Form 6-K
FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
of the Securities Exchange Act of 1934
For the month of November 2003
Commission File Number: 1-14836
ALSTOM
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(Translation of registrant's name into English)
25, avenue Kléber, 75116 Paris, France
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(Address of principal executive offices)
Indicate by check mark whether the Registrant files or will file annual reports
under cover of Form 20-F or Form 40-F
Form 20-F X Form 40-F
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Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(1):
Yes No X
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Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(7):
Yes No X
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Indicate by check mark whether the Registrant, by furnishing the information
contained in this Form, is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934
Yes No X
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If "Yes" is marked, indicate below the file number assigned to the Registrant in
connection with Rule 12g3-2(b)
This Report on Form 6-K includes materials that make reference and relate in
part to certain proposed issuances of securities by ALSTOM. The securities
mentioned in these materials have not been and will not be registered under the
United States Securities Act of 1933, as amended, and may not be offered or sold
in the United States absent registration or exemption from registration under
the Securities Act.
These materials are not an offer to sell securities or the solicitation of an
offer to buy securities, nor shall there be any offer or sale of securities in
any jurisdiction in which such offer or sale would be unlawful.
Enclosures:
Press release dated November 25, 2003, "ALSTOM Wins Three Orders Worth
€54 Million from Regional Railway in Chile"
"Certain "terms and conditions" of subordinated bonds redeemable into
ALSTOM shares to be issued by ALSTOM, as published in the Note
d'opération prepared in connection with the offering of the Bonds
filed with the French Commission des opérations de bourse on 19
November 2003 under visa number 03-1023."
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ALSTOM
Date: December 2, 2003 By: /s/ Philippe Jaffré
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Name: Philippe Jaffré
Title: Chief Financial Officer
25 November 2003
ALSTOM WINS THREE ORDERS WORTH €54 MILLION
FROM REGIONAL RAILWAY IN CHILE
Merval SA (Metro Regional de Valparaiso) has awarded ALSTOM three orders worth a
total of €54 million as part of its Cuarta Etapa (Fourth Stage) project and its
program for improvement and modernisation of passenger service on a 43-kilometer
line between the port of Valparaiso and the city of Limanche.
In November 2002, Merval awarded ALSTOM a contract for the supply of 27 two-car
X'TRAPOLIS trains and their maintenance over a 10-year period. Merval has now
exercised an option in that contract for an additional 18 years of maintenance,
an order worth €30 million. Including the two years of maintenance in the
initial warranty period, ALSTOM will maintain the trains for 30 years.
Merval has also awarded ALSTOM contracts worth €24 million for signaling, train
control and power supply for the railway line.
"We're delighted with this renewed vote of confidence in ALSTOM," said Philippe
Mellier, President of ALSTOM Transport, "and we look forward to building on the
long-term partnership we have established with Merval. These three new orders,
along with the initial train order, demonstrate the breadth and competitiveness
of ALSTOM's rail transport offerings."
Press relations: S. Gagneraud / G. Tourvieille
(Tél. +33 1 47 55 25 87)
internet.press@chq.alstom.com
Investor relations: E. Chatelain
(Tél. +33 1 47 55 25 33)
Investor.relations@chq.alstom.com
TERMS AND CONDITIONS OF THE BONDS
The following is a description of the terms and conditions of the Bonds.
The binding terms and conditions in the French language are published in the
Note d'opération prepared in connection with the offering of the Bonds filed
with the French Commission des opérations de bourse on 19 November 2003 under
visa number 03-1023.
The issuance of the Bonds was decided by the Chairman (Président) of the
Board of Directors (conseil d'administration) of ALSTOM on 18 November 2003
pursuant to a resolution of the Board of Directors of ALSTOM adopted on 18
November 2003, which in turn was adopted pursuant to a resolution of the
shareholders' meeting (assemblée générale) of ALSTOM adopted on 18 November
2003.
1. Form, Denomination and Settlement
The aggregate principal amount of the subordinated bonds redeemable into
ALSTOM shares (the "Bonds") is €901,313,660.80, divided into 643,795,472 Bonds,
each with a denomination of €1.40.
The Bonds, when issued, will constitute securities carrying rights to
shares in the company, within the meaning of Articles L. 228-91 et seq. of the
French Code de commerce.
