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U.S. $3,442,560,000
E. I. DU PONT DE NEMOURS AND COMPANY
Medium-Term Notes, Series G
Due 9 Months or More From Date of Issue
AGENCY AGREEMENT
June 15, 1995
CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center
New York, New York 10281-1323
J. P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs:
1. Introduction. E. I. du Pont de Nemours and Company, a
Delaware corporation (the "Issuer"), confirms its agreement with each of you
(individually, an "Agent" and collectively, the "Agents") with respect to the
issue and sale from time to time by the Issuer for aggregate proceeds of up to
U.S. $3,442,560,000 (or the equivalent thereof in one or more foreign
currencies or currency units) aggregate principal amount of its medium-term
notes registered under the registration statement referred to in Section 2(a)
as evidenced by either (i) a medium-term note master note (the
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"Master Note") or (ii) global or certificated medium-term notes (the "Note
Certificates") in the forms filed by the Company with the Commission (as
defined in Section 2(a) (any such medium-term notes, being hereinafter referred
to as the "Securities"), subject to reduction as a result of certain other
Registered Securities (as defined in Section 2(a)), other than the Securities.
The Securities will be issued under an indenture dated as of June 1, 1992 (the
"Indenture"), between the Issuer and Chemical Bank, as trustee (the "Trustee").
The Securities shall have the prices, maturity ranges, annual
interest rates, redemption provisions and other terms set forth in the
Prospectus referred to in Section 2(a) as it may be supplemented from time to
time. The Securities will be issued, and the terms thereof established, from
time to time by the Issuer in accordance with the Indenture and the Procedures
(as defined in Section 3(d) hereof).
2. Representations and Warranties of the Issuer. The Issuer
represents and warrants to, and agrees with, each Agent as follows:
(a) A registration statement (No. 33-53327), including a
prospectus, relating to debt securities of the issuer, including the
Securities ("Registered Securities"), has been filed with the
Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended as of the Closing
Date (as defined in Section 3(e) hereof), is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as of the Closing Date,
including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus". Any reference in this
Agreement to amending or supplementing the Prospectus shall be deemed
to include the filing of materials incorporated by reference in the
Prospectus after the Closing Date and any reference in this Agreement
to any amendment or supplement to the Prospectus shall be deemed to
include any such materials incorporated by reference in the Prospectus
after the Closing Date.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements
of the Securities Act of 1933 ("Act"), the Trust Indenture Act of 1939
("Trust
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Indenture Act") and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and on the Closing Date, the Registration Statement and
the Prospectus, and at each of the times of acceptance and of delivery
referred to in Section 6(a) hereof and at each of the times of
amendment or supplementing referred to in Section 6(b) hereof (the
Closing Date and each such time being herein sometimes referred to as
a "Representation Date"), the Registration Statement and the
Prospectus as then amended or supplemented, will conform in all
respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based
upon written information furnished to the Issuer by any Agent
specifically for use therein.
3. Appointment as Agent: Solicitations as Agent. (a)
Subject to the terms and conditions stated herein, the Issuer hereby appoints
each of the Agents as an agent of the Issuer for the purpose of soliciting or
receiving offers to purchase the Securities from the Issuer by others. The
Issuer may from time to time offer Securities for sale otherwise than through
an Agent; provided, however, that so long as this Agreement shall be in effect
the Issuer shall not solicit offers to purchase Securities through any agent
without amending this Agreement to appoint such agent an additional Agent
hereunder on the same terms and conditions as provided herein for the Agents
and without giving the Agents prior notice of such appointment. The Issuer may
accept offers to purchase Notes through an agent other than an Agent, provided
that (i) the Issuer shall not have solicited such offers, (ii) the Issuer and
such agent shall have executed an agreement with respect to such purchases
having terms and conditions (including, without limitation, commission rates)
with respect to such purchases substantially the same as the terms and
conditions that would apply to such purchases under this Agreement if such
agent was an Agent (which may be accomplished by incorporating by reference in
such agreement the terms and conditions of this Agreement) and (iii) the
Company shall provide the Agents
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with a copy of such agreement promptly following the execution thereof.
(b) On the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set forth,
each Agent agrees, as agent of the Issuer, to use its best efforts when
requested by the Issuer to solicit offers to purchase the Securities upon the
terms and conditions set forth in the Prospectus, as from time to time amended
or supplemented.
Upon receipt of notice from the Issuer as contemplated by
Section 4(b) hereof, each Agent shall suspend its solicitations of purchases of
Securities until such time as the Issuer shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as the
case may be, contemplated by Section 4(b) and shall have advised such Agent
that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Securities commencing at any
time for any period of time or permanently. Upon receipt of notice from the
Issuer, the Agents will as promptly as practicable, but in no event later than
one business day following such notice, suspend solicitation of offers to
purchase Securities from the Issuer until such time as the Issuer has advised
the Agents that such solicitation may be resumed. For the purpose of the
foregoing sentence, "business day" shall mean any day which is not a Saturday
or a Sunday and which in New York City is not a day on which banking
institutions are authorized or required by law or regulation to close.
