Exhibit 1
COLGATE-PALMOLIVE COMPANY
Medium-Term Notes Due More Than One Year
from Date of Issue
DISTRIBUTION AGREEMENT
March 27, 1996
CHEMICAL SECURITIES INC.
270 Park Avenue
New York, NY 10017
CITICORP SECURITIES, INC.
399 Park Avenue
New York, New York 10043
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
LAZARD FRERES & CO. LLC
30 Rockefeller Plaza
New York, New York 10020
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Dear Sirs:
Colgate-Palmolive Company, a Delaware corporation (the
"Company"), confirms its agreement with Chemical Securities Inc.
("Chemical"), Citicorp Securities, Inc. ("Citicorp"), Goldman,
Sachs & Co. ("Goldman Sachs"), Lazard Freres & Co. LLC
("Lazard"), Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch & Co.") and J.P. Morgan
Securities Inc. ("J.P. Morgan" and, together with Chemical,
Citicorp, Goldman Sachs, Lazard and Merrill Lynch & Co., the
"Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes described herein (the "Notes"). The Notes are to be issued
pursuant to an indenture (as the same may be amended or restated from time to
time, the "Indenture") dated as of November 15, 1992 between the Company and The
Bank of New York. The Bank of New York will act as trustee with respect to the
Notes (the "Trustee").
Notes may be sold by the Company directly or to or through the Agents
pursuant to the terms of this Agreement or to or through such other agent or
agents as may be designated by the Company from time to time pursuant to the
terms of any such other agreement containing substantially the same terms as
this Agreement. The Company may from time to time, pursuant to an Officer's
Certificate delivered to the Trustee pursuant to Section 301 of the Indenture
(with an original copy thereof delivered to the Agents), reduce the authorized
aggregate principal amount of the Notes (but not below the aggregate principal
amount of Notes previously issued under the Indenture) or authorize the issuance
of additional Notes and such additional Notes may be distributed directly by the
Company or through or to any agents designated by the Company, including the
Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and the related Agent or Agents) to one or more Agents as
principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") one or more registration statements on Form S-3 for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933 Act") and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statements have
been declared effective by the Commission and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). As used
herein, the term "Registration Statement" shall mean the registration statement
or registration statements applicable to a particular offering of Notes (and any
further registration statements which may be filed by the Company for the
purpose of registering additional Notes included in such offering and in
connection with which this Agreement is included or incorporated by reference as
an exhibit) and the term "Prospectus" shall mean the respective prospectuses
constituting a part of any such applicable registration statement or
registration statements, and any prospectus supplements relating to such Notes,
including all documents incorporated therein by reference, as from time to time
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amended or supplemented by the filing of documents pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act") or the 1933 Act or otherwise,
except that if any revised prospectus shall be provided to the Agents by the
Company for use in connection with the offering of the Notes which is not
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
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(a) Appointment of Agents. Subject to the terms and conditions stated
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herein and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf, the Company hereby appoints each of the Agents as an
agent of the Company for the purpose of soliciting purchases of the Notes from
the Company by others and agrees that, except as otherwise contemplated herein,
whenever the Company determines to sell Notes directly to one or more Agents as
principal for resale to others, it will enter into a Terms Agreement (as
hereafter defined) relating to each such sale in accordance with the provisions
of Section 3(b) hereof if requested by such Agent.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
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receipt of instructions from the Company, the Agents will use their reasonable
efforts to solicit purchases of such principal amount of Notes as the Company
and the Agents shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of the
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agents; Purchases as Principals. In soliciting
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purchases of the Notes on behalf of the Company, unless otherwise specified
pursuant to the terms hereof, each Agent shall act solely as agent for the
Company and not as principal. Each Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose
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offer to purchase Notes has been solicited by such Agent and accepted by the
Company. No Agent shall have any liability to the Company in the event any such
purchase is not consummated for any reason. No Agent shall have any obligation
to purchase Notes from the Company as principal, but may agree from time to time
to purchase Notes as principal. Any such purchase of Notes by an Agent as
principal shall be made pursuant to a Terms Agreement in accordance with Section
3(b) hereof if requested by such Agent.
(d) Reliance. The Company and the Agents agree that any Notes the
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placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through the Agents as agents or to one or more Agents
as principal), as of the date of each delivery of Notes (whether through the
Agents as agents or to one or more Agents as principal) (the date of each such
delivery to one or more Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in, the
interest rates, maturity or price of Notes or similar changes) or there is filed
with the Commission any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating exclusively to the issuance
of debt securities under the Registration Statement other than the Notes) (each
of the times referenced above being referred to herein as a "Representation
Date") as follows:
(a) The Registration Statement in respect of the Notes has
been filed with the Commission; such Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to the Agents (excluding exhibits thereto but including all documents
incorporated by reference in the Prospectus), have been declared
effective by the Commission in such form; and no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission.