The Bonds will be in either registered or bearer (au porteur) form, at the
option of the Bondholders. The Bonds will be in book-entry form and held, at the
Bondholders' option:
o in the case of the registered Bonds, in fully registered form
(nominatif pur) in the books of ALSTOM which are maintained by BNP
Paribas Securities Services as agent for ALSTOM or in administered
registered form (nominatif administré) in an account maintained by
an authorised financial intermediary (intemédiaire financier
habilité) and in the books of ALSTOM.
o in the case of the bearer Bonds, in an account maintained with an
authorised financial intermediary.
Settlement and delivery will take place through the Euroclear France RELIT
system under I.S.I.N. code FR0010033001.
The Bonds will be accepted for clearance through Euroclear France, which
will ensure the clearing of Bonds between account holders. The Bonds will also
be accepted for clearance through Euroclear Bank S.A./N.V. and Clearstream
Banking S.A.
The Bonds will be entered into book-entry accounts (inscrits en comptes)
and transferable as of the settlement and delivery date, which is 23 December
2003.
2. Status
The Bonds constitute direct, general, unconditional, subordinated and
unsecured obligations of ALSTOM. Subject to the provisions set forth in the
following paragraph, the right to receive payments in cash by ALSTOM pursuant to
the provisions set forth under Condition 3(a) ("Interest") and Condition 3(b)
("Supplemental Amounts") will rank pari passu with each other and with all other
present and future unsecured and unsubordinated debts of ALSTOM.
In the case of the liquidation of ALSTOM or the complete termination of
ALSTOM's activities, the Bonds will be redeemed in cash at their principal
amount, plus interest accrued to the date of issuance of a court decision
ordering the liquidation of ALSTOM or the complete termination of its
activities, as the case may be. The payment of the amount corresponding to the
reimbursement of the principal amount of the Bonds and any interest and
Supplemental Amounts (as defined below) due with respect to the Bonds shall be
subordinated to, and subject to prior payment in full of, ALSTOM's obligations
under the Subordinated Loans (as defined below) and under the €250,000,000
subordinated bonds due 29 September 2006 issued by our company on 29 September
2000.
For purposes of this Condition 2, "Subordinated Loans" means the
subordinated loans in a maximum total principal amount of €1,563,399,105
accorded to ALSTOM pursuant to an agreement dated 30 September 2003 between
ALSTOM, as borrower, and certain lenders.
Other than in the case of the liquidation of ALSTOM or the complete
termination of ALSTOM's activities, in the event ALSTOM becomes subject to
insolvency proceedings, the Bonds may only be redeemed by way of newly issued
shares, in accordance with Condition 4.
3. Payments on the Bonds
(a) Interest
The Bonds will bear interest at a rate of 2% per year from and including
23 December 2003 (the "Issue Date"). Interest on the Bonds will be payable on 31
December of each year commencing 31 December 2005 and ending 31 December 2008.
Interest accrued for the period from and including 23 December 2003 to but
excluding 31 December 2004 will be capitalised and bear interest at a rate of 2%
per year and will be paid on 31 December 2005 with the interest due for the
period from and including 31 December 2004 to but excluding 31 December 2005.
The amount of interest due on each Bond will thus be €0.05719 on 31
December 2005 and €0.0280 on each of 31 December 2006, 2007 and 2008.
Subject to the provisions of Condition 4(e) ("Bondholders' Right to
Interest on the Bonds and to Dividends on the Underlying Shares"), if interest
is required to be paid for a period of less than one year, it will be calculated
on the basis of the annual interest rate described above and on the number of
days elapsed in such period divided by 365 (or 366 in the case of a leap year).
(b) Supplemental Amounts
This Condition 3(b) shall apply to all dividends payable with respect to
ALSTOM shares, the payment of which is decided by a shareholders' meeting (or,
in the case of interim dividends, by the Board of Directors) held between the
Issue Date and 31 December 2008.
In the event that ALSTOM pays a dividend to its shareholders, whether in
cash, in new shares, or in kind (other than by way of distribution of reserves
or premiums in the form of cash or portfolio securities giving rise to
adjustments as described in Condition 6 herein), ALSTOM shall pay, with respect
to each Bond and in addition to payments of interest, an amount (the
"Supplemental Amount") equal to the product of (a) the Redemption Ratio (as
defined below) and (b) the amount of the dividend paid in respect of one ALSTOM
share, increased by any tax credit (avoir fiscal) attached to such dividend at
the rate applicable to legal entities having their registered office in France
(other than those companies considered as parent companies under articles 145,
146 and 216 of the French tax code (Code général des impôts)) and excluding any
additional tax credit tied to the payment of the equalisation tax (précompte)
paid by ALSTOM; provided, that when multiple tax credit rates are applicable to
legal entities having their registered office in France, the applied rate shall
be the lowest tax credit rate applicable to legal entities having their
registered office in France who do not benefit from the parent-subsidiary regime
(régime des sociétés mères et filiales).