The Agents are authorized to solicit offers to purchase
Securities denominated in U.S. dollars only in a minimum aggregate amount of
$100,000 (or the equivalent thereof if any Securities are denominated in
foreign currencies or currency units) and only in fully registered form in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
The authorized denominations of Securities not denominated in U.S. dollars will
be determined by the Issuer at the time of sale. Each Agent shall communicate
to the Issuer, orally or in writing, each reasonable offer to purchase
Securities received by it as Agent, subject to the following. The Issuer shall
have the sole right to accept offers to purchase the Securities and may reject
any such offer, in whole or in part. Each Agent shall have the right, in its
discretion reasonably exer-
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cised, without notice to the Issuer, to reject any offer to purchase Securities
received by it, in whole or in part, and any such rejection shall not be deemed
a breach of its agreement contained herein.
The Issuer hereby agrees not to accept any offers for, or
otherwise to enter into any agreement providing for, the purchase on any day of
Indexed Securities or Dual Currency Securities having the same interest rate or
interest rate formula, if any, stated maturity, date of issue and other terms
unless the aggregate Face Amount of such Indexed Securities is equal to or
greater than U.S. $2,500,000 (or, in the case of Indexed Securities with a
Denominated Currency other than U.S. dollars, or, in the case of Dual Currency
Securities with a Face Amount Currency other than U.S. dollars, the equivalent
thereof in the Denominated Currency based upon the noon buying rate on the date
the Issuer agrees to issue such Indexed Securities or Dual Currency Securities
in New York City for cable transfers in such Denominated Currency or the Face
Amount Currency, as the case may be, as certified for customs purposes by the
Federal Reserve Bank of New York). Each Agent, in soliciting Indexed
Securities or Dual Currency Securities, will undertake to market such
Securities subject to the minimum aggregate amount described in the preceding
sentence. In addition, each of the Agents and the Issuer hereby agrees not to
market any Indexed Securities or Dual Currency Securities as being or having
the characteristics of a futures contract or a commodity option, except to the
extent necessary to describe the operation of the instrument or to comply with
the applicable disclosure requirements. For purposes of this Section 3(b), the
term Indexed Securities shall mean all Securities the amount of principal of
which payable at maturity is to be determined by reference to a specified
currency, currency unit, commodity or financial or non-financial index or
indices. For purposes of this Section 3(b), the term Dual Currency Securities
shall mean all Securities as to which the Issuer has the option of making each
scheduled payment of principal and interest due on such Securities in either
the Face Amount Currency specified in the applicable Pricing Supplement or the
Optional Payment Currency specified therein.
In addition, as a condition precedent to any issuance of
Indexed Securities or Dual Currency Securities, each Agent which has acted as
the Presenting Agent with respect to such Indexed Securities or Dual Currency
Securities agrees it will deliver to the Issuer on the date the Issuer proposes
to agree to the sale of such Indexed Securities or
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Dual Currency Securities a letter, in form reasonably satisfactory to the
Issuer, stating that the Commodity-Independent Yield of such Indexed Securities
or Dual Currency Securities equals at least 50%, but not more than 150%, of the
estimated annual yield at the time of issuance for a comparable nonhybrid debt
instrument issued by the Issuer. For purposes of this Section 3(b), the term
"Commodity-Independent Yield" shall have the meaning assigned to that term in
the Statutory Interpretation Concerning Certain Hybrid Instruments issued by
the U.S. Commodity Futures Trading Commission on April 11, 1990.
Each Agent agrees that it will serve as the Option Value
Calculation Agent for any Dual Currency Securities for which it agrees to
solicit offers or that it agrees to purchase.
No Security which the Issuer has agreed to sell pursuant to
this Agreement shall be deemed to have been purchased and paid for, or sold, by
the Issuer until such Security shall have been delivered to the purchaser
thereof against payment by such purchaser.
(c) At the time of delivery of, and payment for, any
Securities sold by the Issuer as a result of a solicitation made by, or offer
to purchase received by, an Agent, the Issuer agrees to pay such Agent a
commission in accordance with the schedule set forth in Exhibit A hereto.
(d) Administrative procedures respecting the sale of
Securities (the "Procedures") shall be agreed upon from time to time by the
Agents and the Issuer. The initial Procedures shall be set forth in the order
for authentication and delivery provided by the Issuer to the Trustee pursuant
to the Indenture, a copy of which shall be provided by the Issuer to the Agents
at the Closing, which procedures shall remain in effect until changed by
agreement among the Issuer and the Agents. Each Agent and the Issuer agree to
perform the respective duties and obligations specifically provided to be
performed by each of them herein and in the Procedures. The Issuer will
furnish to the Trustee a copy of the Procedures as from time to time in effect.
