**THIS SECOND EXCHANGEABLE DEBENTURE HAS NOT BEEN REGISTEREDUNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATEAND MAY NOT BE TRANSFERRED WITHOUT REGISTRATION UNDER THESECURITIES ACT OR STATE SECURITIES LAWS OR AN OPINION OF COUNSEL,SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOTREQUIRED AND OTHERWISE SUBJECT TO THE RESTRICTIONS CONTAINEDHEREIN.**

**THIS SECOND EXCHANGEABLE DEBENTURE IS SUBJECT TO CERTAINRESTRICTIONS ON TRANSFER AND RIGHTS OF REPURCHASE WHICH ARE SETFORTH IN A STAKEHOLDERS AGREEMENT. A COPY OF SUCH AGREEMENT WILLBE PROVIDED WITHOUT COST BY THE COMPANY UPON REQUEST TO THEHOLDER OF THIS SECOND EXCHANGEABLE DEBENTURE.**

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E. A. VINER INTERNATIONAL CO.

 

SECOND VARIABLE RATE EXCHANGEABLE DEBENTURE DUE2013

$90,841,572

May 12, 2003

E. A. Viner International Co., a Delaware corporation (the"Company," which term includes any successorcorporation or other business entity), for value received, herebypromises to pay to Canadian Imperial Bank of Commerce (includingits permitted designees or assignees, "Holder"), theprincipal sum of NINETY MILLION, EIGHT HUNDRED FORTY ONETHOUSAND, FIVE HUNDRED SEVENTY TWO U.S. DOLLARS ($90,841,572) onJanuary 2, 2013 (the "Maturity Date"), together withinterest on the unpaid balance of the principal amount of thisSecond Variable Rate Exchangeable Debenture (the "SecondExchangeable Debenture") at a variable rate calculated inaccordance with the formula set forth in Section 1 below,interest to be payable in the manner and at times providedherein. Certain defined terms are set forth in Section 4 hereofand elsewhere herein. 

1. Interest. The interest rate for the period (i)commencing on the date of original issuance of this SecondExchangeable Debenture (the "Issue Date") and ending onthe one year anniversary of the Issue Date, shall be 3% perannum; (ii) commencing on the day immediately following the oneyear anniversary of the Issue Date and ending on the four yearanniversary of the Issue Date, shall be 4% per annum; and (iii)commencing on the day immediately following the four yearanniversary of the Issue Date until the Maturity Date, shall be5% per annum. Accrued but unpaid interest on this SecondExchangeable Debenture will be payable on the last Business Dayof June 2003 and on the last Business Day of each December andJune thereafter (each an "Interest Payment Date").Interest on this Second Exchangeable Debenture will accrue fromthe most recent date to which interest has been paid or accruedas provided in the preceding sentence or, if no interest has beenpaid, from the Issue Date. Interest will be computed on the basisof a 360-day year for the actual days elapsed. In the event thatthe Company fails to timely pay interest on an Interest PaymentDate or otherwise during the occurrence and continuance of anEvent of Default, such unpaid interest shall compoundsemi-annually until paid by the Company at a rate equal to 2%above the then applicable interest rate. Nothing herein shallpreclude the Company from withholding any tax amounts imposed onor with respect to Holder from any payments made hereunder, whichtax amounts are required to be withheld by any law or regulation.

2. Repayment. Unless earlier exchanged, the outstandingprincipal of this Second Exchangeable Debenture, together withaccrued but unpaid interest thereon, shall be immediately due andpayable and shall be repaid on the Put Date in whole, or in part,to the extent this Second Exchangeable Debenture is retractedpursuant to Section 8(b), or in whole on the Retraction Date, tothe extent this second Exchangeable Debenture is retractedpursuant to Section 8 (c), or in whole on the Maturity Date. 

3. Method of Cash Payment. 

The Company will make cash payments of principal and interestin currency of the United States that at the time of payment islegal tender for payment of public and private debts. Cashpayments shall be made to Holder by wire transfer of immediatelyavailable funds to an account designated in writing by Holder andprovided to the Company at least ten (10) Business Days beforeany Payment Date.

4. Certain Defined Terms. 

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The following terms shall have the following meanings:

"Affiliate" means, with respect to aspecified Person, a Person that directly or indirectly, throughone or more intermediaries, controls, or is controlled by or isunder common control with, the Person specified.

"Asset Purchase Agreement" means the AssetPurchase Agreement, dated as of December 9, 2002, as amended byand among the Parent, Canadian Imperial Bank of Commerce andcertain of their Affiliates.

"Average Market Value" means, with respect toClass A Shares, the average of the last reported sale price forthe Class A Shares on the NYSE for the 20 consecutive BusinessDays ending five Business Days prior to the Put Date or MaturityDate, as applicable.

"Bankruptcy Law" means, with respect to theCompany, Title 11, United States Bankruptcy Code, or with respectto the Parent, the Bankruptcy and Insolvency Act (Canada) and theCompanies’ Creditors Arrangement Act (Canada), and in eachcase any similar law relating to reorganization or for theappointment of a receiver, liquidator or trustee in respect ofall or a material portion of the Company’s or Parent’sproperty or an assignment for the benefit of creditors, or anysimilar law for the relief of debtors. 

"Board of Directors" means the Board ofDirectors of the Company or Parent, as the case may be, or anycommittee thereof duly authorized to act on behalf of such Board.

"Business Day" means any day other than aSaturday, Sunday or other day on which the NYSE is not open fortrading.

"Class A Shares" means the Class A non-votingshares of the Parent and any capital stock or other securitiesthat are issued in respect of, in exchange for, or insubstitution of, any Class A Shares by reason of anyreorganization, recapitalization, reclassification, merger,consolidation, spin-off, partial or complete liquidation, stockdividend, split-up, sale of assets, distribution to stockholdersor combination of the Class A Shares or any other change in thecapital structure of the Company.

 

"Current Market Price Per Share" has themeaning set forth in Section 5(h) hereof.

"Custodian" means any receiver, trustee,assignee, liquidator, custodian or similar official under anyBankruptcy Law.

"Determination Date" has the meaning setforth in Section 5(h) hereof.

"GAAP" means generally accepted accountingprinciples in the United States.

"Exchange Date" has the meaning set forth inSection 5(d) hereof.

"Exchange Effective Date" has the meaning setforth in Section 5(c) hereof.

"Exchange Price" has the meaning set forth inSection 5(h) hereof.

"Exchangeable Debenture " means the VariableRate Exchangeable Debenture Due 2013 issued by the Company in theinitial principal amount of $69,980,828 and any ExchangeableDebenture issued in replacement thereof, as such ExchangeableDebenture may be amended from time to time.

"Expiration Time" has the meaning set forthin Section 5(h) hereof.

"Governmental Entity" means any national,federal, state, provincial, municipal, local, territorial,foreign or other governmental entity or any department,commission, board, bureau, agency, regulatory authority orinstrumentality thereof, or any court, judicial, administrativeor arbitral body or public or private tribunal.

