicable, the minimum or maximum number of warrants that may be exercised by an individual beneficial holder, or by all beneficial holders, at any one time; o if applicable, the designation and the terms of the underlying securities with which the warrants are issued and the number of warrants issued with each underlying security; 23 o if applicable, the date on and after which the warrants and the related underlying securities will be separately transferable; o the governing law of the warrants and warrant agreement, if other than the law of the State of New York; o if applicable, any anti-dilution provisions; and o any other terms of the warrants, including terms, procedures limitations and conditions relating to the exchange and exercise of the warrants. Unless otherwise indicated in a prospectus supplement, we will issue warrants in fully registered form only. The warrants will be exercisable only for cash. Warrant certificates may be exchanged for new warrant certificates of different denominations, and warrants may be exercised at the warrant agent's corporate trust office or at any other office designated for such purpose as provided in the applicable prospectus supplement. Holders of warrants prior to exercise of the applicable purchase right will be holders of the warrants alone and will not be considered holders of the underlying securities. As a result, holders of warrants prior to exercise will not have any of the rights of holders of the underlying equity or debt securities purchasable upon exercise, and will not be entitled to payments of principal (or premium, if any) or interest, if any, or voting or other rights on any underlying debt securities, and will not be entitled to dividend, if any, voting or other rights of the common or preference shares for which the warrants may be exercised. WARRANT EXERCISE Each series of warrants will entitle the holder to purchase for cash a number of underlying securities at an exercise price that will be stated in, or determined as described in, the prospectus supplement for the series. Warrants may be exercised at any time up until the close of regular business hours on the expiration date set forth in the applicable prospectus supplement. After the close of business on the applicable expiration date the warrants will be void and will no longer be exercisable for purchase of the underlying securities. Warrants will be exercisable as described in the applicable prospectus supplement. Upon receipt of payment and the properly completed and duly executed warrant certificate at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement as the location for warrant certificate presentment and exercise, we will, as soon as practicable, forward the securities purchasable upon exercise of the warrants. If a holder decides to exercise fewer than all of the warrants represented by the warrant certificate, we will issue to the holder a new warrant certificate representing the remaining warrants. ENFORCEABILITY OF RIGHTS AND GOVERNING LAW The holders of warrants may, on their own behalf and for their own benefit, without the consent of the warrant agent, enforce, and may institute and maintain any suit, action or proceeding against us to enforce, their rights to exercise and receive the securities purchasable upon exercise of their warrants. Unless otherwise stated in the applicable prospects supplement, each series of warrants and the applicable warrant agreement will be governed by the laws of the State of New York. 24 TAX CONSEQUENCES Where appropriate, the applicable prospectus supplement will describe the Canadian tax considerations, Quebec tax considerations and U.S. federal income tax considerations relevant to the securities being offered. 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, 2001 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. VALIDITY OF SECURITIES Roy Millington, our Corporate Secretary, will pass upon the validity of the equity securities. In connection with particular offerings of debt securities and warrants in the future, the validity of the debt securities and warrants will be passed upon by Roy Millington, as to certain matters of Canadian law and applicable matters of Quebec law, and by Sullivan & Cromwell, New York, New York, as to certain matters of New York law. 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 in one or more of the following ways from time to time: o through underwriters or dealers; o through agents; or o directly to one or more purchasers. The offered securities may be distributed periodically in one or more transactions at: o a fixed price or prices, which may be changed; o market prices prevailing at the time of sale; o prices related to the prevailing market prices; or o negotiated prices. The prospectus supplement will include: o the initial public offering price; o the names of any underwriters, dealers or agents; o the purchase price of the securities; o our proceeds from the sale of the securities; o any underwriting discounts or agency fees and other underwriters' or agents' compensation; o any discounts or concessions allowed or reallowed or paid to dealers; o the place and time of delivery of the securities; and o any securities exchange on which the securities may be listed. 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. 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. If dealers are utilized in the sale of the securities, we will sell the securities to the dealers as principals. The dealers may then resell the securities in the public at varying 25 prices to be determined by such 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. Each series of offered securities will be a new issue of securities and will have no established trading market, other than our common shares, which are principally listed on the New York Stock Exchange and the Toronto Stock Exchange. We will apply to list any common shares sold pursuant to a prospectus supplement on the New York Stock Exchange and the Toronto Stock Exchange. Other securities may or may not be listed on a national or foreign securities exchange or automated quotation system. Any underwriters or agents to whom securities are sold for public offering or sale may but are not required to make a market in the securities, and the underwriters or agents may discontinue making a market in the securities at any time. 26 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Securities and Exchange Commission registration fee $92,000 Trustee fees and expenses* $50,000 Rating agency fee* $1,000,000 Listing fees* $125,000 Printing and engraving* $200,000 Accounting fees* $200,000 Legal fees* $200,000 Miscellaneous* $83,000 Total* $2,000,000
* These expenses, all of which are to be incurred and satisfied by the Registrant in connection with the issuance and distribution of the securities being registered, have been estimated pursuant to the instructions to Item 511 of Regulation S-K, subject to future contingencies. Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Canada Business Corporations Act (the "Act"), the governing act to which Alcan Inc. (the "Corporation") is subject, provides that, (1) a corporation may indemnify a Director or Officer of the Corporation, a former Director or Officer of the Corporation or another individual who acts or acted at the Corporation's request as a Director or Officer or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the Corporation or other entity. (2) a corporation may advance moneys to a Director, Officer or other individual for the costs, charges and expenses of a proceeding referred to paragraph (1). However, the individual shall repay the moneys if he does not fulfil the following conditions: (3) a corporation may not indemnify an individual, unless the individual (a) acted honestly and in good faith with a view to the best interests of the Corporation, or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Corporation's request; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individual's conduct was lawful. (4) A Corporation may with the approval of a court indemnify a person referred to in paragraph (1), or advance moneys under paragraph (2), in respect of an action by or on behalf of the Corporation or other entity to procure a judgment in its favour, to which the individual is made a party because of the individual's association with the Corporation or other entity as described in paragraph (1) against all costs, charges and expenses reasonably incurred by the individual in connection with such action if the individual fulfils the conditions set out in paragraph (3). (5) Despite paragraph (1), an individual referred to in paragraph (1) is entitled to indemnity from the Corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual's association with the Corporation or other entity as described in paragraph (1), if the individual seeking II-1 indemnity: (a) was not judged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and (b) fulfils the conditions set out in paragraph (3). The Directors' Standing Resolution pertaining to indemnification of Directors and Officers of the Corporation 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: "17. (1) 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 of the Corporation or another individual who acts or acted at the Corporation's request as a Director or Officer or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the Corporation or other entity. (2) ADVANCE OF COSTS - The Corporation shall advance moneys to a Director, Officer or other individual for the costs, charges and expenses of a proceeding referred to in subsection (1). The individual shall repay the moneys if the individual does not fulfill the conditions of subsection (3). (3) LIMITATION - The Corporation may not indemnify an individual under subsection (1) unless the individual (a) 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 Corporation also has an insurance policy covering Directors and Officers of the Corporation 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 Corporation or its subsidiaries. ITEM 16. EXHIBITS 1.1 Form of Underwriting Agreement for debt securities. 1.2 Form of Underwriting Agreement for common stock.* 1.3 Form of Underwriting Agreement for preferred stock.* 1.4 From of Underwriting Agreement for warrants.* 4.1 Indenture dated as of May 15, 1983 between Alcan Inc. 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 Alcan Inc. 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 Alcan Inc. II-2 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 Alcan Inc. 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 Alcan Inc. 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 Alcan Inc. and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.6 to the Company's Registration Statement on Form S-3 (No 333-76535) filed with the Commission on April 19,1999). 4.7 Sixth Supplemental Indenture dated as of April 8, 2002 to the Indenture dated May 15, 1983 between Alcan Inc. and Bankers Trust Company, as Trustee. 4.8 Form of Seventh Supplemental Indenture to the Indenture dated May 15, 1983 between Alcan Inc. and Bankers Trust Company as Trustee. 4.9 Specimen Form of Debt Security (included in Exhibit 4.1). 4.10 Specimen Form of Common Share Certificate (incorporated by reference to Exhibit 4.2 to Alcan Inc.'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)). 4.11 Form of Warrant Agreement. 4.12 Specimen Form of Warrant Certificate (included in Exhibit 4.10). 4.13 Shareholder Rights Plan dated as of December 14, 1989, as amended and restated on April 24, 1995 and on April 22, 1999 between Alcan Inc. and CIBC Mellon Trust Company, as Rights Agent (incorporated by reference to Exhibit 1 to the Company's Form 8-A/A Amendment No. 3 filed with the Commission on April 22, 1999). 5.1 Opinion of Roy Millington, as to the legality of securities. 5.2 Opinion of Sullivan & Cromwell. 8.1 Opinion of Hugh Berwick, as to certain Canadian tax matters.* 8.2 Opinion of Sullivan & Cromwell regarding certain matters of United States federal income tax.* 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 Roy Millington (included in Exhibit 5.1). 23.3 Consent of Hugh Berwick (included in Exhibit 8.1).* 23.4 Consent of Sullivan & Cromwell (included in Exhibit 5.2). 24.1 Powers of Attorney executed by persons who signed this Registration Statement on behalf of Alcan Inc. II-3 25.1 Statement of Eligibility and Qualification on Form T-1 of Bankers Trust Company, as Trustee under the Indenture. * To be filed subsequently. 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 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 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 10th day of April, 2002. ALCAN INC. By: /s/ Travis Engen --------------------------------------- (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 --------- ----- ---- /s/ Travis Engen Director, President and Chief April 10, 2002 - ------------------------------------- Executive Officer Travis Engen (Principal Executive Officer) * Director - ------------------------------------- W.R.C. Blundell * Director April 10, 2002 - ------------------------------------- Clarence J. Chandran Director April 10, 2002 - ------------------------------------- Martin Ebner * Chairman of the Board April 10, 2002 - ------------------------------------- John R. Evans * Director April 10, 2002 - ------------------------------------ Willi Kerth * Director April 10, 2002 - ------------------------------------- Brian M. Levitt Director April 10, 2002 - ------------------------------------- J.E. Newall * Director April 10, 2002 - ------------------------------------ Guy Saint-Pierre * Director April 10, 2002 - ------------------------------------ Gerhard Schulmeyer * Director April 10, 2002 - ------------------------------------ Paul M. Tellier /s/ Geoffery Merszei Executive Vice President and April 10, 2002 - ------------------------------------ Chief Financial Officer Geoffery Merszei (Principal Financial Officer) /s/ Richard Genest Vice President and Controller April 10, 2002 - ------------------------------------ (Principal Accounting Officer) Richard Genest * Authorized Representative in April 10, 2002 - ------------------------------------ the United States of America William H. Jairrels * Authorized Representative in April 10, 2002 - ------------------------------------ the United States of America Gordon Becker *By: /s/ Roy Millington April 10, 2002 - ------------------------------------ Roy Millington as Attorney-in-fact
II-5 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE - ------- ----------- ---- 1.1 Form of Underwriting Agreement for debt securities. 1.2 Form of Underwriting Agreement for common stock.* 1.3 Form of Underwriting Agreement for preferred stock.* 1.4 Form of Underwriting Agreement for warrants.* 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 Alcan Inc. 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 Alcan Inc. 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 Alcan Inc. 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 Alcan Inc. 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 Alcan Inc. and Bankers Trust Company, as Trustee (incorporated by reference to Exhibit 4.6 to the Company's Registration Statement on Form S-3 (No 333-76535) filed with the Commission on April 19,1999). 4.7 Sixth Supplemental Indenture dated as of April 8, 2002 to the Indenture dated May 15, 1983 between Alcan Inc. and Bankers Trust Company, as Trustee. 4.8 Form of Seventh Supplemental Indenture to the Indenture dated May 15, 1983 between Alcan Inc. and Bankers Trust Company as Trustee. 4.9 Specimen Form of Debt Security (included in Exhibit 4.1). 4.10 Specimen Form of Common Share Certificate (incorporated by reference to Exhibit 4.2 to Alcan Inc.'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)). 4.11 Form of Warrant Agreement. 4.12 Specimen Form of Warrant Certificate (included in Exhibit 1.2). 4.13 Shareholder Rights Plan dated as of December 14, 1989, as amended and restated on April 24, 1995 and on April 22, 1999 between Alcan Inc. and CIBC Mellon Trust Company, as Rights Agent (incorporated by reference to Exhibit 1 to the Company's Form 8-A/A Amendment No. 3 filed with the Commission on April 22, 1999). 5.1 Opinion of Roy Millington. 5.2 Opinion of Sullivan & Cromwell. 8.1 Opinion of Hugh Berwick.* 8.2 Opinion of Sullivan & Cromwell regarding certain matters of United States federal income tax.* 12.1 Computation of ratios of earnings to fixed charges (generally accepted accounting principles in Canada).
II-6
EXHIBIT NO. DESCRIPTION PAGE - ------- ----------- ---- 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 Roy Millington (included in Exhibit 5.1). 23.3 Consent of Hugh Berwick (included in Exhibit 8.1).* 23.4 Consent of Sullivan & Cromwell (included in Exhibit 5.2). 24.1 Powers of Attorney executed by persons who signed this Registration Statement on behalf of Alcan Inc. 25.1 Statement of Eligibility and Qualification on Form T-1 of Bankers Trust Company, as Trustee under the Indenture.