(e) The documents required to be delivered by Section 5
hereof shall be delivered at the office of Cravath, Swaine & Moore, 825 Eighth
Avenue, New York, New York 10019, not later than 10:00 a.m., New York City
time, on the date of this Agreement or at such later time as may be mutually
agreed by the Issuer and the Agents, which in no
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event shall be later than the time at which the Agents commence solicitation of
purchases of Securities hereunder, such time and date being herein called the
"Closing Date".
4. Certain Agreements of the Issuer. The Issuer agrees with
the Agents that it will furnish to Cravath, Swaine & Moore, counsel for the
Agents, one signed copy of the Registration Statement, including all exhibits,
in the form it became effective and of all amendments thereto but only if such
documents have not, prior to the date hereof, been received by Cravath, Swaine
& Moore and that, in connection with each offering of Securities:
(a) The Issuer will advise each Agent promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Agents a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Issuer
will also advise each Agent of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part
thereof and will use its reasonable efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if
issued.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Issuer will
promptly notify each Agent to suspend solicitation of purchases of the
Securities; and, if the Issuer shall decide to amend or supplement the
Registration Statement or the Prospectus, it will promptly advise each
Agent by telephone (with confirmation in writing) and will promptly
prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. Notwithstanding the foregoing, if, at the
time of any notification to suspend solicitations, any Agent shall own
any of the Securities with the intention of reselling them, or the
Issuer has accepted an offer to purchase Securities but the related
settlement
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has not occurred, the Issuer, subject to the provisions of subsection
(a) of this Section, will promptly prepare and file with the
Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(c) The Issuer, during the period when a prospectus relating
to the Securities is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"). In addition, during such
period referred to in the immediately preceding sentence, concurrently
with the time at which the Issuer makes any announcement to the
general public concerning earnings or concerning any other event which
is required to be described, or which the Issuer proposes to describe,
in a document filed pursuant to the Exchange Act, the Issuer will
furnish the information contained in such announcement to each Agent,
confirmed in writing. The Issuer will immediately notify each Agent of
any downgrading in the rating of the Securities or any other debt
securities of the Issuer by Moody's Investor Service, Inc. or Standard
& Poor's Corporation as soon as the Issuer learns of such downgrading.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of the Agents an
earnings statement or statements of the Issuer and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(e) The Issuer will furnish to each Agent one copy of the
Registration Statement, including all exhibits and copies in such
quantities as are reasonably requested of any related preliminary
prospectus, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available.
(f) The Issuer will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Issuer and the
Agents shall mutually agree and will continue such qualifications in
effect so long as required for the distribution.
(g) So long as any Securities are outstanding,
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the Issuer will furnish to the Agents, (i) as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year, and (ii) as soon as available, a copy of
each report or definitive proxy statement of the Issuer filed with the
Commission under the Exchange Act or mailed to stockholders.
(h) The Issuer will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
each Agent for any expenses (including fees and disbursements of
counsel) incurred by it in connection with qualification of the
Securities for sale and determination of their eligibility for
investment under the laws of such jurisdictions as the Issuer and such
Agent shall mutually agree and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Securities, for expenses incurred in distributing the
Prospectus and all supplements thereto and any preliminary
prospectuses to each Agent and for the reasonable fees and
disbursements of counsel to the Agents.
5. Conditions of Obligations. The obligation of each Agent,
as agent of the Issuer, under this Agreement at any time to solicit offers to
purchase the Securities is subject to the accuracy, on the date hereof, on each
Representation Date and on the date of each such solicitation, of the
representations and warranties of the Issuer herein, to the accuracy, on each
such date, of the statements of the Issuer's officers made pursuant to the
provisions hereof, to the performance, on or prior to each such date, by the
Issuer of its obligations hereunder, and to each of the following additional
conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Issuer or any Agent, shall be contemplated by the
Commission.
(b) Neither the Registration Statement nor the Prospectus, as
amended or supplemented as of any Representation Date or date of such
solicitation, as the case may be, shall contain any untrue statement
of fact which is material or omit to state a fact which is material
and is required to be stated therein or is necessary to make the
statements therein not mislead-
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ing.
(c) There shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Issuer or its
subsidiaries which, in the reasonable judgment of such Agent,
materially impairs the investment quality of the Securities; (ii) any
downgrading in the rating of the Securities or any other debt
securities of the Issuer by Moody's Investors Services, Inc. or
Standard & Poor's Corporation; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Issuer on any exchange
or in the over-the-counter market, if, in the reasonable judgment of
such Agent, the effect of any such suspension makes it impractical or
inadvisable to proceed with solicitations of purchases of, or sales,
of Securities; (iv) any banking moratorium declared by Federal or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency if, in the reasonable judgment of such Agent,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
solicitations of purchases of, or sales, of Securities.