(b) No order preventing or suspending the use of the
Prospectus has been issued by the Commission, and the Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the 1933 Act and
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the 1933 Act Regulations, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Agents expressly
for use therein.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the 1933 Act or the 1934
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Agents
specifically for use therein.
(d) The Registration Statement and the Prospectus conform, and
any amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the 1933 Act, the 1939 Act and the rules and regulations of the
Commission thereunder, and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Agents specifically for use therein.
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(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material change in the capital stock or long-term debt of the
Company or any of its Significant Subsidiaries (as defined in Rule 405
under the 1933 Act) (other than changes arising from funding activities
which have not resulted in any material change in the Company's
ownership of such Significant Subsidiaries or in the long term debt of
the Company and its subsidiaries taken as a whole) or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, consolidated
financial position or consolidated results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus.
(f) The Company (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and each Significant Subsidiary of the
Company has been duly incorporated and is validly existing as a
corporation and is in good standing under the laws of its jurisdiction
of incorporation, (B) has or, in the case of the Indenture, had the
requisite corporate power and authority to execute and deliver this
Agreement, any Terms Agreement, the Indenture and the Notes and has the
requisite corporate power and authority to perform its obligations
hereunder and thereunder, and (C) has duly authorized, executed and
delivered this Agreement and at the time of the execution of any Terms
Agreement will have duly authorized, executed and delivered such Terms
Agreement and this Agreement constitutes and any such Terms Agreement
will constitute the valid and binding agreement of the Company.
(g) The Company has an authorized capitalization as
set forth in the Prospectus.
(h) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will have been duly authorized, executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Indenture has been duly authorized
by the Company and is duly qualified under the 1939 Act and
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constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Notes and the Indenture will conform in all
material respects to the descriptions thereof in the Prospectus.
(i) The issue and sale of the Notes by the Company and the
compliance by the Company with all of the provisions of this Agreement,
any Terms Agreement and the Indenture and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, which conflict,
breach or default would have a material adverse effect on the
consolidated financial position or consolidated results of operations
of the Company, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, which violation in each case would have a material
adverse effect on the consolidated financial position or consolidated
results of operations of the Company; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Notes or the consummation by the Company of the transactions
contemplated by this Agreement, any Terms Agreement or the Indenture,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under the 1933 Act and the 1939 Act
or under state or foreign securities or Blue Sky laws.
(j) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject, which are
probable to result in an adverse determination and which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the consolidated
financial position or consolidated results of operations of the
Company; and, to the best of the Company's knowledge, no such
proceedings are
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threatened or contemplated by governmental authorities or
threatened by others.
(k) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(l) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, the patents, patent rights, licenses,
invention, copyrights (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names presently
employed by them in connection with the businesses now operated by
them, except where the failure to own or possess or have the ability to
acquire would not have a material adverse effect on the consolidated
financial position or consolidated results of operations of the
Company, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse effect on the
consolidated financial position or consolidated results of operations
of the Company.
(b) Additional Certifications. Any certificate signed by any director
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or officer of the Company and delivered to the Agents or to counsel to the
Agents in connection with an offering of Notes or the sale of Notes to one or
more of the Agents as principal shall be deemed a representation and warranty by
the Company to the Agents as to the matters covered thereby on the date of such
certificate and, to the extent contemplated by such certificate, at each
Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principals.
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(a) Solicitations as Agents. On the basis of the representations and
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warranties herein contained, but subject to the terms and conditions herein set
forth, the Agents agree, when acting as agents of the Company, to use their
reasonable efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
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The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and the Agents, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto; provided, however, that the Company shall only be obligated to pay one
such fee with respect to any particular Note so sold.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the Agents and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of $1,000 and integral multiples thereof. All Notes sold through
the Agents as agents will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and the Agents.
(b) Purchases as Principal. Each sale of Notes to one or more Agents as
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principal shall be made in accordance with the terms contained herein and, if
requested by such Agent, pursuant to a separate agreement which will provide for
the sale of such Notes to, and the purchase and reoffering thereof by, such
Agent or Agents. Each such separate agreement (which may be an oral agreement)
between one or more Agents and the Company, is herein referred to as a "Terms
Agreement". Unless the context otherwise requires, each reference contained
herein to "this Agreement" shall be deemed to include any Terms Agreement
between the Company and one or more Agents. Each such Terms Agreement, whether
oral or in writing, shall be with respect to such information (as applicable) as
is specified in Exhibit A hereto. An Agent's commitment to purchase Notes as
principal pursuant to any Terms Agreement or otherwise shall be deemed to have
been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of Notes to be
purchased by each Agent pursuant thereto, the price to be paid to the Company
for such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agents in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. The
Agents may utilize a selling or dealer group in connection with the resale of
the Notes purchased. Such Terms Agreement shall also specify whether or not any
of the officer's certificate, opinions of counsel or comfort letter specified in
Sections 7(b),
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7(c) and 7(d) hereof shall be required to be delivered by the Company on the
related Settlement Date.
(c) Administrative Procedures. Administrative procedures with respect
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to the sale of Notes shall be agreed upon from time to time by the Agents and
the Company (the "Procedures"). Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
(d) Delivery of Closing Documents. The documents required to be
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delivered by Section 5 hereof shall be delivered at the office of Brown & Wood,
One World Trade Center, 58th Floor, New York, New York 10048, on the date
hereof, or at such other time or place as the Agents and the Company may agree.
SECTION 4. Covenants of the Company.
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The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will promptly notify (i) the
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Agents of the effectiveness of any amendment to the Registration Statement, (ii)
the related Agent or Agents of the transmittal to the Commission for filing of
any supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (iii) the
Agents of the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) the Agents of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or for additional information, and (v) the
Agents of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. Except as otherwise provided in
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subsection (k) of this Section, the Company will give the Agents notice of its
intention to file any additional registration statement with respect to the
registration of additional Notes, any amendment to the Registration Statement or
any amendment or supplement to the
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Prospectus (other than an amendment or supplement providing solely for the
establishment of or change in, the interest rates, maturity or price of Notes or
other similar changes or an amendment or supplement which relates exclusively to
an offering of debt securities under the Registration Statement other than the
Notes and other than an amendment or supplement arising through incorporation by
reference) whether by the filing of documents pursuant to the 1933 Act or
otherwise, and will furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time in advance
of such proposed filing. In the case of the filing of any such amendment or
supplement or other document filed pursuant to the 1934 Act, the Company will
furnish the Agents with copies of such amendment or supplement or other document
within one day of the filing thereof. Following any such filing pursuant to the
1934 Act, each Agent shall have the right to suspend solicitation of purchases
of the Notes until such time as such Agent shall reasonably determine that
solicitation of purchases should be resumed or such Agent shall subsequently
enter into a new Terms Agreement with the Company, and any such suspension shall
not be deemed a breach of such Agent's agreement contained herein.
(c) Copies of the Registration Statement and the Prospectus. The
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Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) (other than an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) as the Agents shall reasonably
request so long as the Agent is required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
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respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
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provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel to the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order
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that the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice shall
be given, and confirmed in writing, to the Agents to cease the solicitation of
offers to purchase the Notes in the Agents' capacity as agents and to cease
sales of any Notes the Agents may then own as principal pursuant to a Terms
Agreement, and the Company will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to the 1934
Act, the 1933 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
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otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing.
(g) Earnings Statements. The Company, by applying the provisions of
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Rule 158 under the 1933 Act, will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
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with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company 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. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any
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notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(i) 1934 Act Filings. The Company, during the period when the
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Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act. Such documents will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and to the extent such documents are incorporated by reference in
the Prospectus, when read together with the other information in or incorporated
by reference into the Prospectus, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(j) Stand-Off Agreement. Between the date of any Terms Agreement and
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the Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior written consent of each Agent party to such Terms Agreement,
directly or indirectly, sell, offer to sell, contract to sell or otherwise
dispose of, or announce the offering of, any debt securities denominated in the
same currency as the Notes to be purchased pursuant to such Terms Agreement, or
any security exchangeable into such debt securities (other than the Notes that
are to be sold pursuant to such Terms Agreement and commercial paper in the
ordinary course of business), except as may otherwise be provided in any such
Terms Agreement.
(k) Suspension of Certain Obligations. The Company shall not be
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required to comply with the provisions of subsections (a), (b), (c), (e), (f) or
(i) of this Section or the provisions of Section 7 hereof during any period from
the time (i) the Agents shall have received written notification from the
Company to suspend solicitation of purchases of the Notes in their capacity as
agents and (ii) the earlier of the date on which no Agent shall then hold any
Notes as principal purchased pursuant to a Terms Agreement and the date which is
fifteen days (nine months with respect to subsections (e) and (i) of this
Section) from the date on which the Agents shall have received written notice
from the Company to suspend solicitation of purchases of the Notes, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with the
Agents.
(l) Use of Proceeds. The net proceeds from the sale of Notes will
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be used by the Company as described in the Prospectus.
(m) Termination of Sale in Certain Circumstances. Any person who
--------------------------------------------
has agreed to purchase and pay for any Note pursuant
13
to a solicitation by any of the Agents shall have the right to refuse to
purchase such Note if, subsequent to the agreement to purchase such Note, any
change, condition or development specified in any of Sections 12(b)(i) through
12(b)(v) shall have occurred (with the judgment of the Agent which presented the
offer to purchase such Note being substituted for any judgment of a selling
Agent required therein) the effect of which is, in the judgment of the Agent
which presented the offer to purchase such Note, so material and adverse as to
make it impractical or inadvisable to proceed with the sale and delivery of such
Note (it being understood that under no circumstances shall any such Agent have
any duty or obligation to the Company or to any such person to exercise the
judgment to be exercised under this Section 4(m)).
