COMMERCIAL PAPER DEALER AGREEMENT
between
DENTSPLY International Inc., as Issuer
and
Goldman, Sachs & Co., as Dealer
Concerning Notes to be issued pursuant to an Issuing and
Paying Agency Agreement dated as of August 12, 1999 between
the Issuer and The Chase Manhattan Bank, as Issuing and
Paying Agent
Dated as of
August 12, 1999
120
COMMERCIAL PAPER DEALER AGREEMENT
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer, each named on the cover page hereof, in connection with
the issuance and sale by the Issuer of its short-term promissory notes (the
"Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in
this Agreement or such Addendum, are hereby incorporated into this Agreement and
made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the Notes
to the Dealer or to permit the Dealer to arrange any sale of the Notes for the
account of the Issuer, and (ii) the Dealer has and shall have no obligation to
purchase the Notes from the Issuer or to arrange any sale of the Notes for the
account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition to
the limitations contained in Section 1.7 hereof, the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to purchase, or sell,
any Notes except in transactions with one or more dealers which may from time to
time after the date hereof become dealers with respect to the Notes by executing
with the Issuer one or more agreements which contain provisions substantially
identical to those contained in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or integral
multiples of $1,000 in excess thereof, will bear such interest rates, if
interest bearing, or will be sold at such discount from their face amounts, as
shall be agreed upon by the Dealer and the Issuer, shall have a maturity not
exceeding 366 days from the date of issuance (exclusive of days of grace) and
shall not contain any provision for extension, renewal or automatic "rollover."
1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency
Agreement, and the Notes shall be either individual physical certificates
or book-entry notes evidenced by a Master Note registered in the
121
name of DTC or its nominee, in the form or forms annexed to the Issuing and
Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase
of any Note by the Dealer or the sale of any Note arranged by the Dealer
(including, but not limited to, agreement with respect to the date of issue,
purchase price, principal amount, maturity and interest rate (in the case of
interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and Paying Agent,
for the account of the Issuer. Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall either fail to accept
delivery of or make payment for a Note on the date fixed for settlement, the
Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid
the Issuer for the Note, the Issuer will promptly return such funds to the
Dealer against its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in the case of a book-entry
Note. If such failure occurred for any reason other than default by the Dealer,
the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's
loss of the use of such funds for the period such funds were credited to the
Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer shall be
made only to: (i) investors reasonably believed by the Dealer to be
Qualified Institutional Buyers ("QIBs"), Institutional Accredited Investors
or Sophisticated Individual Accredited Investors and (ii) Non-bank
fiduciaries or agents that will be purchasing Notes for one or more
accounts, each of which is reasonably believed by the Dealer to be an
Institutional Accredited Investor or Sophisticated Individual Accredited
Investor.
(b) Resales and other transfers of the Notes by the holders thereof
shall be made only in accordance with the restrictions in the legend
described in clause (e) below.
(c) No general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without limiting the generality
of the foregoing, without the prior written approval of the Dealer, the
Issuer shall not issue any press release or place or publish any
"tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less than
$250,000 principal or face amount, and no Note shall be issued in a smaller
principal or face amount. If the purchaser is a Non-bank fiduciary acting
on behalf of others, each person for whom such purchaser is acting must
purchase at least $250,000 principal or face amount of Notes.
122
(e) Offers and sales of the Notes by the Issuer through the Dealer
acting as agent for the Issuer shall be made in accordance with Rule 506
under the Securities Act, and shall be subject to the restrictions
described in the legend appearing on Exhibit A hereto. A legend
substantially to the effect of such Exhibit A shall appear as part of the
Private Placement Memorandum used in connection with offers and sales of
Notes hereunder, as well as on each individual certificate representing a
Note and each Master Note representing book-entry Notes offered and sold
pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to each purchaser
of Notes for which it has acted as the Dealer a copy of the then-current
Private Placement Memorandum unless such purchaser has previously received
a copy of the Private Placement Memorandum as then in effect. The Private
Placement Memorandum shall expressly state that any person to whom Notes
are offered shall have an opportunity to ask questions of, and receive
information from, the Issuer and the Dealer and shall provide the names,
addresses and telephone numbers of the persons from whom information
regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each of the
holders and prospective purchasers from time to time of the Notes that, if
at any time the Issuer shall not be subject to Section 13 or 15(d) of the
Exchange Act, the Issuer will furnish, upon request and at its expense, to
the Dealer and to holders and prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the Dealer
would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of such
fact and shall promptly prepare and deliver to the Dealer an amendment or
supplement to the Private Placement Memorandum describing the Notes that
are ineligible, the reason for such ineligibility and any other relevant
information relating thereto.