(d) At the Closing Date, the Agents shall have received an
opinion, dated the Closing Date, of the General Counsel or any
Assistant General Counsel of the Issuer, to the effect that:
(i) the Issuer has been duly incorporated and is an
existing corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority to own
its properties and conduct its business as described in the
Prospectus and is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which the ownership or leasing of its properties or in which
the conduct of its business requires such qualification except
in such jurisdictions in which the failure to so qualify would
not have a material adverse effect on the business or
properties of the Issuer;
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(ii) the Indenture has been duly authorized, executed
and delivered by the Issuer and has been duly qualified under
the Trust Indenture Act;
(iii) the Note Certificates and the Securities have
been duly authorized and (A) the Indenture constitutes, and
(B) when any Note Certificate has been executed, authenticated
and issued and any security has been issued and delivered
against payment therefor in accordance with the Indenture and
this Agreement, such Note Certificate and Security will
constitute valid and legally binding obligation of the Issuer,
enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws relating to or affecting creditors' rights and to
general equity principles; and the Note Certificates and
Securities conform to the description thereof contained in the
Prospectus (subject to insertion or incorporation by reference
into the Note Certificates and Securities of the maturity
date, interest rate and other terms thereof which will be
described in supplements to the Prospectus);
(iv) the Master Note and the Securities to be
evidenced thereby have been duly authorized and (A) the
Indenture constitutes, and (B) when the Master Note has been
executed, authenticated and deposited with, or on behalf of,
the Depositary (as defined in the Prospectus Supplement) and
(c) registered in the name of The Depositary or its nominee,
(in each case in accordance with the Indenture and this
Agreement) and any Security has been issued and delivered
against payment in accordance with the Indenture and this
Agreement, such Master Note and Securities will constitute
valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws relating to or affecting creditors' rights and to
general equity principles; and the Master Note and Securities
conform to the description thereof contained in the Prospectus
(subject to insertion or incorporation by reference into the
Master Note and the Securities of the Maturity date, interest
rate and other terms thereof which will be described in
supplements to the Prospectus);
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(v) the Registration Statement has become effective
under the Act, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and the
Registration Statement, as of its effective date and the
Prospectus, as of the Closing Date, and any amendment or
supplement thereto, as of its date, appear on their face to be
appropriately responsive in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules
and Regulations; such counsel has no reason to believe that
the Registration Statement, as of its effective date, or the
Prospectus, as of the Closing Date, or any such amendment or
supplement, as of its date, contained any untrue statement of
a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or contains any untrue statement of a
material fact or omits to state any 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; the descriptions in the Registration Statement and
the Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel
do not know of any legal or governmental proceedings required
to be described in the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statement or the Prospectus;
(vi) no consent, approval or authorization from any
regulatory board, agency or instrumentality within the United
States having jurisdiction over the Issuer (other than
registration under the Act and qualification under state
securities or Blue Sky laws), is necessary for the
consummation
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of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Securities by the
Issuer;
(vii) the issuance of the Master Note and the
issuance, sale and delivery of the Securities in accordance
with the Indenture and the sale thereof in accordance with the
terms of this Agreement, and compliance with the terms and
provisions thereof, do not and will not result in any
violation of any of the terms or provisions of the Issuer's
Certificate of Incorporation or Bylaws, or of any indenture,
mortgage or other agreement known to such counsel by which the
Issuer or any of its properties is bound or any statute, rule,
regulation, judgment, order or decree known to such counsel to
be applicable to the Issuer of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Issuer; and
(viii) this Agreement has been duly authorized,
executed and delivered by the Issuer and is the valid and
binding agreement of the Issuer.
(e) At the Closing Date, the Agents shall also have received
an opinion dated the Closing Date, of David S. Poston, Esq., Senior
Counsel of the Issuer, confirming as his opinion the statements set
forth in the Prospectus under the caption "United States Taxation".
(f) At the Closing Date, the Agents shall have received a
certificate, dated the Closing Date, of any of the Chairman of the
Board, any Vice Chairman, any Senior Vice President, the Vice
President and Treasurer, the Vice President and Controller and any
Assistant Treasurer of the Issuer in which such officer, to the best
of his or her knowledge after reasonable investigation, shall state
that (i) the representations and warranties of the Issuer in this
Agreement are true and correct; (ii) the Issuer has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; (iii) no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been
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instituted or are contemplated by the Commission; and (iv) subsequent
to the date of the most recent financial statements in the Prospectus,
there has been no material adverse change in the financial position or
results of operations of the Issuer and its subsidiaries, except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(g) At the Closing Date, the Agents shall have received a
letter, dated the Closing Date, of Price Waterhouse in form and
substance satisfactory to the Agents, with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(h) The Agents shall have received from Cravath, Swaine &
Moore, counsel for the Agents, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Issuer, the
validity of the Securities, the Registration Statement, the Prospectus
and other related matters as they may require, and the Issuer shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(i) The Issuer will furnish the Agents with such conformed
copies of such opinions, certificates, letters and documents as they
reasonably request.
