SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------------
SCHEDULE 13D
(Amendment No. 36)
Under the Securities Exchange Act of 1934
WMS INDUSTRIES INC.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
969-901-107
(CUSIP Number)
Sumner M. Redstone
200 Elm Street
Dedham, Massachusetts 02026
Telephone: (781) 461-1600
----------------------------------------
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and
Communications)
May 27, 2004
(Date of Event which Requires Filing of this Statement)
-----------------------------------------------------------------
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the following
box |_|.
Check the following box if a fee is being paid with this Statement |_|.
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Sumner M. Redstone
--------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)-------------------------------------------------------
|_| (b)-------------------------------------------------------
--------------------------------------------------------------------------
(3) SEC Use Only ---------------------------------------------
--------------------------------------------------------------------------
(4) Source of Funds (See Instructions)------------------------
--------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant
to Item 2(d) or 2(e).
|_|
--------------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
----------------------------------------------------------------------
Number of Shares (7) Sole Voting Power 0*
Beneficially
(8) Shared Voting Power 0*
Owned by Each
Reporting (9) Sole Dispositive Power 5,324,300***
Person With
(10) Shared Dispositive Power 3,483,900**
--------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person:
8,808,200**
--------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions):
|X|
--------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11):
29.26 percent
--------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IN
-------------
* Voting power subject to Voting Proxy Agreement described in Item 6 of
Amendment No. 19 to this Statement.
** Includes shares owned by National Amusements, Inc.
*** Does not include 7,900 shares owned by Mr. Sumner Redstone's wife,
Mrs.Paula Redstone, over which she has sole dispositive and voting
power.
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
NATIONAL AMUSEMENTS, INC.
I.R.S. No. 04-2261332
--------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)----------------------------------------------------------------
|_| (b)----------------------------------------------------------------
--------------------------------------------------------------------------
(3) SEC Use Only
--------------------------------------------------------------------------
(4) Source of Funds (See Instructions) N/A
--------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|_|
--------------------------------------------------------------------------
(6) Citizenship or Place of Organization Maryland
-----------------------------------------------------------
-------------------
Number of Shares (7) Sole Voting Power 0*
Beneficially
(8) Shared Voting Power 0*
Owned by Each
Reporting (9) Sole Dispositive Power 0
Person With
(10) Shared Dispositive Power 3,483,900
--------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
3,483,900
--------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
|_|
--------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 11.57%
--------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) CO
--------------------------------------------------------------------------
* Voting power subject to Voting Proxy Agreement, described in Item 6 of
Amendment No. 19 to this Statement.
Item 1. Security and Issuer.
This Amendment No. 36 amends the Statement on Schedule 13D previously
filed with the SEC by Mr. Sumner M. Redstone and National Amusements, Inc.
("NAI") with respect to the voting common stock, $.50 par value per share
(the "Common Shares"), of WMS Industries Inc. (the "Issuer") as follows:
Item 5. Interest in Securities of the Issuer.
(a) NAI is currently the beneficial owner, with shared dispositive
and no voting power of 3,483,900 Common Shares, or approximately
11.57%, of the issued and outstanding Common Shares of the Issuer
(based on the number of Common Shares that were reported to be
issued and outstanding as of May 10, 2004).
(b) Mr. Sumner M. Redstone is currently the beneficial owner, with
sole dispositive and no voting power, of 5,324,300 Common Shares,
or approximately 17.68%, of the issued and outstanding Common
Shares of the Issuer (based on the number of Common Shares that
were reported by the Issuer to be issued and outstanding as of
May 10, 2004). As a result of his stock ownership in NAI, Mr.
Sumner M. Redstone is deemed the beneficial owner of an
additional 3,483,900 Common Shares of the issued and outstanding
Common Shares of the Issuer, for a total of 8,808,200 Common
Shares, or approximately 29.26%, of the issued and outstanding
Common Shares of the Issuer (based on the number of Common Shares
that were reported by the Issuer to be issued and outstanding as
of May 10, 2004).