"Guarantee" means any obligation, contingentor otherwise, of any Person directly or indirectly guaranteeingany indebtedness of any other Person and any obligation, director indirect, contingent or otherwise, of such Person (1) topurchase or pay (or advance or supply funds for the purchase orpayment of) such indebtedness or other obligation of such Person(whether arising by virtue of partnership arrangements, or byagreements to keepwell, to purchase assets, goods, securities orservices, to take-or-pay or to maintain financial statementconditions or otherwise) or (2) entered into for the purpose ofassuring in any other manner the obligee of such indebtedness ofthe payment thereof or to protect such obligee against loss inrespect thereof (in whole or in part); provided, however, thatthe term "Guarantee" shall not include endorsements forcollection or deposit in the ordinary course of business. Theterm "Guarantee" used as a verb has a correspondingmeaning.

"HSR Act" means the United States Hart-ScottRodino Antitrust Improvements Act of 1976, as amended.

"Indebtedness" means of any Person at anydate, without duplication, (a) all obligations of such Person forborrowed money, (b) all obligations of such Person evidenced bybonds (other than performance bonds), debentures, notes or othersimilar instruments, (c) all obligations of such Person to paythe deferred purchase price of property or services (other thantrade payables incurred in the ordinary course of business), (d)all obligations of such Person under capital leases, (e) allcontingent or non-contingent obligations of such Person toreimburse any Person in respect of amounts paid or payable(currently or in the future, on a contingent or non-contingentbasis) under a letter of credit or similar instrument, (f) allIndebtedness of any other Person secured by a lien on any assetof such Person, and (g) all Indebtedness of others Guaranteed bysuch Person; provided that Indebtedness shall not includeintercompany Indebtedness, which is expressly subordinate andjunior in right of payment to the Second Exchangeable Debenture.

"Interest Payment Date" has the meaning setforth in Section 1 hereof.

"Issue Date" has the meaning set forth inSection 1 hereof.

"NYSE" The New York Stock Exchange, Inc.

"Parent" means Fahnestock Viner HoldingsInc., an Ontario corporation and its successors.

"Payment Date" means any Interest PaymentDate or Maturity Date, provided that if any Payment Date is not aBusiness Day, such Payment Date shall, for all purposeshereunder, be deemed to be the next succeeding Business Day.

"Person" means any individual, corporation,partnership, limited liability company, joint venture,association, joint-stock company, trust, unincorporatedorganization, government or any agency or political subdivisionthereof or any other entity. 

"Purchased Shares" has the meaning set forthin Section 5(h) hereof.

"Put Date" means any date from and after theseven year anniversary of the Issue Date (the "Seven YearAnniversary Date") to 120 days after the Seven YearAnniversary Date.

"Put Event" means the date of death of theSignificant Shareholder I Individual (as defined in theStakeholders Agreement).

"Responsible Officer" means any seniorfinancial officer and any other officer of the Company withresponsibility for the administration of this Second ExchangeableDebenture.

"Retraction Consideration" means theaggregate principal amount of the Second Exchangeable Debentureoutstanding plus any accrued but unpaid interest through theRetraction Date, 25% of which shall be paid in cash, and 75% ofwhich shall be paid through the issuance of the Second RetractionDebenture.

"Second Exchangeable Debenture " means thisSecond Variable Rate Exchangeable Debenture Due 2013 issued bythe Company in the initial principal amount of $90,841,572 andany Second Exchangeable Debenture issued in replacement thereof,as such Second Exchangeable Debenture may be amended from time totime.

"Second Retraction Debenture" means the 9.75%Debenture of the Company which may become issuable upon paymentof the Retraction Consideration, the form of which is set forthas Exhibit B hereto.

"Significant Subsidiary" means any Subsidiarythat would be a "Significant Subsidiary" of the Companywithin the meaning of Rule 1-02 under Regulation S-X promulgatedby the SEC.

"Stakeholders Agreement" means the agreementdated as of December 9, 2002, by and among Parent, CanadianImperial Bank of Commerce and certain other parties namedtherein.

"Subsidiary" means, in respect of any Person,any corporation, association, partnership or other businessentity of which more than 50% of the total voting power of sharesof Capital Stock or other interests (including partnershipinterests) entitled (without regard to the occurrence of anycontingency) to vote in the election of directors, managers ortrustees thereof is at the time owned or controlled, directly orindirectly, by (1) such Person, (2) such Person and one or moreSubsidiaries of such Person or (3) one or more Subsidiaries ofsuch Person.

"TSX" means The Toronto Stock Exchange.

"Triggering Distribution" has the meaning setforth in Section 5(h) hereof.

"Variable Rate Convertible Debentures" meansthe Convertible Debentures Due 2006 issued by the Company in theinitial principal amount of $90,841,572 and any ConvertibleDebentures issued in replacement thereof, as such ConvertibleDebentures may be amended from time to time.

5. Exchange.

(a) Conditions and Number of Class A Shares. At anytime prior to (i) the close of business on July 2, 2012 (ii) thedelivery to the Company of a Retraction Notice, or (iii) thedelivery to the Holder of a Regulatory Call Notice (as defined inthe Stakeholders Agreement), the Holder may, at the Holder'soption, exchange the principal amount of this Second ExchangeableDebenture (or any portion thereof equal to $1,000 or any integralmultiple of $1,000 in excess thereof) for Class A Shares at theExchange Price then in effect. The number of Class A Sharesissuable upon exchange of the Second Exchangeable Debenture shallbe determined by dividing the principal amount of the SecondExchangeable Debenture or portion thereof, including any accruedbut unpaid interest thereon, surrendered for exchange by theExchange Price in effect on the Exchange Date. The initialExchange Price is $23.20 per Class A Share subject to adjustmentas provided in this Section 5.

(b) Additional Class A Shares. If, on either the PutDate or the Maturity Date, the Holder has surrendered all or anyportion of his Second Exchangeable Debenture for exchange and hassold the Class A Shares received upon exchange pursuant to anunderwritten public offering within 120 days of such surrender("Secondary Sale") and receives aggregate grossproceeds (after giving effect to underwriting discounts andcommissions which shall be paid by the Company and shall notreduce the number of Class A Shares to be received by the Holder)less than the amount determined by multiplying the number ofshares sold by the Average Market Value of the shares, thenParent shall, as soon as reasonably practicable following receiptof a notice (the "Additional Share Notice") stating theexercise of the Holder's rights pursuant to this Section 5(b),issue an additional number of Class A Shares to the Holder. Thepayment of the fees and expenses associated with such SecondarySale (other than with respect to underwriting discounts andcommissions) shall be as set forth in the Registration RightsAgreement. It shall be a condition of such issuance that theAdditional Share Notice shall include a representation andwarranty of the Holder that it is an accredited investor withinthe meaning of the Securities Act (Ontario) and is acquiring suchadditional Class A Shares as principal. The number of such sharesto be issued shall equal the amount of such difference divided bythe last reported sales price of the of the Class A Shares on theNYSE on the closing date of the Secondary Sale, provided,however, that the number of shares to be so issued pursuant tothis Section 5(b) shall not exceed an amount equal to 3% of thenumber of Class A Shares issuable upon exchange of allExchangeable Debentures and Second Exchangeable Debentures thenoutstanding times a fraction, the numerator of which is thenumber of Class A Shares sold in the underwritten offering andthe denominator of which is the number of Class A Shares issuableupon exchange of the entire principal amount of all ExchangeableDebentures and Second Exchangeable Debentures. The Companyacknowledges that the Holder may surrender the SecondExchangeable Debenture at the closing of the Secondary Sale andmay withdraw its obligation to surrender the Second ExchangeableDebenture in the event that the Secondary Sale does not close. Inthe event that the Holder surrenders the Second ExchangeableDebenture, interest will no longer accrue on such SecondExchangeable Debenture from and after the date of surrender,unless the Holder subsequently withdraws such surrender if theSecondary Sale does not close, in which case interest will bereinstated for the period of such surrender. In no event willinterest accrue after the Maturity Date.

(c) 45 Day Waiting Period. The Holder is not entitledto any rights of a holder of Class A Shares until 45 days afterthe Holder has exchanged its Second Exchangeable Debentures forClass A Shares (the "Exchange Effective Date"), andonly to the extent the Second Exchangeable Debenture has beendeemed to have been exchanged for Class A Shares pursuant to thisSection 5. The person in whose name the Class A Share certificateis registered following exchange shall be deemed to be astockholder of record on the Exchange Effective Date. 

(d) Exchange Procedure. To exchange the SecondExchangeable Debenture, the Holder must (i) complete and manuallysign the exchange notice on the back of this Second ExchangeableDebenture and deliver such notice to the Company, with a copy toParent, and (ii) surrender the Second Exchangeable Debenture tothe Company. The date on which the Holder satisfies all thoserequirements is the "Exchange Date." As soon aspracticable after the Exchange Effective Date, Parent shalldeliver to the Holder, either directly or through the Company, acertificate for the number of whole Class A Shares issuable uponthe exchange and cash in lieu of any fractional shares. Any cashpaid in lieu of fractional shares shall be based upon the ClosingPrice of the Class A Shares on the Business Day immediately priorto the Exchange Date. If this Debenture is exchanged in partonly, the Company shall execute and deliver to the Holder, a newSecond Exchangeable Debenture equal in principal amount to theunconverted portion of the Second Exchangeable Debenturesurrendered.

(e) Taxes on Exchange. If the Holder exchanges thisSecond Exchangeable Debenture, the Company shall pay anydocumentary, stamp or similar issue or transfer tax due on theissue of Class A Shares upon such exchange. However, the Holdershall pay any such tax which is due because the Holder requeststhe shares to be issued in a name other than the Holder's name.Nothing herein shall preclude any tax withholding imposed on orwith respect to Holder required by law or regulation.

(f) Parent To Provide Stock. Parent shall, prior toissuance of any Class A Shares hereunder, and from time to timeas may be necessary, reserve, out of its authorized but unissuedClass A Shares, a sufficient number of Class A Shares to permitthe exchange of the Second Exchangeable Debenture into Class AShares. All Class A Shares delivered upon exchange of theExchangeable Debenture shall be newly issued shares, shall beduly authorized, validly issued, fully paid and nonassessable andshall be free from preemptive rights and free of any lien oradverse claim.

(g) Compliance With Securities Laws; Listing. Parentwill endeavor promptly to comply with all applicable federal,state and provincial securities laws regulating the offer anddelivery of Class A Shares upon exchange of Second ExchangeableDebenture, if any, and will list or cause to have quoted suchClass A Shares on each national securities exchange, the TSX oron The Nasdaq National Market or other over-the-counter market orsuch other market on which the Class A Shares are then listed orquoted; provided, however, that if rules of such automatedquotation system or exchange permit the Company to defer thelisting of such Class A Shares until the first exchange of theSecond Exchangeable Debenture into Class A Shares in accordancewith the provisions hereof, Parent covenants to list such Class AShares issuable upon exchange of the Second ExchangeableDebenture in accordance with the requirements of such automatedquotation system or exchange on or prior to the first ExchangeEffective Date.

(h) Adjustment of Exchange Price. The initial exchangeprice as stated in Section 5(a) hereof shall be adjusted fromtime to time (as so adjusted, the "Exchange Price") asfollows: 

(i) In case Parent shall (1) pay a dividend on its Class AShares in Class A Shares, (2) make a distribution on its Class AShares in Class A Shares, (3) subdivide its outstanding Class AShares into a greater number of shares, or (4) combine itsoutstanding Class A Shares into a smaller number of shares, theExchange Price in effect immediately prior thereto shall beadjusted so that the Holder upon exchange of the SecondExchangeable Debenture shall thereafter be entitled to receivethat number of Class A Shares which it would have owned had theSecond Exchangeable Debenture been exchanged immediately prior tothe happening of such event. An adjustment made pursuant to thissubsection (i) shall become effective immediately after therecord date in the case of a dividend or distribution and shallbecome effective immediately after the effective date in the caseof subdivision or combination.

(ii) In case Parent shall, by dividend or otherwise, at anytime distribute (a "Triggering Distribution") to all orsubstantially all holders of its Class A Shares, cash in anaggregate amount that, together with the aggregate amount of (A)any cash and the fair market value (as reasonably determined ingood faith by the Board of Directors of Parent, whosedetermination shall be conclusive evidence thereof) of any otherconsideration payable to holders of Class A Shares in respect ofany offer by Parent or a Subsidiary of Parent to purchase Class AShares from Parent's Class A stockholders on a pro rata basis andsuch offer is consummated within the 12 months preceding the dateof payment of the Triggering Distribution and in respect of whichno Exchange Price adjustment pursuant to this Section 5 has beenmade and (B) all other cash distributions to all or substantiallyall holders of its Class A Shares made within the 12 monthspreceding the date of payment of the Triggering Distribution andin respect of which no Exchange Price adjustment pursuant to thisSection 5 has been made, exceeds an amount equal to 5% of theproduct of the Current Market Price Per Class A Share on theBusiness Day (the "Determination Date") immediatelypreceding the day on which such Triggering Distribution isdeclared by Parent multiplied by the number of Class A Sharesoutstanding on the Determination Date (excluding shares held inthe treasury of Parent), the Exchange Price shall be reduced sothat the same shall equal the price determined by multiplyingsuch Exchange Price in effect immediately prior to theDetermination Date by a fraction of which the numerator shall bethe Current Market Price Per Class A Share on the DeterminationDate less the sum of the aggregate amount of cash and theaggregate fair market value (as reasonably determined in goodfaith by the Board of Directors of Parent, whose determinationshall be conclusive evidence of such fair market value) of anysuch other consideration so distributed, paid or payable withinsuch 12 months (including, without limitation, the TriggeringDistribution) applicable to one Class A Share (determined on thebasis of the number of Class A Shares outstanding on theDetermination Date) and the denominator shall be such CurrentMarket Price Per Class A Share on the Determination Date, suchreduction to become effective immediately prior to the opening ofbusiness on the day following the date on which the TriggeringDistribution is paid.