6. Additional Covenants of the Issuer. The Issuer agrees
that:
(a) Each acceptance by the Issuer of an offer for the
purchase of Securities shall be deemed to be an affirmation that its
representations and warranties contained in this Agreement are true
and correct at the time of such acceptance and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Securities relating to such
acceptance as though made at and as of each such time, it being
understood that such representations and warranties shall relate to
the Registration Statement and the Prospectus as amended or
supplemented at each such time. Each such acceptance by the Issuer of
an offer for the purchase of Securities shall be
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deemed to constitute an additional representation, warranty and
agreement by the Issuer that, as of the settlement date for the sale
of such Securities, after giving effect to the issuance of such
Securities, of any other Securities to be issued on or prior to such
settlement date and of any other Registered Securities to be issued
and sold by the Issuer on or prior to such settlement date, the
aggregate amount of Registered Securities (including any Securities)
which have been issued and sold by the Issuer will not exceed the
amount of Registered Securities registered pursuant to the
Registration Statement. The Issuer will inform any Agent promptly
upon such Agent's request of the aggregate amount of Securities
registered under the Registration Statement which remain unsold.
(b) (i) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented pursuant to a filing by
the Issuer of an Issuer's (A) Quarterly Report on Form 10-Q for such
period, (B) Annual Report on Form 10-K for such period or (c) Current
Report on Form 8-K, the Issuer shall, concurrently with such amendment
or supplement, furnish the Agents with a certificate, dated the date
of delivery thereof, of any of the Chairman of the Board, any Vice
Chairman, any Senior Vice President, the Vice President and Treasurer,
the Vice President and Controller and any assistant Treasurer of the
Issuer in form satisfactory to the Agents, to the effect that the
statements contained in the certificate covering the matters set forth
in Section 5(f) hereof which was last furnished to the Agents are true
and correct at the time of such amendment or supplement as though made
at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended or
supplemented at such time and except that the statements contained in
the certificate covering the matters set forth in clause (ii) of
Section 5(e) shall be deemed to relate to the time of delivery of such
certificate) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in Section 5(e), modified as
necessary to relate to the Registration Statement and the Prospectus
as amended or supplemented at the time of delivery of such certificate
and, in the case of the matters set forth in clause (ii) of Section
5(e), to the time of delivery of such certificate; and (ii) in
addition, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other
16
16
than by an amendment or supplement relating solely to (A) any offering
of Securities providing solely for the specification of a change in
the maturity dates, interest rates, issuance prices or other similar
terms of any Securities or (B) any offering of Registered Securities
other than the Securities), the Issuer shall, upon the request of any
Agent, concurrently with such amendment or supplement furnish the
Agents with a certificate to the same effect as the certificate
referred to in the preceding clause (i).
(c) At each Representation Date referred to in Section
6(b)(i), the Issuer shall, and at each Representation Date referred to
in Section 6(b)(ii) the Issuer shall, upon the request of any Agent,
concurrently furnish the Agents with a written opinion or opinions
dated the date of such Representation Date, of counsel for the Issuer,
in form satisfactory to the Agents, to the effect set forth in Section
5(d) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date; provided, however, that, in lieu of such opinion
or opinions, counsel may furnish the Agents with a letter or letters
to the effect that the Agents may rely on a prior opinion delivered
under Section 5(d) or this Section 6(c) to the same extent as if it
were dated the date of such letter (except that statements in such
prior opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented at such Representation
Date).
(d) At each Representation Date referred to in Section 6(b)(i)
on which the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information, the
Issuer shall, and at each Representation Date referred to in Section
6(b)(ii) on which the Registration Statement or the Prospectus shall
be amended or supplemented to include additional financial
information, the Issuer shall, upon the request of any Agent, cause
Price Waterhouse concurrently to furnish the Agents with a letter,
addressed jointly to the Issuer and the Agents and dated the date of
such Representation Date, in form and substance satisfactory to the
Agents, to the effect set forth in Section 5(g) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented at such Representation Date, with such changes as may be
necessary to reflect
17
17
changes in the financial statements and other information derived from
the accounting records of the Issuer; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal
quarter, Price Waterhouse may limit the scope of such letter to the
unaudited financial statements included in such amendment or
supplement unless there is contained therein any other accounting,
financial or statistical information that, in the reasonable judgment
of the Agents, should be covered by such letter, in which event such
letter shall also cover such other information and procedures as shall
be agreed upon by the Agents.