Bondholders of record on a payment date for dividends on ALSTOM shares
shall be entitled to receive a Supplemental Amount. ALSTOM may, at its option,
pay the Supplemental Amount in cash or in ALSTOM shares.
ALSTOM shall deliver, no later than noon (Paris time) on the second stock
exchange trading day following the date on which the shareholders' meeting of
ALSTOM approves the payment of a dividend (or the date on which the Board of
Directors approves the payment of an interim dividend, as the case may be), a
notice (the "Notice") to the Calculation Agent (as defined below) stating
whether ALSTOM shall pay the Supplemental Amount in cash or in ALSTOM shares.
The Calculation Agent will notify the Bondholders of ALSTOM's decision. The
Notice shall also specify the dividend payable per share and the payment date of
the dividend. In the absence of the receipt of a Notice in the period set forth
above, ALSTOM shall be deemed to have opted to pay the Supplemental Amount in
cash. In the event that ALSTOM chooses to pay the Supplemental Amount in cash,
ALSTOM shall make such payment on the payment date of the corresponding dividend
to the shareholders.
In the event that ALSTOM chooses to pay the Supplemental Amount in ALSTOM
shares, the number of shares to be delivered shall equal, for each Bond, 103% of
the Supplemental Amount divided by the Weighted Average Share Price (as defined
below). Should such calculation give rise to a fractional share, ALSTOM shall
pay in lieu of such fractional share an amount in cash equal to the product of
the corresponding fraction and the Weighted Average Share Price.
"Weighted Average Share Price" means the arithmetic average of the volume
weighted average price of ALSTOM's shares during the five consecutive trading
days commencing on the trading day following the payment date of the
corresponding dividend to ALSTOM shareholders, as calculated by the Calculation
Agent. The Calculation Agent shall calculate the Weighted Average Share Price on
the basis of information published by Bloomberg (currently on page AQR on the
Bloomberg screen). In the event that Bloomberg does not publish such
information, the Calculation Agent shall determine the Weighted Average Share
Price on the basis of an Expert's recommendation.
For purposes of this Condition 3(b), an "Expert" shall be an independent
investment bank of international reputation nominated by common accord of ALSTOM
and the Calculation Agent; provided, however, that should ALSTOM and the
Calculation Agent fail to agree on the nomination of an Expert within seven (7)
business days following the date on which it shall have been determined that the
Weighted Average Share Price cannot be calculated on the basis of information
published by Bloomberg, each of the Calculation Agent and ALSTOM shall nominate
an Expert, and the two Experts thereby nominated shall nominate a third Expert.
In such event, the term "Expert" shall for purposes of this Condition 3(b) refer
to the three Experts thereby nominated, and such Expert shall render its
decision by approval of a simple majority. The Expert shall render its decision
within two (2) business days of its nomination. The Expert's decisions shall be
final and shall be binding upon ALSTOM, the Calculation Agent and the
Bondholders.
No later than on the trading day following the date of calculation of the
Weighted Average Share Price, the Calculation Agent shall notify ALSTOM of the
number of shares (or fractional shares) that shall be delivered to each
Bondholder on the basis of the number of Bonds it holds, the total number of
shares to deliver to all Bondholders, and the cash payments that shall be made
in lieu of fractional shares. All shares to be delivered in payment of
Supplemental Amounts shall be delivered to Bondholders on the fourth trading day
following the date of calculation of the Weighted Average Share Price.
4. Redemption and Purchase
The Bonds may not be redeemed into shares or purchased by ALSTOM other
than in accordance with the conditions herein described. Whether in the case of
a redemption at maturity or at the option of the Bondholders, ALSTOM will redeem
the Bonds by way of newly issued ordinary shares of ALSTOM.
(a) Redemption at Maturity
Unless previously redeemed or purchased and cancelled by ALSTOM, each Bond
will be redeemed into shares on 31 December 2008 (the "Maturity Date") or the
following business day, if such day is not a business day, at the ratio of one
share per Bond (the "Redemption Ratio").
The Redemption Ratio may be adjusted from time to time pursuant to
Condition 6.