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of the Agents to solicit offers to purchase the Notes
as agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of the Agents to purchase Notes
as principals pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties in all material respects (to the
extent any such representation or warranty is not otherwise qualified therein)
on the part of the Company herein contained and to the accuracy of the
statements of the Company's officers made in any certificate, to the extent
contemplated by such certificate, furnished pursuant to the provisions hereof,
to the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
--------------
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents and their counsel:
(1) Opinion of Company Counsel. The opinion of Andrew
--------------------------
D. Hendry, Esq., Senior Vice President, General Counsel and Secretary
of the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus.
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns
or leases real properties, or conducts any business, so as to
require such qualification,
14
except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall
state that he believes that both the Agents and he are
justified in relying upon such opinions and certificates).
(iii) Each Significant Subsidiary had been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
and all of the issued shares of capital stock of each such
Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and nonassessable, and (except for
directors' qualifying shares and except as otherwise set forth
in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims.
(iv) The Company has an authorized capitalization
as set forth in the Prospectus.
(v) This Agreement has been duly authorized,
executed and delivered by the Company.
(vi) The issuance and sale of the Notes have been
duly authorized by all necessary corporate action of the
Company. The Notes when duly authenticated by the Trustee and
issued in accordance with the provisions of this Agreement and
the Indenture will be duly executed, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture;
and the Notes and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus as
amended or supplemented under the heading "Description of Debt
Securities" and "Description of Notes".
(vii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding instrument of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly
qualified under the 1939 Act.
15
(viii) The issue and sale of the Notes by the Company
and the compliance by the Company with all of the provisions
of this Agreement, any Terms Agreement, the Indenture and the
Notes, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel as being material to the Company and its
subsidiaries taken as a whole to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
which conflict, breach or default would have a material
adverse effect on the consolidated financial position or
consolidated results of operations of the Company, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties, which violation in each case would
have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company.
(ix) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Notes or the consummation by the Company of the
transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as may be
required under the 1933 Act and the 1939 Act and those under
state securities, Blue Sky or foreign laws.
(x) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its
subsidiaries is the subject which are probable to result
in an adverse determination and which, if determined
adversely to the Company or any of its subsidiaries,
would have a materil adverse effect on the consolidated
financial position or the annual pre-tax consolidated
results of operations of the Company; and, to the best
of such counsel's knowledge, without special inquiry,
no such proceedings are
16
threatened or contemplated by governmental authorities
or threatened by others.
(xi) To the best of such counsel's knowledge, all
contracts or other documents of a character required to be
filed as exhibits to the Registration Statement or required to
be incorporated by reference into the Prospectus or described
in the Registration Statement or the Prospectus have been
filed or incorporated by reference or described as required.
(xii) The Registration Statement has been declared
effective under the 1933 Act and, to their knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(xiii) The Registration Statement and the Prospectus,
or any further amendments or supplements thereto made by the
Company prior to the date hereof (other than the financial
statements and related schedules therein and other financial
data or the Statement of Eligibility on Form T-1 of the
Trustee under the Indenture, as to which such counsel need
express no opinion), when the Registration Statement became
effective complied, and as of the date hereof comply, as to
form in all material respects with the requirements of the
1933 Act and the 1939 Act and the rules and regulations of the
Commission thereunder.
(xiv) The information in the Prospectus under the
caption "Description of Notes", "Description of Debt
Securities", and information, if any, in the Prospectus under
the caption "United States Taxation" (or similar caption), to
the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by such counsel or by attorneys under the
supervision of such counsel and is correct in all material
respects.
(xv) The documents incorporated by reference into
the Registration Statement and the Prospectus or any further
amendments or supplements thereto made by the Company prior to
the date hereof (other than the financial statements and
schedules therein and other financial data or the Statement of
Eligibility on Form T-1 of the Trustee under the Indenture, as
to which such counsel need express no opinion), at the time
they were filed, complied, and as of the date hereof comply,
as to form in all material respects with the
17
requirements of the 1933 Act and the 1934 Act and the
rules and regulations of the Commission thereunder.
In giving such opinion such counsel shall also state that in the course
of his duties as General Counsel of the Company he consults with other
officers of the Company as to ongoing matters, and he or an attorney
under his supervision has reviewed the Registration Statement and the
Prospectus and has participated in the preparation of documents
incorporated by reference therein and, although such counsel has not
made any other specific inquiry for the purpose of rendering this
opinion and is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement and Prospectus, no facts have come to
such counsel's attention that lead it to believe that the Registration
Statement at the time it became effective, or any further amendment
thereto (including the filing of an Annual Report on Form 10-K with the
Commission), as of its effective date, or (if such opinion is being
delivered in connection with a Terms Agreement pursuant to Section 7(c)
hereof) at the date of any Terms Agreement and at the Settlement Date
with respect thereto, as the case may be, contains or contained an
untrue statement of a material fact or omits or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, or any
further amendment or supplement thereto, as of its date, or (if such
opinion is being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms Agreement and
at the Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact or omitted
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 or that, as of the date hereof, either the Registration
Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to the date hereof contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that
such counsel has not been required to and does not express any comment
with respect to the financial statements and schedules and other
financial data included in the Registration Statement or Prospectus or
the Statement of Eligibility on Form T-1 of the Trustee under the
Indenture).
In giving the opinion required by this Section 5(a)(1), such
counsel shall be entitled to rely upon opinions of local counsel and
tax counsel and, in respect of matters of fact, upon certificates of
officers of the Company or its
18
subsidiaries, provided that such counsel shall state that he believes
that both the Agents and he are justified in relying upon such opinions
and certificates.
(2) Opinion of Counsel to the Agents. The opinion of Brown &
--------------------------------
Wood, counsel to the Agents, with respect to the incorporation of the
Company, this Agreement, the Notes and the Indenture, and other related
matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
In giving such opinion Brown & Wood shall additionally state that they
do not believe that the Registration Statement, at the time it became
effective, and if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement and prior to the date of such statement, then at the time
such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference in the
Registration Statement and Prospectus), and at the date hereof, or (if
such opinion is being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms Agreement and
at the Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact or omits
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
that the Prospectus, as amended or supplemented at the date hereof, or
(if such opinion is being delivered in connection with a Terms
Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement and at the Settlement Date with respect thereto, as the case
may be, contains or contained an untrue statement of a material fact or
omits or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. Such counsel may state that they
express no view as to the financial statements and other financial data
included or incorporated by reference in such Registration Statement or
Prospectus.
(b) Officers' Certificate. At the date hereof the Agents shall have
---------------------
received a certificate of the President or any Vice President and the chief
financial, chief accounting officer or treasurer of the Company, dated as of the
date hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any Terms Agreement, there has not been any material adverse change,
or any development involving a prospective material adverse change, in or
affecting
19
the general affairs, consolidated financial position or consolidated results of
operations of the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, otherwise than as set
forth or contemplated in the Prospectus, (ii) the other representations and
warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date of
such certificate, (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and, to their
knowledge, no proceedings for that purpose have been initiated or threatened by
the Commission.
(c) Comfort Letter. On the date hereof, the Agents shall have received
--------------
a letter from Arthur Andersen LLP, dated as of the date hereof and in form and
substance previously agreed to by the Company and the Agents.
(d) Other Documents. On the date hereof and on each Settlement Date
---------------
with respect to any Terms Agreement, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as therein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be reasonably satisfactory in form and
substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agents, any Terms Agreement) may be terminated by the Agents by
notice to the Company at any time and any such termination shall be without
liability of any party to any other party, except that the covenant regarding
provision of an earnings statement set forth in Section 4(g) hereof, the
provisions concerning payment of expenses under Section 10 hereof, the indemnity
and contribution agreements set forth in Sections 8 and 9 hereof, the provisions
concerning the representations, warranties and agreements to survive delivery
set forth in Section 11 hereof and the provisions set forth under "Parties" of
Section 15 hereof shall remain in effect.
20
SECTION 6. Delivery of and Payment for Notes Sold through the
--------------------------------------------------
Agents.
------
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its reasonable loss of the use of the funds for the
period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
-----------------------------------------------
acceptance by it of an offer for the purchase of Notes, and each delivery of
Notes to one or more Agents pursuant to a Terms Agreement, shall be deemed to be
an affirmation that the representations and warranties of the Company contained
in this Agreement and in any certificate theretofore delivered to the Agents
pursuant hereto, to the extent contemplated by such certificate, are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or its agent, or to the Agent or Agents,
of the Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Subject to the provisions of
-----------------------------------
Section 4(k) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a supplement providing solely
for the establishment of the interest rates, maturity or price of Notes or
similar terms, and other than by an amendment or supplement which relates
exclusively to an offering of debt securities under the Registration Statement
other than the Notes) or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities under the
Registration Statement other than the Notes) or (if required pursuant to the
terms of a Terms Agreement) the Company sells
21
Notes to one or more Agents pursuant to a Terms Agreement, if requested by the
Agents or counsel to the Agents, the Company shall furnish or cause to be
furnished to the Agents forthwith a certificate dated the date of filing with
the Commission of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form reasonably
satisfactory to the Agents to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were last furnished to the
Agents are true and correct at the time of such amendment, supplement, filing or
sale, as the case may be, 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 and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(b), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate; provided, however, that if the Company shall determine that it does
not intend to be in the market for up to three months after the date of filing
of any such amendment or supplement, the Company may deliver to the Agents a
notice to such effect, in which event the request of the Agents received by the
Company with respect to such amendment or supplement shall be deemed withdrawn
until such time as the Company notifies the Agents that it wishes to re-enter
the market.
