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 February 2005
Commission File Number: 1-14836
ALSTOM
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(Translation of registrant's name into English)
3, AVENUE ANDRÉ MALRAUX, 92300 LEVALLOIS-PERRET, 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)
ENCLOSURES:
Non-binding English language translation of the terms and conditions of New
Bonds, in connection with the Exchange Offer of the New Bonds which
received a visa of the French AUTORITÉ DES MARCHES FINANCIERS on 7 February
2005 under number 05-067
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: February 10, 2005 By: /S/ HENRI POUPART-LAFARGE
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Name: Henri Poupart-Lafarge
Title: Chief Financial Officer
The following is a non-binding English language translation of the terms and
conditions of the New Bonds. The binding terms and conditions in the French
language are published in the NOTE D'INFORMATION prepared in connection with the
Exchange Offer of the New Bonds which received a visa of the French AUTORITÉ DES
MARCHES FINANCIERS on 7 February 2005 under number 05-067.
The following materials make reference and relate in part to a proposed Exchange
Offer for New Bonds to be issued 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. The Exchange Offer is not being made, directly or indirectly, in the United
States and is not available to persons located in the United States or to U.S.
persons. 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.
The Exchange Offer is not capable of acceptance from persons in a country in
which the Exchange Offer is subject to restrictions and is not aimed, directly
or indirectly, at persons subject to such restrictions.
TERMS AND CONDITIONS OF THE NEW BONDS
1 AUTHORISATIONS
In a meeting held on 26 January 2005, after acknowledging the principal
terms of the transaction, the board of directors of ALSTOM decided to
undertake the issuance of one or more bonds in an amount not
exceeding €1 billion.
To this end, the board of directors delegated all powers to its Chairman to
carry out the Exchange Offer, determine the characteristics and the
definitive terms of the New Bonds and to carry out their issuance.
The Chairman, in a decision dated 7 February 2005, decided to use the
delegation granted by the board of directors in order to undertake the
issuance of the New Bonds (the terms and conditions of which are described
hereinafter) to be delivered in exchange for Existing Bonds submitted in
the Exchange Offer. If necessary, another decision will be taken with
respect to the possible issuance of the Additional Bonds.
2 ISSUE SIZE AND DENOMINATION OF THE NEW BONDS, PROCEEDS OF THE ISSUE
The aggregate principal amount to be issued shall be determined according
to the number of New Bonds to be issued (which itself will be determined
according to the number of Existing Bonds submitted for exchange) and the
number of any Additional Bonds that may be issued. ALSTOM reserves the
possibility of waiving its right to withdraw the Exchange Offer the event
that the principal amount of Existing Bonds submitted in the Exchange Offer
by institutional investors is less than €300 million.
This issue will be represented by bonds having a denomination of €1 each.
The final number of New Bonds issued shall be published in the BALO on 2
March 2005.
3 INTERNATIONAL OR OVERSEAS TRANCHES
The issue of New Bonds in the Exchange Offer will be made in France and
internationally.
4 PREFERENTIAL SUBSCRIPTION RIGHTS
There are no preferential subscription rights in respect of this issue.
5 PLACEMENT OF THE NEW BONDS - RESTRICTIONS
In the Exchange Offer, the New Bonds will not be placed on any particular
market but will be delivered in exchange for Existing Bonds
6 PLACEMENT AND SUBSCRIPTION AGENTS
As the New Bonds will be issued as part of an exchange offer, no
institution has been designated as a placement or subscription agent.
7 FORM AND DELIVERY OF THE NEW BONDS
The New Bonds are being issued under French law. No physical document of
title (including without limitation CERTIFICATS REPRÉSENTATIFS) will be
issued in respect of the New Bonds, pursuant to article 7 of decree
n°83-359 of 2 May 1983.
They shall be in dematerialised registered (NOMINATIF) or bearer (AU
PORTEUR) form, at the option of the relevant holder, and in a denomination
of €1.
Pursuant to article L.211-4 of the French CODE MONÉTAIRE ET FINANCIER, the
New Bonds shall be registered in an account held by an account holder (the
"ACCOUNT HOLDER"), who will be, as applicable:
o BNP Paribas Securities Services, appointed by ALSTOM for fully
registered bonds (obligations nominatives pures);
o an authorised intermediary selected by the relevant holder, for bonds
in administered registered form (obligations nominatives
administrées); or
o an authorised intermediary selected by the relevant holder, for bonds
in bearer form (OBLIGATIONS AU PORTEUR).
The New Bonds have been accepted for clearance through Euroclear France
S.A, Clearstream Banking, SOCIÉTÉ ANONYME, Luxembourg ("CLEARSTREAM
LUXEMBOURG") and Euroclear Bank S.A/N.V. ("EUROCLEAR"), as operator of the
Euroclear System. The New Bonds will on the Settlement Date be inscribed in
the books of Euroclear France which shall credit the accounts of the
Account Holders, including the depository banks for Euroclear and
Clearstream Luxembourg.
"Account Holder" shall mean any authorised financial intermediary
institution entitled to hold, directly or indirectly, accounts on behalf of
its customers with Euroclear France, and includes the depository banks for
Euroclear Bank S.A./N.V., as operator of the Euroclear System, and
Clearstream Luxembourg.
The New Bonds will be free to trade as from the Settlement Date.
8 ISSUE PRICE
The issue price of each New Bond will be determined on 16 February 2005 at
16:00, Paris time. This price shall be fully-paid by delivery of the
Existing Bonds exchanged to the Exchange Offer.