* To be filed subsequently. II-7 EX-1.1 3 m06882orex1-1.txt EXHIBIT 1.1 EXHIBIT 1.1 [Managing Underwriters] Ladies and Gentlemen: Alcan Inc., 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. $1,000,000,000 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. If, prior to the execution and delivery of this Agreement, the Company has filed an abbreviated registration statement on Form S-3 to register additional Securities pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term the "REGISTRATION STATEMENT" shall be deemed to included such rule 462 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 ____________, 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 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. (b) You shall have received on and as of the Closing Date a favorable opinion of Roy Millington, 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) the Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company; (iv) 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; (v) 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; (vi) 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); (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 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; (ix) 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; (x) the statements in the Prospectus under the caption "Description of Debt Securities", in the Prospectus Supplement under the Caption "Description of the Debentures" and in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, 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; (xi) 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 material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (xii) 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 Hugh Berwick, Tax Counsel of the Company, to the effect that: (i) 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; and (ii) as of the Closing Date, their opinion as set forth in the Prospectus under the caption "Canadian Taxation" is true and correct. (d) You shall have received on and as of the Closing Date a favorable opinion or opinions and letter of Sullivan & Cromwell, United States counsel for the Company, 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; (ii) all regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company under the Federal laws of the United States for the issuance, sale and delivery of the Securities by the Company to you have been obtained or made; (iii) the issuance of the Securities will not result in a default under or breach of such specified material indentures and loan agreements governed by the laws of the State of New York as you shall reasonably request; (iv) assuming the Indenture has been duly authorized, executed and delivered by the Company insofar as the laws of Canada and of Quebec applicable laws are concerned, it has been duly executed and delivered by the Company, and constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (v) assuming the Securities have been duly authorized, executed, authenticated, issued and delivered by the Company insofar as the laws of Canada and applicable laws of Quebec are concerned, they have been duly executed, authenticated, issued and delivered by the Company, and constitute the valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; (vi) such counsel shall also state that they have reviewed the Registration Statement, the Prospectus and the prospectus supplement and participated in discussions with representatives of the Company and their counsel, representatives of the accountants of the Company and representatives of the Underwriters and their U.S. counsel; and on the basis of the information they gained in the course of the performance of such services, considered in light of the experience they have gained through practice in this field, such counsel shall confirm to the Underwriters that the Registration Statement as of its effective date, and the Prospectus as supplemented by the prospectus supplement as of the date of the prospectus supplement appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act of 1933, the Trust Indenture Act of 1939 and the applicable rules and regulations of the Securities and Exchange Commission thereunder; and nothing has come to the attention of such counsel has caused them to believe that (a) the Registration Statement, as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made not misleading or (b) that, in the course of specified procedures performed by them subsequent to the effective date of the Registration Statement, the Prospectus, as supplemented by the prospectus supplement, as of the date of such opinion contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such opinion may state (1) that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus or the prospectus supplement except for those made under the captions "Description of Debt Securities" and "Plan of Distribution" in the Prospectus and "Description of the Debentures" and Underwriting" in the Prospectus Supplement insofar as they relate to provisions of documents therein described and (2) that they do not express any opinion or belief as to the financial statements or other financial data contained in the Registration Statement or the Prospectus or the prospectus supplement, or as to the statement of eligibility and qualification of the Trustee under the Indenture under which the Securities are being issued, or as to any statement of the Company or its counsel with respect to Canadian or Quebec law, in each case, in the Registration Statement or in documents incorporated by reference therein. (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 (iv) and (v) in (d) above. It is understood that Sullivan & Cromwell 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 Mr. Millington, counsel and Mr. Berwick, tax counsel. It is further understood that (i) Mr. Millington, counsel, except to the extent specified above, may limit his opinion to the laws of the Province of Quebec and the laws of Canada (ii) the opinion of Sullivan & Cromwell shall be limited to the Federal laws of the United States and the laws of the State of New York. Counsel may state that with respect to (b) (xi) and (d) (ix) 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 PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained 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 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 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 as of the time of such amendment or supplement in all material respects with the Securities Act of 1933 and the applicable rules and regulations thereunder and (v) the Prospectus as of its date does not contain and, as amended or supplemented, if applicable, will not contain as of the time of such amendment or supplement 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 the 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. 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, its authorized representative or representatives in the United States, and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934, 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 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. 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 Inc., 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 proportions 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. If, on the Closing Date any Underwriter or Underwriters shall default in its obligation to purchase the Securities which it has agreed to purchase hereunder, and the aggregate purchase price of Securities with respect to which such default occurs is more than one-tenth of the aggregate purchase price of the Securities to be sold hereunder, you may in your discretion arrange for you or another party or other parties to purchase such Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Securities, then this Agreement shall terminate without liability on the part of any defaulting Underwriter or the Company. In the event that, within the respective prescribed period, you notify the Company that you have so arranged for the purchase of such Securities you or the Company shall have the right to postpone the Closing for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. 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 separate counterparts and it is not necessary that signatures of all parties appear on the same counterpart, but such separate 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 INC. By: _________________________________ Accepted, ___________________________ By:__________________________________ SCHEDULE A
PRINCIPAL AMOUNT OF THE NAME OF UNDERWRITER SECURITIES TOTAL
EX-1.2 4 m06882orex1-2.txt EXHIBIT 1.2 EXHIBIT 1.2 WARRANT AGREEMENT WARRANT AGREEMENT, dated as of [o], between Alcan Inc. (the "Company") and [o], as warrant agent (the "Warrant Agent") WHEREAS, on [o] the Company filed with the United States Securities and Exchange Commission a "shelf" registration statement on Form S-3. Under this registration statement the Company has registered contemplated offerings, from time to time, of, inter alia, warrants to purchase its debt securities, common shares, preference shares or any combination of these securities. On [o], the Company resolved to issue warrants to purchase [indicate type of securities] (the "Warrants") . The term "[o]"as used in this Agreement refers to the [o] [indicate type of securities] that the Company will issue and deliver upon exercise of the Warrants in accordance with the terms and conditions set forth in the warrant certificates evidencing the Warrants (the "Warrant Certificates"), such Warrant Certificates to be substantially in the form of Exhibit A hereto; and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is so willing to act, in connection with the issuance, exchange, transfer, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates (including the Global Warrant Certificates) and the terms and conditions on which they may be issued, exchanged, transferred, exercised and replaced. NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the parties agree to their following respective obligations and rights: 1. Issuance of Warrants and Execution and Delivery of Warrant Certificates. (a) All Warrant Certificates shall be in registered form, shall contain such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as may, consistently herewith, be determined by a duly authorized representative of the Company (each, an "Authorized Person"), as evidenced conclusively by the execution of such Warrant Certificates and as are not inconsistent with the provisions of this Agreement or as may be required to comply with any law or with any rule or regulation. The Warrant Agent shall, upon receipt of the Warrant Certificates duly executed on behalf of the Company, countersign one or more global warrant certificates (the "Global Warrant Certificates") evidencing the Warrants and shall, subject to paragraph (a) above, deliver such Global Warrant Certificate to or upon the written order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant Agent shall countersign Warrant Certificates only if such Warrant Certificates are issued in exchange or substitution for one or more previously countersigned Warrant Certificates, as the case may be, or, in connection with their transfer, as hereinafter provide or as provided in Section 6 or Section 18, but subject to the provisions of Section 7. A Global Warrant Certificate shall be, and shall remain, subject to the provisions of this Agreement until such time as all of the Warrants evidenced thereby shall have been duly exercised or shall have expired or been canceled in accordance with the terms thereof. No Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence that such Warrant Certificate so countersigned has been duly issued hereunder. (b) Each Warrant Certificate shall be signed on behalf of the Company by an Authorized Person. Such signature may be the manual or facsimile signature of such persons and may be imprinted or otherwise reproduced on the Warrant Certificates. In case any Authorized Person who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be an Authorized Person, before the Warrant Certificates shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates may be countersigned and delivered notwithstanding that a person who signed such Warrant Certificate ceased to be such an Authorized Person, and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Warrant Certificate, shall be Authorized Persons, although at the date of the execution of this Agreement any such person was not such an Authorized Person. The terms "holder", "Warrant holder" or "holder of a Warrant Certificate" as used herein shall mean any person in whose name at the time any Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose. 2. Appointment of the Warrant Agent. The Company hereby appoints [o] as Warrant Agent of the Company in respect of the Warrants and Warrant Certificates, upon the terms and subject to the conditions set forth herein and in the Warrant Certificates, and [o] hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it herein and in the Warrant Certificates and such further powers and authority, acceptable to it, to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All the terms and provisions with respect to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof. The Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until the Warrants expire. 3. Exercise of Warrants. (a) Each Warrant entitles the registered owner to exercise an option to purchase, at an exercise price of U.S. $[U.S. $[o], U.S. $[o] of [o] [indicate type of securities]. (b) The Warrants evidenced by a Warrant Certificate may be exercised in whole or in part not earlier than [9:00 A.M., New York City time,] on [o] and [not later than 5:00 P.M., New York City time,] on [o]. If a Warrant is not exercised at or before [5:00 P.M., New York City time,] on [o], it shall become void, and all rights of the holder under Warrants and under this Agreement shall cease. [No fewer than one Warrant may be exercised -2- per Warrant Exercise Notice (as defined below) and no fractional Warrants may be exercised.] (c) During the period specified in Section 3(b), a Warrant, if the Warrant Certificate evidencing the same shall have been countersigned by the Warrant Agent, may be exercised by the holder thereof by (1) providing written notice of such election ("Warrant Exercise Notice") to exercise the Warrant to the Warrant Agent at [o], "Attention: Alcan Inc. Warrant Exercise", or to such other address as shall be notified in accordance with the immediately following paragraph, by hand or by facsimile, no later than [noon, New York City time,] on [o], which Warrant Exercise Notice shall be in the form of an election to purchase [o] [indicate type of securities] substantially in the form set forth in Exhibit B hereto, properly completed and executed by the holder; provided that such written notice may only be submitted by or through persons that are direct participants in The Depository Trust Company ("DTC"); (ii) delivering, no later than [noon, New York City time,] on the Warrant Exercise Date, such Warrants to the Warrant Agent by book--entry transfer through the facilities of DTC or by delivering, no later than [noon, New York City time,] on [o], the Warrant Certificates evidencing such Warrants to the Warrant Agent if Warrant Certificates in definitive form have been issued and delivered pursuant to Section 7; and (iii) for each Warrant exercised, paying in full, in lawful money of the United States of America, by bank wire transfer in immediately available funds [add electronic payment details] no later than [11:00 A.M., New York City time] on [o] (the "Settlement Date"), the exercise price of U.S. $[o]. Any exercise of a Warrant pursuant to the terms of this paragraph (c) shall be irrevocable and shall constitute a binding agreement between the Warrant holder and the Company, enforceable in accordance with its terms. (d) Not less than 20 days before the start of the period specified in Section 3(b), the Warrant Agent shall notify DTC of (x) the Warrant Agent's account at DTC to which the Warrants must be delivered on the Warrant Exercise Date and (y) the address, phone number and facsimile number where holders of the Warrants can contact the Warrant Agent to which Warrant Exercise Notices are to be submitted. (e) Approximately two weeks before the start of the period specified in Section 3(b), the Warrant Agent shall notify holders (through the clearing system) of (1) the Warrant Agent's account at DTC to which holders must deliver Warrants on the Warrant Exercise Date, (2) the Warrant exercise procedures of DTC and (3) the address, telephone number and facsimile number where holders can contact the Warrant Agent and to which holders must submit Warrant Exercise Notices if they decide to exercise their Warrants. At such time, the Warrant Agent shall also provide then holders with a Warrant Exercise Notice and the pertinent instructions as to how to exercise their Warrants. (f) [Further, at any time until the start of the period specified in Section 3(b), the Warrant Agent shall provide [o] (the "Dealer Manager"), which has been appointed by the Company as dealer manager to solicit holders of Warrants to exercise the Warrants, such information regarding the registered owners of the Warrants as the Dealer Manager may reasonably -3- request and is reasonably available to the Warrant Agent, including a list of all registered owners of the Warrants known to the Warrant Agent.] (g) The Warrant Agent shall: (i) examine all Warrant Exercise Notices and all other documents delivered to it by or on behalf of holders as contemplated by the Warrant Certificates to ascertain whether, on their face, such Warrant Exercise Notices and any such other documents have been executed and completed in accordance with their terms and the terms of the Warrant Certificates; (ii) determine whether the exercising Warrant holder has delivered the related Warrants to the Warrant Agent's account at DTC. In each case where a Warrant Exercise Notice or other document appears on its face to have been improperly completed or executed or some other irregularity in connection with the exercise of the Warrants exists, the Warrant Agent will endeavor to inform the appropriate parties (including the person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled. Except to the extent provided in the immediately preceding sentence, the Warrant Agent shall be under no duty to give notice to any person of any irregularities in Warrant Exercise Notices, delivery of Warrants or any other document completed or executed in connection therewith nor shall it incur any liability for failure to give such notice; (iii) inform the Company of and cooperate with and assist the Company in resolving any reconciliation problems between Warrant Exercise Notices received and delivery of Warrants to the Warrant Agent's account; (iv) advise the Company (i) no later than [noon, New York City time, on the first New York business day following the expiration of the period specified in Section 3(b),] of receipt of any Warrant Exercise Notices and the number of Warrants exercised in accordance with the terms and conditions of this Agreement, (ii) no later than [noon, New York City time, on the second New York business day, as applicable, following the expiration of the period specified in Section 3(b),] of the instructions with respect to delivery of the [o] [indicate type of securities] deliverable upon such exercise, subject to timely receipt from DTC of the necessary information, and (iii) of such other information as the Company shall reasonably require; (v) notify, by such time as necessary to ensure a prompt closing, DTC, with a copy to the Company, each account at DTC to be credited with [o] [indicate type of securities] -4- and the amount thereof to be credited to each such account; and (vi) subject to [o] [indicate type of securities] being made available to the Warrant Agent by or on behalf of the Company for delivery to accounts within DTC, liaise with DTC and endeavor to effect such delivery to the relevant accounts at DTC in accordance with its requirements. (h) All questions as to the validity, form and sufficiency (including time of receipt) of a Warrant exercise will be determined by the Company in its sole discretion, which determination shall be final and binding. The Company reserves the absolute right to reject any and all Warrant Exercise Notices not in proper form or for which any corresponding agreement by the Company to exchange would, in the opinion of the Company, be unlawful. Moreover, the Company reserves the absolute right to waive any of the conditions to the exercise of Warrants or defects in Warrant Exercise Notices with regard to any particular exercise of Warrants. None of the Company and the Warrant Agent shall be under any duty to give notice to the holders of the Warrants of any irregularities in any exercise of Warrants, nor shall any of them incur any liability for the failure to give such notice. (i) As soon as practicable after the exercise of any Warrant, but in no event later than [9:00 A.M., New York City time,] on the Settlement Date, the Company shall issue, or otherwise deliver, in authorized denominations to or upon the order of the holder of the Warrant Certificates evidencing such Warrants, by same--day credit to such holder's account at DTC or to the account of a participant in DTC, in each case designated by such holder, or by the direct participant in DTC, through which such holder is acting, in its Warrant Exercise Notice, the [o] [indicate type of securities] to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder or such participant. 