(c) Subsequent Delivery of Legal Opinions. Subject to the provisions of
-------------------------------------
Section 4(k) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a supplement providing solely
for the establishment of the interest rates, maturity or price of the Notes or
similar terms or solely for the inclusion of additional financial information,
and other than by an amendment or supplement which relates exclusively to an
offering of debt securities under the Registration Statement other than the
Notes) or there is filed with the Commission any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K) or (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
one or more Agents pursuant to a Terms Agreement, if requested by the Agents or
counsel to the Agents, the Company shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents a written opinion of the
General Counsel of the Company or other counsel selected by the Company and
reasonably satisfactory to the Agents dated the date of filing with the
Commission of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form reasonably
satisfactory to the Agents, of substantially the same tenor as the opinion
referred to in Section 5(a)(1) hereof, but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of
22
such opinion; or, in lieu of such opinion, counsel last furnishing such opinion
to the Agents shall furnish the Agents with a letter substantially to the effect
that the Agents may rely on such last opinion to the same extent as though it
was dated the date of such letter authorizing reliance (except that statements
in such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance); provided, however, that if the Company shall
determine that it does not intend to be in the market for up to three months
after the date of filing of any such amendment or supplement, the Company may
deliver to the Agents a notice to such effect, in which event the request of the
Agents received by the Company with respect to such amendment or supplement
shall be deemed withdrawn until such time as the Company notifies the Agents
that it wishes to re-enter the market.
(d) Subsequent Delivery of Comfort Letters. Subject to the provisions
--------------------------------------
of Section 4(k) hereof, each time that the Registration Statement or the
Prospectus shall be amended by the filing of a post-effective amendment with the
Commission under the 1933 Act (and not by incorporation by reference) to include
additional financial information or there is filed with the Commission the
Company's Annual Report on Form 10-K or (if required pursuant to the terms of a
Terms Agreement) the Company sells Notes to one or more Agents pursuant to a
Terms Agreement, the Company shall cause Arthur Andersen LLP, or other
independent certified public accountants reasonably satisfactory to the Agents,
forthwith to furnish the Agents with a letter, dated the date of effectiveness
of such amendment, the date of filing with the Commission of such Form 10-K, or
the date of such sale, as the case may be, in form reasonably satisfactory to
the Agents, of substantially the same tenor as the letter referred to in Section
5(c) hereof but modified to relate to the Registration Statement and Prospectus,
as amended and supplemented to the date of such letter, and with such changes as
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify
-----------------------------
severally and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred (to the extent the party seeking such indemnity is
currently required to make a payment in respect of which such indemnity is
sought), arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration
23
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all reasonable expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by an Agent),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto).
(b) Indemnification of Company. Each Agent severally agrees to indemnify and
--------------------------
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred (to the extent the party seeking such indemnity is
currently required to make a payment in respect of which such indemnity is
sought), but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in
24
conformity with written information furnished to the Company by such Agent
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to each
-------
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified party
by retaining counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) Foreign Currency Judgments. The Company agrees to indemnify the Agents
--------------------------
against any loss incurred by the Agents as a result of any judgment or order
being given or made for the amount due under this Agreement and such judgment or
order being paid in a currency (a "Judgment Currency") other than U.S. dollars
as a result of any variation between (i) the rate of exchange at which U.S.
dollars are converted into the Judgment Currency for the purpose of such
judgment or order and (ii) the rate of exchange at which the applicable Agent is
able to purchase U.S. dollars with the amount of the Judgment Currency actually
received by such Agent. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
25
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 is unavailable or insufficient
to hold harmless an indemnified party thereunder, 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 Section 8 in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and each Agent on the other from the offering of the
Notes and also to reflect the relative fault of the Company on the one hand and
each 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 Company
on the one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of Notes by such Agent
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Agent. 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 Company
or an 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 Section 9 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 the subject of this Section 9. Notwithstanding the provisions of
this Section 9, an Agent shall not be required to contribute any amount in
excess of the amount by which the total price at which the Notes sold by such
Agent and distributed to the public 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 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as an Agent, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company.
26
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its obligations
under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and
any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery
of the Notes, including any fees and expenses relating to
the use of book-entry notes;
(d) The reasonable fees and disbursements of the
Company's accountants and counsel, of the Trustee and its
counsel and of any Calculation Agent;
(e) The reasonable fees and disbursements of one counsel to the
Agents incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees,
and the reasonable fees and disbursements of counsel to the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto;
(h) The preparation, printing, reproducing and
delivery to the Agents of copies, as reasonably requested,
of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating
of the Notes;
(j) The filing fees, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses
of the Agents incurred with the approval of such expense by
the Company;
27
(l) The cost of preparing, and providing any CUSIP or
other identification numbers for, the Notes; and
(m) The fees and expenses of any Depository (as
defined in the Indenture) and any nominees thereof in
connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
-----------------------------
Agreement) may be terminated for any reason, at any time by either the Company
or the Agents on the giving of 15 days' written notice of such termination to
the other party hereto; provided, however, that the termination of this
Agreement by an Agent shall terminate this Agreement only between such Agent and
the Company and the Company's notice of termination as to any one Agent shall
terminate this Agreement only between itself and such Agent.