The lack of voting power described in paragraphs (a) and (b) of
this Item 5 is pursuant to the Voting Proxy Agreement, described
in Item 6 of Amendment No. 19 of this Statement.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
On May 27, 2004 (the "Trade Date"), Mr. Sumner M. Redstone entered into
a Share Forward Transaction (the "Transaction") with an unrelated third
party ("Buyer") relating to 1,000,000 shares of common stock of the Issuer,
pursuant to which Mr. Redstone has transferred some of the economic risk of
owning the shares to Buyer. The confirmation relating to the Transaction is
attached hereto as Exhibit 2. The Transaction will be settled in four
approximately equal tranches of 125,000 shares three currency days after:
April 8, 2005 with respect to tranche 1, April 13, 2005 with respect to
tranche 2, July 11, 2005 with respect to tranche 3 and July 15, 2005
with respect to tranche 4 (the number of shares of common stock of the
Issuer with respect to which each settlement relates being the "Reference
Amount" for that settlement). The Transaction specifies a "Contingency
Price" of $34.00 per share and a "Forward Floor Price" of $25.6719
per share. On each settlement date, Mr. Redstone, unless he has elected
cash settlement as described in the following sentence, will deliver to
Buyer: (i) if the "Settlement Price" (a market-based price as determined
under the terms of the Transaction) for such settlement date is greater
than the Contingency Price, a number of shares equal to the Reference
Amount for that settlement date; and (ii) if the Settlement Price is
less than or equal to the Contingency Price, a number of shares equal
to the Reference Amount for that settlement date plus an additional number
of shares (the "Contingently Cash-Settled Delivery Amount") equal to
(a) such Reference Amount multiplied by (b) the lesser of (x) the
Contingency Price minus the Settlement Price and (y) the excess of the
Contingency Price over the Forward Floor Price, divided by (c) the
Settlement Price (except that if the Settlement Price is less than or
equal to $10.00, Mr. Redstone shall deliver the Reference Amount of
shares and make a cash payment to the Buyer in respect of the Contingently
Cash-Settled Delivery Amount). In lieu of delivering shares, Mr. Redstone
may elect cash settlement for any tranche. Mr. Redstone will receive a
prepayment from Buyer in the amount of $34,000,000 within 3 business days
of the Trade Date. The proceeds of the transaction are to be used for
investment purposes.
In connection with the Transaction, Mr. Redstone will deposit and maintain
1,000,000 shares of common stock of the Issuer, and additional cash or
securities with a value, after applicable haircuts, of $8,328,100, in a
collateral account, maintained by the Buyer, to secure his obligations
pursuant to the Transaction. He has also entered into an arrangement
beginning on June 28, 2004, pursuant to which Buyer can cause the
collateral to be loaned either to itself or to others.
Item 7. Material to Be Filed as Exhibits.
Exhibit 1
A joint filing agreement between Mr. Sumner M. Redstone and National
Amusements, Inc. is attached hereto as Exhibit 1.
Exhibit 2
A share forward agreement between Mr. Sumner M. Redstone and Bear Stearns
Bank plc is attached hereto as Exhibit 2.
Signatures
----------
After reasonably inquiry and to the best of our knowledge and belief, we certify
that the information set forth in this statement is true, complete and correct.
Pursuant to Rule 13d-1(k)(1), each of the undersigned agrees that this statement
is filed on behalf of each of us.
June 1, 2004 /s/ Sumner M. Redstone
-------------------------------------
Sumner M. Redstone,
Individually
National Amusements, Inc.
By: /s/ Sumner M. Redstone
----------------------------
Name: Sumner M. Redstone,
Title: Chairman and Chief
Executive Officer
TABLE OF EXHIBITS
--------------------------------------------------------------------------
EXHIBIT 1 A joint filing agreement between Mr. Sumner M. Redstone
and National Amusements, Inc.
EXHIBIT 2 A share forward agreement between Mr. Sumner M. Redstone
and Bear Stearns Bank plc
EXHIBIT 1
---------
JOINT FILING AGREEMENT
The undersigned hereby agree that the Statement on Schedule 13D, dated November
21, 1985 (the "Schedule 13D"), with respect to the common stock, $.50 par value
per share (the "Common Shares"), of WMS Industries Inc. (the "Issuer") is, and
any amendments executed by us shall be, filed on behalf of each of us pursuant
to and in accordance with the provisions of Rule 13d- 1(k) under the Securities
Exchange Act of 1934, as amended, and that this Agreement shall be included as
an exhibit to the Schedule 13D and each such amendment. Each of the undersigned
agrees to be responsible for the timely filing of the Schedule 13D and any
amendments thereto, and for the completeness and accuracy of the information
concerning itself contained therein. This agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned have executes this Agreement as of the 30th
day of July, 2002.
NATIONAL AMUSEMENTS, INC.