4. Rights of Holders. (a) No Warrant Certificate or Warrants evidenced thereby shall entitle the holder thereof to any of the rights of a holder of the [o] [indicate type of securities]. (b) Notwithstanding any of the provisions of this Agreement, any holder of Warrants may, without the consent of the Warrant Agent, the holder of any [o] [indicate type of securities] or the holder of any other Warrants, on its own behalf and on behalf of any beneficial owner for whom it is acting, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or may take any other action in respect of, its right to exercise the Warrants evidenced by its Warrant Certificate in the manner provided in such Warrant Certificate and herein. 5. Registration. The Warrant Agent shall keep, at its corporate trust office, books in which, subject to such reasonable regulations as it may prescribe, it shall register the Warrant Certificates and exchanges and transfers of outstanding Warrant Certificates upon surrender of the Warrant Certificates properly endorsed or accompanied by appropriate instruments of -5- registration of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer of the Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such exchange or registration of transfer. 6. Exchange, Transfer, Replacement and Cancellation of Warrant Certificates. (a) Subject to Section 7, upon surrender at the corporate trust office of the Warrant Agent by hand, mail or book--entry delivery, the Warrant Certificates evidencing Warrants may be exchanged for Warrant Certificates of the same tenor and dollar amount evidencing such Warrants or the transfer thereof may be registered in whole or in part provided that such other Warrant Certificates evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered. Whenever a Warrant Certificate is so surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto a Warrant Certificate duly authorized and executed by the Company, as so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant. The Warrant Certificate issued upon any exchange or registration of transfer of a Warrant Certificate shall be the legal, valid and binding obligations of the Company, evidencing the same obligations and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such exchange or registration of transfer. (b) Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants evidenced thereby shall if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof. The Warrant Agent shall deliver to the Company from time to time or otherwise dispose of the canceled Warrant Certificates in its customary manner. (c) Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and of indemnity reasonably satisfactory to it and, in the case of mutilation, upon surrender thereof to the Warrant Agent for cancellation, then, in the absence of notice to the Company or a responsible corporate trust officer of the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the same tenor and evidencing like Warrants. Every substitute Warrant Certificate executed and delivered pursuant to this Section in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and -6- delivered hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates. (d) Upon the issuance of any new Warrant Certificate under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) in connection therewith. (e) The holder of a Warrant Certificate, by accepting the same, consents and agrees with the Company, the Warrant Agent and with every subsequent holder of such Warrant Certificate that until the transfer of the Warrant Certificate is registered on the books of the Warrant Agent, the Company and the Warrant Agent may treat such registered holder as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrant evidenced thereby, any notice to the contrary notwithstanding. 7. Global Securities. The Warrants shall be issued initially in the form of one or more Global Warrant Certificates that will be deposited with, or on behalf of, DTC. Global Warrant Certificates may be issued only in fully registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for Warrant Certificates in definitive form, a Global Warrant Certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any nominee of DTC to a successor depositary or any nominee of such successor. So long as DTC, or its nominee, is the registered owner of a Global Warrant Certificate, DTC or such nominee, as the case may be, will be considered the sole owner or holder of the Warrants represented by such Global Warrant Certificate for all purposes under this Agreement. Except as specified below with respect to Warrants only, owners of beneficial interests in a Global Warrant Certificate will not be entitled to have any Warrants registered in their names, and will not receive or be entitled to receive physical delivery of any such Warrants in definitive form and will not be considered the owners or holders thereof under the Warrants or this Agreement. Neither the Company nor the Warrant Agent, in its capacity as registrar for such Warrants, will have any responsibility or liability for any aspect of the records relating to beneficial interests in a Global Warrant Certificate or for maintaining, supervising or reviewing any records relating to such beneficial interests. If at any time DTC notifies the Company that it is unwilling or unable to continue as depositary for the Warrants, or if the Company notifies DTC that it will no longer continue to use DTC as depositary for the Warrants, or if at any time DTC ceases to be a clearing agency registered under the United States Securities Exchange Act of 1934, as amended, or otherwise ceases to be eligible to be a depositary, the Company shall appoint a successor depositary with respect to the Warrants (and all references to DTC herein shall be deemed to include such successor depositary). If a -7- successor depositary for the Warrants is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Warrant Agent upon receipt of such executed definitive Warrant Certificates will authenticate and deliver, Warrant Certificates in definitive registered form evidencing an aggregate number of Warrants equal to the aggregate number of Warrants evidenced by the Global Warrant Certificate. The Company may at any time and in its sole discretion determine not to have any of the Warrants evidenced by Global Warrant Certificates. In such event, the Company will execute, and the Warrant Agent, upon receipt of such executed definitive Warrant Certificates, will authenticate and deliver Warrant Certificates in definitive registered form, in an aggregate amount equal to the aggregate number of Warrants evidenced by such Global Warrant Certificates. Upon the exchange of the Global Warrant Certificates for Warrant Certificates in definitive registered form, the Global Warrant Certificates shall be canceled by the Warrant Agent. Warrant Certificates in definitive registered form issued in exchange for the Global Warrant Certificates pursuant to this section shall be registered in such names as DTC, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent or the Company. The Warrant Agent shall deliver such Warrant Certificates in definitive registered form to or as directed by the persons in whose names such definitive registered Warrant Certificates are so registered. All Warrant Certificates in definitive registered form, issued upon the exchange of the Global Warrant Certificates, shall be valid obligations of the Company, evidencing the rights, and entitled to the same benefits under this Agreement, as the Global Warrant Certificates surrendered upon such exchange. 8. Rights of Warrant Agent. The Company shall have the following obligations to the Warrant Agent and the Warrant Agent shall have the following rights: (a) In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation towards or relationship of agency or trust for or with the owners or holders of Warrants. (b) The Warrant Agent shall be entitled to compensation, as agreed upon with the Company, for all services rendered by it and expenses incurred in connection therewith, and the Company agrees promptly to pay such compensation and to reimburse the Warrant Agent for any agreed upon expenses incurred by the Warrant Agent in connection with the services rendered by it (as documented in an invoice setting forth such expenses). (c) The Warrant Agent shall be entitled to consult with counsel and the opinion, written or otherwise, of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted -8- to be taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. (d) The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the Warrants, any Warrant Certificate, the [o] [indicate type of securities] or any notice, direction, consent, certificate, affidavit, statement or other paper or document (whether in its original or facsimile form) reasonably believed by it to be genuine and to have been passed or signed by the proper parties. (e) The Warrant Agent or any of its officers, directors and employees may become the beneficial owner of, or acquire an interest in, Warrants or [o] [indicate type of securities] with the same rights that it would have if it were not the Warrant Agent hereunder, and to the extent permitted by applicable law, may engage in or be interested in any financial or other transaction with the Company, and may act on behalf of, or as depositary, trustee or agent for, any committee or body of beneficial owners of the Warrants, the [o] [indicate type of securities], or other obligations of the Company, as freely as if it were not the Warrant Agent hereunder. (f) The recitals contained herein and in the Warrant Certificates (except in the Warrant Agent's certificate of authentication on the Warrant Certificates) shall be taken as the statements of the Company and the Warrant Agent assumes no responsibility for the correctness of the same. The Warrant Agent makes no representation as to the validity or sufficiency of this Agreement or the Warrant Certificates except for the due authorization of the Warrant Agent to execute this Agreement. (g) The Warrant Agent shall be obligated to perform such duties and only such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any reimbursable expense or liability, the payment of which within a reasonable time is not in its reasonable opinion, assured to it. (h) Unless otherwise specifically provided herein or in the Warrant Certificates, any order, certificate, notice, request, direction or other communication from the Company made or given by the Company under any provision of this Agreement shall be sufficient if signed by an Authorized Person of the Company. (i) If the Warrant Agent shall receive any notice or demand (other than notice of or demand for exercise of Warrants) addressed to the Company by the holder of the Warrant Certificates pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company. (j) The Warrant Agent may at any time resign as Warrant Agent, by giving written notice to the Company of such intention on its part, mailed to -9- the Company at its address set forth in Section 12, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall never be less than 90 days after the date of receipt of such notice by the Company unless the Company agrees to accept shorter notice. The Warrant Agent may be removed at any time by the filing with it of an instrument in writing signed by an Authorized Person of the Company and specifying such removal and the date when it is intended to become effective. Such resignation or removal shall take effect upon the date of the appointment by the Company, as hereinafter provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of its incorporation to exercise corporate trust powers) and the acceptance of such appointment by the successor Warrant Agent. If a successor Warrant Agent is not appointed by the Company within 90 days after the resignation of the Warrant Agent, the Warrant Agent shall be entitled to petition at the expense of the Company a court of competent jurisdiction for appointment of a successor Warrant Agent. Upon its resignation or removal, the Warrant Agent shall be entitled to the payment by the Company of its compensation for the services rendered hereunder and to the reimbursement of all reasonable and duly documented out--of--pocket expenses (including reasonable and duly documented counsel fees) incurred in connection with the services rendered hereunder (as described in Section 8(b) The indemnity described in Section 9 shall survive any resignation or removal of the Warrant Agent or the termination of this Agreement. (k) In case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver of all or any substantial part of its property or affairs or shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay or meet its debts generally as they become due, or if an order of any court shall be entered approving any petition filed by or against the Warrant Agent under the provisions of bankruptcy laws or any similar legislation, or if a receiver, trustee or other similar official of it or of all or any substantial part of its property shall be appointed, or if any public officer shall take charge or control of it or of its property or affairs, for the purpose of rehabilitation, conservation, protection, relief, winding up or liquidation, a successor Warrant Agent shall be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by it of such appointment, the Warrant Agent so superseded shall, if not previously disqualified by operation of law, cease to be the Warrant Agent hereunder. (l) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to -10- receive all moneys, securities, records or other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (m) Any corporation or bank into which the Warrant Agent may be merged or converted, or any corporation or bank with which the Warrant Agent may be consolidated, or any corporation or bank resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation or bank to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent, or any corporation or bank to which the Warrant Agent shall sell or otherwise transfer all or substantially all its corporate trust business, provided that it shall be qualified as aforesaid, shall be the successor to the Warrant Agent under this Agreement without the execution or filing of any document or any further act on the part of any of the parties hereto. (n) the Warrant Agent: (i) need not act on any notice given under this Agreement by the Company or any other person which is received orally until it has been confirmed in writing; (ii) is authorized to communicate with any person from whom an exercise of Warrants is received but is not obliged to do so, if it reasonably believes to do so would breach laws or regulations relating to the sale of securities in a jurisdiction; and (iii) is authorized to cooperate with and to furnish any organization (and its representatives) designated from time to time by the Company in any manner reasonably requested by it in connection with the exercise of the Warrants and any exercises thereunder; and will not be responsible for procuring, nor liable for the consequences of, any transfers of Warrants in any accounts. (o) The Warrant Agent shall have no responsibility for failing to provide information or to take any action hereunder or by a time specified hereunder if such failure is attributable (directly or indirectly) to any failure on the part of DTC to provide in a form satisfactory to it any confirmations or other information required by it to carry out its functions hereunder and it may rely conclusively without investigation on any such information provided by any such entity. (p) The Warrant Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document. (q) The rights, privileges, protections, immunities and benefits given to the Warrant Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Warrant Agent -11- in each of its capacities hereunder, and to each agent, custodian and other person employed to act hereunder. 9. Indemnity. The Company shall indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense (including the costs and expenses of defending any claim of liability) incurred without negligence, bad faith, or willful misconduct of the Warrant Agent or its respective employees, directors, officers, or agents in connection with its acting as its respective duties hereunder. 10. Taxes. The Company will pay all stamp taxes or other duties, if any, which may be imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, with respect to the execution or delivery of this Agreement or the issuance of a Warrant Certificate. The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issuance of the [o] [indicate type of securities]; and if any such transfer is involved, the Company shall not be required to issue or deliver any [o] [indicate type of securities] until such tax or other charge shall have been paid or provided for or it has been established to the Company's satisfaction that no such tax or other charge is due. 11. Amendments. This Agreement may be amended or supplemented by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose of curing any ambiguity or of curing, correcting or supplementing any defective provision contained herein, or in any manner which the parties may mutually deem necessary or desirable and which shall not adversely affect the interests of the holders of the Warrant Certificates. The Warrant Agent shall promptly notify in writing each holder of any such amendment and deliver a copy of such amendment to any holder who shall so request in writing, all at the cost of the Company. 12. Notices. Any communication required to be given shall be given to the parties hereto as follows: If to the Company: Alcan Inc. [o] Fax: [o] Attention: [o] If to the Warrant Agent: [o] Fax: [o] Attention: [o] (or such other address as shall be specified in writing by the relevant party to the other parties hereto.) Communications between the Company and the Warrant Agent shall be delivered by hand, facsimile or sent by courier. Any notice to the holders of the Warrants which by any provision of this Warrant Agreement is required or permitted to be given shall be given by first class mail postage prepaid at such holder's address as it appears on the books of the Warrant Agent. Communications between the Company and the Warrant Agent shall be deemed to be effective on receipt, for which purpose any communication shall, if sent -12- by facsimile, be deemed to have been received at the time of dispatch and, if sent by courier, be deemed to have been received after 2 days. Communications to Warrant holders shall be deemed to be effective at the time of dispatch or mailing. 13. Delivery of Prospectus. To the extent required by law, the Company will furnish to the Warrant Agent copies of a prospectus contained in a Registration Statement declared effective under the Securities Act of 1933, as amended (the "Act"), and any necessary prospectus supplement relating to the [o] [indicate type of securities] deliverable upon exercise of any Warrants (collectively the "Prospectus") in such quantity as requested by the exercising Warrant holder, the Warrant Agent agrees that upon receipt of a Warrant Exercise Notice from any holder, the Warrant Agent will as soon as practicable deliver to such holder, if instructed by the Company that such delivery is required by law or upon request of such holder, prior to the Warrant Exercise Date, a Prospectus, all at the cost of the Company. 14. Obtaining of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all consents and approvals of governmental agencies and authorities and securities acts filings under United States Federal and State laws which may be or become requisite in connection with the issuance, sale, transfer, and delivery of the Warrants, the Warrant Certificates, the exercise of the Warrants, the issuance, sale, transfer and delivery of the [o] [indicate type of securities] issuable upon exercise of the Warrants or upon the expiration of the period during which the Warrants are exercisable. The Company covenants that it will obtain all necessary governmental authorizations which may be required to issue the [o] [indicate type of securities] upon exercise of the Warrants and the Company will issue the [o] [indicate type of securities] pursuant to registration under the Act. 15. Headings. The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. 16. Governing Law. This Agreement, the Warrants and the Warrant Certificates shall be governed by and construed in accordance with the laws of the State of New York. 17. Persons Having Rights under Warrant Agreement. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the company, the Warrant Agent and the holder of any Warrants any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations promises and agreements in this Agreement contained shall be for the sole and exclusive benefit of the Company, the Warrant Agent and its successors and holders of the Warrants. 18. Further Issues. The Company may from time to time, without notice to or the consent of the registered holders of Warrants, create and issue further Warrants identical with the Warrants in all respects and so -13- that such further warrants shall be consolidated and form a single series with the Warrants and shall have the same terms as to status, exercise or otherwise as the Warrants. The issuance of such further warrants shall be pursuant to an agreement supplemental hereto. 