(1) In case any offer, by Parent or any of its Subsidiaries topurchase Class A Shares from Parent's Class A stockholders on apro rata basis shall expire and such offer (as amended upon theexpiration thereof) shall involve the payment of aggregateconsideration in an amount (determined as the sum of theaggregate amount of cash consideration and the aggregate fairmarket value (as reasonably determined in good faith by the Boardof Directors of Parent), whose determination shall be conclusiveevidence thereof of any other consideration) that, together withthe aggregate amount of (A) any cash and the fair market value(as reasonably determined in good faith by the Board of Directorsof Parent, whose determination shall be conclusive evidencethereof) of any other consideration payable in respect of anyother offers by Parent or any Subsidiary of Parent to purchaseClass A Shares from Parent's Class A stockholders on a pro ratabasis consummated within the 12 months preceding the date of theExpiration Date (as defined below) and in respect of which noExchange Price adjustment pursuant to this Section 5 has beenmade and (B) all cash distributions to all or substantially allholders of its Class A Shares made within the 12 months precedingthe Expiration Date and in respect of which no Exchange Priceadjustment pursuant to this Section 5 has been made, exceeds anamount equal to 5% of the product of the Current Market Price PerClass A Share as of the last date (the "ExpirationDate") tenders, repurchases or redemptions could have beenmade pursuant to such offer (as it may be amended) (the last timeat which such purchases could have been made on the ExpirationDate is hereinafter sometimes called the "ExpirationTime") multiplied by the number of Class A Sharesoutstanding (including tendered shares but excluding any sharesheld in the treasury of Parent) at the Expiration Time, then,immediately prior to the opening of business on the day after theExpiration Date, the Exchange Price shall be reduced so that thesame shall equal the price determined by multiplying the ExchangePrice in effect immediately prior to the close of business on theExpiration Date by a fraction of which the numerator shall be theproduct of the number of Class A Shares outstanding (includingtendered, repurchased or redeemed shares but excluding any sharesheld in the treasury of Parent) at the Expiration Time multipliedby the Current Market Price Per Class A Share on the Trading Daynext succeeding the Expiration Date and the denominator shall bethe sum of (x) the aggregate consideration (determined asaforesaid) payable to Class A stockholders based on theacceptance (up to any maximum specified in the terms of theoffer) of all shares validly tendered and not withdrawn as of theExpiration Time (the shares deemed so accepted, up to any suchmaximum, being referred to as the "Purchased Shares")and (y) the product of the number of Class A Shares outstanding(less any Purchased Shares and excluding any shares held in thetreasury of Parent) at the Expiration Time and the Current MarketPrice Per Class A Share on the Trading Day next succeeding theExpiration Date, such reduction to become effective immediatelyprior to the opening of business on the day following theExpiration Date. In the event that Parent or its Subsidiary, asthe case may be, is obligated to purchase shares pursuant to anyoffer to purchase Class A Shares from Parent's Class Astockholders on a pro rata basis, but Parent or its Subsidiary,as the case may be, is permanently prevented by applicable lawfrom effecting any or all such purchases or any or all suchpurchases are rescinded, the Exchange Price shall again beadjusted to be the Exchange Price which would have been in effectbased upon the number of shares actually purchased. If theapplication of this Section 5(h) would result in an increase inthe Exchange Price, no adjustment shall be made under thisSection 5(h).

(2) For the purpose of any computation under subsections (i)and (ii) of this Section 5(h), the current market price per ClassA Share (the "Current Market Price Per Share") on anydate shall be deemed to be the average of the daily ClosingPrices for the 30 consecutive Trading Days commencing 45 BusinessDays before (i) the Determination Date or the Expiration Date, asthe case may be, with respect to distributions or offers undersubsection (ii) of this Section 5(h) or (ii) the record date withrespect to distributions, issuances or other events requiringsuch computation under subsection (i) of this Section 5(h). TheClosing Price for each day (the "Closing Price") shallbe the last reported sales price or, in case no such reportedsale takes place on such date, the average of the reportedclosing bid and asked prices in case on the NYSE. If the Class AShares are not then quoted or listed or admitted to trading onthe NYSE, the last reported sale price referenced above shall bedetermined based on the last reported sale price on the TSX (andconverted to U.S. dollars at the exchange rate quoted by the Bankof Canada at such time) or, if the Class A Shares are not thenquoted or listed or admitted to trading on the NYSE or TSX, anynational securities exchange or quotation system on which salesof Class A Shares takes place, or, in case no reported sale takesplace, the Market Price shall be the fair value of a Class AShares as reasonably determined in good faith by the Board ofDirectors of the Company. 

(3) In any case in which this Section 5(h) shall require thatan adjustment be made following a record date or a DeterminationDate or Expiration Date, as the case may be, established forpurposes of this Section 5(h), Parent may elect to defer issuingto the Holder until after such record date or Determination Dateor Expiration Date the Class A Shares and other capital stock ofParent issuable upon such exchange over and above the Class AShares and other capital stock of Parent issuable upon suchexchange only on the basis of the Exchange Price prior toadjustment; and, in lieu of the shares the issuance of which isso deferred, Parent shall issue or cause its transfer agent toissue due bills or other appropriate evidence prepared by Parentof the right to receive such shares. If any distribution inrespect of which an adjustment to the Exchange Price is requiredto be made as of the record date or Determination Date orExpiration Date therefor is not thereafter made or paid by theCompany for any reason, the Exchange Price shall be readjusted tothe Exchange Price which would then be in effect if such recorddate had not been fixed or such effective date or DeterminationDate or Expiration Date had not occurred.

(iii) If any event occurs as to which the foregoing provisionsof this Section 5(h) are not strictly applicable or, if strictlyapplicable, would not, in the good faith judgment of the Company,fairly and adequately protect the rights of the Holder inaccordance with the essential intent and principles of suchprovisions, then the Company shall make such adjustments in theapplication of such provisions, in accordance with such essentialintent and principles, as shall be reasonably necessary, in thegood faith opinion of the Company, to protect such rights asaforesaid, but in no event shall any such adjustment have theeffect of increasing the Exchange Price or decreasing the numberof Class A Shares issuable upon exchange of this SecondExchangeable Debenture.

(iv) Adjustment for Tax Purposes. Parent shall beentitled to make such reductions in the Exchange Price, inaddition to those required by this Section 5(h), as it in itsdiscretion shall determine to be advisable in order that anystock dividends, subdivisions of shares, distributions of rightsto purchase stock or Second Exchangeable Debenture ordistributions of Second Exchangeable Debenture convertible intoor exchangeable for stock hereafter made by Parent to itsstockholders shall not be taxable.

(v) Notice of Adjustment. Whenever the Exchange Priceor exchange privilege is adjusted, Parent or Company shallpromptly mail to the Holder a notice of the adjustment.

(vi) Notice of Certain Transactions. In the event that:

(1) Parent or the Company consolidates or merges with or into,or transfers all or substantially all of its property and assetsto, another corporation or another corporation merges into Parentor the Company and;

(2) a record date has been established by Parent for anydistributions to holders of Class A Shares, other than adistribution comprised solely of ordinary dividends; or 

(3) there is a dissolution or liquidation of Parent or theCompany, 

Parent shall mail to Holders a notice stating the proposedrecord or effective date, as the case may be. Parent shall mailthe notice at least twenty days in advance of the applicablerecord date for such action. Failure to mail such notice or anydefect therein shall not affect the validity of any transactionreferred to in clause (1), (2), or (3) of this Section 5(h)(vi).

In the event that a Put Event has occurred, the Company shallgive notice to Holders as soon as practicable thereafter, but inany event, not more than 30 days after the occurrence thereof. 

6. Representations and Warranties of the Company. 

The Company represents and warrants to the Holder as follows:

(a) Organization; Authority. The Company is acorporation duly organized and validly subsisting under the lawsof the State of Delaware, and has all requisite corporate powerand authority to enter into this Second Exchangeable Debentureand to consummate the transactions contemplated hereby. Theexecution, delivery and performance of this Second ExchangeableDebenture and the consummation of the transactions contemplatedhereby have been duly authorized by all necessary corporateaction on the part of the Company. This Second ExchangeableDebenture has been duly executed and delivered by the Company andconstitutes a valid and binding obligation of the Company,enforceable against the Company in accordance with its termsexcept that (i) such enforcement may be subject to bankruptcy,insolvency, reorganization, moratorium or other similar laws nowor hereafter in effect relating to creditors' rights, and (ii)the remedy of specific performance and injunctive and other formsof equitable relief may be subject to equitable defenses and tothe discretion of the court before which any proceeding thereformay be brought.

(b) No Violation; Consents and Approvals. The executionand delivery of this Second Exchangeable Debenture do not, andthe consummation of the transactions contemplated hereby andcompliance with the terms hereof will not, conflict with, orresult in any violation of or default under, (i) any provision ofthe articles or by-laws of the Company, (ii) any judgment, orderor decree, or material statute, law, ordinance, rule orregulation applicable to the Company or the property or assets ofthe Company or (iii) any note, bond, mortgage, indenture,license, agreement, lease or other instrument or obligation towhich the Company is a party or by which the Company may be boundor affected or to which any of its respective assets may besubject. Except for the requirements of the HSR Act, no consent,approval, order or authorization of, or registration, declarationor filing with, any Governmental Entity or any third party isrequired to be obtained or made by or with respect to the Companyin connection with the execution and delivery of this SecondExchangeable Debenture or the consummation by the Company of thetransactions contemplated hereby.

(c) Capitalization. As of the date of this SecondExchangeable Debenture, Parent’s authorized capital stockconsists of (i) an unlimited number of authorized Class ANon-Voting Shares, no par value, of which 12,691,643 shares areissued and outstanding, (ii) 99,680 authorized Class B VotingShares, no par value, all of which are issued and outstanding and(iii) an unlimited number of First Preference Shares issuable inseries, of which no shares are issued or outstanding. All suchissued and outstanding shares are duly authorized and validlyissued, fully paid and nonassessable. The Class A Sharesinitially issuable upon exchange of this Second ExchangeableDebenture and pursuant to Section 5(b) represent in aggregate32.24% of the total issued and outstanding Class A and Class BShares as of the date hereof. 

7. Effect of Reclassification, Consolidation, MergerAmalgamation or Sale on Exchange Privilege. 

If any of the following shall occur, namely: (a) anyreclassification or change of Class A Shares issuable uponexchange of the Second Exchangeable Debenture (other than as aresult of a subdivision or combination, or any other change forwhich an adjustment is provided in Section 5; (b) anyconsolidation or merger or amalgamation or combination to whichParent or the Company is a party other than a merger oramalgamation in which Parent or the Company is the continuingcorporation and which does not result in any reclassification of,or change (other than as a result of a subdivision orcombination) in, outstanding Class A Shares; or (c) any sale orconveyance as an entirety or substantially as an entirety of theproperty and assets of Parent or the Company, directly orindirectly, to any person, then Company and Parent shall take allactions necessary to ensure that, as a condition precedent tosuch reclassification, change, combination, consolidation,merger, sale or conveyance, the Holder shall have the right toeither (i) convert the Second Exchangeable Debenture into thekind and amount of shares of stock and other securities andproperty (including cash) receivable upon such reclassification,change, combination, consolidation, merger, amalgamation, sale orconveyance by a holder of the number of Class A Sharesdeliverable upon exchange of the Second Exchangeable Debentureimmediately prior to such reclassification, change, combination,consolidation, merger, sale or conveyance or (ii) continue tohold debentures of such successor purchasing or transfereecorporation, as the case may be, which shall be as nearlyequivalent as may be practicable to the Second ExchangeableDebentures. If, in the case of any such consolidation, merger,amalgamation, combination, sale or conveyance, the stock or othersecurities and property (including cash) receivable thereupon bya holder of Class A Shares include shares of stock or othersecurities and property of a person other than the successor,purchasing or transferee corporation, as the case may be, in suchconsolidation, merger, amalgamation, combination, sale orconveyance, then such replacement debentures shall also beexecuted by such other person and shall contain such additionalprovisions to protect the interests of the Holder as the Board ofDirectors of the Company shall reasonably consider necessary byreason of the foregoing. The provisions of this Section 7 shallsimilarly apply to successive reclassifications, changes,combinations, consolidations, mergers, amalgamation, sales orconveyances. 

8. Regulatory Call; Retraction.

(a)Regulatory Call. In the event of aRegulatory Event (as defined in the Stakeholders Agreement), butonly to the extent necessary to cure such Regulatory Event, thisSecond Exchangeable Debenture may be purchased by Parent (or itsdesignee, which may include the Company, in which case theCompany shall be entitled to purchase this Second ExchangeableDebenture for cancellation) in the manner and subject to theterms and conditions set forth in Section 4.6 of the StakeholdersAgreement. The Company is hereby authorized by the Holder to takeall actions reasonably necessary to ensure that Section 4.6 ofthe Stakeholders Agreement is complied with and, for purposes ofa purchase for cancellation of this Second ExchangeableDebenture, the terms of Section 4.6 of the Stakeholders Agreementare hereby incorporated herein by reference.

(b) Retraction at Year Seven. Not less than 30 nor morethan 90 days prior to a Put Date, the Holder may, at itselection, notify the Company and the Parent in writing (a"Retraction Notice") of its intention to require theCompany to redeem the Second Exchangeable Debenture in whole orin part, on the Put Date set forth in the Retraction Notice,without premium or penalty at a retraction price (the"Retraction Payment") equal to the then outstandingprincipal amount, plus any accrued but unpaid interest up to, butnot including the Put Date. On the Put Date, the Holder shalldeliver the certificate evidencing this Second ExchangeableDebenture to the Company for redemption and upon payment of theRetraction Payment in cash by or on behalf of the Company, allrights of the Holder hereunder shall cease.

(c) Retraction on Put Event. Not more than 120 daysafter a Put Event, the Holder may, at its election, notify theCompany and the Parent in writing (a "RetractionNotice") of its irrevocable intention to require the Companyto redeem the Exchangeable Debenture in whole on the retractiondate set forth in the Retraction Notice (the "RetractionDate"), which may not be less than 180 days from the PutEvent nor more than 210 days from the Put Event. Retraction willbe effected without premium or penalty at a redemption priceequal to the Retraction Consideration. On the Retraction Date,the Holder shall deliver the certificate evidencing this SecondExchangeable Debenture to the Company for redemption and acertificate containing a representation and warranty of theHolder that it is an accredited investor within the meaning ofthe Securities Act (Ontario) and is acquiring the SecondRetraction Debenture as principal. Upon payment of the RetractionConsideration by or on behalf of the Company, all rights of theHolder hereunder shall cease. Notwithstanding the foregoing, noretraction hereunder shall be effective unless any outstandingVariable Rate Convertible Debentures and Second ExchangeableDebentures, if any, shall also be retracted concurrently.

9. Events of Default. 

(a) An "Event of Default" occurs if:

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(1) the Company defaults in any    payment of interest on this Second Exchangeable Debenture    when the same becomes due and payable, and such default    continues for a period of 3 Business Days;

(2) the Company defaults in the    payment of a principal payment when the same becomes due and    payable;

(3) the Company fails to comply with any of its agreements    under this Second Exchangeable Debenture (other than those    referred to in clauses (1) and (2) above) and such failure    continues for 30 days;

(4) A default occurs under any mortgage, indenture or    agreement or instrument under which there may be issued or by    which there may be secured or evidenced any indebtedness for    money borrowed by the Company or any of its Significant    Subsidiaries (or payment of which is Guaranteed by the    Company or any of its Significant Subsidiaries), whether such    indebtedness for money borrowed or Guarantee now exists, or    is created after the Issue Date (which default, (i)    constitutes a failure to pay at final maturity (after giving    effect to any applicable grace periods and any extensions    thereof) the principal amount of such indebtedness for money    borrowed or (ii) shall have resulted in such indebtedness for    money borrowed being accelerated or otherwise become or being    declared due and payable prior to its stated maturity), and    the principal amount of all such indebtedness for money    borrowed as to which a default described in this clause (4)    has occurred aggregates $5,000,000 or more;

(5) A final judgment or judgments for the payment of money    aggregating in excess of $5,000,000 are rendered against one    or more of the Company and its Significant Subsidiaries and    which judgments are not, within 60 days after entry thereof,    bonded, discharged or stayed pending appeal, or are not    discharged within 60 days after the expiration of such stay;

(6) the Company or any Significant    Subsidiary pursuant to or within the meaning of any    Bankruptcy Law:

(A) commences a voluntary case;

(B) consents to the entry of an order for                relief against it in an involuntary case;

(C) consents to the appointment of a Custodian                of it or for any substantial part of its                property; or

(D) makes a general assignment for the benefit                of its creditors; or

(7) a court of competent    jurisdiction enters an order or decree under any Bankruptcy    Law that:

(A) is for relief against the Company or any                Significant Subsidiary in an involuntary case;

(B) appoints a Custodian of the Company or any                Significant Subsidiary or for any substantial                part of its property; or

(C) orders the winding up or liquidation of                the Company or any Significant Subsidiary; or any                similar relief is granted under any foreign laws                and the order or decree remains unstayed and in                effect for 60 days.

The foregoing will constitute Events of Default whatever thereason for any such Event of Default and whether it is voluntaryor involuntary or is effected by operation of law or pursuant toany judgment, decree or order of any court or any order, rule orregulation of any administrative or governmental body.

(b) Acceleration. If an Event of Default (other than anEvent of Default specified in clauses (a)(6) or (a)(7) of Section9) occurs and is continuing, the Holder by written notice to theCompany (an "Acceleration Notice"), may declare theunpaid principal of and accrued interest on this SecondExchangeable Debenture to be immediately due and payable. Uponsuch a declaration, the unpaid principal of and accrued intereston this Second Exchangeable Debenture shall be due and payableimmediately without presentment, demand or notice of any kind,which are hereby expressly waived by the Company. If an Event ofDefault specified in clauses (a)(6) or (a) (7) of Section 9occurs, all principal of and interest on the Second ExchangeableDebenture shall ipsofacto become and beimmediately due and payable without any declaration or other acton the part of the Holder. The Holder by written notice to theCompany may rescind an acceleration and its consequences if (i)all existing Events of Default, other than the nonpayment ofprincipal of or interest on this Second Exchangeable Debenturewhich has become due solely because of the acceleration, havebeen cured or waived and (ii) the rescission would not conflictwith any judgment or decree of a court of competent jurisdiction.

(c) Remedies Cumulative. A delay or omission by theHolder in exercising any right or remedy accruing upon an Eventof Default shall not impair the right or remedy or constitute awaiver of or acquiescence in the Event of Default. No remedy isexclusive of any other remedy. All remedies are cumulative to theextent permitted by law.

10. Covenants.

(a) Corporate Existence, Etc. The Company will at alltimes preserve and keep in full force and effect its corporateexistence and that of its Significant Subsidiaries and all rightsand franchises of the Company and its Significant Subsidiariesunless, in the good faith judgment of the Company, thetermination of or failure to preserve and keep in full force andeffect such corporate existence, right or franchise would not,individually or in the aggregate, have a materially adverseeffect on the business, operations, affairs, financial condition,properties or assets of the Company and its Subsidiaries taken asa whole. 

(b) Payment of Taxes. The Company will file all incometax or similar tax returns required to be filed in anyjurisdiction and to pay and discharge all taxes shown to be dueand payable on such returns and all other taxes, assessments,governmental charges, or levies payable by any of them, to theextent such taxes and assessments have become due and payable andbefore they have become delinquent, provided that the Companyneed not pay any such tax or assessment if (i) the amount,applicability or validity thereof is contested by the Company ona timely basis in good faith and in appropriate proceedings, andthe Company has established adequate reserves therefor inaccordance with GAAP on the books of the Company or (ii) thenonpayment of all such taxes and assessments in the aggregatewould not reasonably be expected to have a materially adverseeffect on the business, operations, affairs, financial condition,properties or assets of the Company and its Subsidiaries taken asa whole. 