Except as otherwise provided herein with respect to all Bonds to be
redeemed, ALSTOM shall deliver the relevant number of new shares to the relevant
Bondholders as soon as practicable and, in any event, no later than the fourth
trading day following the Maturity Date.
(b) Purchases
ALSTOM may redeem all or part of the Bonds at any time, without limitation
on price or quantity, by purchasing the Bonds whether in stock exchange
transactions or otherwise, including, without limitation, pursuant to a tender
or exchange offer. Any such transaction shall not affect ALSTOM's obligations to
redeem any Bonds still outstanding after such transaction. Bonds purchased by
ALSTOM will be cancelled.
(c) Early Redemption of the Bonds into Shares at the Option of the Bondholder
(i) Redemption Rights
Each Bondholder may, at any time from 23 December 2003 until the Maturity
Date, require ALSTOM to redeem such Bondholders' Bonds on the basis of the
Redemption Ratio in effect on the date the request to redeem the Bonds is
delivered (the "Redemption Right").
A Bondholder may exercise its Redemption Right by delivering a request
with respect thereto to the financial intermediary maintaining such Bondholder's
account, or in the case of Bondholders whose Bonds are held in fully registered
form, to ALSTOM, who shall immediately transmit such request to the Calculation
Agent. The Calculation Agent will ensure the co-ordination of such requests for
redemption.
All requests for early redemption made by Bondholders are deemed to be
irrevocable.
Subject to the exceptions herein provided for, ALSTOM shall, for all Bonds
presented for early redemption, transfer to the Bondholder the shares to be
delivered upon redemption as soon as possible and, in any event, no later than
on the fourth trading day following the date on which the request was sent to
ALSTOM.
(ii) Suspension of Redemption Rights
In the event of a capital increase, an issuance of securities conferring
rights to receive shares (valeurs mobilières donnant accès au capital), a merger
(fusion) or spin-off (scission) or any other financial transaction conferring
preferential subscription rights or establishing a preferential subscription
period for the benefit of existing shareholders of ALSTOM, ALSTOM shall be
entitled to suspend the Redemption Right for a period not exceeding three
months.
A notice will be published in the Bulletin des annonces légales
obligatoires at least 15 days prior to the date on which such suspension comes
into force setting forth both the date on which the suspension shall come into
force and the date on which the suspension shall terminate. This information
will also be published in a financial newspaper having a national circulation in
France and in a notice to be issued by Euronext Paris.
(d) Cancellation
Bonds redeemed for shares at or prior to the Maturity Date, as well as
those Bonds purchased by ALSTOM, shall be cancelled in accordance with French
law.
(e) Bondholders' Right to Interest on the Bonds and Dividends on the
Underlying Shares
Notwithstanding the provisions of Condition 3(a) ("Interest") with respect
to the Bonds, in the case of a request for early redemption pursuant to
Condition 4(c) ("Early Redemption of the Bonds into Shares at the Option of the
Bondholder"), no interest will be paid for the period from the interest payment
date immediately preceding the date on which the request for redemption is
delivered to the date on which the shares are transferred.
The new shares issued pursuant to redemption of the Bonds will entitle
their shareholders to full dividends, if any, payable on existing ordinary
shares of ALSTOM in respect of the fiscal year during which a redemption request
was made, in the case of early redemption, or in respect of the fiscal year
during which the Maturity Date falls, in the case of redemption at the Maturity
Date. Any dividends payable with respect to such fiscal year will be paid in the
following fiscal year.
(f) Notification regarding Outstanding Bonds
Information regarding the number of Bonds purchased or redeemed by ALSTOM
and the number of Bonds outstanding will be submitted on 31 December of each of
the years 2004 through 2008 to Euronext Paris, which will make such information
public. Such information may also be obtained from ALSTOM or from the
Calculation Agent.
(g) Fractional Shares
At the time of the redemption of Bonds by way of shares, the number of
shares to be received pursuant to such redemption shall be determined by
multiplying the number of Bonds redeemed by the Redemption Ratio in effect on
the Maturity Date (in the case of Bonds redeemed at maturity) or on the date at
which the request for redemption is delivered (in the case of Bonds redeemed at
the option of the Bondholder).
If the number of shares calculated in this manner does not yield a whole
number, Bondholders can request that they be given:
o the whole number of shares immediately inferior to such product, in
which case the Bondholder will receive in cash a sum equal to the
product of the fractional share and the opening price for one ALSTOM
share as quoted on Euronext Paris on the trading day immediately
preceding the Maturity Date or the date at which the request for
redemption is delivered (as the case may be); or
o the whole number of shares immediately superior to such product, in
which case the Bondholder will pay ALSTOM an amount equal to the
value of the fractional share thereby requested, determined in the
manner described in the preceding paragraph.