(i) The Issuer represents that it is not currently issuing commercial
paper in the United States market in reliance upon, and in compliance with,
the exemption provided by Section 3(a)(3) of the Securities Act. However,
the Issuer agrees that if the Issuer were to issue such 3(a)(3) commercial
paper, (a) the proceeds from the sale of the Notes would be segregated from
the proceeds of the sale of any such commercial paper by being placed in a
separate account; (b) the Issuer would institute appropriate corporate
procedures to ensure that the offers and sales of notes issued by the
Issuer pursuant to the Section 3(a)(3) exemption would not be integrated
with offerings and sales of Notes hereunder; and (c) the Issuer would
comply with each of the requirements of Section 3(a)(3) of the Securities
Act in selling commercial paper or other short-term debt securities other
than the Notes in the United States.
(j) The Issuer hereby agrees that, not later than 15 days after the
first sale of Notes as contemplated by this Agreement, it will file with
the SEC a notice on Form D in
123
accordance with Rule 503 under the Securities Act and that it will
thereafter file such amendments to such notice as Rule 503 may require.
1.7 The Issuer hereby represents and warrants to the Dealer, in connection
with offers, sales and resales of Notes, as follows:
(a) The Issuer hereby confirms to the Dealer that (except as permitted
by Section 1.6(i)) within the preceding six months neither the Issuer nor
any person other than the Dealer or the other dealers referred to in
Section 1.2 hereof acting on behalf of the Issuer has offered or sold any
Notes, or any substantially similar security of the Issuer (including,
without limitation, medium-term notes issued by the Issuer), to, or
solicited offers to buy any such security from, any person other than the
Dealer or the other dealers referred to in Section 1.2 hereof. The Issuer
also agrees that (except as permitted by Section 1.6(i)), as long as the
Notes are being offered for sale by the Dealer and the other dealers
referred to in Section 1.2 hereof as contemplated hereby and until at least
six months after the offer of Notes hereunder has been terminated, neither
the Issuer nor any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof (except as contemplated by Section 1.2
hereof) will offer the Notes or any substantially similar security of the
Issuer for sale to, or solicit offers to buy any such security from, any
person other than the Dealer or the other dealers referred to in Section
1.2 hereof, it being understood that such agreement is made with a view to
bringing the offer and sale of the Notes within the exemption provided by
Section 4(2) of the Securities Act and Rule 506 thereunder and shall
survive any termination of this Agreement. The Issuer hereby represents and
warrants that it has not taken or omitted to take, and will not take or
omit to take, any action that would cause the offering and sale of Notes
hereunder to be integrated with any other offering of securities, whether
such offering is made by the Issuer or some other party or parties.
(b) In the event that the Dealer purchases Notes as principal and does
not resell such Notes on the day of such purchase, to the extent necessary
to comply with Regulation T and the interpretations thereunder, the Dealer
will sell such Notes either (i) only to offerees it reasonably believes to
be QIBs or to QIBs it reasonably believes are acting for other QIBs, in
each case in accordance with Rule 144A or (ii) in a manner which would not
cause a violation of Regulation T and the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute, deliver and perform its
obligations under the Notes, this Agreement and the Issuing and Paying Agency
Agreement.
124
2.2 This Agreement and the Issuing and Paying Agency Agreement have been
duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued as provided in the
Issuing and Paying Agency Agreement, will be duly and validly issued and will
constitute legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do not
require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof and Regulation D
thereunder, and no indenture in respect of the Notes is required to be qualified
under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j), no consent or action of, or
filing or registration with, any governmental or public regulatory body or
authority, including the SEC, is required to authorize, or is otherwise required
in connection with the execution, delivery or performance of, this Agreement,
the Notes or the Issuing and Paying Agency Agreement, except as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance of the Notes in accordance with
the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance
with the terms and provisions hereof or thereof by the Issuer, will (i) result
in the creation or imposition of any mortgage, lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Issuer, or
(ii) violate or result in a breach or a default under any of the terms of the
Issuer's charter documents or by-laws, any contract or instrument to which the
Issuer is a party or by which it or its property is bound, or any law or
regulation, or any order, writ, injunction or decree of any court or government
instrumentality, to which the Issuer is subject or by which it or its property
is bound, which breach or default might have a material adverse effect on the
condition (financial or otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 Except as disclosed in the Company Information, there is no litigation
or governmental proceeding pending, or to the knowledge of the Issuer
threatened, against or affecting the Issuer or any of its subsidiaries which
might result in a material adverse change in
125
the condition (financial or otherwise), operations or business prospects of
the Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment
or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the condition (financial or otherwise), operations or business
prospects of the Issuer which has not been disclosed to the Dealer in writing.