19. Counterparts. This Agreement may be executed in or by separate counterparts, and by each party separately on a separate counterpart, each such counterpart, when so executed and delivered, to be an original. Such counterparts shall together constitute but one and the same instrument. -14- IN WITNESS WHEREOF, the parties hereto have, by duly authorized directors, officers or attorneys--in--fact, executed this Agreement as of the date first above written. Alcan Inc. By: -------------------------------------------- Name: Title: [o], as Warrant Agent By: -------------------------------------------- Name: Title: -15- Exhibit A [FORM OF WARRANT CERTIFICATE] [IF THE WARRANT CERTIFICATE IS TO BE A GLOBAL WARRANT CERTIFICATE, INSERT--- This Warrant Certificate is a Global Warrant Certificate within the meaning of the Warrant Agreement hereinafter referred to and is registered in the name of The Depository Trust Company ("DTC") or a nominee of DTC. Unless and until it is exchanged in whole or in part for Warrants in definitive registered form, this Warrant Certificate may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor depositary or a nominee of such successor depositary). Unless this Warrant Certificate is presented by an authorized representative of DTC ([o] [indicate address of the depositary company]) to the Warrant Agent or its agents for registration of transfer, exchange or payment, and any Warrant issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of DTC and any payment hereon is made to Cede & Co. or such other entity as is requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.] The Warrants evidenced hereby are exercisable only if countersigned by the Warrant Agent as provided herein. VOID IF NOT EXERCISED BY [5:00 P.M., NEW YORK CITY TIME,] ON [o]. A-1 ALCAN INC. WARRANT CERTIFICATE CUSIP NO.: [_________] ISIN NO.: [o] [o] Warrants This certifies that [CEDE & CO.] or its registered assigns (the "Registered Holder") is the registered owner of the above Warrants. Each Warrant entitles the registered owner to exercise, [commencing at 9:00 A.M., New York City] on [o] [but no later than 5:00 P.M., New York City time,] on [o], an option to purchase, at an exercise price of U.S. $[o], [o] of [o] [indicate type of securities] (the "[o]") of Alcan Inc. (the "Company") . The [o] [indicate type of securities] will be issued and delivered by the Company on [o]. The holder may exercise the Warrants evidenced hereby in whole or in part during the period herein specified, provided, that [no fewer than one Warrant may be exercised per Warrant Exercise Notice and no fractional Warrants may be exercised,] by (i) providing written notice of such election to exercise such Warrants ("Warrant Exercise Notice") to the Warrant Agent at [o], "Attention: Alcan Inc. Warrant Exercise", or such other address of the Warrant Agent as the Warrant Holders may be notified of by the Company prior to [o], by hand or facsimile, no later than [5:00 P.M., New York City time,] on the [o], which Warrant Exercise Notice shall be in the form of an election to purchase [o] [indicate type of securities] substantially in the form set forth as Exhibit B to the Warrant Agreement, properly completed and executed by the holder; (ii) delivering, no later than [5:00 P.M., New York City time,] on [o], such Warrants to the Warrant Agent by book-entry transfer through the facilities of DTC or by delivering, no later than [5:00 P.M., New York City time,] on [o], the Warrant Certificates evidencing such Warrants to the Warrant Agent if Warrant Certificates in definitive form have been issued and delivered pursuant to Section 7 of the Warrant Agreement and (iii) for each Warrant exercised, paying in full, in lawful money of the United States of America, by bank wire transfer in immediately available funds no later than [11:00 A.M., New York City time] on [o] (the "Settlement Date"), the exercise price of U.S. $[o]. This Warrant Certificate is issued pursuant to and in accordance with a Warrant Agreement, dated as of [o] (the "Warrant Agreement") between the Company and the Warrant Agent and is subject to the terms and provisions contained therein to all of which terms and provisions the holder consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent. Capitalized terms used in this Warrant Certificate and not defined herein will have the respective meanings given such terms in the Warrant Agreement. This Warrant Certificate may be transferred at the corporate trust office of the Warrant Agent by the Registered Holder or its assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement. After countersignature by the Warrant Agent and prior to the expiration of the Warrants, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent for one or more Warrant Certificates, representing the same number of Warrants of the same tenor. -2- This Warrant Certificate shall not entitle the Registered Holder to any of the rights of a holder of the [o] [indicate type of securities] Unless the certificate of authentication hereon has been executed by the Warrant Agent by the manual signature of one of its duly authorized officers, this Warrant Certificate shall not be valid or obligatory for any purpose. Dated: [o] Alcan Inc. By: --------------------------------------- Name: Title: Authenticated by [o] as Warrant Agent without recourse, warranty or liability By: -------------------------------------- Authorized Signature -3- Exhibit B [FORM OF WARRANT EXERCISE NOTICE] [TO BE COMPLETED BY DIRECT PARTICIPANT IN DTC] Alcan Inc. Warrants to Purchase [o] [indicate type of securities] TO BE EXECUTED UPON EXERCISE OF WARRANTS The undersigned hereby irrevocably elects to exercise the number of Warrants set forth below. Each Warrant entitles the registered owner to exercise, [commencing at 9:00 A.M., New York City time] [o], [but no later than 5:00 P.M., New York City time,] on [o], an option to purchase, at an exercise price of $[o], $[o] newly issued [ I [indicate type of securities] (the "[o]") of Alcan Inc. (the "Company") . The undersigned represents, warrants and promises that (1) it has delivered or will deliver no later than [5:00 P.M., New York time,] on [o] the number of Warrants specified below to the Warrant Agent's account at DTC by book-entry transfer; (2) it has the full power and authority to exercise and deliver the Warrants exercised hereby; and (3) [payment details] no later than [11:00 A.M., New York City time] on [o] (the "Settlement Date"), the exercise price of U.S. $[o] for each Warrant exercised hereby. The undersigned requests that the principal amount of Warrants exercised hereby be in registered form in the authorized denominations, registered in such names and delivered, all as specified in accordance with the instructions set forth below; provided, that if the [o] [indicate type of securities] are evidenced by global securities, the [o] [indicate type of securities] shall be registered in the name of DTC or its nominee. B-1 - -------------------------------------------------------------------------------------------------------------------- Dated: - -------------------------------------------------------------------------------------------------------------------- NOTE: THIS EXERCISE NOTICE MUST BE DELIVERED TO [o],THE AND TO WHICH WARRANT EXERCISE NOTICES ARE TO BE WARRANT AGENT, PRIOR TO [5:00 P.M., NEW YORK CITY SUBMITTED. YOU MAY NOT SUBMIT YOUR WARRANT EXERCISE TIME,] ON [o]. THE WARRANT AGENT SHALL NOTIFY YOU NOTICE OR DELIVER YOUR WARRANTS UNTIL [9:00 A.M., [THROUGH THE CLEARING SYSTEM) OF (1) THE WARRANT NEW YORK CITY TIME,] ON [o]. WARRANT EXERCISE NOTICE AGENT' S ACCOUNT AT DTC TO WHICH YOU MUST DELIVER WILL ONLY BE VALID IF DELIVERED IN ACCORDANCE WITH THE YOUR WARRANTS ON THE EXERCISE DATE AND (2) THE INSTRUCTIONS SET FORTH IN THIS NOTIFICATION (OR AS ADDRESS, PHONE NUMBER AND FACSIMILE NUMBER WHERE OTHERWISE DIRECTED, MARKED TO THE ATTENTION OF "ALCAN YOU CAN CONTACT THE WARRANT AGENT INC. WARRANT EXERCISE". - -------------------------------------------------------------------------------------------------------------------- NAME OF DTC DIRECT PARTICIPANT: WARRANT HOLDER DELIVERING WARRANTS, IF OTHER THAN ___________________________________________ THE DIRECT DTC PARTICIPANT DELIVERING THIS (Please Print) WARRANT EXERCISE NOTICE ADDRESS:___________________________________ NAME: ________________________________________________ (Please Print) ___________________________________ ADDRESS:______________________________________________ CONTACT NAME: _____________________________ ______________________________________________ TELEPHONE (INCLUDING INTERNATIONAL CODE): ___________________________________________ CONTACT NAME: ________________________________________ FAX (INCLUDING INTERNATIONAL CODE): TELEPHONE (INCLUDING INTERNATIONAL CODE): ___________________________________________ SOCIAL SECURITY OR OTHER TAXPAYER ______________________________________________________ IDENTIFICATION NUMBER (IF APPLICABLE): FAX (INCLUDING INTERNATIONAL CODE): ___________________________________________ ______________________________________________________ SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER (IF APPLICABLE): - -------------------------------------------------------------------------------------------------------------------- ACCOUNT FROM WHICH WARRANTS ARE BEING ACCOUNT TO WHICH THE [o] [INDICATE TYPE OF DELIVERED: SECURITIES] ARE TO BE CREDITED: DTC Account No. ___________________________ DTC Account No. ______________________________________ - --------------------------------------------------------------------------------------------------------------------
-2- FILL IN FOR DELIVERY OF [o] [indicate type of securities], IF OTHER THAN TO THE PERSON DELIVERING THIS WARRANT EXERCISE NOTICE: Name: (Please Print) Address: Contact Name: Telephone (including international code): Fax (including international code): Social Security or Other Taxpayer Identification Number (if applicable): Number of Warrants Being Exercised [(at least [two])]: (ONLY ONE EXERCISE PER WARRANT EXERCISE NOTICE) Signature Name: Capacity in which Signing: - -------------------------------------------------------------------------------- -3- EX-4.7 5 m06882orex4-7.txt EXHIBIT 4.7 EXHIBIT 4.7 ALCAN INC. Issuer and BANKERS TRUST COMPANY Trustee -------------------------------------------- SIXTH SUPPLEMENTAL INDENTURE Dated as of April 8, 2002 --------------------------------------------- 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, a Fourth Supplemental Indenture dated as of July 17, 1990, and a Fifth Supplemental Indenture dated as of January 1, 1995 -------------------------------------------- THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of April 8, 2002, between Alcan Inc., f/k/a Alcan Aluminium Limited, a corporation duly organized and existing under the laws of Canada (the "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 E T H: WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of the Indenture dated as of May 15, 1983 between the Issuer and the Trustee, as amended by the First Supplemental Indenture thereto, dated as of January 1, 1986, the Second Supplemental Indenture thereto dated as of June 30, 1989, the Third Supplemental Indenture thereto, dated as of July 19, 1989, the Fourth Supplemental Indenture thereto, dated as of July 17, 1990 and the Fifth Supplemental Indenture thereto, dated as of January 1, 1995 (as so amended, the "Indenture"), and to provide, among other things, for the authentication, delivery and administration thereof; and the Issuer duly authorized the execution and delivery of the Indenture; WHEREAS, five series of Securities: the Issuer's $200,000,000 in aggregate principal amount of 6.25% Debentures Due 2008, the Issuer's $100,000,000 in aggregate principal amount of 7.25% Debentures Due 2028, and the Issuer's $400,000,000 in aggregate principal amount of 6.45% Debentures Due 2011, the Issuer's $400,000,000 in aggregate principal amount of 7.45% Debentures Due 2031 (such five series, collectively, the "Existing Series"), have been issued and are outstanding pursuant to the Indenture; WHEREAS, Section 8.1 of the Indenture provides that the Indenture may be amended without the consent of any Holder, inter alia, (i) to make provisions with respect to matters or questions arising under the Indenture as the Board of Directors may deem necessary or desirable, provided that such action shall not adversely affect the interests of the Holders of Securities of any series and (ii) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 2.3; WHEREAS, the Issuer desires to amend, and the Trustee has consented to the amendment of, the Indenture by this Sixth Supplemental Indenture in order to add certain provisions to the Indenture with respect to any series of Securities issued under the Indenture other than the Existing Series; WHEREAS, pursuant to a Certificate of Amendment, dated March 1, 2001, executed under Section 179 of the Canada Business Corporations Act (the "CBCA"), and duly filed with the Director under the CBCA (the "Director"), the Issuer has changed its name to "Alcan Inc.", and the Issuer and the Trustee wish to acknowledge said name change; WHEREAS, the Issuer is duly authorized to execute and deliver this Sixth 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 Issuer and the Trustee hereby agree as follows: SECTION 1. AMENDMENTS TO SECTION 2.3 OF THE INDENTURE. The second paragraph of Section 2.3 of the Indenture is hereby amended as follows: (A) The following is added after clause (10) of such second paragraph: "(11) any provisions necessary to permit or facilitate the issuance, payment, exercise or conversion of any Securities of a series that may be converted into securities or other property, including, without limitation, the Issuer's common shares, preference shares, debt securities (including Securities) or other securities, whether in addition to, or in lieu of, any payment of principal or other amount or otherwise, and whether at the option of the Issuer or otherwise;"; and (B) Clauses (11) and (12) of such paragraph are renumbered (12) and (13), respectively. SECTION 2. ACKNOWLEDGMENT OF CHANGE OF ISSUER NAME. The Issuer and the Trustee hereby acknowledge that pursuant to a Certificate of Amendment, dated March 1, 2001, and duly filed with the Director, the Issuer has changed its name to "Alcan Inc." 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 Issuer and the Trustee assumes no responsibility for the validity or sufficiency of such recitals. SECTION 4. MISCELLANEOUS. (A) Certain Capitalized Terms. Capitalized terms used but not defined in this Sixth Supplemental Indenture shall have the meanings ascribed to such terms in the Indenture, as heretofore supplemented. (B) Effectiveness. This Sixth Supplemental Indenture will become effective upon its execution and delivery by the Issuer and the Trustee. (C) Successors and Assigns. All of the covenants, promises, stipulations and agreements of the Company contained in the Indenture, as supplemented and amended by this First Supplemental Indenture, will bind the Company and its successors and assigns and will inure to the benefit of the Trustee and its successors and assigns. (D) Governing Law. THIS SIXTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS. (E) Counterparts. This Sixth Supplemental Indenture may be executed in any number of separate counterparts each of which shall be an original; but such separate counterparts shall together constitute but one and the same instrument. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the Issuer and the Trustee hereto have caused this Sixth 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 INC. By: /s/ Roy Millington ------------------------------------ Name: Roy Millington Title: Corporate Secretary (Corporate Seal) Attest: By: /s/ Pierre D. Chenard ----------------------------------- Name: Pierre D. Chenard Title: Assistant Secretary BANKERS TRUST COMPANY, as Trustee By: /s/ Susan Johnson --------------------------------- Name: Susan Jonhson Title: Vice President (Corporate Seal) Attest: By: /s/ Shafiq Tadanji ----------------------------------- Name: Shafiq Tadanji Title: Vice President Canada ) ) Province Of Quebec ) s.s.: ) District Of Montreal ) On this 8th day of April, 2002 before me personally came Roy Millington, to me personally known, who, being by me duly sworn, did depose and say that he resides at 483 Strathcona, Westmount, Qc, H3Y 2X2, that he is Corporate Secretary of Alcan Inc., 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/ Carmela Ientile -------------------------------- Commissioner of Oaths State of New York ) ) s.s.: County of New York ) On this 9th day of April, 2002 before me personally came Susan Johnson, to me personally known, who, being by me duly sworn, did depose and say that she resides at E. 46th St. Brooklyn, N.Y. 11203, that she is Vice President of Bankers Trust Company, one of the corporations described in and which executed the above instrument; and that she knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that she signed her name thereto by like authority. (NOTARIAL SEAL) /s/ A. Hendricks -------------------------------- Notary Public State of New York No. 01HE6063947 Qualified in New York County Commission expires Sept. 10, 2005 EX-4.8 6 m06882orex4-8.txt EXHIBIT 4.8 EXHIBIT 4.8 ALCAN INC. Issuer and BANKERS TRUST COMPANY Trustee ------------------------------------------- SEVENTH SUPPLEMENTAL INDENTURE Dated as of ___, 200[ ] ------------------------------------------ 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, a Fourth Supplemental Indenture dated as of July 17, 1990, a Fifth Supplemental Indenture dated as of January 1, 1995, and a Sixth Supplemental Indenture dated as of April 8, 2002 ------------------------------------------ THIS SEVENTH SUPPLEMENTAL INDENTURE, dated as of _____, 200[ ], between Alcan Inc., a corporation duly organized and existing under the laws of Canada (the "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 E T H: WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of the Indenture dated as of May 15, 1983 between the Issuer and the Trustee, as amended by the First Supplemental Indenture thereto, dated as of January 1, 1986, the Second Supplemental Indenture thereto dated as of June 30, 1989, the Third Supplemental Indenture thereto, dated as of July 19, 1989, the Fourth Supplemental Indenture thereto, dated as of July 17, 1990, the Fifth Supplemental Indenture thereto, dated as of January 1, 1995, and the Sixth Supplemental Indenture thereto, dated as of April 8, 2002 (as so amended, the "Indenture"), and to provide, among other things, for the authentication, delivery and administration thereof; and the Issuer duly authorized the execution and delivery of the Indenture; WHEREAS, [ ] series of Securities: [specify series] (such series, collectively, the "Existing Series"), have been issued pursuant to the Indenture; WHEREAS, Section 8.1 of the Indenture provides that the Indenture may be amended without the consent of any Holder, inter alia, (i) to make provisions with respect to matters or questions arising under the Indenture as the Board of Directors may deem necessary or desirable, provided that such action shall not adversely affect the interests of the Holders of Securities of any series and (ii) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 2.3; WHEREAS, the Issuer desires to amend, and the Trustee has consented to the amendment of, the Indenture by this Seventh Supplemental Indenture in order to add certain provisions to the Indenture with respect to future series of Securities issued under the Indenture and to add provisions for the benefit of existing series of Securities, including Securities of the Existing Series; -2- WHEREAS, the Issuer is duly authorized to execute and deliver this Seventh 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 Issuer and the Trustee hereby agree as follows: SECTION 1. Amendments to Section 1.1 of the Indenture: (a) The following terms and their respective meanings are hereby added to the Indenture at the end of Section 1.1 thereof: "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Capital Lease Obligation" of any Person means the obligation to pay rent or make other payments under a lease of (or other Indebtedness arrangements conveying the right to use) real or personal property of such Person which is required to be classified and accounted for as a capital lease or a liability on the balance sheet of such Person in accordance with generally accepted accounting principles. The stated maturity of such obligation shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. "Common Stock" includes any stock of any class of the Issuer which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Issuer and which is not subject to redemption by the Issuer. "Guarantee" by any Person means any obligation, contingent or otherwise, of such Person guaranteeing any Indebtedness of any other Person (the "primary obligor") in any manner, whether -3- directly or indirectly, and including, without limitation, any obligation of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness, (ii) to purchase property, securities or services for the purpose of assuring the holder of such Indebtedness of the payment of such Indebtedness, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness (and "Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings correlative to the foregoing); provided, however, that the Guarantee by any Person shall not include endorsements by such Person for collection or deposit, in either case, in the ordinary course of business. "Incur" means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Indebtedness or other obligation or the recording, as required pursuant to generally accepted accounting principles or otherwise, of any such Indebtedness or