(e) On each settlement date for the sale of Securities, the
Issuer shall, if requested by an Agent that solicited or received the
offer to purchase any Securities being delivered on such settlement
date, furnish such Agent with a written opinion of counsel of the
Issuer, (who may be the General Counsel, any Assistant General
Counsel, any Associate General Counsel or any Corporate or Senior
Counsel of the Issuer) dated the date of delivery thereof, in form
satisfactory to such Agent, to the effect set forth in clauses (i) and
(ii) of Section 5(d) hereof, but modified, as necessary, to relate to
the Prospectus as amended or supplemented at such settlement date and
except that such opinion shall state that the Securities being sold by
the Issuer on such settlement date, when delivered against payment
therefor as provided in the Indenture and this Agreement, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Issuer
enforceable in accordance with their terms, subject only to the
exceptions as to enforcement set forth in clause (ii) of Section 5(d)
hereof, and conform to the description thereof contained in the
Prospectus as amended or supplemented at such settlement date.
(f) The Issuer agrees that any obligation of a person who has
agreed to purchase Securities, to make payment for and take delivery
of such Securities shall be subject to (i) the accuracy, on the
related settlement date fixed pursuant to the Procedures, of the
Issuer's representation and warranty deemed to be made to the Agents
pursuant to the last sentence of subsection (a) of this Section 6,
(ii) the satisfaction, on such settlement date, of each of the
conditions set
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18
forth in Sections 5(a), (b) and (c), it being understood that under no
circumstance shall any Agent have any duty or obligation to exercise
the judgment permitted under Section 5(c) on behalf of any other such
person, and (iii) in the event of a proposal to downgrade the
Securities or any other debt securities of the Issuer by Moody's
Investors Services, Inc. or Standard & Poor's Corporation, a
reasonable determination by the Issuer, after discussion with the
Agents of such proposal, that the existence of such proposal does not
materially impair the investment quality of the Securities.
7. Indemnification and Contribution. (a) The Issuer will
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Agent or such controlling person
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Agent and each such controlling person
for any legal or other expenses reasonably incurred by such Agent and each such
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Issuer will not be liable to such Agent in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Issuer by such Agent
specifically for use therein, unless such loss, claim, damage or liability
arises out of the offer or sale of Securities occurring after such Agent has
notified the Issuer in writing that such information should no longer be used
therein. This indemnity agreement will be in addition to any liability which
the Issuer may otherwise have.
(b) Each Agent will indemnify and hold harmless the Issuer,
each of its directors, each of its officers who have signed the Registration
Statement and each person, if
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19
any, who controls the Issuer within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Issuer or any such director,
officer or controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by such Agent
specifically for use therein, and will reimburse the Issuer and each such
director, officer or controlling person any legal or other expenses reasonably
incurred by the Issuer and each such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that such
Agent will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of the offer or sale of Securities
occurring after such Agent has notified the Issuer in writing that such
information should no longer be used therein. This indemnity agreement will be
in addition to any liability which such Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party and
who shall not be counsel to any other indemnified party
20
20
who may have interests conflicting with those of such indemnified party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Issuer on the one hand and any Agent on the other from the offering
pursuant to this Agreement of the Securities which are the subject of the
action or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Issuer on the one hand and any Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and any Agent on the
other shall be deemed to be in the same proportions as the total net proceeds
from the offering pursuant to this Agreement of the Securities which are the
subject of the action and were sold as a result of a solicitation made by, or
offer to purchase received by, such Agent (before deducting expenses) received
by the Issuer bear to the total commissions received by such Agent from the
offering of such Securities pursuant to this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer or such
Agent and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is
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the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Agent shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities which are the
subject of the action and which were distributed to the public through it
pursuant to this Agreement or upon resale of Securities purchased by it from
the Issuer exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each Agent in this subsection (d) to
contribute are several, in the same proportion which the amount of the
Securities which are the subject of the action and which were distributed to
the public through such Agent pursuant to this Agreement bears to the total
amount of such Securities distributed to the public through all the Agents
pursuant to this agreement, and not joint.
8. Status of Each Agent. In soliciting offers to purchase
the Securities from the Issuer pursuant to this Agreement and in assuming its
other obligations hereunder (other than offers to purchase pursuant to Section
11), each Agent is acting individually and not jointly and is acting solely as
agent for the Issuer and not as principal. Each Agent will make reasonable
efforts to assist the Issuer in obtaining performance by each purchaser whose
offer to purchase Securities from the Issuer has been solicited by such Agent
and accepted by the Issuer, but such Agent shall have no liability to the
Issuer in the event any such purchase is not consummated for any reason and
shall not be obligated to disclose the identity of any purchaser or potential
purchasers under any circumstances. If the Issuer shall default on its
obligations to deliver Securities to a purchaser whose offer it has accepted,
the Issuer (i) shall hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Issuer, and (ii) in
particular, shall pay to the Agents any commission to which they would be
entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of the Agents set forth in or made
pursuant to this Agreement will remain in full force and effect,
22
22
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Agent, the Issuer or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 10 or for any other reason, the Issuer shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4(h) and the obligations of the Issuer under Sections 4(d) and 4(g) and
the respective obligations of the Issuer and the Agents pursuant to Section 7
shall remain in effect. In addition, if any such termination shall occur either
(i) at a time when any Agent shall own any of the Securities with the intention
of reselling them or (ii) after the Issuer has accepted an offer to purchase
Securities and prior to the related settlement, the obligations of the Issuer
under the last sentence of Section 4(b), under Sections 4(a), 4(c), 4(e), 4(f),
6(a), 6(e), and 6(f) and, in the case of a termination occurring as described
in (ii) above, under Section 3(c) and under the last sentence of Section 8,
shall also remain in effect.