9 ISSUE DATE
3 March 2005.
10 SETTLEMENT DATE
3 March 2005.
11 INTEREST
The New Bonds shall bear fixed interest per annum, which shall be
determined on 16 February 2005 at 16:00, Paris time. These New Bonds shall
bear interest from and including 3 March 2005 (the "INTEREST COMMENCEMENT
DATE") payable annually in arrears on 3 March in each year (each an
"INTEREST PAYMENT DATE") commencing on 3 March 2006. The period commencing
on and including the Interest Commencement Date and ending on but excluding
the first Interest Payment Date and each successive period commencing on
and including an Interest Payment Date and ending on but excluding the next
succeeding Interest Payment Date is called an "INTEREST PERIOD".
The New Bonds will cease to bear interest from the date set for their
redemption, unless ALSTOM does not make due provision for their redemption
on said date. In such case, interest will continue to accrue on the
principal of the New Bonds at their coupon rate (both prior to and after
any court decision) until the earlier of (a) the date on which all sums due
to the bondholders in respect of the New Bonds up to that date have been
received by or on behalf of such holders and (b) the date on which the
Paying Agent has notified bondholders in accordance with section 26
("Notices") hereinafter that it has received all sums due to the
bondholders in respect of the New Bonds up to that date.
If interest is required to be calculated for a period of less than one
year, it will be calculated on the basis of a day count fraction the
numerator of which is the number of days in the relevant period (from and
including the date on which interest begins to accrue, and to but excluding
the date on which it falls due) and the denominator of which is the number
of days in the Interest Period in which the relevant period falls
(including the first day, but excluding the last day, of such Interest
Period).
Claims for the payment of interest shall be prescribed five years from
their due date for payment.
12 REDEMPTION
12.1 REDEMPTION AT MATURITY
The New Bonds will be redeemed in whole on 3 March 2010 at par.
Claims for the payment of principal shall be prescribed 30 years from
their due date of redemption.
12.2 EARLY REDEMPTION
Subject to section 12.3 ("Redemption for tax reasons"), ALSTOM may not
redeem the New Bonds prior to maturity.
ALSTOM shall have the right at any time to repurchase or exchange all
or a portion of the New Bonds on the open market, over-the-counter or
by way of a public exchange offer in accordance with applicable law.
Any New Bond so repurchased or exchanged shall be cancelled and
accordingly may not be reissued or resold.
Information on the number of New Bonds so repurchased or exchanged and
the number of New Bonds outstanding shall be communicated annually to
Euronext Paris for public information and may be obtained from ALSTOM
or from the financial institution responsible for administrative
services in respect of the New Bonds.
12.3 REDEMPTION FOR TAX REASONS
(a) If, by reason of a change in French law or any change in the
official application or interpretation of such law which becomes
effective after the issue date of the New Bonds, ALSTOM would not,
on the next date on which a payment of principal or interest in
respect of the New Bonds is due, be able to make such payment
without having to pay additional amounts as specified under
section 22.3 ("Payment of additional amounts") below, ALSTOM may,
at any time, subject to having given notice to the bondholders not
more than 45 days and not fewer than 30 days prior to such payment
(which notice shall be irrevocable) in accordance with section 26
("Notices"), redeem all, but not some only, of the New Bonds at
their principal amount together with accrued interest to the date
set for redemption, provided that the redemption date set in such
notice shall be no earlier than the latest practicable date on
which ALSTOM could make payment of principal and interest without
withholding for French taxes.
(b) If ALSTOM would, on the next date on which a payment of principal
or interest in respect of the New Bonds is due, be prevented by
French law from making payment to the bondholders in the full
amount then due and payable, notwithstanding the undertaking to
pay additional amounts as set forth in section 22.3 ("Payment of
additional amounts"), ALSTOM shall forthwith give notice of such
fact to the Principal Paying Agent and ALSTOM shall, subject to
having given not more than 45 days and not fewer than 7 days
irrevocable notice to the bondholders in accordance with section
26 ("Notices"), forthwith redeem all, and not some only, of the
New Bonds then outstanding at their principal amount together with
accrued interest, provided that the redemption date set in such
notice shall be the latest practicable date on which ALSTOM could
make payment on the total amount due under the New Bonds without
withholding for French taxes or, if such date has passed, as soon
as practicable thereafter.