5. Tender and Exchange Offers
Under French law currently in force, if ALSTOM's shares are the subject of
a tender or exchange offer, such offer must be extended to all securities
conferring rights to receive shares of ALSTOM or voting rights of ALSTOM, which
category includes the Bonds. Furthermore, the Redemption Ratio in effect during
the offer will be adjusted in accordance with Condition 6(a)(ii).
6. Redemption Ratio Adjustments
(a) Adjustment Events
(i) Adjustments in instances of Capital Reductions Resulting from Losses
In the event of a reduction of the share capital resulting from losses,
whether by way of reduction in the nominal value or the number of shares, the
rights of Bondholders will be adjusted accordingly, as if such Bondholders had
been shareholders as from the date of issue of the Bonds.
In the event of a reduction in ALSTOM's share capital resulting from
losses by a reduction in the number of shares, the rights of Bondholders will be
adjusted accordingly and the new Redemption Ratio will be determined by
multiplying the Redemption Ratio in effect before such event by the following
ratio:
Number of Shares existing after such event
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Number of Shares existing before such event
(ii) Adjustments in the event of Financial Transactions
As a result of any one of the following transactions:
o Issue of securities carrying listed preferential subscription
rights,
o Increase in share capital by capitalisation of reserves, profits,
share premiums and distribution of free shares, division or
consolidation of shares,
o Capitalisation of reserves, profits or premiums by increasing the
nominal value of the shares,
o Distribution of reserves or premiums in cash or in portfolio
securities,
o Free distribution to shareholders of ALSTOM of any financial
instrument other than shares of ALSTOM,
o Takeover, merger, spin-off,
o Repurchase by ALSTOM of its own shares at a price higher than the
market price,
o Tender or exchange offer targeting ALSTOM's shares,
which ALSTOM may carry out after the issue of the Bonds, or in the case of a
tender or exchange offer of which ALSTOM may be the target, the maintaining of
the rights of Bondholders will be ensured by means of an adjustment to the
Redemption Ratio up to the Maturity Date or any date of early redemption, in
accordance with the provisions set out below.
In the event of adjustments carried out in accordance with paragraphs 1 to
8 below, the new Redemption Ratio will be rounded to the nearest ten thousandth
(with 0.00005 being rounded upwards, i.e., 0.0001). Any subsequent adjustments
will be carried out on the basis of such newly calculated and rounded Redemption
Ratio. However, the Bonds may only result in the delivery of a whole number of
shares and fractional entitlements will be settled in the manner specified in
Condition 4(g) ("Fractional Shares").
(1) In the event of an issuance of securities conferring listed
preferential subscription rights, the new Redemption Ratio will be
determined by multiplying the Redemption Ratio in effect prior to
the relevant transaction by the following formula:
Share price ex-subscription right +
price of the subscription right
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Share price ex-subscription right
For the purposes of calculating this formula, the prices of the
share ex-subscription right and of the subscription right will be
determined on the basis of the average of the opening prices quoted
on Euronext Paris (or, in the absence of a listing on Euronext
Paris, on any other regulated or similar market on which the share
and subscription right are both listed) on each stock exchange
trading day falling in the subscription period during which the
share ex-subscription right and the subscription right are
simultaneously quoted.
(2) In the event of an increase in share capital by capitalisation of
reserves, profits or share premiums and distribution of free shares,
or in the event of a division or consolidation of shares, the new
Redemption Ratio will be determined by multiplying the Redemption
Ratio in effect prior to the commencement of the relevant
transaction by the following formula:
Number of Shares existing after such event
------------------------------------------
Number of Shares existing before such event
(3) In the event of an increase in share capital by means of a
capitalisation of reserves, profits or share premiums effected by
increasing the nominal value of the shares, the Redemption Ratio
will not be adjusted but the nominal value of the shares delivered
to Bondholders exercising their Redemption Right will be increased
accordingly.