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event prior
to any subsequent issuance of Notes hereunder) of any amendment to, modification
of or waiver with respect to, the Notes or the Issuing and Paying Agency
Agreement, including a complete copy of any such amendment, modification or
waiver.
3.2 The Issuer shall, whenever there shall occur any change in the Issuer's
condition (financial or otherwise), operations or business prospects or any
development or occurrence in relation to the Issuer that would be material to
holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development or occurrence.
126
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, however, that the Issuer shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will not be in default of any of its obligations hereunder,
under the Notes or under the Issuing and Paying Agency Agreement, at any time
that any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until the Dealer shall have
received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement, the
Issuing and Paying Agency Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) prior to the issuance
of any Notes represented by a book-entry note registered in the name of DTC or
its nominee, a copy of the executed Letter of Representations among the Issuer,
the Issuing and Paying Agent and DTC and (e) such other certificates, opinions,
letters and documents as the Dealer shall have reasonably requested.
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company Information as
it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon the
occurrence of any event relating to or affecting the Issuer that would cause the
Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact
127
necessary in order to make the statements contained therein, in light of
the circumstances under which they are made, not misleading.
(b) In the event that the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it
is holding in inventory, the Issuer agrees promptly to supplement or amend
the Private Placement Memorandum so that the Private Placement Memorandum,
as amended or supplemented, shall not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and the Issuer shall make such supplement or
amendment available to the Dealer.
(c) In the event that (i) the Issuer gives the Dealer notice pursuant
to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it is
then holding Notes in inventory and (iii) the Issuer chooses not to
promptly amend or supplement the Private Placement Memorandum in the manner
described in clause (b) above, then all solicitations and sales of Notes
shall be suspended until such time as the Issuer has so amended or
supplemented the Private Placement Memorandum, and made such amendment or
supplement available to the Dealer.
Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever
kind or nature (each a "Claim"), imposed upon, incurred by or asserted
against the Indemnitees arising out of or based upon (i) any allegation
that the Private Placement Memorandum, the Company Information or any
information provided by the Issuer to the Dealer included (as of any
relevant time) or includes an untrue statement of a material fact or
omitted (as of any relevant time) or omits to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading or (ii) arising out of or based
upon the breach by the Issuer of any agreement, covenant or representation
made in or pursuant to this Agreement. This indemnification shall not apply
to the extent that the Claim arises out of or is based upon Dealer
Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs
128
incurred by the Dealer do not exceed the aggregate of the commissions and
fees earned by the Dealer hereunder with respect to the issue or issues of Notes
to which such Claim relates. The respective economic interests shall be
calculated by reference to the aggregate proceeds to the Issuer of the Notes
issued hereunder and the aggregate commissions and fees earned by the Dealer
hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer provided
by the Dealer in writing expressly for inclusion in the Private Placement
Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and paying
agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such on
the cover page of this Agreement, as issuing and paying agent under the Issuing
and Paying Agency
129
Agreement, or any successor thereto in accordance with the Issuing and
Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent other
than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a
savings and loan association, as defined in Section 3(a)(5)(A) of the Securities
Act.
6.11 "Private Placement Memorandum" shall mean offering materials prepared
in accordance with Section 4 (including materials referred to therein or
incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
6.13 "Regulation D" shall mean Regulation D (Rules 501 et seq.) under the
Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by the
Issuer against the Dealer in connection with or arising out of this Agreement or
the Notes or the offer and sale
130
of the Notes shall be brought solely in the United States federal courts
located in the Borough of Manhattan or the courts of the State of New York
located in the Borough of Manhattan. EACH OF THE DEALER AND THE ISSUER WAIVES
ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon one
business day's prior notice to such effect to the Dealer, or by the Dealer upon
one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate of the
Dealer.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto, and
their respective permitted successors and assigns hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other person
whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
DENTSPLY International Inc., as Issuer
By:_____________________
Name:
Title:
Goldman, Sachs & Co., as Dealer
By:_____________________
Authorized Signatory
131
ADDENDUM
The following additional clause shall apply to the Agreement and be
deemed a part thereof.
1. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
For the Issuer: DENTSPLY International Inc.
Address: 570 West College Avenue
York, Pennsylvania 17405
Attention: Treasurer
Telephone number: 717-849-4262
Fax number: 717-849-4759
For the Dealer: Goldman, Sachs & Co.