12.4 EARLY REDEMPTION OF THE NEW BONDS UPON AN EVENT OF DEFAULT
If any of the following events (each an "EVENT OF DEFAULT") occurs:
(a) any amount of principal of, or interest on, any New Bonds is not
paid on the due date thereof and such default is not remedied
within a period of 14 days from such due date; or
(b) any other obligation of ALSTOM under the New Bonds is not complied
with or performed within a period of 30 days after receipt by the
Principal Paying Agent of written notice of such default given by
the Representative of the MASSE (as defined in section 21
("Representation of the holders of New Bonds") below); or
(c) (i) any other present or future indebtedness of ALSTOM or any of
its Principal Subsidiaries for borrowed monies (a "FINANCIAL
DEBT") becomes due and payable prior to its stated maturity as a
result of a default thereunder, or (ii) any Financial Debt shall
not be paid when due after allowing for any applicable grace
period, or (iii) any steps shall be taken to enforce any security
in respect of a Financial Debt, or (iv) any guarantee or indemnity
given by ALSTOM or any of its Principal Subsidiaries for, or in
respect of, the indebtedness of others (other than Group
Guarantees given in accordance with the provisions relating to the
definition of "PROJECT FINANCE INDEBTEDNESS" below) shall not be
honoured when called and due; provided that the aggregate amount
of the relevant Financial Debt, guarantees and indemnities in
respect of which one or more of the events described above have
occurred equals or exceeds €35,000,000 (or its equivalent in other
currencies) unless ALSTOM or any such Principal Subsidiary, as the
case may be, is contesting in good faith and by appropriate
proceedings before a competent court that the Financial Debt was
due or that such guarantee or indemnity was callable, as the case
may be; or
(d) ALSTOM makes any proposal for a general moratorium in relation to
its Financial Debt, applies for the appointment of a conciliator
(CONCILIATEUR), enters into an amicable settlement (ACCORD
AMIABLE) with its main creditors, or a judgment is issued for the
judicial liquidation (LIQUIDATION JUDICIAIRE) or judicial sale of
ALSTOM (CESSION TOTALE DE L'ENTREPRISE) or, to the extent
permitted by applicable law, ALSTOM is subject to any other
insolvency or bankruptcy proceedings or is unable to pay its
debts;
then the Representative of the MASSE (as defined in section 21
("Representation of the holders of New Bonds") below) may:
(i) in the case of (b) and (c) above, upon the decision of a
general meeting of bondholders held according to the
applicable rules regarding quorum and majority; and
(ii) in the case of (a) and (d) above, upon the request by the
holders of New Bonds representing not less than 10% of the
principal amount of the New Bonds then outstanding,
upon written notice delivered by registered mail to the Principal
Paying Agent and ALSTOM and before such Event of Default shall have
been cured, cause all New Bonds then outstanding to become immediately
due and payable, whereupon they shall become immediately due and
payable, at their principal amount together with any accrued interest
thereon, without further formality.
For the purposes of paragraph (c) above and the definition of "PROJECT
FINANCE INDEBTEDNESS" (as defined below):
o the "ASSETS" of any Person means all or any part of its business,
undertaking, property, assets, revenues (including any right to
receive revenues) and uncalled capital, wherever situated;
o an "AFFILIATE" of any Person means any Subsidiary or holding
company of such Person, or any Subsidiary of any such holding
company, or any other Person in which that Person or any such
holding company or Subsidiary owns at least 20% of the share
capital;
o an "AGENCY" of a country includes any agency, authority, central
bank, department, government, legislative body, minister,
ministry, official or public or state authority (whether
autonomous or not) of such country or of any other political
subdivision of such country;
o a Person is considered "CONTROLLED" by another Person if that
other Person (whether directly or indirectly and whether by the
ownership of share capital, the possession of voting power,
contract or otherwise) has the power to appoint and/or remove all
or the majority of the members of the board of directors or any
other governing body of that Person or otherwise controls or has
the power to control the affairs and policies of that Person;
o "INDEBTEDNESS" includes, with respect to any Person (the "RELEVANT
PERSON"), any obligation (whether present or future, actual or
contingent, secured or unsecured, as principal, surety or
otherwise) (a) of the Relevant Person for the payment or repayment
of money or (b) of any other Person for the payment or repayment
of money secured by Security on Assets of the Relevant Person,
whether or not the Relevant Person is liable in respect of any
obligation so secured;
o "PROJECT FINANCE INDEBTEDNESS" means any Indebtedness to finance
the ownership, acquisition, development, operation or maintenance
of an asset or business (a "PROJECT"):
(i) which is incurred by a special purpose vehicle ("SPV")
(whether or not such SPV is a member of the Group or a
Subsidiary or an Affiliate of such a member) and:
o whose principal Assets and business are constituted by
the ownership, acquisition, development, operation or
maintenance of the Project, either directly or
indirectly through one or more other SPVs incorporated
solely for the purpose of, and whose assets and business
are constituted by, the ownership, acquisition,
development, operation or maintenance of the Project
(each a "PROJECT ENTITY"); and
o whose liabilities in respect of the relevant
Indebtedness are not directly or indirectly the subject
of a Group Guarantee (other than as provided in
sub-paragraph (ii) below); and
(ii) in respect of which the Person(s) making or making available
such Indebtedness (the "LENDER") has no recourse against any
member of the Group or any Subsidiary or Affiliate of such a
member (other than the SPV described in sub-paragraph (i)
above) for the payment or repayment of any sum relating to
such Indebtedness, other than recourse:
(a) in respect of contributions to the equity (or
equivalent) of a Project Entity; and/or
(b) a Project Entity where such sum is limited to the total
cash flow (other than historic cash flow) from the
Project; and/or
(c) to a Project Entity for the sole purpose of enabling
amounts due in respect of that Indebtedness to be
recovered through the enforcement of Security granted to
the Lender over the Assets constituting the Project or
the revenues, cash flow or other proceeds deriving
therefrom (or rights given by any shareholder in a
Project Entity over its shares in the Project Entity) to
secure that Indebtedness, provided that: (x) the extent
of such recourse to a Project Entity is limited solely
to the amount of any recoveries made on any such
enforcement, and (y) the Lender is not entitled, by
virtue of any right or claim arising out of or in
connection with such Indebtedness, to commence