(4) In the event of a distribution of reserves or premiums in the form
of cash or portfolio securities, the new Redemption Ratio will be
determined by multiplying the Redemption Ratio in effect prior to
the commencement of the relevant transaction by the following
formula:
Share price before distribution
-------------------------------
Share price before distribution less the cash amount distributed per share
or the value of the securities distributed in relation to each share
For the purposes of calculating this formula:
o The share price before distribution will be calculated on the basis
of the average of the opening prices quoted on Euronext Paris (or,
in the absence of a listing on Euronext Paris, on any other
regulated or similar market on which the shares are listed) for
twenty consecutive stock exchange trading days preceding the date of
distribution;
o The value of securities distributed per share will be calculated as
above if the securities are listed on a regulated or similar market.
If the securities are not listed on a regulated or similar market
before the date of distribution, such value will be determined on
the basis of the average of the opening prices quoted on the
regulated or similar market for twenty consecutive stock exchange
trading days following the date of listing, if the securities are
listed during the forty stock exchange trading days following their
distribution or, in any other case, as determined by an expert
chosen by ALSTOM.
(5) In the event of a free distribution of financial instrument(s) other
than shares of ALSTOM, the new Redemption Ratio will be determined
as follows:
a. if the right to free distribution of financial instrument(s)
is listed on Euronext Paris, by multiplying the Redemption
Ratio in effect prior to the commencement of the relevant
transaction by the following formula:
Price of the share ex-right to the free distribution +
price of the free distribution right
------------------------------------
Price of the share ex-right to the free distribution
For the purposes of calculating this formula, the prices of the
share ex-right to the free distribution and of the right to the free
distribution will be determined on the basis of the average of the
opening prices quoted on Euronext Paris (or, in the absence of a
listing on Euronext Paris, on any other regulated or similar market
on which the share and right to the free distribution are both
listed) of the share and the right to the free distribution on the
first ten stock exchange trading days on which the share and the
right to the free distribution are simultaneously listed. In the
event that this calculation were to be based on less than five
quotations, the calculation must be confirmed or evaluated by an
expert chosen by ALSTOM.
b. if the right to the free distribution of financial
instrument(s) is not listed on Euronext Paris, by multiplying
the Redemption Ratio in effect prior to the commencement of
the relevant transaction by the following formula:
Price of the share ex-right to the free distribution +
the value of the financial instrument(s) allotted with respect to each share
----------------------------------------------------------------------------
Price of the share ex-right to the free distribution
For the purposes of calculating this formula, the prices of the
shares ex-right to the free distribution and of financial
instrument(s) allotted with respect to each share, if the latter are
quoted on a regulated or similar market, will be determined on the
basis of the average of the opening prices quoted on ten consecutive
stock exchange trading days following the date of distribution
during which the shares and the allotted financial instrument(s) are
simultaneously listed. If the allotted financial instrument(s) are
not listed on a regulated or similar market, their value will be
determined by an expert chosen by ALSTOM.
(6) In the event that ALSTOM is taken over by another company
(absorption) or is merged with one or more companies forming a new
company (fusion) or is spun-off (scission), the Bonds will be
redeemable for shares (the "Substitute Shares") of the absorbing or
new company or of the companies resulting from such a spin-off.
The new Redemption Ratio will be determined by multiplying the
Redemption Ratio in effect prior to such event by the exchange ratio
of ALSTOM shares for Substitute Shares.
These companies will be substituted for ALSTOM for the purpose of
the above provisions aimed at preserving the rights of Bondholders,
where applicable, in the case of financial transactions or
transactions in securities, and, more generally, to ensure that the
legal, regulatory and contractual rights of Bondholders are
respected.
(7) In the event of a purchase by ALSTOM of its own shares at a price
higher than the stock market price, the new Redemption Ratio shall
be determined by multiplying the Redemption Ratio in effect before
the commencement of the purchase by the following ratio, calculated
to the nearest hundredth of a share:
Share price + Pc % x (purchase price - Share price)
---------------------------------------------------
Share price
Where:
"Share price" means the arithmetic average of at least ten
consecutive quoted prices of an ALSTOM share chosen from the twenty
quoted prices immediately preceding the purchase (or the option to
repurchase).
"Pc %" means the percentage of capital purchased.
"Purchase price" means the actual price at which the shares are
purchased (by definition, this will be higher than the market
price).
(8) In the event that (independently of the obligation mandated by
currently applicable law referred to in Condition 5) a tender or
exchange offer on ALSTOM shares is declared legitimate (recevable)
by the Conseil des Marchés Financiers (or the future Autorité des
Marchés Financiers once it has been constituted) (the "Offer"), the
Redemption Ratio will be temporarily adjusted for all exercises of
Redemption Rights with respect to Bonds made by Bondholders between
the Opening Date of the Offer and the Closing Date of the Offer. The
Redemption Ratio will be temporarily adjusted according to the
following formula:
CR = pre-CR x [1 + (ICP x D / DT)]
Where:
o Opening Date of the Offer is the first day (inclusive) during which
ALSTOM shares can be tendered to the offeror.
o Closing Date of the Offer is the last day during which ALSTOM shares
can be tendered to the offeror or, where applicable, the date on
which the Conseil des Marchés Financiers (or the future Autorité des
Marchés Financiers once it has been constituted) publicly announces
the fact that the offeror has withdrawn its offer or that the offer
has been declared void for whatever reason.
o CR is the Redemption Ratio in effect on the Opening Date of the
Offer.
o Pre-CR is Redemption Ratio before the Opening Date of the Offer.
o ICP = 12% (i.e., (1.40/1.25) - 1).
o D is the number of days between the Opening Date of the Offer (not
inclusive) and the Maturity Date (inclusive).
o DT signifies the number of days between 23 December 2003 and the
Maturity Date, i.e., 1,835 days.
A temporary Redemption Ratio will be calculated for each offer,
counter-offer and higher bid. Furthermore, the Redemption Ratio applicable to
all redemption requests made by Bondholders after the Closing Date of the Offer
will be the Redemption Ratio in effect before the Opening Date of the Offer.
In the event that ALSTOM executes transactions in respect of which an
adjustment under paragraphs 1 to 8 above has not been carried out, and where
future French law or regulations would require an adjustment, ALSTOM will carry
out such adjustment in accordance with the applicable laws and regulations and
relevant market practice in effect in France at such time.
The Board of Directors shall report on the basis and results of the
calculation of any adjustment in the annual report published following any such
adjustment.
(b) Issuer Obligations
ALSTOM undertakes, for as long as any Bonds are outstanding, not to redeem
its share capital or alter the way it allocates its profits without taking the
necessary measures to preserve the Bondholders' rights.
(c) Notice of Redemption Ratio Adjustment
In the event of any adjustment of the Redemption Ratio, the new Redemption
Ratio will be notified to the Bondholders by means of a notice published in the
Bulletin des annonces légales obligatoires, a notice published in a financial
newspaper having a national circulation, and a notice issued by Euronext Paris.
7. Agents
Fiscal agency and paying agency services with respect to the Bonds, the
payment of interest, centralising the requests for redemption of Bonds on the
Maturity Date or prior to maturity, etc., will be carried out by BNP Paribas
Securities Services (the "Calculation Agent").
8. Representation of the Bondholders
In accordance with Article L. 228-46 of the French Code de commerce, the
Bondholders will be grouped together in a collective group (the "Masse").
(a) Legal Personality
The Masse shall have legal personality.
(b) Representatives
In accordance with Article L. 228-46 of the French Code de commerce, the
Bondholders are constituted into a legal entity called a Masse (or Group).
In accordance with Article L. 228-47 of the French Code de commerce,
ALSTOM will convoke the Masse to appoint representatives and substitute
representatives. The substitute representatives will, if necessary, replace one
or more of the representatives if they are unable to act. The date on which the
appointment of the substitute representative takes effect shall be the date of
receipt of the registered letter by which the remaining representative, ALSTOM
or any other interested party, shall have notified such substitute
representative of the inability to act (whether temporary or permanent) of the
relevant representative. Such notification will also be made, if applicable, in
the same way to ALSTOM.
(c) Powers of the Representatives
The representatives will have the power, in the absence of any decision to
the contrary of a general Bondholders' meeting, whether acting together or
individually, to carry out, on behalf of the Masse, all actions necessary to
protect the common interests of the Bondholders.
They will exercise their duties until their death, resignation or the
termination of their duties by a general meeting of the Bondholders or until
they become incapable of acting or unable to act. Their appointment shall
automatically cease on the date of final or total redemption, prior to maturity
or otherwise, of the Bonds. This appointment will be automatically extended,
where applicable, until the final resolution of any legal proceedings in which
the representatives are involved and the enforcement of any judgments rendered
or settlements made.
Each of these representatives of the Masse shall be entitled to
remuneration of €300 per year, payable on 31 December of each year from 2004
through 2008, inclusive, so long as the Bonds remain outstanding on such dates.
In the event of temporary or permanent replacement, the substitute
representatives shall have the same powers as the acting representatives.