(b) Termination of a Terms Agreement. The Agent or Agents party to a
--------------------------------
Terms Agreement may terminate any Terms Agreement, immediately upon notice to
the Company, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
consolidated financial position or consolidated results of operations of the
Company, whether or not arising in the ordinary course of business, or (ii) if
there shall have occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Agent or Agents
party to such Terms Agreement (after consultation with the Company),
impracticable to market the Notes subject to such Terms Agreement or enforce
contracts for the sale of such Notes, or (iii) if trading in any securities of
the Company has been suspended by the Commission or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
28
New York Stock Exchange shall have been suspended other than a temporary
suspension in trading (not to exceed two hours) to provide for an orderly
market, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by federal or New York authorities
or if a banking moratorium shall have been declared by the relevant authorities
in the country or countries of origin of any foreign currency or currencies in
which the Notes subject to such Terms Agreement are denominated or payable, or
(iv) if the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of any Terms
Agreement shall have been lowered since that date or if any such rating agency
shall have publicly announced since that date that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for possible
downgrading, or (v) if the Prospectus, at the time it was required to be
delivered to a purchaser of Notes subject to such Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, no party will have
-------
any liability to any other party hereto, except that (i) each Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) the Agents shall own
any Notes purchased pursuant to a Terms Agreement with the intention of
reselling them or (b) an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of the Note
or Notes relating thereto has not occurred, the obligations set forth in Section
5 hereof and the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be
(provided, however, that, except as provided in clause (iii) below, the
Company's obligations pursuant to Sections 4 and 7 hereof shall in any event
terminate no later than the date that is fifteen days (nine months with respect
to subsections (e) and (i) of Section 4 hereof) after the time of such
termination), and (iii) the covenant set forth in Section 4(g) hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof, and
the provisions of Sections 10, 11 and 15 hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, by telecopier or by
29
telegram, and any such notice shall be effective when received at the address
specified below.
If to the Company:
Colgate-Palmolive Company
300 Park Avenue
New York, New York 10022
Attention: Treasurer
Telecopy: (212) 310-2873
If to Chemical:
Chemical Securities Inc.
270 Park Avenue, 6th Floor
New York, NY 10017
Attention: Medium-Term Note Desk
Telecopy: (212) 834-6526
If to Citicorp:
Citicorp Securities, Inc.
399 Park Avenue
New York, New York 10043
Attention: Capital Markets Execution
Telecopy: (212) 291-3910
If to Goldman Sachs:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Telecopy: (212) 363-7609
If to Lazard:
Lazard Freres & Co. LLC
30 Rockefeller Plaza
New York, New York 10020
Attention: Syndicate Department
Telecopy: (212) 632-6060
30
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (212) 449-2234
If to J.P. Morgan:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Medium-Term Note Desk, 3rd Floor
Telecopy: (212) 648-5909
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
-------------
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
SECTION 16. Counterparts.
------------
31
This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
SECTION 17. Captions.
--------
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or the provisions hereof.
SECTION 18. Additional Agents.
-----------------
Notwithstanding anything contrary contained in this Agreement, the
Company may from time to time appoint one or more additional agents (each, an
"Additional Agent" and collectively, the "Additional Agents") in accordance with
the following provisions:
(a) Appointment of Agent. The Company may appoint an
--------------------
Additional Agent or Agents, to act as an agent pursuant to the terms and
conditions set forth in this Agreement, provided that (i) such Additional Agent
shall deliver to the Company a letter substantially in the form of Exhibit B-1
hereto, and (ii) the Company shall have delivered to such Additional Agent a
letter substantially in the form of Exhibit C-1 hereto.
(b) Notice of Appointment of Additional Agents. The Company
------------------------------------------
shall promptly notify the Agents of any such appointment pursuant to subsection
(a) of this Section 18 by supplying to such parties a copy of the applicable
letter or letters.
(c) Effect of Appointment. Upon satisfaction by the Company
---------------------
and any Additional Agent of the provisions of subsections 18(a) and (b) of this
Section 18, such Additional Agent shall be deemed to be an Agent hereunder and
all references to "Agent" in this Agreement shall be deemed to include such
additional Agent from and after the date such provisions are satisfied and such
appointment is effective.
32
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By: /s/ Brian J. Heidtke
--------------------------------
Name: Brian J. Heidtke
Title: Vice President, Finance
Corporate Treasurer
Accepted:
CHEMICAL SECURITIES INC.
By: /s/ Robert L. Taylor
----------------------------
Name: Robert L. Taylor
Title: Managing Director
CITICORP SECURITIES, INC.
By: /s/ Kerry Kearny
----------------------------
Authorized Signatory
Goldman, Sachs & Co.