proceedings for the winding-up or dissolution of a
Project Entity or to appoint or procure the appointment
of any receiver, trustee or similar person or official
in respect of a Project Entity or any of its Assets
(save for the Assets that are the subject of such
Security); and/or
(d) to a Project Entity or a member of the Group or any
Subsidiary or Affiliate of such a member, which recourse
is limited to a claim for damages (other than liquidated
damages) for breach of an obligation (other than a
payment obligation or an obligation to procure payment
by another or an indemnity or an obligation to comply or
to procure compliance by another with any financial
ratios or other tests of financial condition) by a
Person against whom recourse is available; and/or
(e) to any Security or covenant to pay provided by any
member of the Group or any Subsidiary or Affiliate of
such a member in exchange for the transfer to it of
Assets in the form of cash (excluding, for the avoidance
of doubt, the distribution of dividends to any member of
the Group or any Subsidiary or Affiliate of such a
member) of a Project Entity, provided that such security
or covenant provided in exchange for such Assets does
not have a value greater than the market value of such
assets at the time of the transfer;
o "SUBSIDIARY" means, in relation to another Person (its "HOLDING
COMPANY") and at any particular time, any Person that is then
directly or indirectly Controlled, or more than 50% of whose share
capital is then beneficially owned, directly or indirectly, by
that other Person;
o a "PRINCIPAL SUBSIDIARY" means, at any particular time, any
Subsidiary of ALSTOM which represents 5% or more of the
consolidated revenues of the Group for the fiscal year in respect
of which such accounts were prepared, provided that, in the event
a Principal Subsidiary transfers all or substantially all of its
assets to another member of the Group, the transferor shall cease
to be a Principal Subsidiary and the transferee, if it is not
already a Principal Subsidiary, shall become a Principal
Subsidiary with immediate effect;
o "GUARANTEE" also includes any indemnity, as well as any other
obligation (however called) of a Person to pay, purchase or
provide funds (whether by the advance of money, the purchase of or
subscription for shares or other securities, the purchase of
Assets or services, or otherwise) in order to pay, indemnify
against the consequences of default in the payment of, or
otherwise be responsible for, any Indebtedness of another Person;
o a "GROUP GUARANTEE" means a Guarantee granted by any member of a
Group or by any Subsidiary or Affiliate of such a member (other
than an SPV as defined in paragraph (i) of the definition of
"PROJECT FINANCE INDEBTEDNESS" above);
o "GROUP" means, at any particular time, ALSTOM and all of its
consolidated Subsidiaries;
o a "PERSON" includes any individual, company, corporation,
enterprise, partnership, joint venture, association, organisation,
trust, country or Agency of a country (in each case, whether or
not having separate legal personality);
o "SECURITY" includes any mortgage, pledge, lien, hypothecation,
charge or any other form of security interest (SÛRETÉ RÉELLE) and
any other agreement or arrangement having substantially the same
effect (including any "flawed asset" arrangement), and the term
"SECURED" is to be construed accordingly.
12.5 EARLY REDEMPTION OF THE NEW BONDS AT THE OPTION OF THE HOLDER
(a) Upon a change of control
If, at any time while any of the New Bonds remain outstanding, a
Change of Control (as defined below) occurs, then each holder of
New Bonds shall have the right to require ALSTOM to repurchase
such holder's New Bonds in whole or in part, for a cash purchase
price equal to 101% of the principal amount of such New Bonds,
plus any accrued and unpaid interest to the date of the
redemption.
ALSTOM shall notify the holders of New Bonds as soon as possible
upon becoming aware of a Change of Control, by a notice published
in the BULLETIN DES ANNONCES LÉGALES OBLIGATOIRES, or BALO. This
information shall also be the subject of a notice published in a
newspaper having a national circulation in France and in a
financial newspaper having a national circulation in the Grand
Duchy of Luxembourg and also be the subject of a notice of
Euronext Paris. Such notices shall mention among other matters the
date of the Change of Control and the period during which the
early redemption of New Bonds may be requested. This period shall
comprise at least 10 consecutive business days between the 10th
and the 40th days following the publication date of the notice in
the BALO.
Any holder of New Bonds wishing to have its bonds repurchased, in
whole or in part, must give notice, by no later than the last day
of such period announced as above, to the intermediary with whom
the bonds are held, who shall transmit such notice to the
institution in charge of the centralisation of the paying agency
services of the bonds.
Once the notice has been presented by the holder of New Bonds to
the intermediary with whom the bonds are held, the early
redemption request will be irrevocable and ALSTOM shall be obliged
to repurchase all New Bonds mentioned in each request made
pursuant to the conditions above no later than the 10th business
day following the last day of the early redemption period
described above.
A "CHANGE OF CONTROL" means one or more individuals or
institutions, acting alone or in concert, who did not previously
control ALSTOM, who acquires control of ALSTOM, it being
understood that, for the purposes of this definition, "CONTROL"
means holding (directly or indirectly through companies controlled
by the person(s) concerned) more than 50% of the voting rights
attaching to ALSTOM's shares.
(b) Upon a total or quasi-total voluntary cessation of the Issuer's
business
In the event that ALSTOM voluntarily ceases to carry on all or
substantially all of its business, except in connection with a
merger, amalgamation or other form of reorganisation (including
FUSION, SCISSION or APPORT PARTIEL D'ACTIFS) in connection with
which (i) the legal entity surviving such merger, amalgamation or
reorganisation or, as applicable, the legal entity to which all or
substantially all of ALSTOM's business shall have been transferred
shall have assumed all of the liabilities of ALSTOM under the New
Bonds and (ii) the creditworthiness of such surviving legal entity
immediately following such merger, amalgamation or reorganisation
is not materially weaker than that of ALSTOM immediately before
such merger, amalgamation or reorganisation, then the
Representative of the MASSE (as defined in section 21
("Representation of the holders of New Bonds") below) shall, if so
requested by any holder of New Bonds, upon written notice to the
Principal Paying Agent given on behalf of such holder of New
Bonds, request the repurchase of the New Bonds held by such holder
at 101% of the principal amount of the New Bonds to be
repurchased, plus any accrued and unpaid interest to the date of
the repurchase, without further formality.