(c) Maintenance of Properties. The Company and itsSignificant Subsidiaries will maintain and keep, or cause to bemaintained and kept, their respective properties in good repair,working order and condition (other than ordinary wear and tear),so that the business carried on in connection therewith may beproperly conducted at all times, provided that this Section 10(c)shall not prevent the Company from discontinuing the operationand the maintenance of any of its properties if suchdiscontinuance is desirable in the conduct of its business andthe Company has concluded that such discontinuance would not,individually or in the aggregate, have a materially adverseeffect on the business, operations, affairs, financial condition,properties or assets of the Company and its Subsidiaries taken asa whole. 

(d) Insurance. The Company and its SignificantSubsidiaries will maintain, with financially sound and reputableinsurers, insurance with respect their respective properties andbusinesses against such casualties and contingencies, of suchtypes, on such terms and in such amounts (including deductibles,co-insurance and self-insurance, if adequate reserves aremaintained with respect thereto) as is customary in the case ofentities of established reputations engaged in the same or asimilar business and similarly situated. 

(e) Compliance with Law. The Company and itsSignificant Subsidiaries will comply with all laws, ordinances orgovernmental rules or regulations to which each of them issubject, and will obtain and maintain in effect all licenses,certificates, permits, franchises and other governmentalauthorizations necessary to the ownership of their respectiveproperties or to the conduct of its business, in each case to theextent necessary to ensure that non-compliance with such laws,ordinances or governmental rules or regulations or failures toobtain or maintain in effect such licenses, certificates,permits, franchises and other governmental authorizations wouldnot reasonably be expected, individually or in the aggregate, tohave a materially adverse effect on the business, operations,affairs, financial condition, properties or assets of the Companyand its Subsidiaries taken as a whole. 

(f) Company Financial Statements. The Company shalldeliver to the Holder: 

(i) Quarterly Statements -- within 45 days after the end ofeach quarterly fiscal period in each fiscal year of the Company(other than the last quarterly fiscal period of each such fiscalyear), copies of,

(1) a consolidated balance sheet of the Company and itsSubsidiaries as at the end of such quarter, and

(2) consolidated statements of income, changes inshareholders' equity and cash flows of the Company and itsSubsidiaries, for such quarter and (in the case of the second andthird quarters) for the portion of the fiscal year ending withsuch quarter, setting forth in each case in comparative form thefigures for the corresponding periods in the previous fiscalyear, all in reasonable detail, prepared in accordance with GAAPapplicable to quarterly financial statements generally, andcertified by a senior financial officer as fairly presenting, inall material respects, the financial position of the companiesbeing reported on and their results of operations and cash flows,subject to changes resulting from year-end adjustments;

(ii) Annual Statements -- within 90 days after the end of eachfiscal year of the Company, copies of,

(1) an audited consolidated balance sheet of the Company andits Subsidiaries, as at the end of such year, and

(2) an audited consolidated statements of income, changes inshareholders' equity and cash flows of the Company and itsSubsidiaries, for such year,

setting forth in each case in comparative form the figures forthe previous fiscal year, all in reasonable detail, prepared inaccordance with GAAP.

(g) Notice of Default or Event of Default. Promptly,and in any event within five days after a Responsible Officerbecoming aware of the existence of any Default or Event ofDefault, a written notice specifying the nature and period ofexistence thereof and what action the Company is taking orproposes to take with respect thereto.

(h) Further Instruments and Acts. Upon request of aHolder, the Company shall execute and deliver such furtherinstruments and do such further acts as may be reasonablynecessary or proper to carry out more effectively the purpose ofthis Second Exchangeable Debenture. In addition, the Company isexpressly authorized to take such actions as are reasonablynecessary to effectuate the respective rights and obligations ofthe parties under the Stakeholders Agreement, to the extent suchrights and obligations relate to this Second ExchangeableDebenture.

(i) Indebtedness. The Company shall not create, incur,assume or permit to be outstanding any Indebtedness other thanIndebtedness incurred pursuant to this Second ExchangeableDebenture and the transactions contemplated by the Asset PurchaseAgreement, unless the proceeds of such Indebtedness are used topay all or a portion of the Indebtedness represented by theConvertible Debenture. 

11. Amendment and Waiver.

(a) Consent Required. Any term, covenant, agreement orcondition of this Second Exchangeable Debenture may, with theconsent of the Company, be amended or compliance therewith may bewaived (either generally or in a particular instance and eitherretroactively or prospectively), if the Company shall haveobtained the consent in writing of the Holder, provided, however,that any term covenant agreement or condition which relates tothe obligations of Parent pursuant to Sections 5, 6, 7 and 8(a)hereof will also require the consent of Parent.

(b) Effect of Amendment or Waiver. Any amendment orwaiver shall be binding upon each future holder of this SecondExchangeable Debenture and upon the Company (and Parent, asapplicable), whether or not such Second Exchangeable Debentureshall have been marked to indicate such amendment or waiver. Nosuch amendment or waiver shall extend to or affect any obligationnot expressly amended or waived or impair any right consequentthereon.

12. Replacement Second Exchangeable Debenture.

If this Second Exchangeable Debenture becomes mutilated and issurrendered to the Company or if the Holder of this SecondExchangeable Debenture presents evidence to the reasonablesatisfaction of the Company that this Second ExchangeableDebenture has been lost, destroyed or wrongfully taken, theCompany shall issue a replacement Second Exchangeable Debentureof like tenor if the requirements of the Company for suchtransactions are met. An indemnity agreement may be required thatis sufficient in the reasonable judgment of the Company toprotect the Company from any loss which it may suffer. TheCompany may charge for its out-of-pocket expenses incurred inreplacing this Second Exchangeable Debenture.

13. No Recourse Against Others.

No director, officer, employee or stockholder, as such, of theCompany shall have any liability for any obligations of theCompany under this Second Exchangeable Debenture or for any claimbased on, in respect or by reason of, such obligations or theircreation. The Holder by accepting this Second ExchangeableDebenture waives and releases all such liability. This waiver andrelease are part of the consideration for the issue of thisSecond Exchangeable Debenture.

14. Notices.

All notices, requests, demands, waivers and othercommunications required or permitted to be given under thisSecond Exchangeable Debenture shall be in writing and shall bedeemed to have been duly given if delivered personally, by mail(certified or registered mail, return receipt requested), byrecognized overnight courier or by facsimile transmission(receipt of which is confirmed):

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(i) if to the Company, to: 

E.A. Viner International Co.                                125 Broad Street                                New York, NY 10004                                Fax: (212) 943-8728                                Attention: A.G. Lowenthal

                                with a copy to:

Borden Ladner Gervais LLP                                Scotia Plaza, Suite 4400                                40 King Street West                                Toronto, Ontario M5H 3Y4                                CANADA                                Attention: A. Winn Oughtred, Esq.                                Telephone: (416) 367-6247                                Facsimile: (416) 361-7076                                Email: woughtred@blgcanada.com

and

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Attention: Vincent J. Pisano, Esq.