other obligation as a liability on the balance sheet of such Person (and "Incurrence," "Incurred," "Incurrable" and "Incurring" shall have meanings correlative to the foregoing); provided, however, that a change in generally accepted accounting principles that results in an obligation of such Person that exists at such time becoming Indebtedness shall not be deemed an Incurrence of such Indebtedness. "Junior Subordinated Payment" has the meaning specified in Section 14.2. "Payment Blockage Period" has the meaning specified in Section 14.3. "Proceeding" has the meaning specified in Section 14.2. "Senior Indebtedness" means the principal of, premium, if any, interest on and any other payment due pursuant to any of the following, whether Incurred on or prior to the date hereof or hereafter Incurred: (i) all obligations of the Issuer for money borrowed; -4- (ii) all obligations of the Issuer evidenced by notes, debentures, bonds or other similar instruments, including obligations Incurred in connection with the acquisition of property, assets or businesses; (iii) all Capital Lease Obligations of the Issuer; (iv) all reimbursement obligations of the Issuer with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of the Issuer; (v) all obligations of the Issuer issued or assumed as the deferred purchase price of property or services, including all obligations under master lease transactions pursuant to which the Issuer or any of its subsidiaries have agreed to be treated as owner of the subject -property for federal income tax purposes (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business); (vi) all payment obligations of the Issuer under interest rate swap or similar agreements or foreign currency hedge, exchange or similar agreements at the time of determination, including any such obligations Incurred by the Issuer solely to act as a hedge against increases in interest rates that may occur under the terms of other outstanding variable or floating rate Indebtedness of the Issuer; (vii) all obligations of the type referred to in clauses (i) through (vi) above of another Person and all dividends of another Person the payment of which, in either case, the Issuer has assumed or Guaranteed or for which the Issuer is responsible or liable, directly or indirectly, jointly or severally, as obligor, Guarantor or otherwise; (viii) all compensation and reimbursement obligations of the Issuer pursuant to Section 6.6; and (ix) all amendments, modifications, renewals, extensions, refinancings, replacements and refundings by the Issuer of any such Indebtedness referred to in clauses (i) through (viii) above (and of any such amended, modified, renewed, extended, refinanced, refunded or replaced Indebtedness); -5- provided, however, that the following shall not constitute Senior Indebtedness: (A) any Indebtedness owed to a Person when such Person is a Subsidiary of the Issuer, (B) any Indebtedness which by the terms of the instrument creating or evidencing the same expressly provides that it is not superior in right of payment to the Subordinated Securities, (C) any Indebtedness to the extent Incurred in violation of this Indenture, or (D) all other junior subordinated debt securities of the Issuer, whether or not issued under this Indenture that are subject to subordination provisions substantially equivalent to those to which the Subordinated Securities are subject. As used in this definition, "Indebtedness" includes any obligation to pay principal, premium (if any), interest, penalties, reimbursement or indemnity amounts, fees and expenses (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Issuer whether or not a claim for post-petition interest is allowed in such proceeding). Any Senior Indebtedness shall continue to be Senior Indebtedness and entitled to the benefits of the subordination provisions of Article Fourteen irrespective of any amendment, modification or waiver of any term of such Senior Indebtedness. "Senior Payment Default" has the meaning specified in Section 14.3. "Senior Nonmonetary Default" has the meaning specified in Section 14.3. "Stated Maturity", when used with respect to any Subordinated Security or any installment of principal thereof or interest thereon, means the date specified in such Subordinated Security as the fixed date on which the principal of such Subordinated Security or such installment of principal or interest is due and payable. "Subordinated Securities" means all Subordinated Securities designated as such by the Issuer after the Issuance thereof. "Subordinated Securities Payment" has the meaning specified in Section 14.2. -6- (b) The definition of the term "Security" or "Securities" is hereby deleted in its entirety and replaced by the following: "Security" or "Securities" (except as otherwise provided in Section 6.8) has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture, and includes Subordinated Securities, unless the context otherwise requires." SECTION 2. Amendments to Section 2.3 of the Indenture. Section 2.3 of the Indenture is hereby amended by inserting the following paragraph immediately after the last paragraph: The second paragraph of Section 2.3 of the Indenture is hereby amended as follows: (A) The following is added after clause (11) of such second paragraph: "(12) whether the Securities of such series are designated as Subordinated Securities, and any provisions necessary to permit or facilitate the subordination of such series of Subordinated Securities; (13) the option, if any, of the Issuer to delay or defer payments of interest or principal with respect to such series of Securities; (14) the option, if any, of the Issuer to repay interest or principal on the Securities of the series, including, without limitation, interest or principal the payment of which has been deferred, other than in cash, including, without limitation in the form of equity or debt securities of the Issuer"; and (B) Clauses (12) and (13) of such paragraph are renumbered (15) and (16), respectively. SECTION 3. Amendment to Section 13.3 of the Indenture. Section 13.3 of the Indenture is hereby amended by deleting the phrase "Sections 3.6, 3.8 and 9.2" appearing in the fifth line of such Section and replacing therewith the following: "Sections 3.6, 3.8 and 9.2, or, in the case of Subordinated Securities, Section 14.13". -7- SECTION 4. Amendment to Section 13.5 of the Indenture. Section 13.5 of the Indenture is hereby amended by adding the following sentence at the end of the first paragraph: "Money and U.S. Government Obligations (including the proceeds thereof) so held in trust to effect defeasance with respect to the terms of Subordinated Securities shall not be subject to the provisions of Article Fourteen, provided that the applicable conditions of Section 13.4 have been satisfied." SECTION 5. Amendment to Section 13.4 of the Indenture. Section 13.4 of the Indenture is hereby amended as follows: (A) The following is added after the end of the first sentence of paragraph (1) of such Section: "Before such a deposit the Issuer may make arrangements satisfactory to the Trustee for the redemption of Subordinated Securities at a future date or dates in accordance with Article Fourteen, which shall be given effect in applying the foregoing." (B) The following is added immediately after paragraph (7) of such Section: "(8) if the Outstanding Securities are Subordinated Securities, no event or condition shall exist that, pursuant to the provisions of Article Fourteen, would prevent the Issuer from making payments of the principal of (and any premium) or interest on the Subordinated Securities of such series on the date of such deposit or at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). (9) if the Outstanding Securities are Subordinated Securities, the Issuer shall have delivered to the Trustee an Opinion of Counsel substantially to the effect that (i) the trust funds deposited pursuant to this Section will not be subject to any rights of holders of Senior Indebtedness, including those arising under Article Fourteen, and (ii) after the 90th day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights -8- generally, except that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Issuer, no opinion is given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the possession of the trustee with whom such funds were deposited prior to such court ruling to the extent not paid to Holders of such Subordinated Securities, such trustee would hold, for the benefit of such Holders, a valid and perfected security interest in such trust funds that is not avoidable in bankruptcy or otherwise, (B) such Holders would be entitled to receive adequate protection of their interests in such trust funds if such trust funds were used and (C) no property, rights in property or other interests granted to such trustee for the Trustee or such Holders in exchange for or with respect to any such funds would be subject to any prior rights of holders of Senior Indebtedness, including those arising under Article Fourteen." (C) Paragraph (8) is renumbered paragraph (10). SECTION 6. Addition of Article Fourteen to the Indenture. The following is hereby added to the Indenture immediately after the end of Section 13.5 thereof: "ARTICLE FOURTEEN SUBORDINATION OF SUBORDINATED SECURITIES Section 14.1 Subordinated Securities Subordinate to Senior Indebtedness. The Issuer covenants and agrees, and each Holder of a Subordinated Security, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article (subject to Article Ten), the payment of the principal of and interest on each and all of the Subordinated Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full in cash of all Senior Indebtedness. This Article Fourteen shall constitute a continuing offer to all persons who become holders of, or continue to hold, Senior Indebtedness, and such provisions are made for the benefit of the holders of Senior Indebtedness and such holders are made obligees hereunder and any one or more of them may -9- enforce such provisions. Holders of Senior Indebtedness need not prove reliance on the subordination provisions hereof. Section 14.2 Payment Over of Proceeds Upon Dissolution, Etc. Upon any payment or distribution of assets of the Issuer to creditors upon (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Issuer or to its assets, or (b) any liquidation, dissolution or other winding up of the Issuer, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets or liabilities of the Issuer, then and in any such event specified in (a), (b) or (c) above (each such event, if any, herein sometimes referred to as a "Proceeding"); (1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash of all amounts due on or to become due on or in respect of all Senior Indebtedness, before the Holders of the Subordinated Securities are entitled to receive any payment or distribution of any kind or character whether in cash, property or securities (including any payment or distribution which may be payable or deliverable to Holders of the Subordinated Securities made in respect of any other Indebtedness of the Issuer subordinated to the payment of the Subordinated Securities, such payment or distribution being hereinafter referred to as a "Junior Subordinated Payment"), on account of the principal of or interest on the Subordinated Securities or on account of any purchase, redemption or other acquisition of Subordinated Securities by the Issuer, any Subsidiary of the Issuer, the Trustee or any Paying Agent (all such payments, distributions, purchases, redemptions and acquisitions, whether or not in connection with a Proceeding, herein referred to, individually and collectively, as a "Subordinated Securities Payment"); and (2) any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, by set-off or otherwise, to which the Holders of the Subordinated Securities or the Trustee would be entitled but for the provisions -10- of this Article (including, without limitation, any Junior Subordinated Payment) shall be paid by the liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment to the holders of such Senior Indebtedness. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Subordinated Security shall have received in connection with any Proceeding any Subordinated Securities Payment before all Senior Indebtedness is paid in full or payment thereof provided for in cash, then and in such event such Subordinated Securities Payment shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Issuer for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full in cash after giving effect to any concurrent payment to or for the holders of Senior Indebtedness. For purposes of this Article only, the words "any payment or distribution of any kind or character, whether in cash, property or securities" shall not be deemed to include a payment or distribution of stock or securities of the Issuer provided for by a plan of reorganization or readjustment authorized by an order or decree of a court of competent jurisdiction in a reorganization proceeding under any applicable bankruptcy law or of any other corporation provided for by such plan of reorganization or readjustment which stock or securities are subordinated in right of payment to all then outstanding Senior Indebtedness to substantially the same extent, or to a greater extent than, the Subordinated Securities are so subordinated as provided in this Article. The consolidation of the Issuer with, -11- or the merger of the Issuer into, another Person or the liquidation or dissolution of the Issuer following the conveyance or transfer of all or substantially all of its properties and assets as an entirety to another Person upon the terms and conditions set forth in Article Nine shall not be deemed a Proceeding for the purposes of this Section if the Person formed by such consolidation or into which the Issuer is merged or the Person which acquires by conveyance or transfer such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Nine. Section 14.3 No Payment When Senior Indebtedness in Default. In the event that any Senior Payment Default (as defined below) shall have occurred, then no Subordinated Securities Payment shall be made, nor shall any property of the Issuer or any Subsidiary of the Issuer be applied to the purchase, acquisition, retirement or redemption of the Subordinated Securities, unless and until such Senior Payment Default shall have been cured or waived in writing or shall have ceased to exist or all amounts then due and payable in respect of such Senior Indebtedness (including amounts that have become and remain due by acceleration) shall have been paid in full in cash. "Senior Payment Default" means any default in the payment of principal of (or premium, if any) or interest on any Senior Indebtedness when due, whether at the Stated Maturity of any such payment or by declaration of acceleration, call for redemption, mandatory payment or prepayment or otherwise. In the event that any Senior Nonmonetary Default (as defined below) shall have occurred and be continuing, then, upon the receipt by the Issuer and the Trustee of written notice of such Senior Nonmonetary Default from the holder of such Senior Indebtedness (or the agent, trustee or representative thereof), no Subordinated Securities Payment shall be made, nor shall any property of the Issuer or any Subsidiary of the Issuer be applied to the purchase, acquisition, retirement or redemption of the Subordinated Securities, during the period (the "Payment Blockage Period") commencing on the date of such receipt of such written notice and ending (subject to any blockage of payments that may then or thereafter be in effect as the result of any Senior Payment Default) on the earlier of (i) the date on which the Senior Indebtedness to which such Senior Nonmonetary Default relates is discharged or such Senior Nonmonetary Default shall have been cured or waived in writing or shall have ceased to exist and any acceleration of Senior Indebtedness to which such -12- Senior Nonmonetary Default relates shall have been rescinded or annulled or (ii) the 179th day after the date of such receipt of such written notice. No more than one Payment Blockage Period may be commenced with respect to the Subordinated Securities during any period of 360 consecutive days and there shall be a period of at least 181 consecutive days in each period of 360 consecutive days when no Payment Blockage Period is in effect. Following the commencement of any Payment Blockage Period, the holders of any Senior Indebtedness will be precluded from commencing a subsequent Payment Blockage Period until the conditions set forth in the preceding sentence are satisfied. For all purposes of this paragraph, no Senior Nonmonetary Default that existed or was continuing on the date of commencement of any Payment Blockage Period with respect to the Senior Indebtedness initiating such Payment Blockage Period shall be, or be made, the basis for the commencement of a subsequent Payment Blockage Period by holders of Senior Indebtedness or their representatives unless such Senior Nonmonetary Default shall have been cured for a period of not less than 90 consecutive days. "Senior Nonmonetary Default" means the occurrence or existence and continuance of any default (other than a Senior Payment Default) or any event which, after notice or lapse of time (or both), would become an Event of Default (other than a Senior Payment Default), under the terms of any instrument or agreement pursuant to which any Senior Indebtedness is outstanding, permitting (after notice or lapse of time or both) one or more holders of such Senior Indebtedness (or a trustee or agent on behalf of the holders thereof) to declare such Senior Indebtedness due and payable prior to the date on which it would otherwise become due and payable. In the event that, notwithstanding the foregoing, the Issuer shall make any payment to the Trustee or the Holder of any Subordinated Security prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Issuer. The provisions of this Section shall not apply to any Subordinated Securities Payment with respect to which Section 14.2 hereof would be applicable. Section 14.4 Payment Permitted If No Default. Nothing contained in this Article or elsewhere in this Indenture or in any of the Subordinated Securities shall prevent the Issuer, at -13- any time except during the pendency of any Proceeding referred to in Section 14.2 hereof or under the conditions described in Section 14.3 hereof, from making Subordinated Securities Payments. Section 14.5 Subrogation to Rights of Holders of Senior Indebtedness. Subject to the payment in full in cash of all Senior Indebtedness, the Holders of the Subordinated Securities shall be subrogated (equally and ratably with the holders of all indebtedness of the Issuer which by its express terms is subordinated to indebtedness of the Issuer to substantially the same extent as the Subordinated Securities are subordinated and is entitled to like rights of subrogation) to the rights of the holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of and interest on the Subordinated Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Subordinated Securities or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of the Subordinated Securities or the Trustee, shall, as among the Issuer, its creditors other than holders of Senior Indebtedness and the Holders of the Subordinated Securities, be deemed to be a payment or distribution by the Issuer to or on account of the Senior Indebtedness. Section 14.6 Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Subordinated Securities is intended to or shall (a) impair, as among the Issuer, its creditors other than holders of Senior Indebtedness and the Holders of the Subordinated Securities, the obligation of the Issuer, which is absolute and unconditional (and which, subject to the rights under this Article of the holders of Senior Indebtedness, is intended to rank equally with all other general obligations of the Issuer), to pay to the Holders of the Subordinated Securities the principal of and interest on the Subordinated Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Issuer of the Holders of the Subordinated Securities -14- and creditors of the Issuer other than the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Subordinated Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. Section 14.7 Trustee to Effectuate Subordination. Each Holder of a Subordinated Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding-up, liquidation or reorganization of the Issuer whether in bankruptcy, insolvency, receivership proceedings, or otherwise, the timely filing of a claim for the unpaid balance of the Indebtedness of the Issuer owing to such Holder in the form required in such proceedings and the causing of such claim to be approved. If the Trustee does not file a proper claim at least 30 days before the expiration of the time to file such claim, then the holders of the Senior Indebtedness and their agents, trustees or other representatives are authorized to do so (but shall in no event be liable for any failure to do so) for and on behalf of the Holders of the Subordinated Securities. Section 14.8 No Waiver of Subordination Provisions. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Issuer with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Subordinated Securities, without incurring responsibility to the Holders of the Subordinated Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of the Subordinated Securities to the holders of Senior Indebtedness, do any one or more of the following: (i) change -15- the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) permit the Issuer to borrow, repay and then reborrow any or all of the Senior Indebtedness; (iii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iv) release any Person liable in any manner for the collection of Senior Indebtedness; (v) exercise or refrain from exercising any rights against the Issuer and any other Person; and (vi) apply any sums received by them to Senior Indebtedness. Section 14.9 Notice to Trustee. The Issuer shall give prompt written notice to the Trustee of any fact known to the Issuer which would prohibit the making of any payment to or by the Trustee in respect of the Subordinated Securities. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Subordinated Securities, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Issuer, any holder of Senior Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.1 hereof, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Subordinated Security), then, anything herein contained to the contrary notwithstanding, but without limiting the rights and remedies of the holders of Senior Indebtedness or any trustee, fiduciary or agent therefor, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within two Business Days prior to such date. Any notice required or permitted to be given to the Trustee by a holder of Senior Indebtedness or by any agent, trustee or representative thereof shall be in writing and shall be sufficient for every purpose hereunder if in writing and either (i) sent via -16- facsimile to the Trustee, the receipt of which shall be confirmed via telephone, or (ii) mailed, first class postage prepaid, or sent by overnight carrier, to the Trustee addressed to its Corporate Trust Office or to any other address furnished in writing to such holder of Senior Indebtedness by the Trustee. Subject to the provisions of Section 6.1 hereof, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor to establish that such notice has been given by a holder of Senior Indebtedness or a trustee, fiduciary or agent therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Notwithstanding anything else contained herein, no notice, request or other communication to or with the Trustee shall be deemed given unless received by a Responsible Officer at the Corporate Trust Office. Section 14.10 Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Issuer referred to in this Article, the Trustee, subject to the provisions of Section 6.1 hereof, and the Holders of the Subordinated Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Subordinated Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other Indebtedness of the Issuer, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and -17- all other facts pertinent thereto or to this Article, provided that the foregoing shall apply only if such court has been apprised of the provisions of this Article. Section 14.11. Trustee Not Fiduciary for Holders of Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness by virtue of this Article and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Subordinated Securities or to the Issuer or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article or otherwise. Section 14.12 Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.6 hereof. Section 14.13 Covenants for the Benefit of the Holders of Subordinated Securities. (a) The Issuer agrees that neither it nor any of its Subsidiaries will declare or pay any dividend on, or redeem, purchase, acquire for value or make a liquidation payment with respect to, any of its Common Stock or preferred stock (other than as a result of a reclassification of such Common Stock or preferred stock or the exchange or conversion of one class or series of Common Stock or preferred stock for another class or series of Common Stock or preferred stock), or make any guarantee payments with respect to the foregoing (other than dividends or guarantee payments to the Issuer from a Subsidiary) if at such time (i) there shall have occurred any event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default hereunder with respect to the Subordinated -18- Securities or under the Subordinated Securities or (ii), if applicable, the Issuer shall have given notice of its election to defer interest payments with respect to Subordinated Securities and such extension period, or any extension thereof, shall be continuing. (b) If, upon any consolidation, amalgamation, merger, sale or conveyance described in the first sentence of Section 9.1, any Principal Property of the Issuer or of any Subsidiary or any shares of stock or Funded Indebtedness of any Subsidiary which owns a Principal Property would thereupon become subject to any mortgage (as defined in Section 3.6), the Issuer, prior to such consolidation, amalgamation, merger, sale or conveyance, will by indenture supplemental hereto secure the due and punctual payment of the principal of and interest on the Subordinated Securities by a direct lien on such Principal Property, shares of stock or Funded Indebtedness equally and ratably with (or prior to) all liens other than any theretofore existing thereon. Section 14.14 Inapplicability of Certain Indenture Covenants to Subordinated Securities. Notwithstanding anything to the contrary herein, the holders of Subordinated Securities shall not be entitled to the covenants contained in Sections 3.6, 3.8 and 9.2 of this Indenture. To the extent an Event of Default shall have occurred hereunder solely due to a violation by the Issuer of the terms of one or more of such Sections, no Event of Default shall be deemed to have occurred with respect to any series of Subordinated Securities." SECTION 7. 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 Issuer and the Trustee assumes no responsibility for the validity or sufficiency of such recitals. SECTION 8. Miscellaneous. (A) Certain Capitalized Terms. Capitalized terms used but not defined in this Seventh Supplemental Indenture shall have the meanings ascribed to such terms in the Indenture, as heretofore supplemented. (B) Effectiveness. This Seventh Supplemental Indenture will become effective upon its execution and delivery by the Issuer and the Trustee. -19- (C) Successors and Assigns. All of the covenants, promises, stipulations and agreements of the Issuer contained in the Indenture, as supplemented and amended by this Seventh Supplemental Indenture, will bind the Issuer and its successors and assigns and will inure to the benefit of the Trustee and its successors and assigns. (D) Governing Law. THIS SEVENTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS. (E) Counterparts. This Seventh Supplemental Indenture may be executed in any number of separate counterparts each of which shall be an original; but such separate counterparts shall together constitute but one and the same instrument. [SIGNATURE PAGE FOLLOWS] -20- IN WITNESS WHEREOF, the Issuer and the Trustee hereto have caused this Seventh 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 INC. By: -------------------------------------- Name: Title: (Corporate Seal) Attest: By: -------------------------------- Name: Title: BANKERS TRUST COMPANY, as Trustee By: -------------------------------------- Name: Title: (Corporate Seal) Attest: By: -------------------------------------------- Name: Title: -21- Canada ) ) Province Of Quebec ) s.s.: ) District Of Montreal ) On this __th day of [ ], 200[ ] before me personally came ______________________, to me personally known, who, being by me duly sworn, did depose and say that he resides at _______________________________, that he is ________________ of Alcan Inc., 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) ----------------------------------------------------- Commissioner of Oaths -22- State of New York ) ) s.s.: County of New York ) On this __th day of [ ], 200[ ] before me personally came _______________, to me personally known, who, being by me duly sworn, did depose and say that he resides at ___________________, that he is ________________________ of Bankers Trust Issuer, 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) -------------------------------- Notary Public State of New York No.___________ Qualified in New York County Commission expires _________ -23- EX-5.1 7 m06882orex5-1.txt EXHIBIT 5.1 EXHIBIT 5.1 ALCAN [ALCAN LOGO] Alcan Inc. 1188 Sherbrooke West Tel.: (514) 848-8000 Montreal, Quebec H3A 3G2 Fax: (514) 848-8555 Canada www.alcan.com 10 April 2002 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Registration on Form S-3 Dear Sirs: I have acted as counsel for Alcan Inc., a Canadian corporation (the "Company"), 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. $1,000,000,000 in aggregate offering price of debt securities (the "Debt Securities") and/or certain classes of equity securities (the "Equity Securities") of the Company, together, in the case of common shares, with associated common share purchase rights (the "Rights") issued pursuant to the amended and restated Shareholder Rights Agreement, dated April 22, 1999 between the Company and CIBC Mellon Trust Company, successor to The Royal Trust Company, as Rights Agent (the "Rights Agent") , as contemplated in the Company'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 Company and Bankers Trust Company, as Trustee. I hereby consent to the use of this opinion in the Registration Statement and to the references on page 25 of the Prospectus forming a part of the Registration Statement and under the heading "Legal Opinions". In giving such consent I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Act. In reaching the conclusions expressed in this opinion, I have examined such certificates of public officials and of corporate officers and directors and such other documents and matters as I have deemed necessary or appropriate, relied upon the accuracy of facts and information set forth in all such documents, and assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as copies, and the authenticity of the originals from which all such copies were made. Based on the foregoing, I am of the opinion that (i) the Debt Securities, when executed by the Company 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 Company, (ii) the Equity Securities, upon due authorization by the Board of Directors of the Company, due execution by proper officers of the Company and due authentication by the Company'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, (iii) assuming that the abovementioned Shareholder Rights Agreement has been duly authorized, executed and delivered by the Rights Agent and is still in effect, the Rights associated with the Equity Securities have been validly issued. In connection with our opinion set forth in clause (iii) above, I note that the question whether the Board of Directors of the Company might be required to redeem the Rights at some future time will depend upon the facts and circumstances existing at that time and, accordingly, is beyond the scope of such opinion. The foregoing opinion is limited to matters involving 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, I have relied upon the opinion of Sullivan & Cromwell, United States counsel to the Company, 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/ Roy Millington -------------------- Roy Millington Corporate Secretary EX-5.2 8 m06882orex5-2.txt EXHIBIT 5.2 EXHIBIT 5.2 April 10, 2002 Alcan Inc., 1188 Sherbrooke Street West, Montreal, Quebec, Canada H3A 3G2. Ladies and Gentlemen: In connection with the registration under the Securities Act of 1933 (the "Act") of $1,000,000,000 aggregate amount of senior debt securities, subordinated debt securities (the senior debt securities and the subordinated debt securities, collectively, the "Debt Securities") and warrants (the "Warrants" and, together with the Debt Securities, the "Securities") and equity securities of Alcan Inc., a Canadian corporation (the "Company"), we, as your special United States counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such examination, we advise you that, in our opinion, when the Registration Statement has become effective under the Act, the terms of the Securities and of their issuance and sale have been duly established in conformity with (i) in the case of the Debt Securities, the Indenture relating thereto, as amended by the First through the Seventh Supplemental Indentures thereto, and (ii) in the case of any Warrants, the warrant agreement or agreements relating thereto substantially in the form filed as an exhibit to the Registration Statement, so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and the Securities have been duly executed and authenticated in accordance with (i) in the case of the Debt Securities, the Indenture relating thereto, and (ii) in the case of any Warrants, the warrant agreement or agreements relating thereto, and issued and sold as contemplated in the Registration Statement, the Securities will constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. The Securities covered by the opinion in this paragraph include any Securities that may be issued upon exercise or otherwise pursuant to the terms of any other Securities. The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York and we are expressing no opinion as to the effect of the laws of any other jurisdiction. For purposes of our opinion, we have assumed that the Company has been duly incorporated and is an existing corporation in good standing under the laws of Canada, and that each of the Indenture relating to the Debt Securities, and any warrant agreement relating to the Warrants, shall have been duly authorized, executed and delivered by the Company insofar as the laws of Canada and Quebec are concerned. With respect to all matters of Canadian and Quebec law, we note that you are being provided with the opinion, dated the date hereof, of Roy Millington, corporate secretary and counsel for the Company. Also, we have relied as to certain matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible, and we have assumed that the Indenture relating to the Debt Securities shall have been duly authorized, executed and delivered by the Trustee thereunder, and the warrant agreement or agreements relating to any warrants shall have been duly authorized, executed and delivered by the warrant agent or warrant agents thereunder. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading "Validity of Securities" in the Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, /s/ Sullivan & Cromwell EX-12.1 9 m06882orex12-1.txt EXHIBIT 12.1 EXHIBIT 12.1 ALCAN INC. COMPUTATION OF EARNINGS TO FIXED CHARGES CANADIAN GAAP (IN MILLIONS OF US DOLLARS)
YEAR ---------------------------------------- 2001 2000 1999 1998 1997 ---------------------------------------- Consolidated net income (loss) before Extraordinary item 5 618 460 399 468 Less: Equity income of less than 50% owned companies 3 4 (1) (48) (33) Plus: Dividends received from less than 50% owned companies 2 1 1 5 6 Plus: Minority interest of subsidiaries that have fixed charges (13) (1) 14 (4) 4 ---------------------------------------- SUBTOTAL (9) 614 476 448 511 ---------------------------------------- FIXED CHARGES Amount representative of interest factor in Rentals 24 19 19 28 23 Amount representative of interest factor in rentals, 50% owned companies 0 0 0 0 0 Interest expense - net 254 78 76 92 101 Interest expense, 50% owned companies 0 0 0 0 0 Capitalized interest 30 81 41 15 2 Capitalized interest, 50% owned companies 0 0 0 0 0 ---------------------------------------- TOTAL FIXED CHARGES 308 178 136 135 126 ======================================== Less: Capitalized interest 30 81 41 15 2 ======================================== FIXED CHARGES ADDED TO INCOME/(LOSS) 278 97 95 120 124 ======================================== Plus: Amortization of capitalized interest 25 21 18 15 16 ======================================== Income taxes 42 254 211 210 248 ======================================== EARNINGS BEFORE FIXED CHARGES AND INCOME TAXES 336 986 800 793 899 ======================================== RATIO OF EARNINGS TO FIXED CHARGES 1.09 5.54 5.88 5.87 7.13 ========================================
EX-12.2 10 m06882orex12-2.txt EXHIBIT 12.2 EXHIBIT 12.2 ALCAN INC. COMPUTATION OF EARNINGS TO FIXED CHARGES US GAAP (IN MILLIONS OF US DOLLARS)
YEAR ---------------------------------------- 2001 2000 1999 1998 1997 ---------------------------------------- Consolidated net income (loss) before Extraordinary item (54) 606 455 417 504 Less: Equity income of less than 50% owned companies 3 4 (1) (48) (33) Plus: Dividends received from less than 50% owned companies 2 1 1 5 6 Plus: Minority interest of subsidiaries that have fixed charges (13) (1) 14 (4) 4 ---------------------------------------- SUBTOTAL (68) 602 471 466 547 ---------------------------------------- FIXED CHARGES Amount representative of interest factor in Rentals 24 19 19 28 23 Amount representative of interest factor in rentals, 50% owned companies 0 0 0 0 0 Interest expense - net 254 78 76 92 101 Interest expense, 50% owned companies 0 0 0 0 0 Capitalized interest 30 81 41 15 2 Capitalized interest, 50% owned companies 0 0 0 0 0 ---------------------------------------- TOTAL FIXED CHARGES 308 178 136 135 126 ======================================== Less: Capitalized interest 30 81 41 15 2 ======================================== FIXED CHARGES ADDED TO INCOME/(LOSS) 278 97 95 120 124 ======================================== Plus: Amortization of capitalized interest 25 21 18 15 16 ======================================== Income taxes 7 259 211 210 211 ======================================== EARNINGS BEFORE FIXED CHARGES AND INCOME TAXES 242 979 795 811 898 ======================================== RATIO OF EARNINGS TO FIXED CHARGES 0.79 5.50 5.85 6.01 7.13 ========================================
EX-12.3 11 m06882orex12-3.txt EXHIBIT 12.3 EXHIBIT 12.3 ALCAN INC. COMPUTATION OF EARNINGS TO COMBINED FIXED AND PREFERRED STOCK DIVIDENDS CHARGES CANADIAN GAAP (IN MILLIONS OF US DOLLARS)
YEAR ---------------------------------------- 2001 2000 1999 1998 1997 ---------------------------------------- Consolidated net income (loss) before Extraordinary item 5 618 460 399 468 Less: Equity income of less than 50% owned companies 3 4 (1) (48) (33) Plus: Dividends received from less than 50% owned companies 2 1 1 5 6 Plus: Minority interest of subsidiaries that have fixed charges (13) (1) 14 (4) 4 ---------------------------------------- SUBTOTAL (9) 614 476 448 511 ---------------------------------------- FIXED CHARGES Amount representative of interest factor in Rentals 24 19 19 28 23 Amount representative of interest factor in rentals, 50% owned companies 0 0 0 0 0 Interest expense - net 254 78 76 92 101 Interest expense, 50% owned companies 0 0 0 0 0 Capitalized interest 30 81 41 15 2 Capitalized interest, 50% owned companies 0 0 0 0 0 TOTAL FIXED CHARGES 308 178 136 135 126 Less: Capitalized interest 30 81 41 15 2 FIXED CHARGES ADDED TO INCOME/(LOSS) 278 97 95 120 124 Plus: Amortization of capitalized interest 25 21 18 15 16 Income taxes 42 254 211 210 248 EARNINGS BEFORE FIXED CHARGES AND INCOME TAXES 336 986 800 793 899 ---------------------------------------- TOTAL FIXED CHARGES 308 178 136 135 126 ======================================== Preference dividends 8 10 9 10 10 ======================================== 1 minus tax rate of 40% 0.6 0.6 0.6 0.6 0.6 ======================================== PREFERENCE DIVIDENDS PRE TAX 13 17 15 17 17 ======================================== TOTAL 321 195 151 152 143 RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS 1.05 5.07 5.30 5.23 6.30 ========================================
EX-12.4 12 m06882orex12-4.txt EXHIBIT 12.4 EXHIBIT 12.4 ALCAN INC. COMPUTATION OF EARNINGS TO COMBINED FIXED AND PREFERRED STOCK DIVIDENDS CHARGES US GAAP (IN MILLIONS OF US DOLLARS)
YEAR ---------------------------------------- 2001 2000 1999 1998 1997 ---------------------------------------- Consolidated net income (loss) before extraordinary item (54) 606 455 417 504 Less: Equity income of less than 50% owned companies 3 4 (1) (48) (33) Plus: Dividends received from less than 50% owned companies 2 1 1 5 6 Plus: Minority interest of subsidiaries that have fixed charges (13) (1) 14 (4) 4 ---------------------------------------- SUBTOTAL (68) 602 471 466 547 ---------------------------------------- FIXED CHARGES Amount representative of interest factor in rentals 24 19 19 28 23 Amount representative of interest factor in rentals, 50% owned companies 0 0 0 0 0 Interest expense - net 254 78 76 92 101 Interest expense, 50% owned companies 0 0 0 0 0 Capitalized interest 30 81 41 15 2 Capitalized interest, 50% owned companies 0 0 0 0 0 TOTAL FIXED CHARGES 308 178 136 135 126 Less: Capitalized interest 30 81 41 15 2 FIXED CHARGES ADDED TO INCOME/(LOSS) 278 97 95 120 124 Plus: Amortization of capitalized interest 25 21 18 15 16 Income taxes 7 259 211 210 211 EARNINGS BEFORE FIXED CHARGES AND INCOME TAXES 242 979 795 811 898 ---------------------------------------- TOTAL FIXED CHARGES 308 178 136 135 126 ======================================== Preference dividends 8 10 9 10 10 ======================================== 1 minus statutory tax rate of 40% 0.6 0.6 0.6 0.6 0.6 ======================================== PREFERENCE DIVIDENDS PRE TAX 13 17 15 17 17 ======================================== TOTAL 321 195 151 152 143 ======================================== RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS 0.75 5.03 5.26 5.35 6.29 ========================================