13 YIELD TO MATURITY AT THE SETTLEMENT DATE
The yield to maturity shall equal % on the Settlement Date.
In the French bond market, the yield to maturity of an issue means the
annual rate at which, at a given date, and assuming compound interest at
this rate, the present value of amounts to be paid for a bond and the
present value of amounts to be received under such bond are equal
(definition of the COMITÉ DE NORMALISATION OBLIGATAIRE).
The yield to maturity set forth in this section is only relevant with
respect to a subscriber who holds the bonds until final redemption.
14 MATURITY
Five years from the Settlement Date.
15 FURTHER ISSUES AND CONSOLIDATION
ALSTOM, from time to time without the consent of the bondholders, may
create and issue further bonds, with the benefit of a supplemental fiscal
agency agreement, that are fungible (ASSIMILABLES) with the New Bonds,
provided that such bonds and the New Bonds carry rights that are identical
in all respects (or in all respects save in respect of the first interest
payment date) and that the respective terms of such bonds provide for such
fungibility.
ALSTOM, from time to time without the consent of the bondholders, may also,
upon giving not less than 30 days prior notice, consolidate the New Bonds
with one or more prior issues of other bonds (the "OTHER BONDS") issued by
it, provided that such Other Bonds have, in respect of all periods
subsequent to such consolidation, the same terms and conditions as the New
Bonds.
16 STATUS OF THE NEW BONDS
The New Bonds constitute direct, unconditional, unsubordinated and
unsecured obligations of ALSTOM and rank and will rank PARI PASSU and
without any preference among themselves and (subject to exceptions as are
mandatory under French law) equally and rateably with all other present or
future unsecured and unsubordinated obligations of ALSTOM.
17 NEGATIVE PLEDGE
ALSTOM undertakes that, for so long as one of the New Bonds has not yet
been redeemed or cancelled, it will not create or permit to subsist any
mortgage, pledge, lien, charge or any other form of security interest
(SÛRETÉ RÉELLE) on any of its present or future assets or revenues to
secure any Relevant Debt (as defined below) or any guarantee or indemnity
in respect of any Relevant Debt unless, at the same time or prior thereto,
ALSTOM's obligations under the New Bonds are equally and rateably secured
therewith.
For the purposes of this paragraph, "RELEVANT DEBT" means any present or
future indebtedness of ALSTOM for borrowed monies in the form of, or
represented by, bonds (OBLIGATIONS) which are or are capable of being
listed or traded on a regulated securities market (MARCHÉ RÉGLEMENTÉ).
18 GUARANTEES
The due and punctual payment of interest, principal, taxes, expenses and
incidental charges in respect of the New Bonds is not subject to any
guarantee.
19 UNDERWRITING
Not applicable.
20 RATING
A rating has not been requested for the New Bonds.
21 REPRESENTATION OF THE HOLDERS OF NEW BONDS
Pursuant to article L.228-46 of the French Commercial Code (CODE DE
COMMERCE), the holders of New Bonds will be grouped in a MASSE having legal
personality.
Pursuant to article L.228-47 of such Code, the following person is
appointed as representative of the holders of New Bonds (the
"REPRESENTATIVE OF THE MASSE"):
Association de représentation des masses de titulaires de valeurs mobilière
Centre Jacques Ferronnière
32, rue du Champ de Tir, B.P. 81236
44312 Nantes, Cedex 3
represented by its President Mr. Alain Foulonneau
domiciled at the same address
Only the appointed representative of the MASSE shall have the power to take
all management actions necessary on behalf of the MASSE to defend the
common interests of the holders of New Bonds.
The representative shall carry out its functions until its dissolution,
resignation, termination of its appointment by a general meeting of the
holders of New Bonds or until it becomes unable to act or has a conflict of
interest.
The appointment of the representative shall terminate automatically on the
date of final redemption in full, whether early or at maturity, of the New
Bonds. Such appointment shall, if applicable, be automatically extended
until the final resolution of any proceedings in which the representative
may be involved and the enforcement of any judgments or settlements
relating thereto.
ALSTOM shall pay the appointed representative of the MASSE an amount of
€610 per annum, payable on 3 March of each year from 2006 to 2010
inclusive, provided that New Bonds remain outstanding at each such date.
Meetings of the holders of New Bonds shall be held at the registered office
of ALSTOM or at such other place as may be specified in the notices
relating to such meetings.
Each holder of New Bonds or representative thereof shall have the right,
during the 15-day period prior to any general meeting of bondholders, to
inspect and make a copy of the text of the resolutions which will be
proposed and of any reports which will be presented at such meeting, at the
registered office or administrative headquarters of ALSTOM or at such other
place as may be specified in the notice relating to such meeting.
In the event of further issues of bonds having identical rights to those of
the New Bonds, and provided the terms and conditions of such bonds so
permit, the holders of bonds of all such issues shall be grouped in a
single MASSE.
22 TAX REGIME APPLICABLE TO THE NEW BONDS
Payments of interest and principal on the New Bonds shall be made subject
only to such withholding at source and taxes as the law imposes or may
impose on the holders of New Bonds.
The following discussion summarises the tax treatment applicable under
current French law to holders of New Bonds. Holders of New Bonds should
nonetheless consult their usual tax adviser to determine the tax regime
applicable to their particular case.