Telephone: (212) 735-2718

Facsimile: (917) 777-2718

Email: vpisano@skadden.com

(ii) if to the Holder, to:

Canadian Imperial Bank of                                Commerce                                Commerce Court West                                Toronto, Ontario M5L 1A2                                CANADA                                Attention: Gerry McCaughey                                Telephone: (416) 980-2211                                Facsimile: (416) 332-4316                                Email: gerry.mccaughey@cibc.com

with a copy to:                                Mayer, Brown, Rowe & Maw                                1675 Broadway                                New York, NY 10019-5820                                 Attention: James B. Carlson, Esq.                                Telephone: (212) 506-2515                                Facsimile: (212) 849-5515                                Email:                                jcarlson@mayerbrownrowe.com

and

Canadian Imperial Bank of Commerce

Legal and Compliance

245 Park Avenue

42nd Floor 

New York, NY 10167

Attention: Michael Capatides, Esq.

Telephone: (917) 332-4108

Facsimile: (917) 332-4320

Email:                                michael.capatides@us.cibc.com

or to such other person or address as any party shall specifyby notice in writing to the other party. All such notices,requests, demands, waivers and communications shall be deemed tohave been received on the date on which so hand-delivered, on thethird Business Day following the date on which so mailed, on theBusiness Day following the date on which delivered to theovernight courier service and on the date on which faxed andconfirmed, except for a notice of change of address, which shallbe effective only upon receipt thereof.

15. Waiver of Stay, Usury or Extension Laws. 

The Company (to the extent it may lawfully do so) shall not atany time insist upon, or plead, or in any manner whatsoever claimor take the benefit or advantage of, any stay, usury or extensionlaw wherever enacted, now or at any time hereafter in force,which may affect the covenants or the performance of thisExchangeable Debenture; and the Company (to the extent that itmay lawfully do so) hereby expressly waives all benefit oradvantage of any such law. 

16. Governing Law; Jurisdiction.

This Second Exchangeable Debenture shall be construed,performed and enforced in accordance with, and governed by, thelaws of the State of New York, without giving effect to theprinciples of conflicts of laws thereof. Each party irrevocablysubmits to the exclusive jurisdiction of (i) the Supreme Court ofthe State of New York, New York County, and (ii) the UnitedStates District Court for the Southern District of New York, forthe purposes of any suit, action or other proceeding arising outof this Second Exchangeable Debenture. Each party agrees tocommence any action, suit or proceeding relating hereto either inthe United States District Court for the Southern District of NewYork or if such suit, action or other proceeding may not bebrought in such court for reasons of subject matter jurisdiction,in the Supreme Court of the State of New York, New York County.Each party irrevocably and unconditionally waives any objectionto the laying of venue of any action, suit or proceeding arisingout of this Second Exchangeable Debenture in (A) the SupremeCourt of the State of New York, New York County, or (B) theUnited Sates District Court for the Southern District of NewYork, and hereby further irrevocably and unconditionally waivesand agrees not to plead or claim in any such court that any suchaction, suit or proceeding brought in any such court has beenbrought in an inconvenient forum. Each party irrevocably andunconditionally waives the right to trial by jury in any legal orequitable action, suit or proceeding arising out of or relatingto this Second Exchangeable Debenture, the notes or any otheroperative agreement or any transaction contemplated hereby orthereby or the subject matter of any of the foregoing.

17. Successors, etc.; Entire Agreement; Assignment. 

This Second Exchangeable Debenture shall be binding upon andshall inure to the benefit of the Holder and the Company (andParent with respect to its rights and obligations pursuant toSections 5, 6, 7 and 8(a) hereof) and their respective successorsand permitted assigns. This Second Exchangeable Debentureconstitutes the entire agreement between the parties, supersedingall prior understandings and writings, with respect to theindebtedness represented hereby. Provided, however, that in theevent any provision of the Second Exchangeable Debenture is inconflict with any provision of the Stakeholders Agreement, theprovisions of the Stakeholders Agreement shall control and takeprecedence over any provision herein. Holder may not assign ortransfer this Second Exchangeable Debenture without complyingwith the terms and conditions of the Stakeholders Agreementapplicable to the transfer of the Second Exchangeable Debenture,and such transfer shall be subject to regulatory approval,including but not limited to, the rules and regulations of NYSE.In the event that the Holder wishes to assign or transfer thisSecond Exchangeable Debenture, the Holder shall deliver writtennotice of such intention to the Company specifying the name andaddress for notices of the transferee and the proposed date oftransfer (which date shall be not fewer than ten (10) BusinessDays following the Holder’s delivery to the Company of suchnotice). In the event that the Company objects to such proposeddate of transfer, the Company and the Holder shall work togetherin good faith to determine a mutually agreeable date of transfer,provided, however, that such date shall not be later than 30 daysfollowing the Holder’s delivery to the Company of writtennotice of its intention to assign or transfer this SecondExchangeable Debenture. On the date of transfer, the Holder shallsurrender this Second Exchangeable Debenture to the Company forcancellation, and the Company shall issue a Second ExchangeableDebenture to such transferee, which Second Exchangeable Debentureis identical in all respects to this Second ExchangeableDebenture except for the name of the Holder and the name andaddress of the Holder specified in Section 14. The Holder may notassign or transfer this Second Exchangeable Debenture exceptpursuant to the foregoing procedure. 

18. Headings.

The section headings of this Second Exchangeable Debenture arefor convenience only and shall not affect the meaning orinterpretation of this Second Exchangeable Debenture or anyprovision hereof.

IN WITNESS WHEREOF, the Company has caused this SecondExchangeable Debenture to be executed by its duly authorizedofficer.

Dated: May 12, 2003

 

 

> 
E.A. VINER                                        INTERNATIONAL CO.

 

 

By:

Name:

Title:

 

IN WITNESS WHEREOF, solely with respect to the rights andobligations of Parent pursuant to Sections 5, 6, 7 and 8(a)hereof, Parent has caused this Second Exchangeable Debenture tobe executed by its duly authorized officer.

Dated: May 12, 2003

 

 

> 
FAHNESTOCK VINER                                        HOLDINGS INC.

 

 

By:

Name:

Title:

Exhibit A

EXCHANGE NOTICE

By execution and delivery to the Company of this ExchangeNotice, the undersigned represents and warrants that it is anaccredited investor within the meaning of the Securities Act(Ontario) and is acquiring the Class A Shares as principal.

To exchange this Second Exchangeable Debenture for Class AShares of Fahnestock Viner Holdings Inc.

check the box: [ ]

To exchange only part of this Second Exchangeable Debenture,state the principal amount to be exchanged (must be $1,000 or amultiple of $1,000): $______________. 

If you want the stock certificate made out in another person'sname, fill in the form below:

_________________________________________________________________

(Insert assignee's soc. sec. or tax I.D. no.) 

_________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

(Print or type assignee's name, address and zip code) 

Your Signature:

 

Date: ______________ ______________________________________ 

(Sign exactly as your name appears on the other side of thisSecond Exchangeable Debenture)