- -----------------------------
(Goldman, Sachs & Co.)
LAZARD FRERES & CO. LLC
By: /s/ David G. McMillan
----------------------------
Name: David G. McMillan
Title: Senior Vice President
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
----------------------------
Name: Scott G. Primrose
Title: Authorized Signatory
33
J.P. MORGAN SECURITIES INC.
By: /s/ Maria Sramek
----------------------------
Name: Maria Sramek
Title: Vice President
34
Exhibit A
The following terms, if applicable, shall be agreed to by the Agents
and the Company pursuant to each Terms Agreement:
Principal Amount: $__________
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: ____%
Agent's Discount or Commission:
Settlement Date and Time:
Additional Terms:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[ ] 30/360 for the period
from_________to_________.
[ ] Actual/360 for the period
from_________to_________.
[ ] Actual/Actual for the period
from_________to_________.
If Floating Rate Note:
Interest Calculation:
[ ] Regular Floating Rate Note
[ ] Floating Rate/Fixed Rate Note
Fixed Rate Commencement Date:
Fixed Interest Rate:
[ ] Inverse Floating Rate Note
Fixed Interest Rate:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
A-1
Day Count Convention:
[ ] 30/360 for the period from
from_________to_________.
[ ] Actual/360 for the period
from_________to_________.
[ ] Actual/Actual for the period
from_________to_________.
If Redeemable:
Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Currency:
Specified Currency (if other than U.S.
dollars)
Minimum Denominations:
Also, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement.
Legal Opinion of counsel to the Agents.
A-2
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the related Agent, on a discount basis, a commission for the sale of
each Note by such Agent equal to the principal amount of such Note multiplied by
the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
1 year to less than 18 months........................... .150%
18 months to less than 2 years.......................... .200
2 years to less than 3 years............................ .250
3 years to less than 4 years............................ .350
4 years to less than 5 years............................ .450
5 years to less than 6 years............................ .500
6 years to less than 7 years............................ .550
7 years to less than 8 years............................ .600
8 years to less than 9 years............................ .600
9 years to less than 10 years........................... .600
10 years to less than 15 years.......................... .625
15 years to less than 20 years.......................... .700
20 years to 30 years.................................... .750
More than 30 years...................................... To be negotiated
between the Agent and
the Company at the time
of such sale.
Sch. A
EXHIBIT B-1
FORM OF LETTER APPOINTING ADDITIONAL AGENT- PROGRAM
---------------------------------------------------
[ ], 199[ ]
To: Colgate-Palmolive Company
300 Park Avenue
New York, New York 10022
Attention: Treasurer
Re: Medium-Term Notes of Colgate-Palmolive
Company (the "Company")
--------------------------------------
Dear Sirs:
We refer to Section 18(a) of the Distribution Agreement dated March 27,
1996 entered into with respect to the distribution of the Company's Medium-Term
Notes (the "Notes"), and made between the Company and the Agents party thereto
(which agreement, as amended from time to time, is herein referred to as the
"Distribution Agreement").
Conditions Precedent
- --------------------
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Distribution Agreement;
(ii) copies of such documents referenced in the
Distribution Agreement as we have reasonably
requested; and
(iii) side letters in a form approved by us from
the legal counsel referred to in Section
5(a)(1) and 5(a)(2), if required, of the
Distribution Agreement addressed to us and
giving us the full benefit of the existing
legal opinions.
For the purposes of Section 13 of the Distribution Agreement, our name,
address, telephone and telecopy number for the service of notices are as
follows:
[insert name, address, telecopy number and attention]
In consideration of the Company appointing us as an Agent under the
Distribution Agreement, we hereby undertake, for the benefit of the Company and
each of the other Agents, that we will perform and comply with all the duties
and obligations expressed to be assumed by an Agent under the Distribution
Agreement.
B-1
This letter is governed by, and shall be construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed wholly within such jurisdiction.
Very truly yours,
[NAME OF NEW AGENT]
By:
--------------------
Name:
Title:
B-2
EXHIBIT C-1
FORM OF COMPANY LETTER
----------------------
[ ], 199[ ]
To: [NAME AND ADDRESS OF NEW AGENT]
Re: Medium-Term Notes of Colgate-Palmolive
Company (the "Company")
--------------------------------------
Dear Sirs:
We refer to the Distribution Agreement dated March 27, 1996 (such
agreement, as amended from time to time, the "Distribution Agreement") entered
into in respect to the distribution of the Company's Medium Term Notes (the
"Notes") and hereby acknowledge receipt of your letter to us dated [ ].
In accordance with Section 18(a) of the Distribution Agreement, we
hereby confirm that, with effect from the date hereof, you shall become a party
to the Distribution Agreement, vested with all the authority, rights, powers,
duties and obligations of an Agent as if originally named as an Agent under the
Distribution Agreement.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:
----------------------------
Name:
Title:
cc: [Other Agents party to the
Distribution Agreement]
C-1