On 3 June 2003, the ECOFIN Council of the European Union adopted a
directive on the taxation of savings income in the form of interest
payments, amended on 19 July 2004 (the "DIRECTIVE") and implemented in
French law under article 242 TER of the CGI. Subject to the fulfilment of a
number of conditions (set out in Article 17 of the Directive), each Member
State will be required, as from 1 July 2005, to provide the tax authorities
of another Member State with detailed information regarding any payment of
interest, within the meaning of the Directive (interest, proceeds, premiums
and other similar income arising from indebtedness), made by a paying agent
within its jurisdiction for the benefit of an individual resident in that
other Member State (the "INFORMATION SYSTEM").
For the purpose of the Directive, the term "PAYING AGENT" is expected to be
defined broadly and is expected to include in particular any economic
operator that is responsible for the payment of interest, within the
meaning of the Directive, for the immediate benefit of beneficiary
individuals.
However, during a transitional period, certain Member States (the Grand
Duchy of Luxembourg, Belgium and Austria) may apply a withholding tax to
such interest payments, in lieu of the Information System applied by the
other Member States. The rate of such withholding will be 15% during the
first three years, 20% for the subsequent three years and 35% thereafter
until the end of the transitional period. In accordance with the agreement
reached by the ECOFIN Council, as implemented in the Directive, this
transitional period shall end if and when the European Community enters
into agreements concerning the exchange of information upon request with
several other countries (Switzerland, Liechtenstein, San Marino, Monaco and
Andorra) and the Council of the European Union has unanimously agreed that
the United States is committed to the exchange of information upon request.
Payments of interest made to holders of New Bonds who are not resident in
France for tax purposes are exempt from withholding tax, subject to the
sections set out in section 22.2.
Holders of New Bonds who are not residents of France for tax purposes must
comply with the tax legislation currently in force in their country of
residence.
22.1 FRENCH RESIDENTS FOR TAX PURPOSES
1. Individuals holding New Bonds as part of their private assets and who
do not engage in stock exchange transactions on a regular basis
(a) Interest and redemption premium
The income received shall be taken into account for the determination
of the taxable income of the holder.
That income shall be either:
- taken into account for the determination of the income subject to
income tax at progressive rates and subject to the general social
contribution (CONTRIBUTION SOCIALE GÉNÉRALISÉE) at a rate of 8.2%
(5.8% of which is deductible from the aggregate taxable income),
the 2% social levy, the 0.3% contribution in addition to the
social levy and the 0.5% contribution for the repayment of social
debt (CONTRIBUTION POUR LE REMBOURSEMENT DE LA DETTE SOCIALE); or
- upon election, subject to a 16% levy, in full satisfaction of
French income tax, to which are added the general social
contribution (CONTRIBUTION SOCIALE GÉNÉRALISÉE) at a rate of 8.2%,
the 2% social levy, the 0.3% contribution in addition to the
social levy, and the 0.5% contribution for the repayment of social
debt (CONTRIBUTION POUR LE REMBOURSEMENT DE LA DETTE SOCIALE),
resulting in an effective tax rate of 27%.
(b) Capital gains or losses
In accordance with article 150-0 A of the CGI, capital gains realised
by individuals on the disposition of New Bonds are taxable, from the
first euro, provided that the aggregate amount of sales of securities
(whether listed or not), equity interests, rights on such securities
or equity interests, or titles (TITRES) representing such securities,
made in the course of the calendar year exceeds, per fiscal household,
a threshold which is currently set at €15,000 (article 150-0 D
11° of the CGI).
Capital gains shall be subject to income tax at a flat 16% rate, to
which are added the general social contribution (CONTRIBUTION SOCIALE
GENERALISEE) at a rate of 8.2%, the 2% social levy, the 0.3%
contribution in addition to the social levy and the 0.5% contribution
for the repayment of social debt (CONTRIBUTION POUR LE REMBOURSEMENT
DE LA DETTE SOCIALE), resulting in an effective tax rate of 27%.
In the event a capital loss is realised upon the disposition of New
Bonds, that loss may be set off against capital gains of the same
nature realised during the same calendar year or during the ten
following years, provided that the above mentioned €15,000 threshold
is exceeded in the year during which such loss was realised.
(c) Wealth tax
The New Bonds are part of the taxable assets which are subject to
wealth tax, if applicable.
(d) Estate and gift tax
New Bonds transferred by way of inheritance or gift may be subject to
French estate or gift tax.
2. Legal entities subject to French corporate tax (standard regime)
(a) Interest and redemption premium
Interest accrued on New Bonds is included within the beneficiary's
income.
Interest is included within the income subject to French corporate tax
at a rate of 33-1/3% (or at a reduced rate of 15%, applicable to a
maximum of €38,120 of taxable profits for a 12-month period, for
companies that fulfil the revenue (CHIFFRE D'AFFAIRES) and share
capital sections set out in article 219 I b) of the CGI).
In addition, the interest is subject to the following additional
contributions:
- a 1.5% additional contribution assessed on the gross amount of
corporate tax (article 235 TER ZA of the CGI). This additional
contribution will be repealed for fiscal years ending on or after
1 January 2006;
- a 3.3% social contribution assessed on the gross amount of
corporate tax (article 235 TER ZC of the CGI) in excess of
€763,000 for a 12-month period. Companies are exempt from this
contribution if their revenues (CHIFFRE D'AFFAIRES) are less than
€7,630,000 and if their share capital is fully paid-up and is at
least 75% held by individuals or by a company that itself fulfils
these conditions.