10. Termination. This Agreement may be terminated for any
reason at any time by the Issuer as to any Agent or, in the case of any Agent,
by such Agent insofar as this Agreement relates to such Agent, upon the giving
of one day's written notice of such termination to the other parties hereto.
Any settlement with respect to Securities placed by an Agent occurring after
termination of this Agreement shall be made in accordance with the Procedures
and each Agent agrees, if requested by the Issuer, to take the steps therein
provided to be taken by such Agent in connection with such settlement.
11. Purchases as Principal. From time to time, any Agent may
agree with the Issuer to purchase Securities from the Issuer as principal, in
which case such purchase shall be made, unless otherwise agreed by the Issuer
and such Agent, in accordance with the terms of a separate agreement (a
"Purchase Agreement") to be entered into among such Agent and the Issuer in the
form attached hereto as Exhibit B. A Purchase Agreement, to the extent set
forth therein, may incorporate by reference specified provisions of this
Agreement. In connection with any resale of the Securities purchased by the
Agents, the Agents may use a selling or dealer group that may reallow any
portion of the commission payable pursuant thereto to dealers or purchasers.
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13. Notices. Except as otherwise provided herein, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to CS First Boston Corporation shall be directed to
it at Park Avenue Plaza, New York, New York 10055, Attention: Short and
Medium-Term Financing Department; notices to Goldman, Sachs & Co. shall be
directed to it at 85 Broad Street, New York, New York 10004, Attention:
Registration Department; notices to Merrill, Lynch, Pierce, Fenner & Smith,
Incorporated shall be directed to it at World Financial Center, North Tower,
New York, New York 10281, Attention: Medium-Term Note Product Management, Pat
Hannon; notices to J. P. Morgan Securities Inc. shall be directed to it at 60
Wall Street, New York, New York 10260, Attention: Maria Sramek; Morgan Stanley
& Co. Incorporated shall be directed to it at 1221 Avenue of the Americas, New
York, New York 10020, Attention: Managing Director, Continuously Offered
Products, with a copy to Morgan Stanley & Co. Incorporated, 1251 Avenue of the
Americas, New York, New York 10020, Attention: Investment Banking Information
Center, Peter Cooper and notices to the Issuer shall be directed to it at 1007
Market Street, Wilmington, Delaware 19898, Attention: Assistant Treasurer,
Treasury Division; or in the case of any party hereto, to such other address or
person as such party shall specify to each other party by a notice given in
accordance with the provisions of this Section 12. Any such notice shall take
effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors, the
officers and directors and controlling persons referred to in Section 7 and, to
the extent provided in Section 6(f), any person who has agreed to purchase
Securities from the Issuer, and no other person will have any right or
obligation hereunder.
14. Governing Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
This Agreement may be executed in counterparts and the executed counterparts
shall together constitute a single instrument.
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24
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
E. I. DU PONT DE NEMOURS AND
COMPANY,
By____________________________
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
CS FIRST BOSTON CORPORATION,
By__________________________
Title:
____________________________
(GOLDMAN, SACHS & CO.)
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
By__________________________
Title:
J. P. MORGAN SECURITIES INC.,
By__________________________
Title:
MORGAN STANLEY & CO. INCORPORATED,
By__________________________
Title:
25
EXHIBIT A
The Issuer agrees to pay each Agent a commission equal to the
following percentage of the principal amount of Notes sold to purchasers
solicited by such Agent:
Commission Rate
(as a percentage of
Term principal amount)
---- --------------------
9 months to less than 12 months .125
12 months to less than 18 months .15
18 months to less than 24 months .20
24 months to less than 30 months .225
30 months to less than 3 years .25
3 years to less than 4 years .30
4 years to less than 5 years .40
5 years to less than 6 years .45
6 years to less than 7 years .475
7 years to less than 8 years .50
8 years to less than 9 years .525
9 years to less than 10 years .55
10 years to less than 20 years .60
20 years to 30 years .75
Greater than 30 years to be negotiated
at time of sale
26
EXHIBIT B
PURCHASE AGREEMENT
, 19
E. I. du Pont de Nemours and Company
1007 Market Street
Wilmington, Delaware 19898
Attention: Vice President and Treasurer
1. The undersigned agrees to purchase the following
principal amount of the Notes described in the Agency Agreement dated June 15,
1995 (the "Agency Agreement"):
Specified Currency:
Principal Amount: $
Interest Rate or Formula: %
Maturity Date:
Discount or Premium: % of Principal Amount
Price to be paid to
Issuer (in immediately
available funds): $
Settlement Date:
Redemption Terms, if any:
Repayment:
Number of days during
which certain securities
of the Issuer specified
in paragraph 5 cannot be
sold:
[Additional Terms]
2. Except as otherwise expressly provided herein, all
terms used herein which are defined in the Agency Agreement shall have the same
meanings as in the Agency Agreement. The terms Agent or Agents, as used in the
Agency Agreement, shall be deemed to refer only to the undersigned for purposes
of this Agreement.