By: /s/ Sumner M. Redstone
----------------------
Name: Sumner M. Redstone
Title: Chairman and
Chief Executive Officer
By: /s/ Sumner M. Redstone
----------------------
Sumner M. Redstone
Individually
EXHIBIT 2
---------
DATE: May 27, 2004
TO: Mr. Sumner M. Redstone
c/o National Amusements, Inc.
200 Elm Street
Dedham, MA 02026-4536
TELEPHONE: 212-258-6310
FACSIMILE: 212-258-6311
FROM: Derivatives Documentation
TELEPHONE: 212-272-2711
FACSIMILE: 212-272-9857
SUBJECT: Equity Derivatives Draft Confirmation
REFERENCE NUMBER(S): NY30017
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into on the Trade Date specified below (the
"Transaction") between Bear Stearns Bank plc ("Bear Stearns") and Mr. Sumner M.
Redstone ("Counterparty"). This letter agreement constitutes the sole and
complete Confirmation with respect to this Transaction.
1. Bear Stearns is an "Affiliate" for purposes of the Bear Stearns Account
Agreement (the "Account Agreement") among each and every Affiliate (as
defined in the Account Agreement) of Bear, Stearns & Co. Inc. and/or Bear,
Stearns Securities Corp. and Counterparty dated as of May 24, 2004 and
relating to account number 380-80847; therefore, this Transaction entitles
Bear Stearns to all of the rights and remedies in respect of this
Transaction set forth in the Account Agreement. These rights and remedies
are in addition to, and not in substitution for, those which may be set
forth in any account documentation relating to the account maintained by
Counterparty at the applicable Affiliate.
The parties agree that an agreement in the form of the 1992 ISDA Master
Agreement (Multicurrency-Cross Border) (the "Master Agreement") shall be
deemed to have been executed and delivered by the parties on the Trade Date
of the first Transaction that by its terms is intended to be governed by a
Master Agreement. All provisions contained in, or incorporated by reference
shall govern the Transaction referenced in this Confirmation, except as
expressly modified below; provided, however, that Sections 3, 4, 5 and 6 of
the Master Agreement shall not govern this Transaction. Subject to the
foregoing, this Confirmation shall supplement, form a part of and be
subject to the Master Agreement.
This Confirmation is subject to and incorporates the 2000 ISDA Definitions
(the "Definitions") and the 2002 Equity Derivatives Definitions (the "2002
Definitions"), each as published by ISDA. For purposes of the 2002
Definitions, this Transaction shall be a "Share Forward Transaction".
In the event of any inconsistency between this Confirmation and the
Definitions, 2002 Definitions, the Account Agreement or the Master
Agreement, this Confirmation shall prevail. In the event of any
inconsistency between the Master Agreement and the Account Agreement, the
Account Agreement shall prevail.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows
Page 2 of 9
NY30017
General Terms:
Trade Date: May 27, 2004
Seller: Counterparty
Buyer: Bear Stearns
Shares: Common shares of WMS Industries, Inc.
currently trading under the ticker
symbol "WMS"
Tranche: Each of the four portions of this
Transaction separately relating to a
number of Shares equal to the
Reference Amount
Reference Amount: 250,000 with respect to all Tranches
Aggregate Reference Amount: 1,000,000
Variable Obligation: Applicable
Prepayment: Applicable
Prepayment Amount: USD 34,000,000.00
Prepayment Date: Three Currency Business Days after
the Trade Date
Forward Floor Price: USD 25.6719
Forward Cap Price: Not Applicable
Contingency Price: USD 34.00
Exchange: The New York Stock Exchange, Inc.
Related Exchange(s): All Exchanges
Clearance Systems: The Depository Trust Company (DTC)
Calculation Agent: Bear Stearns
Valuation:
Valuation Time: The Scheduled Closing Time
Valuation Dates: April 8, 2005 with respect to Tranche
1, April 13, 2005 with respect to
Tranche 2, July 11, 2005 with respect
to Tranche 3 and July 15, 2005 with
respect to Tranche 4.
Settlement Terms:
Physical Settlement: To be determined per "Settlement
Method Election"
Settlement Currency: USD
Page 3 of 9
NY30017
Settlement Dates: In respect of each Tranche, three
Currency Business Days after the
relevant Valuation Date; provided,
however, that any Settlement Date
shall automatically be postponed so
that neither Bear Stearns nor any
Affiliate thereof would, after giving
effect to such settlement, be a
"beneficial owner" (within the
meaning of Section 16 of the
Securities Exchange Act of 1934, as
amended, and the regulations
promulgated thereunder) of more
than 7% of the aggregate amount of
the Shares outstanding.
Settlement Method Election: Applicable, subject to "Cash
Settlement with respect to the
Contingently Cash-Settled Payment
Amount" below
Electing Party: Seller
Settlement Method Election Dates: In respect of each Tranche, the fifth
Scheduled Trading Day preceding the
relevant Valuation Date
Default Settlement Method: Physical Settlement, subject to
"Cash Settlement with respect to the
Contingently Cash-Settled Payment
Amount" below
Contingently Cash-Settled Payment An amount equal to (a) the Reference
Amount Amount multiplied by (b) the excess
of the Contingency Price over the
Forward Floor Price
Contingently Cash-Settled Delivery An amount equal to (a) the Reference
Amount Amount multiplied by (b) the lesser
of (x) the Contingency Price minus
the Settlement Price and (y) the
excess of the Contingency Price over
the Forward Floor Price divided by
(c) the Settlement Price
Number of Shares to be Delivered: Section 9.5(c) of the 2002
Definitions shall be amended and
restated in its entirety as follows:
Under a Share Forward Transaction
for which "Variable Obligation"
is applicable:
(i) If the Settlement Price is
less than or equal to the
Contingency Price, a number
of Shares equal to the
Reference Amount plus the
Contingently Cash-Settled
Delivery Amount; and
(ii) If the Settlement Price is
greater than the Contingency
Price, a number of Shares
equal to the Reference
Amount.
Page 4 of 9
NY30017
Cash Settlement with respect to Notwithstanding anything set forth
the Contingently Cash-Settled herein to the contrary, if this
Payment Amount: Transaction is Physically-settled,
and if the Settlement Price on the
relevant Valuation Date is less than
or equal to USD 10.00, then in lieu
of a delivery by Counterparty of the
portion of the Number of Shares to be
Delivered consisting of the
Contingently Cash-Settled Delivery
Amount, Counterparty shall pay on the
relevant Settlement Date USD cash in
an amount equal to the Contingently
Cash-Settled Payment Amount.
Settlement Terms if Cash Settlement is Applicable:
Settlement Prices: Each to be determined in accordance
with the 2002 Definitions
Cash Settlement Payment Dates: In respect of each Tranche, three
Currency Business Days after the
relevant Valuation Date
Dividends: In respect of each Tranche of the Transaction, Seller shall pay Buyer
on each Dividend Payment Date an amount equal to the related Dividend Amount
multiplied by the Reference Amount.
Dividend Amount: In respect of the related Dividend
Payment Date, 100% of the gross cash
dividend per Share most recently
declared by the Issuer to holders of
record of a Share, where the date that
the Shares have commenced trading
ex-dividend on the Exchange occurs
during the period from and including
the immediately prior Dividend Payment
Date (or the Trade Date in the case of
the first Dividend Payment Date) to
but excluding the related Dividend
Payment Date.
Dividend Payment Dates: With respect to each Tranche of the
Transaction, each Currency Business
Day immediately following the day on
which the related Dividend Amount is
paid by the Issuer; provided that each
Dividend Payment Date shall occur
during the Dividend Period and that
the last Dividend Payment Date shall
fall on the relevant Valuation Date.
Extraordinary Dividend: Not Applicable
Excess Dividend Amount: Not Applicable
Dividend Period: With respect of each Tranche, the
period from but excluding the Trade
Date to and including the relevant
Valuation Date
Share Adjustments:
Page 5 of 9
NY30017
Method of Adjustments: Calculation Agent Adjustment;
provided, however, that any reference
to "Number of Shares" in Section
11.2(c) of the 2002 Definitions shall
be replaced with "Reference Amount".
Consequences for Merger Events:
Share-for-Share: Alternative Obligation; provided,
however, that any reference to "Number
of Shares" in Section 12.2(a) of the
2002 Definitions shall be replaced
with "Reference Amount".
Share-for-Other: Modified Calculation Agent Adjustment
Share-for-Combined: Component Adjustment
Determining Party: Buyer
Tender Offer: Applicable
Consequences of Tender Offers:
Share-for-Share: Alternative Obligation; provided,
however, that any reference to "Number
of Shares" in Section 12.2(a) of the
2002 Definitions shall be replaced
with "Reference Amount".
Share-for-Other: Modified Calculation Agent Adjustment
Share-for-Combined: Component Adjustment
Determining Party: Buyer
Nationalization, Insolvency or Delisting: Cancellation and Payment
Determining Party: Buyer
Additional Disruption Events:
Change in Law: Applicable
Failure to Deliver: Applicable
Insolvency Filing: Applicable
Increased Cost of Stock Borrow: Applicable
Initial Stock Loan Rate: 0.00%
Hedging Party: Buyer
Determining Party: Buyer
Non-Reliance: Applicable
Agreements and Acknowledgements Applicable
Regarding Hedging Activities:
Additional Acknowledgements: Applicable
Additional Representations and Covenants of Counterparty.
(a) Counterparty represents and warrants to Bear Stearns (which representation
and warranty will be deemed repeated at all times during the period from and
including the Trade Date to and including the Settlement Date or Cash Settlement
Date (as the case may be)) that:
Page 6 of 9
NY30017
(i) the Shares pledged as Collateral under this Transaction and any Shares
delivered to Buyer hereunder in connection with this Transaction are not
and shall not be subject to any condition to or restriction on the ability
of the holder thereof to freely sell, assign or otherwise transfer such
Shares, including any contractual restriction, requirement for receipt of
approval, limitations on the status of transferees, deliveries of
certifications, opinions or other documents (other than a stock power or
like instrument of transfer), or requirement of registration or prospectus
delivery;
(ii) Counterparty is not an "affiliate" of the Issuer within the meaning of
Rule 144 ("Rule 144") promulgated under the Securities Act of 1933, as
amended, or any successor rule, regulation or provision; and
(iii) Counterparty is not, as of the Trade Date and any date on which a
Settlement Method Election is made, in possession of any material
non-public information with respect to the Issuer.
(b) Counterparty shall deliver on or prior to each of (i) the Trade Date, (ii)
the Settlement Date or the Cash Settlement Date (as applicable) and (iii) upon
one week's notice to Counterparty, any other day as required by Bear Stearns, an
unqualified opinion from Shearman & Sterling (or another international law firm
of like stature) addressed to Bear Stearns (and if required by Bear Stearns, to
the Issuer and/or the transfer agent for the Shares) stating that Counterparty
is not on any such relevant date an "affiliate" of the Issuer within the meaning
of the Securities Act of 1933, as amended, and of Rule 144 promulgated
thereunder. Failure to deliver any such opinion shall constitute a Default with
respect to Counterparty under the Account Agreement if such failure remains
uncured on the third Currency Business Day following the date of required
delivery.
Events of Default.
For the avoidance of doubt and without limiting any obligations or liabilities
of Counterparty under the Account Agreement, any breach by Counterparty of
clause (a) or (b) under "Additional Representations of Counterparty" above shall
constitute a Default (as defined in the Account Agreement) under Section 6(e) of
the Account Agreement.
Collateral Provisions.
(a) On or before the Currency Business Day following the Trade Date,
Counterparty shall deliver to and at all times maintain with Bear Stearns as
collateral (i) Shares in number equal to the Aggregate Reference Amount and (ii)
cash or securities in a form acceptable to Bear Stearns with a haircut USD value
equal to (the value of any securities, including without limitation any
applicable haircuts applied thereto, being determined by Bear Stearns, provided
that such haircuts shall be consistent with the terms of the account agreement
dated as of September 15, 1993 among Counterparty, Bear, Stearns Securities
Corp. and Bear, Stearns & Co. Inc. with respect to account # 248-03709) (x) the
excess of the Contingency Price over the Forward Floor Price multiplied by (y)
the Aggregate Reference Amount.
(b) These Collateral Provisions shall be deemed a security agreement, and shall
be governed by the laws of the State of New York, without giving effect to the
conflicts or choice of law provisions thereof. The Counterparty hereby grants a
first priority continuing security interest in all Collateral provided hereunder
and in any and all substitutions therefor, proceeds thereof and distributions
thereon. These Collateral Provisions constitute a Credit Support Document and
the failure by a party to deliver or return Collateral in accordance with these
Collateral Provisions (if such failure is not remedied on or before the Local
Business Day after notice of such failure is given to such party) shall
constitute a Default for purposes of Section 6 of the Account Agreement with
respect to such party. (c) Any Collateral to be held pursuant to these
Collateral Provisions shall be maintained subject to the Account Agreement.
(d) The parties agree that, notwithstanding this Confirmation or the Account
Agreement Bear Stearns may only borrow, repledge, use in its own business and
rehypothecate the Shares pledged by Counterparty as Collateral on the terms
agreed between the parties in the
Page 7 of 9
NY30017
separate letter agreement relating to securities lending arrangements dated as
of the Trade Date.
Agency. Counterparty acknowledges that Bear, Stearns & Co. Inc. ("BS&C") has
acted as agent for Counterparty solely for the purposes of arranging this
Transaction with its Affiliate, Bear Stearns and has acted as agent for Bear
Stearns (without accepting any liability for Bear Stearns's performance or
non-performance of Bear Stearns's obligations under the Transaction) in
connection with the execution of this confirmation on Bear Stearns's behalf.
This Confirmation is being provided by BS&C in such capacity. Upon your written
request, BS&C will furnish you with the time at which this Transaction was
entered into.
Non-Confidentiality. Notwithstanding any agreement or representation, written or
oral, made by either party in connection with this Transaction, each of the
parties (and each employee, representative, or other agent of the
aforementioned) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of any Transaction hereunder and all
materials of any kind (including opinions or other analyses) that are provided
to it relating to such tax treatment and tax structure.
Additional Provisions
Non-Reliance. Each party represents to the other party that (a) it has not
received and is not relying upon any legal, tax, regulatory, accounting or other
advice (whether written or oral) of the other party regarding this Transaction,
other than representations expressly made by that other party in this
Confirmation and in the Account Agreement and (b) in respect of this
Transaction, (i) it has the capacity to evaluate (internally or through
independent professional advice) this Transaction and has made its own decision
to enter into this Transaction and (ii) it understands the terms, conditions and
risks of this Transaction and is willing to assume (financially and otherwise)
those risks. Counterparty acknowledges that Bear Stearns has advised
Counterparty to consult its own tax, accounting and legal advisors in connection
with this Transaction evidenced by this Confirmation and that the Counterparty
has done so.
Eligible Contract Participant. Each party represents that it constitutes an
"eligible contract participant" as such term is defined in Section 1(a)12 of the
Commodity Exchange Act, as amended.
Payment Date Netting. The parties agree that subparagraph (ii) of Section 2(c)
of the Master Agreement will not apply to any Transactions that are or will be
governed by the Master Agreement. Thus all amounts payable on the same date in
the same currency in respect of all Transactions shall be netted.
Governing Law. The laws of the State of New York, without reference to the
choice or conflicts of law principles thereof.
Termination Currency. USD shall be the Termination Currency.
Transfer. Bear Stearns may transfer its rights and obligations under this
Transaction, in whole or in part, to any of its Affiliates without
Counterparty's consent; provided that Counterparty does not provide to Bear
Stearns an opinion of recognized tax counsel or accountants that such transfer
could result in a substantial likelihood (a) of Counterparty being required to
withhold as a result of any tax and to "gross up" under the Account Agreement;
(b) that Counterparty could be withheld against, and that the transferee of Bear
Stearns would not be required to "gross up" under the Account Agreement; or (c)
of other adverse tax consequences to Counterparty.
Contact information. The addresses for notice to the parties shall be:
(a) Counterparty:
Mr. Sumner M. Redstone
c/o National Amusements, Inc.
Page 8 of 9
NY30017
200 Elm Street Dedham, MA
02026-4536
(b) Bear Stearns:
Bear Stearns Bank plc
Block 8, Harcourt Centre
Charlotte Way
Dublin 2, Ireland
Tel (353-1) 402 6200
Fax (353-1) 402-6223
with a copy to:
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Attention: Patrick Dempsey
This Confirmation may be executed in several counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to Bear Stearns a facsimile of the
fully-executed Confirmation to 212-272-9857. For inquiries regarding U.S.
Transactions, please contact Robin Black by telephone at 212-272-6345. For all
other inquiries please contact Orlaith O'Dea by telephone at 353-1-402-6220.
Originals will be provided for your execution upon your request.
Page 9 of 9
NY30017
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR, STEARNS & CO. INC., AS AGENT FOR BEAR, STEARNS BANK PLC
By: /s/ Harry Engelman
---------------------------
Name: Harry Engelman
Title: Senior Managing Director
Counterparty hereby agrees to, accepts and confirms the terms of the foregoing
as of the Trade Date.
Mr. Sumner M. Redstone
By: /s/ Sumner M. Redstone
---------------------------