(b) Capital gains or losses
Gains or losses realised upon the disposition or the redemption of New
Bonds are taken into account for the determination of the taxable
income of the holder.
Capital gains are subject to French corporate tax pursuant to the
sections set out under paragraph (a) above. Losses may be set off
against taxable income.
22.2 NON-FRENCH RESIDENTS FOR TAX PURPOSES
(a) Interest and redemption premium
Euro-denominated bonds issued by French legal entities are deemed to
be issued outside France for the purposes of article 131 QUATER of the
CGI (BOI 5 I 11-98, Instruction 30 September 1998). As a consequence,
income derived from New Bonds by holders whose fiscal domicile or
registered office is outside France is exempt from the withholding tax
provided under article 125 A III of the CGI. Income derived from New
Bonds is also exempt from social contributions under articles 1600-0 C
ET SEQ. of the CGI.
(b) Capital gains
Persons who are not domiciled in France for tax purposes within the
meaning of article 4 B of the CGI or whose registered office is
located outside France, are not subject to tax in France in respect of
a gain realised upon the disposition of the New Bonds, provided that
those New Bonds are not part of the assets of a permanent
establishment or a fixed base located in France (article 244 BIS C of
the CGI).
(c) Wealth tax
Pursuant to article 885 L of the CGI, wealth tax does not apply to New
Bonds held by individuals domiciled outside France within the meaning
of article 4 B of the CGI.
(d) Estate and gift tax
New Bonds acquired by way of inheritance or gift are subject to estate
and gift tax in France.
France has entered into double taxation treaties with certain
countries in the areas of estate and gift tax, whereby residents of
the countries concerned may, subject to certain conditions, be exempt
from estate and gift tax in France or obtain a tax credit in their
country of residence.
Holders of the New Bonds are advised to consult their own tax adviser
in order to determine whether French estate and gift tax shall be
applicable in their individual case and whether they may be exempted
from French estate and gift tax or benefit from a tax credit in their
country of residence by virtue of a double taxation treaty with
France.
22.3 PAYMENT OF ADDITIONAL AMOUNTS
If by virtue of French legislation, payments of principal (including
any premium payable in respect of the New Bonds, or any other
principal amount or additional amount) or interest in respect of any
New Bond are subject to a deduction or withholding, present or future,
ALSTOM undertakes, as far as permitted by law, to increase payments
receivable under the New Bonds so that the bondholders receive the
amount that would have been entitled to receive in the absence of such
deduction or withholding, provided that ALSTOM shall not be obliged to
increase payments under the New Bonds where:
(i) the holder of New Bonds (or a third party acting on its behalf)
is liable in France for such taxes or duties for reasons other
than the mere holding of New Bonds;
(ii) the deduction or withholding is applied to a payment made to the
benefit of an individual and is levied in accordance with the
Directive or in accordance with any law implementing or
complying with, or introduced in order to conform to, such
Directive; or
(iii) such deduction or withholding could have been avoided or reduced
pursuant to provisions of French tax law (including tax
treaties) had the holder of the New Bonds followed the
procedures provided therein for benefiting from such provisions,
provided that ALSTOM has delivered to the holder of the New
Bonds a written notification informing such holder of its
intention to make such deduction or withholding, and describing
the procedures to be followed, no later than ten trading days
before the first payment date in respect of which it intends to
make such deduction or withholding (or any later date on which
ALSTOM shall become aware of the necessity of making such a
deduction or withholding).
23 LISTING OF THE NEW BONDS
Application will be made to list the New Bonds on Euronext Paris. The
expected listing date is 3 March 2005.
Application will also be made to list the New Bonds on the Luxembourg Stock
Exchange.
24 LISTING OF SIMILAR SECURITIES ON OTHER STOCK EXCHANGES
Not applicable.
25 RESTRICTIONS ON TRADING OF THE NEW BONDS
The terms and conditions of the issue are subject to restrictions on the
negotiability of the New Bonds.
26 NOTICES
Any Notices to holders of New Bonds will be valid if published in
accordance with applicable law (and in particular if published in the
BULLETIN DES ANNONCES LÉGALES OBLIGATOIRES), and:
- so long as the New Bonds are listed on Euronext Paris and the
regulations of Euronext Paris and of that exchange so require, in a
national daily economic and financial newspaper having general
circulation in France (which is expected to be LA TRIBUNE or LES
ECHOS);
- as long as the New Bonds are listed on the Luxembourg Stock Exchange
and the rules of that exchange so require, in a leading daily
newspaper having general circulation in Luxembourg (which is expected
to be the LUXEMBURGER WORT).
If any one of such newspapers ceases to be published, or if it cannot
guarantee publication of such notice within the required time, the relevant
notice shall be published in any other national daily economic and
financial newspaper in France and in Luxembourg which the Principal Paying
Agent deems appropriate in order to properly inform bondholders. Any such
notice shall be deemed to have been given on the date of such publication,
or if published more than once or on different dates, on the first date on
which such publication is made.
Notices to bondholders may be given by delivery of the relevant notice to
Euroclear Bank S.A./N.V., Clearstream Banking S.A., Luxembourg and
Euroclear France for communication to entitled account holders.
27 PAYING AGENCY AND ADMINISTRATIVE SERVICES IN RESPECT OF THE NEW BONDS
The institution responsible for centralising paying agency services in
respect of the issue (payment of accrued interest, redemption of
securities) shall be BNP Paribas Securities Services, GCT, Immeuble
Tolbiac, 25 quai Panhard et Levassor, 75013 Paris, France as Principal
Paying Agent ("PRINCIPAL PAYING AGENT") which shall make available upon
request a list of other institutions which may carry out such service, to
any person (together with the Principal Paying Agent, the "PAYING AGENTS").