Address: 85 Broad Street
New York, New York 10004
Attention: Money Markets Origination
Telephone number: 212-902-2525
Fax number: 212-902-0683
132
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS AND
SALES THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE EXEMPT ON FROM
THE REGISTRAT ON REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED TO REPRESENT
THAT IT HAS BEEN AFFORDED AN OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE
ISSUER AND THE NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO ANY
DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN INSTITUTIONAL INVESTOR OR
SOPHISTICATED INDIVIDUAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(a) UNDER THE ACT AND WHICH, IN THE CASE OF AN INDIVIDUAL,
(i) POSSESSES SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS
THAT HE OR SHE IS CAPABLE OF EVALUATING AND BEARING THE ECONOMIC RISK OF AN
INVESTMENT IN THE NOTES AND (ii) HAS A NET WORTH OF AT LEAST $5 MILLION (AN
"INSTITUTIONAL ACCREDITED INVESTOR" OR "SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR", RESPECTIVELY) AND THAT EITHER IS PURCHASING NOTES FOR ITS OWN
ACCOUNT, IS A U.S. BANK (AS DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A SAVINGS
AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION 3(a)(5)(A) OF
THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR IS A FIDUCIARY OR
AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN ASSOCIATION) PURCHASING NOTES
FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR OR SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR (i) WHICH ITSELF
POSSESSES SUCH KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH
PURCHASER HAS SOLE INVESTMENT DISCRETION; OR (B) A QUALIFIED INSTITUTIONAL BUYER
("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE ACT WHICH IS ACQUIRING NOTES
FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH IS A QIB AND WITH
RESPECT TO EACH OF WHICH THE PURCHASER HAS SOLE INVESTMENT DISCRETION; AND THE
PURCHASER ACKNOWLEDGES THAT IT IS AWARE THAT THE SELLER MAY RELY UPON THE
EXEMPTION FROM THE REGISTRATION PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY
RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF SHALL ALSO BE
DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF WILL BE MADE ONLY (A)
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE
ISSUER OR TO GOLDMAN, SACHS & CO. OR ANOTHER PERSON DESIGNATED BY THE ISSUER AS
A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY, THE "PLACEMENT AGENTS"), NONE OF
WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT
AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR, SOPHISTICATED INDIVIDUAL
ACCREDITED INVESTOR OR A QIB, OR (3) TO A QIB IN A TRANSACTION THAT MEETS THE
REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF $250,000.
133
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for all expenses
(including reasonable fees and disbursements of internal and external counsel)
as they are incurred by it in connection with investigating or defending any
loss, claim, damage, liability or action in respect of which indemnification may
be sought under Section 5 of the Agreement (whether or not it is a party to any
such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence of a
Claim, such Indemnitee will, if a claim in respect thereof is to be made against
the Issuer, notify the Issuer in writing of the existence thereof; provided that
(i) the omission so to notify the Issuer will not relieve the Issuer from any
liability which it may have hereunder unless and except to the extent it did not
otherwise learn of such Claim and such failure results in the forfeiture by the
Issuer of substantial rights and defenses, and (ii) the omission so to notify
the Issuer will not relieve it from liability which it may have to an Indemnitee
otherwise than on account of this indemnity agreement. In case any such Claim is
made against any Indemnitee and it notifies the Issuer of the existence thereof,
the Issuer will be entitled to participate therein, and to the extent that it
may elect by written notice delivered to the Indemnitee, to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnitee; provided that
if the defendants in any such Claim include both the Indemnitee and the Issuer,
and the Indemnitee shall have concluded that there may be legal defenses
available to it which are different from or additional to those available to the
Issuer, the Issuer shall not have the right to direct the defense of such Claim
on behalf of such Indemnitee, and the Indemnitee shall have the right to select
separate counsel to assert such legal defenses on behalf of such Indemnitee.
Upon receipt of notice from the Issuer to such Indemnitee of the Issuer's
election so to assume the defense of such Claim and approval by the Indemnitee
of counsel, the Issuer will not be liable to such Indemnitee for expenses
incurred thereafter by the Indemnitee in connection with the defense thereof
(other than reasonable costs of investigation) unless (i) the Indemnitee shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it being
understood, however, that the Issuer shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel in the
jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer shall
not have employed counsel reasonably satisfactory to the Indemnitee to represent
the Indemnitee within a reasonable time after notice of existence of the Claim
or (iii) the Issuer has authorized in writing the employment of counsel for the
Indemnitee. The indemnity, reimbursement and contribution obligations of the
Issuer hereunder shall be in addition to any other liability the Issuer may
otherwise have to an Indemnitee and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Issuer and any Indemnitee. The Issuer agrees that without the Dealer's prior
written consent, it will not settle, compromise or consent to the entry of any
judgment in any Claim in respect of which indemnification may be sought under
the indemnification provision of the Agreement (whether or not the Dealer or any
other Indemnitee is an actual or potential party to such Claim).
134