The substitute representatives will only become entitled to the annual
remuneration of €300 if they exercise the duties of the representative on a
permanent basis. Such compensation will accrue from the day on which they assume
such duties.
ALSTOM assumes responsibility for the remuneration of representatives of
the Masse as well as costs related to convocations, general meetings of
Bondholders, advertising of their decisions, as well as other costs related to
the potential designation of representatives of the Masse of Bondholders in
accordance with Article L. 228-50 of the French Code de commerce, all
administration costs and overhead costs related to the Masse of Bondholders, as
well as costs of assembling the Masse.
(d) General Meetings
General Bondholders' meetings may be held at any time, on convocation
either by ALSTOM or the representatives of the Masse. One or more Bondholders
holding together at least one-thirtieth of the outstanding Bonds may address to
ALSTOM and the representatives a demand for convocation of a general
Bondholders' meeting. If such general meeting has not been convened within two
months from such demand, such Bondholders may commission one of themselves to
petition the competent court under the jurisdiction of the Paris Cour d'Appel to
appoint an Agent (mandataire) who will call the general Bondholders' meeting.
A general Bondholders' meeting may deliberate validly on first convocation
if Bondholders present or represented hold at least one-quarter of the aggregate
nominal amount of the Bonds then outstanding. On second convocation, no quorum
shall be required. Decisions at meetings shall be taken by a simple majority of
votes cast by the Bondholders attending such meeting or represented thereat.
Each Bondholder has the right to participate in a general Bondholders'
meeting in person or by proxy. Each Bond carries the right to one vote.
General Bondholders' meetings shall be held at the registered office of
ALSTOM or such other place as is specified in the call notice of the meeting.
(e) Powers of General Meetings
A general Bondholders' meeting is empowered to deliberate on the fixing of
the remuneration of the representatives and on their dismissal and replacement,
and also may act with respect to any other matter that relates to the common
rights, actions and benefits that now or in the future may accrue with respect
to the Bonds including authorising the representatives to act at law as
plaintiff or defendant.
A general Bondholders' meeting also may deliberate on any proposal
relating to the modification of the terms and conditions of the Bonds, including
any proposal, whether for arbitration or settlement, relating to rights in
controversy or that were the subject of judicial decisions.
In no event shall a general Bondholders' meeting increase any of the
Bondholders' obligations, or establish any unequal treatment between the
Bondholders.
(f) Information to the Bondholders
Each Bondholder shall have the right, during the period of 15 days prior
to any general Bondholders' meeting, to examine and take copies of, or to cause
an agent to do so on his behalf, at the registered office or administrative
headquarters of ALSTOM or, as the case may be, at such other place as is
specified in the call notice for such meeting, the text of the resolutions to be
proposed and any reports to be presented to the meeting.
(g) Expenses
ALSTOM will pay the remuneration of the representatives of the Masse and
will bear the costs of calling and holding general meetings of the Bondholders,
publication of their decisions as well as the fees related to the designation of
the representatives of the Masse in accordance with Article L. 228-50 of the
French Code de commerce, as well as all administration and operating costs of
the Masse and the costs of the general meetings of such Masse.
9. Prescription
Claims regarding payment of interest will become void five years from the
due date of the payment thereof.
10. Further Issues
If ALSTOM subsequently issues new bonds that have in all respects the same
terms and conditions as the Bonds, ALSTOM may, without the consent of the
Bondholders and provided that the terms and conditions of such new bonds so
permit, consolidate (assimiler) bonds of any such subsequent offerings with the
Bonds, thereby treating such bonds similarly for the purposes of trading and
servicing. In the event of such consolidation, the holders of all of such newly
issued bonds and the Bondholders shall be grouped together in a single Masse.
11. Transactions including Preferential Subscription Rights
In the event of a transaction giving rise to the attribution of
preferential subscription rights to ALSTOM shareholders, notice will be given
prior to such transaction by means of a notice published in the Bulletin des
annonces légales obligatoires, a notice published in a financial newspaper
having a national circulation and a notice to be issued by Euronext Paris.
12. Governing Law and Jurisdiction
The Bonds will be governed by French law.
The competent tribunals in the event of litigation are those of ALSTOM's
place of incorporation when ALSTOM is the defendant and are determined in
accordance with the nature of the claims, subject to the provisions of the
Nouveau Code de Procédure Civile.
* * *
The name of the Calculation Agent and its specified offices are set out
below.
BNP Paribas Securities Services
GIS Emetteurs
Les Collines de l'Arche
92057 La Défense Cédex