As long as the securities are listed in Paris, there will be a Paying Agent
in Paris.
BNP Paribas Securities Services, Luxembourg Branch as paying agent will
carry out the paying agency services in respect of the issue in Luxembourg.
Services in respect of the securities shall be carried out by BNP Paribas
Securities Services, appointed by ALSTOM.
The Issuer may vary or terminate the appointment of any Paying Agent and/or
appoint another Paying Agent and additional or other Paying Agents or
approve any change in the office through which any Paying Agent acts,
provided that there will be at all times (i) a Paying Agent, (ii) so long
as the New Bonds are listed on the Luxembourg Stock Exchange, a Paying
Agent in Luxembourg and (iii) so long as the New Bonds are listed on
Euronext Paris and the applicable rules require so, a Paying Agent in
Paris. Any variation, termination or appointment shall only take effect
after not more than 45 days' prior notice thereof shall have been given in
accordance with section 26 ("Notices") and not less than 30 days before or
after any due date for payment in respect of principal or interest under
any New Bond.
28 JURISDICTION IN THE EVENT OF DISPUTE
Any action or proceedings, in connection with the New Bonds, brought
against the Issuer may be brought in the competent courts located in the
jurisdiction of Paris.
29 PURPOSE OF THE TRANSACTION
ALSTOM is undertaking this Exchange Offer to take advantage of current
favourable market conditions in terms of interest rates and credit spreads
to extend the average maturity of the ALSTOM Group's debt.
Prior to the Exchange Offer, the repayment schedule for indebtedness
(including securitised receivables) and the amount of available credit
facilities as at 30 September 2004 was as follows:
AS AT
SEPTEMBER 2009/2010
2004 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 AND LATER
--------- --------- --------- --------- --------- --------- ---------
(IN € MILLIONS)
Redeemable preference shares 205 205
Subordinated Auction Rate Bonds 250 250
Subordinated loans (PSDD) 1,320 1,320
Bonds 650 650
Syndicated loans 704 704
Bilateral loans 250 27 33 190
Commercial paper 429 429
Securitised receivables, net 100 100
Financial debt 558 118 36 37 39 38 290
Bank overdrafts/other
facilities/accrued interest 271 216 13 3 3 3 33
TOTAL 4,737 863 281 1,677 232 1,361 323
========= ======== ========= ========= ========= ========= =========
FINANCIAL DEBTS 3,998
AVAILABLE CREDIT FACILITIES 739
The repayment schedule for indebtedness (including the securitised
receivables) and the amount of available credit facilities on a pro forma
basis as at 30 September 2004 after giving effect to the Exchange Offer,
and assuming that five-ninths of the Existing Bonds (€500 million) are
exchanged in the Exchange Offer, would be as follows:
AS AT
SEPTEMBER 2009/2010
2004 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 AND LATER
--------- --------- --------- --------- --------- --------- ---------
(IN € MILLIONS)
Redeemable preference shares 205 205
Subordinated Auction Rate Bonds 250 111
Subordinated loans (PSDD) 1,320 1,320
Bonds 650 289 500
Syndicated loans 704 704
Bilateral loans 250 27 33 190
Commercial paper 429 429
Securitised receivables, net 100 100
Financial debt 558 118 36 37 39 38 290
Bank overdrafts/other
facilities/accrued interest 271 216 13 3 3 3 33
TOTAL 4,737 863 281 1,177 232 1,361 823
========= ======== ========= ========= ========= ========= =========
FINANCIAL DEBTS 3,998
AVAILABLE CREDIT FACILITIES 739
The repayment schedule for indebtedness (including the securitised
receivables) and the amount of available credit facilities on a pro forma
basis as at 30 September 2004 after giving effect to the Exchange Offer,
and assuming that all of the Existing Bonds (€900 million) are exchanged in
the Exchange Offer, would be as follows:
AS AT
SEPTEMBER 2009/2010
2004 2004/2005 2005/2006 2006/2007 2007/2008 2008/2009 AND LATER
--------- --------- --------- --------- --------- --------- ---------
(IN € MILLIONS)
Redeemable preference shares 205 205
Subordinated Auction Rate Bonds 250
Subordinated loans (PSDD) 1,320 1,320
Bonds 650 900
Syndicated loans 704 704
Bilateral loans 250 27 33 190
Commercial paper 429 429
Securitised receivables, net 100 100
Financial debt 558 118 36 37 39 38 290
Bank overdrafts/other
facilities/accrued interest 271 216 13 3 3 3 33
TOTAL 4,737 863 281 777 232 1,361 1,223
========= ======== ========= ========= ========= ========= =========
FINANCIAL DEBTS 3,998
AVAILABLE CREDIT FACILITIES 739
* * * * *
This report on Form 6-K includes materials that make reference to an
Exchange Offer being made by ALSTOM in France, Luxembourg and Switzerland.
No copy of this document may be distributed in the United States. The
Exchange Offer is not being made, directly or indirectly, in the United
States and is not available to persons located in the United States or to
U.S. persons. The securities referenced herein may not be offered or sold
in the United States unless they are registered under the U.S. Securities
Act of 1933, as amended or exempt from registration. The securities
referenced in these materials have not been and are not being registered
under the U.S. Securities Act and neither ALSTOM nor any other person
intends to make a public offer of securities of ALSTOM in the United
States.
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.