EX-23.1 13 m06882orex23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 [PRICEWATERHOUSECOOPERS LOGO] PRICEWATERHOUSECOOPERS LLP CHARTERED ACCOUNTANTS 1250 Rene-Levesque Boulevard West Suite 3500 Montreal, Quebec Canada H3B 2G4 Telephone +1 (514) 205 5000 Facsimile +1 (514) 938 5709 Direct Fax +1 (514) 876-8158 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 8, 2002 relating to the financial statements, which appear in the 2001 Annual Report to Shareholders, which is incorporated by reference in Alcan Inc.'s Annual Report on Form 10-K for the year ended December 31, 2001. We also consent to the references to us under the heading "Experts" in such Registration Statement. /s/PricewaterhouseCoopers LLP 10 April 2002 PricewaterhouseCoopers refers to the Canadian firm of PricewaterhouseCoopers LLP and other members of the worldwide PricewaterhouseCoopers organization. EX-24.1 14 m06882orex24-1.txt EXHIBIT 24.1 EXHIBIT 24.1 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 27(th) day of September 2001. /s/ W.R.C. Blundell ------------------------ W.R.C. Blundell Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 27(th) day of September 2001. /s/ Clarence J. Chandran ------------------------ Clarence J. Chandran Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 27th day of September 2001. /s/ John R. Evans ------------------------------------- Dr. John R. Evans Director, Chairman POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 27th day of September 2001. /s/ Willi Kerth ------------------------------------ Willi Kerth Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 27th day of September 2001. /s/ Brian M. Levitt ------------------------------------ Brian M. Levitt Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 27th day of September 2001. /s/ Guy Saint-Pierre --------------------------------- Guy Saint-Pierre Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 27th day of September 2001. /s/ Gerhard Schulmeyer ---------------------------------- Gerhard Schulmeyer Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Officer and/or a Director of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 27th day of September 2001. /s/ Paul Tellier ------------------------------------ Paul Tellier Director POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Authorised Representative in the United States of America of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 11th day of February 2002. /s/ William H. Jairrels ------------------------------------ William H. Jairrels Authorised Representative in the United States of America POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS WHEREAS, ALCAN INC., 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 1,000,000,000 in aggregate principal amount in public offering price 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 "Authorised Securities"); WHEREAS, the undersigned is an Authorised Representative in the United States of America of the Corporation as indicated below; NOW, THEREFORE, the undersigned hereby constitutes and appoints Roy Millington, Pierre D. Chenard and David McAusland, 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 11th day of February 2002. /s/ Gordon Becker ------------------------------------ Name: Gordon Becker Authorised Representative in the United States of America EX-25.1 15 m06882orex25-1.txt EXHIBIT 25.1 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 1301 6TH AVENUE, 8TH FLOOR NEW YORK, NEW YORK 10019 (212) 469-0378 (Name, address and telephone number of agent for service) -------------------- ALCAN INC. (Exact name of Registrant as specified in its charter) CANADA NOT APPLICABLE (State or other jurisdiction (IRS Employer Identification No.) of incorporation or organization) 1188 SHERBROOKE STREET WEST MONTREAL, QUEBEC, CANADA H3A 3G2 514-848-8000 (Address, including zip code and telephone number, including area code, of registrant's principal executive offices) DEBT SECURITIES (TITLE OF THE INDENTURE SECURITIES) ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee. (a) Name and address of each examining or supervising authority to which it is subject. NAME ADDRESS ---- ------- Federal Reserve Bank (2nd District) New York, NY Federal Deposit Insurance Corporation Washington, D.C. New York State Banking Department Albany, NY (b) Whether it is authorized to exercise corporate trust powers. Yes. ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. None. ITEM 3.-15. NOT APPLICABLE ITEM 16. LIST OF EXHIBITS. EXHIBIT 1 - Restated Organization Certificate of Bankers Trust Company dated August 6, 1998, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998, and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 16, 1998, copies attached. EXHIBIT 2 - Certificate of Authority to commence business - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047. EXHIBIT 3 - Authorization of the Trustee to exercise corporate trust powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047. EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended on May 18, 2001. Copy attached. -2- 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 December 31, 2001. Copy attached. EXHIBIT 8 - Not Applicable. EXHIBIT 9 - Not Applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bankers Trust Company, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 21st day of March 2002. BANKERS TRUST COMPANY /s/ Susan Johnson ------------------------------------ By: Susan Johnson Vice President -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 September 16, 1998, providing for an increase in authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock. WITNESS, my hand and official seal of the Banking Department at the City of New York, this 25TH day of SEPTEMBER in the Year of our Lord one thousand nine hundred and NINETY-EIGHT. Manuel Kursky ------------------------------ Deputy Superintendent of Banks RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY ---------------------------- Under Section 8007 Of the Banking Law ---------------------------- Bankers Trust Company 1301 6th Avenue, 8th Floor New York, N.Y. 10019 Counterpart Filed in the Office of the Superintendent of Banks, State of New York, August 31, 1998 RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST Under Section 8007 of the Banking Law ----------------------------- We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and an Assistant Secretary and a Vice President and an Assistant Secretary of BANKERS TRUST COMPANY, do hereby certify: 1. The name of the corporation is Bankers Trust Company. 2. The organization certificate of the corporation was filed by the Superintendent of Banks of the State of New York on March 5, 1903. 3. The text of the organization certificate, as amended heretofore, is hereby restated without further amendment or change to read as herein-set forth in full, to wit: "Certificate of Organization of Bankers Trust Company Know All Men By These Presents That we, the undersigned, James A. Blair, James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A. Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H. Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C. Young, all being persons of full age and citizens of the United States, and a majority of us being residents of the State of New York, desiring to form a corporation to be known as a Trust Company, do hereby associate ourselves together for that purpose under and pursuant to the laws of the State of New York, and for such purpose we do hereby, under our respective hands and seals, execute and duly acknowledge this Organization Certificate in duplicate, and hereby specifically state as follows, to wit: I. The name by which the said corporation shall be known is Bankers Trust Company. II. The place where its business is to be transacted is the City of New York, in the State of New York. III. Capital Stock: The amount of capital stock which the corporation is hereafter to have is Three Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock. (a) Common Stock 1. Dividends: Subject to all of the rights of the Series Preferred Stock, dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the corporation legally available for the payment of dividends. 2. Voting Rights: Except as otherwise expressly provided with respect to the Series Preferred Stock or with respect to any series of the Series Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, each holder of the Common Stock being entitled to one vote for each share thereof held. 3. Liquidation: Upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, and after the holders of the Series Preferred Stock of each series shall have been paid in full the amounts to which they respectively shall be entitled, or a sum sufficient for the payment in full set aside, the remaining net assets of the corporation shall be distributed pro rata to the holders of the Common Stock in accordance with their respective rights and interests, to the exclusion of the holders of the Series Preferred Stock. 4. Preemptive Rights: No holder of Common Stock of the corporation shall be entitled, as such, as a matter of right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend or other distribution. (b) Series Preferred Stock 1. Board Authority: The Series Preferred Stock may be issued from time to time by the Board of Directors as herein provided in one or more series. The designations, relative rights, preferences and limitations of the Series Preferred Stock, and particularly of the shares of each series thereof, may, to the extent permitted by law, be similar to or may differ from those of any other series. The Board of Directors of the corporation is hereby expressly granted authority, subject to the provisions of this Article III, to issue from time to time Series Preferred Stock in one or more series and to fix from time to time before issuance thereof, by filing a certificate pursuant to the Banking Law, the number of shares in each such series of such class and all designations, relative rights (including the right, to the extent permitted by law, to convert into shares of any class or into shares of any series of any class), preferences and limitations of the shares in each such series, including, buy without limiting the generality of the foregoing, the following: (i) The number of shares to constitute such series (which number may at any time, or from time to time, be increased or decreased by the Board of Directors, notwithstanding that shares of the series may be outstanding at the time of such increase or decrease, unless the Board of Directors shall have otherwise provided in creating such series) and the distinctive designation thereof; (ii) The dividend rate on the shares of such series, whether or not dividends on the shares of such series shall be cumulative, and the date or dates, if any, from which dividends thereon shall be cumulative; (iii) Whether or not the share of such series shall be redeemable, and, if redeemable, the date or dates upon or after which they shall be redeemable, the amount or amounts per share (which shall be, in the case of each share, not less than its preference upon involuntary liquidation, plus an amount equal to all dividends thereon accrued and unpaid, whether or not earned or declared) payable thereon in the case of the redemption thereof, which amount may vary at different redemption dates or otherwise as permitted by law; (iv) The right, if any, of holders of shares of such series to convert the same into, or exchange the same for, Common Stock or other stock as permitted by law, and the terms and conditions of such conversion or exchange, as well as provisions for adjustment of the conversion rate in such events as the Board of Directors shall determine; (v) The amount per share payable on the shares of such series upon the voluntary and involuntary liquidation, dissolution or winding up of the corporation; (vi) Whether the holders of shares of such series shall have voting power, full or limited, in addition to the voting powers provided by law and, in case additional voting powers are accorded, to fix the extent thereof; and (vii) Generally to fix the other rights and privileges and any qualifications, limitations or restrictions of such rights and privileges of such series, provided, however, that no such rights, privileges, qualifications, limitations or restrictions shall be in conflict with the organization certificate of the corporation or with the resolution or resolutions adopted by the Board of Directors providing for the issue of any series of which there are shares outstanding. All shares of Series Preferred Stock of the same series shall be identical in all respects, except that shares of any one series issued at different times may differ as to dates, if any, from which dividends thereon may accumulate. All shares of Series Preferred Stock of all series shall be of equal rank and shall be identical in all respects except that to the extent not otherwise limited in this Article III any series may differ from any other series with respect to any one or more of the designations, relative rights, preferences and limitations described or referred to in subparagraphs (I) to (vii) inclusive above. 2. Dividends: Dividends on the outstanding Series Preferred Stock of each series shall be declared and paid or set apart for payment before any dividends shall be declared and paid or set apart for payment on the Common Stock with respect to the same quarterly dividend period. Dividends on any shares of Series Preferred Stock shall be cumulative only if and to the extent set forth in a certificate filed pursuant to law. After dividends on all shares of Series Preferred Stock (including cumulative dividends if and to the extent any such shares shall be entitled thereto) shall have been declared and paid or set apart for payment with respect to any quarterly dividend period, then and not otherwise so long as any shares of Series Preferred Stock shall remain outstanding, dividends may be declared and paid or set apart for payment with respect to the same quarterly dividend period on the Common Stock out the assets or funds of the corporation legally available therefor. All Shares of Series Preferred Stock of all series shall be of equal rank, preference and priority as to dividends irrespective of whether or not the rates of dividends to which the same shall be entitled shall be the same and when the stated dividends are not paid in full, the shares of all series of the Series Preferred Stock shall share ratably in the payment thereof in accordance with the sums which would be payable on such shares if all dividends were paid in full, provided, however, that any two or more series of the Series Preferred Stock may differ from each other as to the existence and extent of the right to cumulative dividends, as aforesaid. 3. Voting Rights: Except as otherwise specifically provided in the certificate filed pursuant to law with respect to any series of the Series Preferred Stock, or as otherwise provided by law, the Series Preferred Stock shall not have any right to vote for the election of directors or for any other purpose and the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. 4. Liquidation: In the event of any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, each series of Series Preferred Stock shall have preference and priority over the Common Stock for payment of the amount to which each outstanding series of Series Preferred Stock shall be entitled in accordance with the provisions thereof and each holder of Series Preferred Stock shall be entitled to be paid in full such amount, or have a sum sufficient for the payment in full set aside, before any payments shall be made to the holders of the Common Stock. If, upon liquidation, dissolution or winding up of the corporation, the assets of the corporation or proceeds thereof, distributable among the holders of the shares of all series of the Series Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid, then such assets, or the proceeds thereof, shall be distributed among such holders ratably in accordance with the respective amounts which would be payable if all amounts payable thereon were paid in full. After the payment to the holders of Series Preferred Stock of all such amounts to which they are entitled, as above provided, the remaining assets and funds of the corporation shall be divided and paid to the holders of the Common Stock. 5. Redemption: In the event that the Series Preferred Stock of any series shall be made redeemable as provided in clause (iii) of paragraph 1 of section (b) of this Article III, the corporation, at the option of the Board of Directors, may redeem at any time or times, and from time to time, all or any part of any one or more series of Series Preferred Stock outstanding by paying for each share the then applicable redemption price fixed by the Board of Directors as provided herein, plus an amount equal to accrued and unpaid dividends to the date fixed for redemption, upon such notice and terms as may be specifically provided in the certificate filed pursuant to law with respect to the series. 6. Preemptive Rights: No holder of Series Preferred Stock of the corporation shall be entitled, as such, as a matter or right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend. (c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock, Series A. (Liquidation value $1,000,000 per share.) 1. Designation: The distinctive designation of the series established hereby shall be "Floating Rate Non-Cumulative Preferred Stock, Series A" (hereinafter called "Series A Preferred Stock"). 2. Number: The number of shares of Series A Preferred Stock shall initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased or otherwise acquired by the corporation shall be cancelled and shall revert to authorized but unissued Series Preferred Stock undesignated as to series. 3. Dividends: (a) Dividend Payments Dates. Holders of the Series A Preferred Stock shall be entitled to receive non-cumulative cash dividends when, as and if declared by the Board of Directors of the corporation, out of funds legally available therefor, from the date of original issuance of such shares (the "Issue Date") and such dividends will be payable on March 28, June 28, September 28 and December 28 of each year ("Dividend Payment Date") commencing September 28, 1990, at a rate per annum as determined in paragraph 3(b) below. The period beginning on the Issue Date and ending on the day preceding the first Dividend Payment Date and each successive period beginning on a Dividend Payment Date and ending on the date preceding the next succeeding Dividend Payment Date is herein called a "Dividend Period". If any Dividend Payment Date shall be, in The City of New York, a Sunday or a legal holiday or a day on which banking institutions are authorized by law to close, then payment will be postponed to the next succeeding business day with the same force and effect as if made on the Dividend Payment Date, and no interest shall accrue for such Dividend Period after such Dividend Payment Date. (b) Dividend Rate. The dividend rate from time to time payable in respect of Series A Preferred Stock (the "Dividend Rate") shall be determined on the basis of the following provisions: (i) On the Dividend Determination Date, LIBOR will be determined on the basis of the offered rates for deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date, as such rates appear on the Reuters Screen LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in respect of such Dividend Determination Dates will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such offered rates. If fewer than those offered rates appear, LIBOR in respect of such Dividend Determination Date will be determined as described in paragraph (ii) below. (ii) On any Dividend Determination Date on which fewer than those offered rates for the applicable maturity appear on the Reuters Screen LIBO Page as specified in paragraph (I) above, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time are offered by three major banks in the London interbank market selected by the corporation at approximately 11:00 A.M., London time, on such Dividend Determination Date to prime banks in the London market. The corporation will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such quotations. If fewer than two quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of the rates quoted by three major banks in New York City selected by the corporation at approximately 11:00 A.M., New York City time, on such Dividend Determination Date for loans in U.S. dollars to leading European banks having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the corporation are not quoting as aforementioned in this sentence, then, with respect to such Dividend Period, LIBOR for the preceding Dividend Period will be continued as LIBOR for such Dividend Period. (ii) The Dividend Rate for any Dividend Period shall be equal to the lower of 18% or 50 basis points above LIBOR for such Dividend Period as LIBOR is determined by sections (I) or (ii) above. As used above, the term "Dividend Determination Date" shall mean, with respect to any Dividend Period, the second London Business Day prior to the commencement of such Dividend Period; and the term "London Business Day" shall mean any day that is not a Saturday or Sunday and that, in New York City, is not a day on which banking institutions generally are authorized or required by law or executive order to close and that is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market. 4. Voting Rights: The holders of the Series A Preferred Stock shall have the voting power and rights set forth in this paragraph 4 and shall have no other voting power or rights except as otherwise may from time to time be required by law. So long as any shares of Series A Preferred Stock remain outstanding, the corporation shall not, without the affirmative vote or consent of the holders of at least a majority of the votes of the Series Preferred Stock entitled to vote outstanding at the time, given in person or by proxy, either in writing or by resolution adopted at a meeting at which the holders of Series A Preferred Stock (alone or together with the holders of one or more other series of Series Preferred Stock at the time outstanding and entitled to vote) vote separately as a class, alter the provisions of the Series Preferred Stock so as to materially adversely affect its rights; provided, however, that in the event any such materially adverse alteration affects the rights of only the Series A Preferred Stock, then the alteration may be effected with the vote or consent of at least a majority of the votes of the Series A Preferred Stock; provided, further, that an increase in the amount of the authorized Series Preferred Stock and/or the creation and/or issuance of other series of Series Preferred Stock in accordance with the organization certificate shall not be, nor be deemed to be, materially adverse alterations. In connection with the exercise of the voting rights contained in the preceding sentence, holders of all series of Series Preferred Stock which are granted such voting rights (of which the Series A Preferred Stock is the initial series) shall vote as a class (except as specifically provided otherwise) and each holder of Series A Preferred Stock shall have one vote for each share of stock held and each other series shall have such number of votes, if any, for each share of stock held as may be granted to them. The foregoing voting provisions will not apply if, in connection with the matters specified, provision is made for the redemption or retirement of all outstanding Series A Preferred Stock. 5. Liquidation: Subject to the provisions of section (b) of this Article III, upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, the holders of the Series A Preferred Stock shall have preference and priority over the Common Stock for payment out of the assets of the corporation or proceeds thereof, whether from capital or surplus, of $1,000,000 per share (the "liquidation value") together with the amount of all dividends accrued and unpaid thereon, and after such payment the holders of Series A Preferred Stock shall be entitled to no other payments. 6. Redemption: Subject to the provisions of section (b) of this Article III, Series A Preferred Stock may be redeemed, at the option of the corporation in whole or part, at any time or from time to time at a redemption price of $1,000,000 per share, in each case plus accrued and unpaid dividends to the date of redemption. At the option of the corporation, shares of Series A Preferred Stock redeemed or otherwise acquired may be restored to the status of authorized but unissued shares of Series Preferred Stock. In the case of any redemption, the corporation shall give notice of such redemption to the holders of the Series A Preferred Stock to be redeemed in the following manner: a notice specifying the shares to be redeemed and the time and place of redemption (and, if less than the total outstanding shares are to be redeemed, specifying the certificate numbers and number of shares to be redeemed) shall be mailed by first class mail, addressed to the holders of record of the Series A Preferred Stock to be redeemed at their respective addresses as the same shall appear upon the books of the corporation, not more than sixty (60) days and not less than thirty (30) days previous to the date fixed for redemption. In the event such notice is not given to any shareholder such failure to give notice shall not affect the notice given to other shareholders. If less than the whole amount of outstanding Series A Preferred Stock is to be redeemed, the shares to be redeemed shall be selected by lot or pro rata in any manner determined by resolution of the Board of Directors to be fair and proper. From and after the date fixed in any such notice as the date of redemption (unless default shall be made by the corporation in providing moneys at the time and place of redemption for the payment of the redemption price) all dividends upon the Series A Preferred Stock so called for redemption shall cease to accrue, and all rights of the holders of said Series A Preferred Stock as stockholders in the corporation, except the right to receive the redemption price (without interest) upon surrender of the certificate representing the Series A Preferred Stock so called for redemption, duly endorsed for transfer, if required, shall cease and terminate. The corporation's obligation to provide moneys in accordance with the preceding sentence shall be deemed fulfilled if, on or before the redemption date, the corporation shall deposit with a bank or trust company (which may be an affiliate of the corporation) having an office in the Borough of Manhattan, City of New York, having a capital and surplus of at least $5,000,000 funds necessary for such redemption, in trust with irrevocable instructions that such funds be applied to the redemption of the shares of Series A Preferred Stock so called for redemption. Any interest accrued on such funds shall be paid to the corporation from time to time. Any funds so deposited and unclaimed at the end of two (2) years from such redemption date shall be released or repaid to the corporation, after which the holders of such shares of Series A Preferred Stock so called for redemption shall look only to the corporation for payment of the redemption price. IV. The name, residence and post office address of each member of the corporation are as follows:
Name RESIDENCE POST OFFICE ADDRESS ---- --------- ------------------- James A. Blair 9 West 50th Street, 33 Wall Street, Manhattan, New York City Manhattan, New York City James G. Cannon 72 East 54th Street, 14 Nassau Street, Manhattan New York City Manhattan, New York City E. C. Converse 3 East 78th Street, 139 Broadway, Manhattan, New York City Manhattan, New York City Henry P. Davison Englewood, 2 Wall Street, New Jersey Manhattan, New York City Granville W. Garth 160 West 57th Street, 33 Wall Street Manhattan, New York City Manhattan, New York City A. Barton Hepburn 205 West 57th Street 83 Cedar Street Manhattan, New York City Manhattan, New York City William Logan Montclair, 13 Nassau Street New Jersey Manhattan, New York City George W. Perkins Riverdale, 23 Wall Street, New York Manhattan, New York City
William H. Porter 56 East 67th Street 270 Broadway, Manhattan, New York City Manhattan, New York City John F. Thompson Newark, 143 Liberty Street, New Jersey Manhattan, New York City Albert H. Wiggin 42 West 49th Street, 214 Broadway, Manhattan, New York City Manhattan, New York City Samuel Woolverton Mount Vernon, 34 Wall Street, New York Manhattan, New York City Edward F.C. Young 85 Glenwood Avenue, 1 Exchange Place, Jersey City, New Jersey Jersey City, New Jersey
V. The existence of the corporation shall be perpetual. VI. The subscribers, the members of the said corporation, do, and each for himself does, hereby declare that he will accept the responsibilities and faithfully discharge the duties of a director therein, if elected to act as such, when authorized accordance with the provisions of the Banking Law of the State of New York. VII. The number of directors of the corporation shall not be less than 10 nor more than 25." 4. The foregoing restatement of the organization certificate was authorized by the Board of Directors of the corporation at a meeting held on July 21, 1998. IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th day of August, 1998. IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th day of August, 1998. /s/ James T. Byrne, Jr. -------------------------------------- James T. Byrne, Jr. Managing Director and Secretary /s/ Lea Lahtinen -------------------------------------- Lea Lahtinen Vice President and Assistant Secretary /s/ Lea Lahtinen -------------------------------------- Lea Lahtinen State of New York ) ) ss: County of New York ) Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true. /s/ Lea Lahtinen ------------------------------- Lea Lahtinen Sworn to before me this 6th day of August, 1998. /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 State of New York, BANKING DEPARTMENT I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION 8007 OF THE BANKING LAW," dated August 6, 1998, providing for the restatement of the Organization Certificate and all amendments into a single certificate. WITNESS, my hand and official seal of the Banking Department at the City of New York, this 31ST day of AUGUST in the Year of our Lord one thousand nine hundred and NINETY-EIGHT. Manuel Kursky ------------------------------ DEPUTY Superintendent of Banks CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST Under Section 8005 of the Banking Law ----------------------------- We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify: 1. The name of the corporation is Bankers Trust Company. 2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903. 3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith. 4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows: "III. The amount of capital stock which the corporation is hereafter to have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." is hereby amended to read as follows: "III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." 5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon. IN WITNESS WHEREOF, we have made and subscribed this certificate this 25th day of September, 1998 /s/ James T. Byrne, Jr. -------------------------------------- James T. Byrne, Jr. Managing Director and Secretary /s/ Lea Lahtinen -------------------------------------- Lea Lahtinen Vice President and Assistant Secretary State of New York ) ) ss: County of New York ) Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true. /s/ Lea Lahtinen ----------------------------------- Lea Lahtinen Sworn to before me this 25th day of September, 1998 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, 2000 State of New York, BANKING DEPARTMENT I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION 8005 OF THE BANKING LAW," dated December 16, 1998, providing for an increase in authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock. WITNESS, my hand and official seal of the Banking Department at the City of New York, this 18TH day of DECEMBER in the Year of our Lord one thousand nine hundred and NINETY-EIGHT. P. Vincent Conlon ------------------------------ Deputy Superintendent of Banks CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST Under Section 8005 of the Banking Law ----------------------------- We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify: 1. The name of the corporation is Bankers Trust Company. 2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903. 3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith. 4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows: "III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." is hereby amended to read as follows: "III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred Sixty- Seven (212,730,867) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." 5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon. IN WITNESS WHEREOF, we have made and subscribed this certificate this 16th day of December, 1998 /s/ James T. Byrne, Jr. -------------------------------------- James T. Byrne, Jr. Managing Director and Secretary /s/ Lea Lahtinen -------------------------------------- Lea Lahtinen Vice President and Assistant Secretary State of New York ) ) ss: County of New York ) Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true. /s/ Lea Lahtinen ------------------------------- Lea Lahtinen Sworn to before me this 16th day of December, 1998 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, 2000 Legal Title of Bank: Bankers Trust Company Call Date: 02/14/02 State#: 36-4840 FFIEC 031 Address: 1301 6th Avenue, 8th Floor Vendor ID: D Cert#: 00623 Page RC-1 City, State ZIP: New York, NY 10019 Transit#: 21001003
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 2001 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, reported the amount outstanding as of the last business day of the quarter. SCHEDULE RC - BALANCE SHEET
Dollar Amounts in Thousands RCFD - ------------------------------------------------------------------------------------------------------------------------------ ASSETS ////////////////// 1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////// a. Noninterest-bearing balances and currency and coin (1) ........... 0081 1,084,000 1.a. b. Interest-bearing balances (2) .................................... 0071 490,000 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 101,000 2.b. 3. Federal funds sold and securities purchased under agreements to resell. 1350 9,578,000 3. 4. Loans and lease financing receivables (from Schedule RC-C): ////////////////// a. Loans and leases held for sale 5369 0 4.a. b. Loans and leases, net unearned income............................. B528 12,804,000 4.b. c. LESS: Allowance for loan and lease losses ...................... 3123 527,000 4.c. d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) ................................. B529 12,277,000 4.d. 5. Trading Assets (from schedule RC-D) .................................. 3545 13,288,000 5. 6. Premises and fixed assets (including capitalized leases) .............. 2145 615,000 6. 7. Other real estate owned (from Schedule RC-M) .......................... 2150 91,000 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 2,917,000 8. 9. Customers' liability to this bank on acceptances outstanding .......... 2155 81,000 9. 10. Intangible assets ..................................................... ////////////////// a. Goodwill.......................................................... 3163 55,000 10.a b. Other intangible assets (from Schedule RC-M)...................... 0426 9,000 10.b 11. Other assets (from Schedule RC-F) ..................................... 2160 2,092,000 11. 12. Total assets (sum of items 1 through 11) .............................. 2170 42,678,000 12.
- -------------------- (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. Legal Title of Bank: Bankers Trust Company Call Date: 02/14/02 State#: 364840 FFIEC 031 Address: 1301 6th Avenue, 8th Floor Vendor ID: D Cert#: 00623 Page RC-2 City, State Zip: New York, NY 10019 Transit#: 21001003
SCHEDULE RC - CONTINUED
DOLLAR AMOUNTS IN THOUSANDS - ------------------------------------------------------------------------------------------------------------------------------- LIABILITIES 13. Deposits: ////////////////////// a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 11,248,000 13.a. (1) Noninterest-bearing(1) ........................................ RCON 6631 2,636,000 13.a.(1) (2) Interest-bearing .............................................. RCON 6636 8,612,000 13.a.(2) b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E part II).......................... RCFN 2200 10,175,000 13.b. (1) Noninterest-bearing ........................................... RCFN 6631 1,075,000 13.b.(1) (2) Interest-bearing .............................................. RCFN 6636 9,100,000 13.b.(2) 14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 7,256,000 14. 15. Trading liabilities (from Schedule RC-D)............................ RCFD 3548 2,461,000 15. 16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): ////////////////////// (from Schedule RC-M): .............................................. RCFD 3190 1,848,000 16. 17. Not Applicable...................................................... ////////////////// 17. 18. Bank's liability on acceptances executed and outstanding ........... RCFD 2920 82,000 18. 19. Subordinated notes and debentures (2)............................... RCFD 3200 264,000 19. 20. Other liabilities (from Schedule RC-G) ............................. RCFD 2930 1,894,000 20. 21. Total liabilities (sum of items 13 through 20) ..................... RCFD 2948 35,228,000 21. 22. Minority interest in consolidated subsidiaries ..................... RCFD 3000 628,000 22. ////////////////////// EQUITY CAPITAL ////////////////////// 23. Perpetual preferred stock and related surplus ...................... RCFD 3838 1,500,000 23. 24. Common stock ....................................................... RCFD 3230 2,127,000 24. 25. Surplus (exclude all surplus related to preferred stock) ........... RCFD 3839 584,000 25. 26. a. Retained earnings ............................................. RCFD 3632 2,724,000 26.a. b. Accumulated other comprehensive Income (3) .................... RCFD B530 (113,000) 26.b. 27. Other equity capital components (4) ................................ RCFD A130 0 27. 28. Total equity capital (sum of items 23 through 27) .................. RCFD 3210 6,822,000 28. 29. Total liabilities, minority interest, and equity capital (sum of items 21, 22, and 28)....................................... RCFD 3300 42,678,000 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 Number best describes the most comprehensive level of auditing work performed for ------------------------- the bank by independent external auditors as of any date during 2000.............. RCFD 6724 N/A M.1 1 = Independent audit of the bank conducted in accordance 5 = Directors' examination of the bank performed by other with generally accepted auditing standards by a certified external auditors (may be required by state chartering public accounting firm which submits a report on the bank authority) 2 = Independent audit of the bank's parent holding company 6 = Review of the bank's financial statements by external conducted in accordance with generally accepted auditing auditors standards by a certified public accounting firm which 7 = Compilation of the bank's financial statements by submits a report on the consolidated holding company external auditors (but not on the bank separately) 8 = Other audit procedures (excluding tax preparation work) 3 = Attestation on bank management's assertion on the 9 = No external audit work effectiveness of the bank's internal control over financial reporting by a certified public accounting firm 4 = Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority)
- -------------------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited-life preferred stock and related surplus. (3) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and minimum pension liability adjustments. (4) Includes treasury stock and unearned Employee Stock Plan shares. BANKERS TRUST COMPANY BY-LAWS MAY 18, 2001 BANKERS TRUST COMPANY NEW YORK 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, 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, the President or any Co-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 any Co-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 seven nor more than fifteen, 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, video conference or similar 1 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. 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 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 the President or any Co-President or, in their 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 provided, however, that there shall be at least ten regular monthly meetings during a calendar year. 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, the President or any Co-President 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. 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 2 shall preside at meetings of the Executive Committee. In his absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their 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. 3 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, or two or more Co-Presidents, and may also elect, one or more Vice Chairmen, one or more Executive Vice Presidents, one or more Managing Directors, one or more Senior Vice Presidents, one or more Directors, one or more Vice Presidents, one or more General Managers, a Secretary, a Controller, a Treasurer, a General Counsel, a General Auditor, a General Credit Auditor, who need not be directors. The officers of the corporation may also include such other officers or assistant officers as shall from time to time be elected or appointed by the Board. The Chairman of the Board or the Chief Executive Officer or, in their absence, the President or any Co-President, 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, or any Co-President 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, or President, or any Co-President, 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 4 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 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. 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 5 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, the President or any Co-President, and (ii) only if and to the extent that, after making such efforts as the Chairman of the Board, the Chief Executive Officer, the President or any Co-President shall deem adequate in the circumstances, such person shall be unable to obtain indemnification from such other enterprise or its insurer. 6 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. 7 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. 8 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. I, SUSAN JOHNSON, Vice President of Bankers Trust Company, New York, New York, hereby certify that the foregoing is a complete, true and correct copy of the By-Laws of Bankers Trust Company, and that the same are in full force and effect at this date. /s/ Susan Johnson ---------------------------------- Susan Johnson Vice President DATED: March 21, 2002 9 -----END PRIVACY-ENHANCED MESSAGE-----