3. This Agreement incorporates by reference Sections 4
(except Section 4(h) as that paragraph relates to the Issuer's responsibility
to pay for the reasonable fees and disbursements of counsel to the Agents), 6,
7, 12 and 13 of
27
the Agency Agreement, the first and last sentences of Section 9 thereof and, to
the extent applicable, the Procedures. Notwithstanding the foregoing, if this
Agreement shall be terminated by the Agent because of any failure or refusal on
the part of the Issuer to comply with the terms or fulfill any of the
conditions of this Agreement, or if for any reason the Issuer shall be unable
to perform its obligations under this Agreement, the Issuer will reimburse the
Agent for the reasonable fees and expenses of its counsel incurred in
connection with the purchase of Securities hereunder. You and we agree to
perform, to the extent applicable, our respective duties and obligations
specifically provided to be performed by each of us in the Procedures.
4. Our obligation to purchase Securities hereunder is
subject to the accuracy on the above Settlement Date of your representations
and warranties contained in Section 2 of the Agency Agreement (it being
understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended at such Settlement Date)
and to your performance and observance of all covenants and agreements
contained in Sections 4 and 6 thereof (as incorporated herein by reference).
Our obligation hereunder is also subject to the following conditions:
(a) the satisfaction, as such Settlement Date, of each of the
conditions set forth in subsections (a) and (d) through (g) of Section
5 of the Agency Agreement (it being understood that each document so
required to be delivered shall be dated such Settlement Date and that
each such condition and the statements contained in each such document
that relates to the Registration Statement or the Prospectus shall be
deemed to relate to the Registration Statement or the Prospectus, as
the case may be, as amended or supplemented at the time of settlement
on such Settlement Date and except that the opinion described in
Section 5(d) of the Agency Agreement shall be modified so as to state
that the Securities being sold on such Settlement Date, when delivered
against payment therefor as provided in the Indenture and this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of
the Issuer enforceable in accordance with their terms, subject only to
the exceptions as to enforcement set forth in clause (ii) of Section
5(d) of the Agency Agreement, and will conform to the description
thereof contained in the Prospectus as amended or supplemented at such
Settlement date); and
(b) neither the Registration Statement nor the Prospectus, as
amended or supplemented as of any Representation Date or date of such
solicitation, as the case may be, shall, in the reasonable opinion of
any Agent, contain any untrue statement of fact which is
28
material or omit to state a fact which is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(c) there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Issuer or its
subsidiaries which, in our judgment, materially impairs the investment
quality of the Securities; (ii) any downgrading in the rating of the
Issuer's debt securities by Moody's Investors Service, Inc. or
Standard & Poor's Corporation, or any proposal to downgrade such
rating or any public announcement that any such organization has under
surveillance or review its rating of the Securities or any other debt
securities of the Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Issuer on any exchange
or in the over-the-counter market if, in the judgment of the
undersigned, the effect of any such suspension makes it impracticable
or inadvisable to proceed with solicitations of purchases of, or sales
of Securities; (iv) any banking moratorium declared by Federal or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in our judgment, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of
and payment for the Securities.
5. In further consideration of our agreement hereunder,
you agree that from the date hereof for the number of days specified in
paragraph 1 hereof (not to extend beyond the above Settlement Date), you will
not offer or sell, or enter into any agreement to sell, or announce the
proposed issuance or sale of any debt securities of the Issuer, including the
Securities, with terms substantially similar to the Securities being purchased
pursuant hereto, other than borrowings under your revolving credit agreements
and lines of credit and issuances of your commercial paper.
6. If our purchase of the above Securities is not
consummated other than because of our default or for any reason other than the
occurrence of an event described in clause (iii), (iv) or (v) of Section 4(c)
above, you shall remain responsible for the expenses to be paid or reimbursed
by you pursuant to Section 4(h) of the Agency Agreement as incorporated herein
and, in any event, the respective
29
obligations of you and the undersigned pursuant to Section 7 of the Agency
Agreement incorporated by reference herein shall remain in effect.
7. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. This Agreement may be
executed in counterparts and the executed counterparts shall together
constitute a single instrument.
[INSERT NAME OF PURCHASER]
By _________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
E. I. DU PONT DE
NEMOURS AND COMPANY
By ___________________
Title: