Exhibit 1.2
MALLINCKRODT GROUP INC.
$[ ]
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
.............., 19..
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
J.P. Morgan Securities Inc.
60 Wall Street
3rd Floor
New York, New York 10260
Ladies and Gentlemen:
Mallinckrodt Group Inc., a New York corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes (the
"Securities") in an aggregate amount up to $[ ], which are
among the debt securities registered under the Registration Statement (as
defined in Section 1(a) hereof), together with such amount of the Company's
debt securities subsequently registered under the Securities Act of 1933,
as amended (the "Act"), as the Company shall, by notice to the Agents, make
subject to this Agreement, but reduced by the aggregate amount of debt
securities so registered to be or that have been sold otherwise than
pursuant to this Agreement or any Terms Agreement (as defined below) and
agrees with each of you (individually, an "Agent", and collectively, the
"Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its
own behalf, the Company hereby (i) appoints each Agent as an agent of the
Company for the purpose of soliciting and receiving offers to purchase
Securities from the Company pursuant to Section 2(a) hereof and (ii) agrees
that, except as otherwise contemplated herein, whenever it determines to
sell Securities directly to any Agent as principal, it will enter into a
separate agreement (each, a "Terms Agreement"), substantially in the form
of Annex I hereto, relating to such sale in accordance with Section 2(b)
hereof. This Distribution Agreement shall not be construed to create
either an obligation on the part of the Company to sell any Securities or
an obligation of any of the Agents to purchase Securities as principal.
The Securities will be issued under an indenture, dated as of March
15, 1985, as amended and restated as of February 15, 1995, and as may be
further amended and supplemented (the "Indenture"), between the Company and
First Trust of New York, National Association, as trustee (the "Trustee").
The Securities shall have the maturity ranges, interest rates, if any,
redemption provisions and other terms set forth in the Prospectus referred
to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established,
from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) Two registration statements on Form S-3 (File No. 33-47081
and 33- ) in respect of the Securities have been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statements as they may have been amended prior to their
effectiveness and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to such Agent, have been
declared effective by the Commission in such form; no other document
with respect to such registration statement or document incorporated
by reference therein has heretofore been filed or transmitted for
filing with the Commission (other than the prospectuses filed pursuant
to Rule 424(b) of the rules and regulations of the Commission under
the Act and such other documents listed in Annex IV hereto, each in
the form heretofore delivered to the Agents); and no stop order
suspending the effectiveness of either of the registration statements
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included
in such registration statements or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission under
the Act, are hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statements, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in each of the registration statements at the time such part
of each of the registration statements became effective but excluding
Form T-1, each as amended at the time such part of each of the
registration statements became effective, is hereinafter collectively
called the "Registration Statement"; the prospectus (including, if
applicable, any prospectus supplement) relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
is hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Securities (a
"Pricing Supplement"), shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated therein by
reference; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance
with Section 4(a) hereof) in relation to Securities to be sold
pursuant to this Agreement, in the form filed or transmitted for
filing with the Commission pursuant to Rule 424(b) under the Act and
in accordance with Section 4(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents, at such time of effectiveness or filing, as the case may
be, 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
comply as to form in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and, at such time of effectiveness or
filing, as the case may be, 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 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 any
Agent expressly for use in the Prospectus as amended or supplemented
to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus comply as to
form, and any further amendments or supplements to the Registration
Statement or the Prospectus will comply as to form, in all material
respects with the requirements of the Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture 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 any Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock (except for subsequent issuances, if any, pursuant to
reservations or agreements referred to in the Prospectus and except
for subsequent repurchases by the Company not in excess of those
disclosed in the Registration Statement as authorized as of the date
the Registration Statement becomes effective) or any material change
in long-term debt of the Company or any of its subsidiaries or any
material adverse change in or affecting the general affairs, business
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(f) The Company has an authorized capitalization as set forth in
the Prospectus (except for subsequent issuances, if any, pursuant to
reservations or agreements referred to in the Prospectus and except
for subsequent repurchases by the Company not in excess of those
disclosed in the Registration Statement as authorized as of the date
the Registration Statement becomes effective) and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid, and, except as may be
otherwise provided by Section 630 of the New York Business Corporation
Law, non-assessable;
(g) The Securities have been duly authorized, and, when issued,
authenticated, delivered and paid for pursuant to the Indenture, this
Agreement and any Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles) entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms in all material respects and
the Securities of any particular issuance of Securities will conform
in all material respects to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of
Securities;
(h) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Terms Agreement, 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 material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-laws of the Company, as amended,
or (to the best of the Company's knowledge) 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 properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the solicitation of offers to purchase Securities, the issue and
sale of the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any Terms Agreement or
the Indenture, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained under
the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as principal,
as the case may be, in each case in the manner contemplated hereby;
(i) Neither the Company nor any of its signifiant subsidiaries,
as such term is defined in Rule 1-02 of Regulation S-X ("Significant
Subsidiaries") is in violation of its Certificate of Incorporation, as
amended, or By-laws, as amended. Neither the Company nor any of its
subsidiaries is in default in the performance or observance of any
obligation, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(j) The statements set forth in the Prospectus under the caption
"Description of the Securities", insofar as they purport to constitute
a summary of the terms of the Securities, under the caption "Federal
Income Tax Consequences", and under the caption "Plan of
Distribution", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(k) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the Company
or any of its subsidiaries is subject, 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 current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) The Company is not, and after giving effect to each offering
and sale of the Securities will not be, an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(m) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(n) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any debt securities of
the Company (other than such Securities) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement;
(o) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder; and
(p) The Securities, when issued, authenticated and delivered
pursuant to the provisions of this Agreement, any Terms Agreement and
the Indenture, will be excluded or exempted under the provisions of
the Commodity Exchange Act.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent
of the Company, to use its reasonable efforts to solicit and receive
offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. So long as this Agreement shall remain in effect with
respect to any Agent, the Company shall not, without the consent of
such Agent, solicit or accept offers to purchase, or sell, any debt
securities with a maturity at the time of original issuance of
9 months or more except pursuant to this Agreement, any Terms
Agreement, or except pursuant to a private placement not constituting
a public offering under the Act or except in connection with a firm
commitment underwriting pursuant to an underwriting agreement that
does not provide for a continuous offering of medium-term debt
securities. However, the Company reserves the right to sell, and may
solicit and accept offers to purchase, Securities directly on its own
behalf in transactions with persons other than broker-dealers, and, in
the case of any such sale not resulting from a solicitation made by
any Agent, no commission will be payable with respect to such sale.
These provisions shall not limit Section 4(f) hereof or any similar
provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in
the Administrative Procedure. The Company will furnish to the
Trustee a copy of the Administrative Procedure as from time to time in
effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities.
As soon as practicable, but in any event not later than one business
day in New York City, after receipt of notice from the Company, the
Agents will suspend solicitation of offers to purchase Securities from
the Company until such time as the Company has advised the Agents that
such solicitation may be resumed. During such period, the Company
shall not be required to comply with the provisions of Sections 4(h),
4(i), 4(j) and 4(k). Upon advising the Agents that such solicitation
may be resumed, however, the Company shall simultaneously provide the
documents required to be delivered by Sections 4(h), 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to
purchase the Securities until such documents have been received by the
Agents. In addition, any failure by the Company to comply with its
obligations hereunder, including without limitation its obligations to
deliver the documents required by Sections 4(h), 4(i), 4(j) and 4(k),
shall automatically terminate the Agents' obligations hereunder,
including without limitation its obligations to solicit offers to
purchase the Securities hereunder as agent or to purchase Securities
hereunder as principal.
The Company may authorize any other firm (an "Additional Agent")
to act as its agent to solicit offers for the purchase of Securities
upon 24 hours' prior notice to such Agents as are at the time parties
to this Agreement. Each Additional Agent shall execute a copy of this
Agreement and become a party hereto. From and after the time such
Additional Agent shall have executed a copy of this Agreement, the
term "Agents" as used in this Agreement shall mean the Agents and such
Additional Agent.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
From more than 30 years to less than 50 years .875%
50 years and more 1.000%
(b) Each sale of Securities to any Agent as principal shall
be made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree) a Terms Agreement which
will provide for the sale of such Securities to, and the purchase
thereof by, such Agent; a Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by such
Agent; the commitment of any Agent to purchase Securities as
principal, whether 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 Securities to be purchased by any
Agent pursuant thereto, the price to be paid to the Company for such
Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment
for such Securities; and such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof. Each Agent
proposes to offer Securities purchased by it as principal for sale at
prevailing market prices or prices related thereto at the time of
sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by such Agent from the Company.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to
the issue and delivery of such Securities and payment therefor shall
be as set forth in the Administrative Procedure. For each such sale
of Securities to an Agent as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay such Agent a commission (or
grant an equivalent discount) as provided in Section 2(a) hereof and
in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to
be purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated
in a currency other than U.S. dollars, as agent, directly or
indirectly, not to solicit offers to purchase, and as principal under
any Terms Agreement or otherwise, directly or indirectly, not to
offer, sell or deliver, such Security in, or to residents of, the
country issuing such currency, except as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to
the Agents at the offices of Mayer, Brown & Platt, Chicago, Illinois at
11:00 a.m., New York City time, on the date of this Agreement, which date
and time of such delivery may be postponed by agreement between the Agents
and the Company but in no event shall be later than the day prior to the
date on which solicitation of offers to purchase Securities is commenced or
on which any Terms Agreement is executed (such time and date being referred
to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which
shall be disapproved by any Agent promptly after reasonable notice
thereof or (B) after the date of any Terms Agreement or other
agreement by an Agent to purchase Securities as principal and prior to
the related Time of Delivery which shall be reasonably disapproved by
any Agent party to such Terms Agreement or so purchasing as principal
promptly after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to such Agent pursuant
to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file
such Pricing Supplement pursuant to Rule 424(b)(3) under the 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; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, at any
time prior to having afforded each Agent a reasonable opportunity to
review and comment thereon; (iv) to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Securities,
and during such same period to advise such Agent, promptly after the
Company receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or
by such Agent) has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (v) in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as such Agent may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein for as long as may be necessary to
complete the distribution or sale of the Securities; provided,
however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference
therein, all in such quantities as such Agent may reasonably request
from time to time; and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as
principal) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify such
Agent and request such Agent, in its capacity as agent of the Company,
to suspend solicitation of offers to purchase Securities from the
Company (and, if so notified, such Agent shall cease such
solicitations as soon as practicable, but in any event not later than
one business day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed
promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect
such compliance, provided, however, that if during such same period
such Agent continues to own Securities purchased from the Company by
such Agent as principal or such Agent is otherwise required to deliver
a prospectus in respect of transactions in the Securities, the Company
shall promptly prepare and file with the Commission such an amendment
or supplement; the Company will furnish without charge to each Agent
and to any dealer in securities as many copies as such Agent may from
time to time reasonably request of an amended prospectus or supplement
to the Prospectus which will correct such statement or omission or
effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, but in no event
later than three years after the last issuance of Securities issued
pursuant to this Agreement, to furnish to such Agent copies of all
reports or other communications (financial or other) furnished to
stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition
of the Company as such Agent may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal
and continuing to and including the later of (i) the termination of
the trading restrictions for the Securities purchased thereunder, as
notified to the Company by such Agent and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature more than 9
months after such Time of Delivery and are substantially similar to
the Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as
principal not pursuant to a Terms Agreement), and each execution and
delivery by the Company of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the representations and
warranties of the Company contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or of
such Terms Agreement, as the case may be, as though made at and as of
such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities
relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement), each time a document filed under the
Act or the Exchange Act is incorporated by reference into the
Prospectus, and each time the Company sells Securities to such Agent
as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion or opinions by Mayer, Brown &
Platt, counsel to the Agents, as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
to such counsel such papers and information as they may reasonably
request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement
or a prospectus supplement which relates to an offering of debt
securities other than the Securities), each time a document filed
under the Act or the Exchange Act is incorporated by reference into
the Prospectus and each time the Company sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of opinions under this Section 4(i)
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a written opinion of White & Case, counsel for
the Company, or other counsel for the Company satisfactory to such
Agent, and a written opinion of the general counsel of the Company
dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, to the effect that such Agent may rely on
the opinions of such counsel referred to in Sections 6(c) and 6(d)
hereof which were last furnished to such Agent to the same extent as
though they were dated the date of such letter authorizing reliance
(except that the statements in such last opinions shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinions, opinions of
the same tenor as the opinions of such counsel referred to in Sections
6(c) and 6(d) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date.
Notwithstanding the foregoing, the written opinion of White & Case, or
other counsel for the Company satisfactory to the Agents, shall refer
to matters specified in Section 6(c)(ix) of this Agreement to the
extent that (i) such matters were not referred to in the opinion last
given by such counsel and (ii) such matters are required to be
referred to by Section 6(c)(ix) of this Agreement;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented and each time that a document filed
under the Act or the Exchange Act is incorporated by reference into
the Prospectus, in either case to set forth financial information
included in or derived from the Company's consolidated financial
statements or accounting records, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of a letter under this
Section 4(j) as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall cause the independent
certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale,
as the case may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(e) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, 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, to the
extent such financial statements and other information are available
as of a date not more than five business days prior to the date of
such letter; provided, however, that, with respect to any financial
information or other matter, such letter may reconfirm as true and
correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or
other matter made in the letter referred to in Section 6(e) hereof
which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus and each time the
Company sells Securities to such Agent as principal and the applicable
Terms Agreement specifies the delivery of a certificate under this
Section 4(k) as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of
such supplement, amendment, incorporation or Time of Delivery relating
to such sale, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, to the
effect that the statements contained in the certificates referred to
in Section 6(j) hereof which were last furnished to such Agent are
true and correct at such date as though made at and as of such date
(except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(j) but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
from the Company as the result of an offer to purchase solicited by
such Agent the right to refuse to purchase and pay for such Securities
if, on the related settlement date fixed pursuant to the
Administrative Procedure, any condition set forth in Section 6(a),
6(f), 6(g) or 6(h) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities
shall be substituted, for purposes of this Section 4(l), for the
respective judgments of an Agent with respect to certain matters
referred to in such Sections 6(f) and 6(h), and that such Agent shall
have no duty or obligation whatsoever to exercise the judgment
permitted under such Sections 6(f) and 6(h) on behalf of any such
person).
5. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, production,
reproduction, printing and filing of the Registration Statement, any
Preliminary Prospectus, the Prospectus and any Pricing Supplements and all
other amendments and supplements thereto and the mailing and delivering of
copies thereof to such Agent; (ii) the reasonable fees, disbursements and
expenses of counsel for the Agents in connection with the establishment of
the program contemplated hereby, any opinions to be rendered by such
counsel hereunder and under any Terms Agreement and the transactions
contemplated hereunder and under any Terms Agreement; (iii) the cost of
printing, producing or reproducing this Agreement, any Terms Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iv) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the reasonable fees and disbursements of counsel for the
Agents in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (v) any fees charged by securities
rating services for rating the Securities; (vi) any filing fees incident
to, and the fees and disbursements of counsel for the Agents in connection
with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of
preparing the Securities; (viii) the reasonable fees and expenses of any
Trustee and any agent of any Trustee and any transfer or paying agent of
the Company and the fees and disbursements of counsel for any Trustee or
such agent in connection with any Indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Company; and (x) all other costs and expenses incident to
the performance by the Company of its obligations hereunder which are not
otherwise specifically provided for in this Section. Except as provided in
Sections 7 and 8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any
time ("Solicitation Time") to solicit offers to purchase the Securities and
the obligation of any Agent to purchase Securities as principal, pursuant
to any Terms Agreement or otherwise, shall in each case be subject, in such
Agent's discretion, to the condition that all representations and
warranties and other statements of the Company herein (and, in the case of
an obligation of an Agent under a Terms Agreement, in or incorporated by
reference in such Terms Agreement) are true and correct at and as of the
Commencement Date and any applicable date referred to in Section 4(k)
hereof that is prior to such Solicitation Time or Time of Delivery, as the
case may be, and at and as of such Solicitation Time or Time of Delivery,
as the case may be, the condition that prior to such Solicitation Time or
Time of Delivery, as the case may be, the Company shall have performed all
of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed with
the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission
shall have been complied with to the reasonable satisfaction of such
Agent;
(b) Mayer Brown & Platt, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the matters covered in paragraphs
(i) (insofar as it relates to the Company's valid existence and good
standing), (ii) (insofar as it relates to the authorized
capitalization of the Company) (iii), (iv), (v), (vii), (viii), (x)
and (xi) of subsection (c) below, as well as such other related
matters as such Agent may reasonably request, and (ii) if and to the
extent reasonably requested by such Agent, with respect to each
applicable date referred to in Section 4(h) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, an
opinion or opinions, dated such applicable date, to the effect that
such Agent may rely on the opinion or opinions which were last
furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter
authorizing reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in
any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in
clause (i) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date; and in each
case such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) White & Case, counsel for the Company, or other counsel for
the Company satisfactory to such Agent, shall have furnished to such
Agent their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof (with the exception
of the matters covered in paragraph (ix) of this subsection which will
be furnished at such times as required therein) that is on or prior to
such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent, 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 jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented (except
for subsequent issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus and except for
subsequent repurchases by the Company not in excess of those
disclosed in the Registration Statement as authorized as of
the date the Registration Statement becomes effective) and all
of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
except as may be otherwise provided by Section 630 of the New
York Business Corporation Law, non-assessable;
(iii) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the
Company;
(iv) The Securities have been duly authorized and, when
duly executed, authenticated, issued, paid for and delivered,
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture
(subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles); and the Indenture conforms and the
Securities will conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented;
(v) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization 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 Trust Indenture Act;
(vi) No consent, approval, authorization, order,
registration or qualification of or with any Federal or New
York state court or governmental agency or body is required
for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this
Agreement, any applicable Terms Agreement, or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase Securities
from the Company and with purchases of Securities by an Agent
as principal, as the case may be, in each case in the manner
contemplated hereby;
(vii) The statements set forth in the Prospectus under
the caption "Description of the Securities", insofar as they
purport to constitute a summary of the terms of the
Securities, under the caption "Federal Income Tax
Consequences", and under the caption "Plan of Distribution",
insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and
fair;
(viii) The Company is not and, after giving effect to
the offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(ix) The Securities when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
Indenture, will be excluded or exempted from the provisions of
the Commodity Exchange Act, assuming the accuracy of any
certifications of factual matters furnished by any Agent in
writing to the Company in connection with the issuance
thereof. The opinion specified in this Section 6(c)(ix) shall
be required only upon the request of any Agent in connection
with a specific issuance of Securities pursuant to this
Agreement.
(x) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and nothing has come to such
counsel's attention that has caused them to believe that any
of such documents (other than the financial statements and
related schedules therein, as to which such counsel need
express no belief), when they became effective or were so
filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
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, in the case
of other documents which were filed under the Act or the
Exchange Act with the Commission, 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 under which they were made when such documents
were so filed, not misleading; and
(xi) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of
such opinion (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (vii) of this Section 6(c), nothing has come to
such counsel's attention that has caused them to believe that,
as of its effective date, the Registration Statement or any
further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) 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 or that, as of the date of
such opinion, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(d) The general counsel of the Company shall have furnished to
such Agent his written opinions dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent to the extent that:
(i) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject 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 current or future consolidated
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(ii) The issue and sale of the Securities, the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any applicable
Terms Agreement 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 material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions
of the Certificate of Incorporation, as amended, of the
Company or the By-laws, as amended, 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 properties;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the solicitation
of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by the
Agents of offers to purchase Securities from the Company and
with purchases of Securities by an Agent as principal, as the
case may be, in each case in the manner contemplated hereby;
(iv) Such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as
required; and
(v) Neither the Company nor any of its Significant
Subsidiaries is in violation of its Certificate of
Incorporation, as amended, or By-laws, as amended. To the
best of such counsel's knowledge, neither the Company nor any
of its subsidiaries is in default in the performance or
observance of any obligation, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be
bound;
(e) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect
set forth in Annex III hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement
relating to the Securities to be delivered at the relevant Time of
Delivery any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities
to be delivered at the relevant Time of Delivery there shall not have
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, business
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery, the
effect of which, in any such case described in Clause (i) or (ii), is
in the judgment of such Agent so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation by such
Agent of offers to purchase Securities from the Company or the
purchase by such Agent of Securities from the Company as principal, as
the case may be, on the terms and in the manner contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York or Illinois (in the case
of Illinois, only to the extent that a general moratorium on
commercial banking activities in Illinois affects any Agent's ability
to fulfill its obligations hereunder) declared by either Federal, New
York State or Illinois authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this Clause (iv) in the judgment of such Agent
makes it impracticable or inadvisable to proceed with the solicitation
of offers to purchase Securities or the purchase of the Securities
from the Company as principal pursuant to the applicable Terms
Agreement or otherwise, as the case may be, on the terms and in the
manner contemplated in the Prospectus;
(i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency
or any Security the principal or interest of which is indexed to such
currency, currencies or composite currency, there shall not have
occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change
in the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or
countries issuing such currency, currencies or composite currency or
the imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency,
currencies or composite currency; and
(j) The Company shall have furnished or caused to be furnished
to such Agent certificates of the Chairman or a Vice President and the
Controller or Treasurer of the Company dated the Commencement Date and
each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may
be, in such form as shall be reasonably satisfactory to such Agent, as
to the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Commencement
Date or such applicable date, as the case may be, as to the matters
set forth in subsections (a) and (f) of this Section 6, and as to such
other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, or any amendment
or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly
for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, or any amendment
or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any such amendment or
supplement, in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use
therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or
an admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) 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 Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also 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 (or actions in respect thereof), 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
sale of Securities (before deducting expenses) received by the Company
bear to the total commissions or discounts received by such Agent in
respect thereof. 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 required to be stated therein or necessary in order to
make the statements therein not misleading relates to information
supplied by the Company on the one hand or by any Agent on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and each Agent agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by per
capita allocation (even if all Agents were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), an Agent shall not be required to contribute any
amount in excess of the amount by which the total public offering
price at which the Securities purchased by or through it were sold
exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The obligations of each of the
Agents under this subsection (d) to contribute are several in
proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition to
any liability which such Agent may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company
within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from
the Company and in performing the other obligations of such Agent hereunder
(other than in respect of any purchase by an Agent as principal, pursuant
to a Terms Agreement or otherwise), is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer
to purchase Securities from the Company was solicited by such Agent and has
been accepted by the Company, but such Agent shall not have any liability
to the Company in the event such purchase is not consummated for any
reason. If the Company shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, the Company shall
(i) hold each Agent harmless against any loss, claim or damage arising from
or as a result of such default by the Company and (ii) notwithstanding such
default, pay to the Agent that solicited such offer any commission to which
it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in
or made pursuant to this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Agent or any controlling person of any
Agent, or the Company, or any officer or director or any controlling person
of the Company, and shall survive each delivery of and payment for any of
the Securities.
10. The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company may be suspended or
terminated at any time by the Company as to any Agent or by any Agent as to
such Agent upon the giving of written notice of such suspension or
termination to such Agent or the Company, as the case may be. In the event
of such suspension or termination with respect to any Agent, (x) this
Agreement shall remain in full force and effect with respect to any Agent
as to which such suspension or termination has not occurred, (y) this
Agreement shall remain in full force and effect with respect to the rights
and obligations of any party which have previously accrued or which relate
to Securities which are already issued, agreed to be issued or the subject
of a pending offer at the time of such suspension or termination and (z) in
any event, this Agreement shall remain in full force and effect insofar as
the fourth paragraph of Section 2(a), and Sections 4(d), 4(e), 5, 7, 8 and
9 hereof are concerned.
11. Except as otherwise specifically provided herein, in the
applicable Terms Agreement or in the Administrative Procedure, all
statements, requests, notices and advices hereunder shall be in writing, or
by telephone if promptly confirmed in writing, and if to (i) Goldman, Sachs
& Co. shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 85 Broad Street, New York, New
York 10004, Facsimile Transmission No. (212) 357-8680, Attention: Credit
Department, Credit Control--Medium-Term Notes, (ii) J.P. Morgan Securities,
Inc. shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 60 Wall Street, 3rd Floor, New
York, New York 10260, Facsimile Transmission No. (212) 648-5907, Attention:
MTN Desk and (iii) the Company shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to the
address of the Company set forth in the Registration Statement: Attention:
Secretary.
12. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Sections 7, 8 and 9 hereof, the officers and directors
of the Company and any person who controls any Agent or the Company, and
their respective heirs, executors, administrators, representatives,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any Terms Agreement. No purchaser
of any of the Securities through or from any Agent hereunder shall be
deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be an original, but all of such
respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 10 counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
Mallinckrodt Group Inc.
By:
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
By:_________________________________
(Goldman, Sachs & Co.)
By:__________________________________
Name:
Title:
ANNEX I
MALLINCKRODT GROUP INC.
Debt Securities
Terms Agreement
............., 19..
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
J.P. Morgan Securities Inc.
60 Wall Street
3rd Floor
New York, New York 10260
Ladies and Gentlemen:
Mallinckrodt Group Inc., a New York company, (the "Company") proposes,
subject to the terms and conditions stated herein and in the Distribution
Agreement, dated ......................., 19.. (the "Distribution
Agreement"), between the Company on the one hand and [Name(s) of Agent(s)]
(the "Agents") on the other, to issue and sell to [Name(s) of Agent(s)] the
securities specified in the Schedule hereto (the "Purchased Securities").
Each of the provisions of the Distribution Agreement not specifically
related to the solicitation by the Agents, as agents of the Company, of
offers to purchase Securities is incorporated herein by reference in its
entirety, and shall be deemed to be part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein.
Nothing contained herein or in the Distribution Agreement shall make any
party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase
Securities from the Company, solely by virtue of its execution of this
Terms Agreement. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Terms Agreement, except that each representation and warranty in Section 1
of the Distribution Agreement which makes reference to the Prospectus shall
be deemed to be a representation and warranty as of the date of the
Distribution Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Terms
Agreement in relation to the Prospectus as amended and supplemented to
relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees
to issue and sell to [Name(s) of Agent(s)] and [Name(s) of Agent(s)] agrees
to purchase from the Company the Purchased Securities, at the time and
place, in the principal amount and at the purchase price set forth in the
Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us 10 counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Mallinckrodt Group Inc.
By:
Name:
Title:
Accepted:
By:[(Goldman, Sachs & Co.)]
By:
Name:
Title: SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes[, SERIES ....]
Aggregate Principal Amount:
[$.................... OR UNITS OF OTHER SPECIFIED CURRENCY]
[PRICE TO PUBLIC:]
Purchase Price by [NAME(S) OF AGENT(S)]
% of the principal amount of the Purchased Securities[, plus accrued
interest from ............... to ...............] [and accrued
amortization, if any, from ................. to ................]
Method of and Specified Funds for Payment of Purchase Price:
[BY CERTIFIED OR OFFICIAL BANK CHECK OR CHECKS, PAYABLE TO THE ORDER
OF THE COMPANY, IN [[NEW YORK] CLEARING HOUSE] [IMMEDIATELY AVAILABLE]
FUNDS]
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE COMPANY IN [NEXT
DAY] [IMMEDIATELY AVAILABLE] FUNDS]
Indenture:
Indenture, dated as of March 15, 1985, as amended and restated as of
February 15, 1995, and as may be further amended and supplemented,
between the Company and First Trust of New York, National Association,
as trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO IN
SECTION 4(H).]
[(2) THE OPINION OF COUNSEL TO THE COMPANY AND THE OPINION OF GENERAL
COUNSEL OF THE COMPANY REFERRED TO IN SECTION 4(I).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(J).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(K).]
Other Provisions (including Syndicate Provisions, if applicable):
ANNEX II
Mallinckrodt Group, Inc.
Administrative Procedure
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated ......................, 19.. (the
"Distribution Agreement"), between Mallinckrodt Group Inc. (the "Company")
and Goldman, Sachs & Co. and J.P. Morgan Securities Inc. (together, the
"Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings
given such terms in the Distribution Agreement, the Prospectus as amended
or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales
of Securities directly by the Company to purchasers solicited by an Agent,
as agent, are set forth below. The terms and settlement details related to
a purchase of Securities by an Agent, as principal, from the Company will
be set forth in a Terms Agreement pursuant to the Distribution Agreement,
unless the Company and such Agent otherwise agree as provided in Section
2(b) of the Distribution Agreement, in which case the procedures to be
followed in respect of the settlement of such sale will be as set forth
below. An Agent, in relation to a purchase of a Security by a purchaser
solicited by such Agent, is referred to herein as the "Selling Agent" and,
in relation to a purchase of a Security by such Agent as principal other
than pursuant to a Terms Agreement, as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities
and the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to
the Trustee, as agent for The Depository Trust Company (the "Depositary")
and recorded in the book-entry system maintained by the Depositary (a
"Book-Entry Security") or a certificate issued in definitive form (a
"Certificated Security") delivered to a person designated by an Agent, as
set forth in the applicable Pricing Supplement. An owner of a Book-Entry
Security will not be entitled to receive a certificate representing such a
Security, except as provided in the Indenture or the applicable Pricing
Supplement.
Book-Entry Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Certificated
Securities will be issued in accordance with the Administrative Procedure
set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations
under a Letter of Representation from the Company and the Trustee to the
Depositary, dated the date hereof, and a Medium-Term Note Certificate
Agreement between the Trustee and the Depositary, dated as of
.................., 19.. (the "Certificate Agreement"), and its obligations
as a participant in the Depositary, including the Depositary's Same-Day
Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities
that may be sold as a result of the solicitation of offers by an Agent.
The Company may establish a fixed set of interest rates and maturities for
an offering period ("posting"). If the Company decides to change already
posted rates, it will promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry
Securities, other than those rejected by such Agent. Each Agent may, in
its discretion reasonably exercised, reject any offer received by it in
whole or in part. Each Agent also may make offers to the Company to
purchase Book-Entry Securities as a Purchasing Agent. The Company will
have the sole right to accept offers to purchase Book-Entry Securities and
may reject any such offer in whole or in part.
The Company will promptly notify the Agent or Purchasing Agent, as the
case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase
Book-Entry Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate promptly,
but in no event later than the time set forth under "Settlement Procedure
Timetable" below, the following details of the terms of such offer (the
"Sale Information") to the Company by telephone (confirmed in writing) or
by facsimile transmission or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency (it being understood that currently the Depositary
accepts deposits of Global Securities denominated in U.S. dollars
only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Interest Payment Dates;
(10) Regular Record Dates;
(11) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(12) Net Proceeds to the Company;
(13) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of the
Redemption Commencement Date;
(14) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Calculation Agent; and
(xi) Initial Interest Payment Date;
(15) Name, address and taxpayer identification number of the
registered owner(s);
(16) Denomination of certificates to be delivered at settlement;
(17) Book-Entry Security or Certificated Security; and
(18) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such
Sale Information to the Trustee by facsimile transmission or other
acceptable written means. The Trustee will assign a CUSIP number to the
Global Security from a list of CUSIP numbers previously delivered to the
Trustee by the Company representing such Book-Entry Security and then
advise the Company and the Selling Agent or Purchasing Agent, as the case
may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following
settlement information to the Depositary, and the Depositary shall forward
such information to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may
be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (or, in the case of Floating Rate
Securities which reset daily or weekly, the date five calendar
days immediately preceding the applicable Interest Payment Date
and, in the case of all other Book-Entry Securities, the Regular
Record Date, as defined in the Security) and, if calculable at
that time, the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i)
debit such Book-Entry Security to the Trustee's participant account and
credit such Book-Entry Security to such Agent's participant account and
(ii) debit such Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Book-Entry
Security less such Agent's commission. The entry of such a deliver order
shall constitute a representation and warranty by the Trustee to the
Depositary that (a) the Global Security representing such Book-Entry
Security has been issued and authenticated and (b) the Trustee is holding
such Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to such Agent's participant account and
credit such Book-Entry Security to the participant accounts of the
Participants with respect to such Book-Entry Security and (ii) to debit the
settlement accounts of such Participants and credit the settlement account
of such Agent for an amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer
to the account of the Company maintained at Morgan Guaranty Trust Company
of New York, [Address], New York, New York [Zip Code], or such other
account as the Company may have previously specified to the Trustee, in
funds available for immediate use in the amount transferred to the Trustee
in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as
of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security
to the purchaser either by transmitting to the Participants with respect to
such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. The Depositary will, at any time, upon request of the Company or
the Trustee, promptly furnish to the Company or the Trustee a list of the
names and addresses of the participants for whom the Depositary has
credited Book-Entry Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing
Agent, as the case may be, at least ten copies of such Pricing Supplement,
not later than 5:00 p.m., New York City time, on the Business Day following
the Trade Date (as defined below), or if the Company and the purchaser
agree to settlement on the Business Day following the date of acceptance of
such offer, not later than noon, New York City time, on such date. The
Company will arrange to have ten Pricing Supplements filed with the
Commission not later than the close of business of the Commission on the
fifth Business Day following the date on which such Pricing Supplement is
first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented (including
the Pricing Supplement) in relation to such Book-Entry Security prior to or
together with the earlier of the delivery to such purchaser or its agent of
(a) the confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-Entry Security shall constitute
"settlement" with respect to such Book-Entry Security. All orders of
Book-Entry Securities solicited by a Selling Agent or made by a Purchasing
Agent and accepted by the Company on a particular date (the "Trade Date")
will be settled on a date (the "Settlement Date") which is the fifth
Business Day (or such lesser period as may then be required by the
Commission) after the Trade Date pursuant to the "Settlement Procedure
Timetable" set forth below, unless the Company and the purchaser agree to
settlement on another Business Day which shall be no earlier than the next
Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the fifth Business Day (or such
lesser period as may then be required by the Commission) after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be
completed as soon as possible but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
A 5:00 p.m. on the Business Day following the Trade Date or 10:00 a.m. on the Business
Day prior to the Settlement Date, whichever is earlier
B 12:00 noon on the second Business Day immediately preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry Security
has not been determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 2:00 p.m. on the second
Business Day immediately preceding the Settlement Date. Settlement
Procedure "H" is subject to extension in accordance with any extension of
Fedwire closing deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal
System, as soon as practicable a withdrawal message instructing the
Depositary to debit such Book-Entry Security to the Trustee's participant
account, provided that the Trustee's participant account contains a
principal amount of the Global Security representing such Book-Entry
Security that is at least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all the Book-Entry
Securities represented by a Global Security, the Trustee will mark such
Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP
number assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not immediately reassigned. If
a withdrawal message is processed with respect to one or more, but not all,
of the Book-Entry Securities represented by a Global Security, the Trustee
will exchange such Global Security for two Global Securities, one of which
shall represent such Book-Entry Security or Securities and shall be
canceled immediately after issuance and the other of which shall represent
the remaining Book-Entry Securities previously represented by the
surrendered Global Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid
to the participants with respect to such Book-Entry Security by the
beneficial purchaser thereof (or a person, including an indirect
participant in the Depositary, acting on behalf of such purchaser), such
participants and, in turn, the Agent for such Book-Entry Security may enter
deliver orders through the Depositary's Participant Terminal System
debiting such Book-Entry Security to such participant's account and
crediting such Book-Entry Security to such Agent's account and then
debiting such Book-Entry Security to such Agent's participant account and
crediting such Book-Entry Security to the Trustee's participant account and
shall notify the Company and the Trustee thereof. Thereafter, the Trustee
will (i) immediately notify the Company of such order and the Company shall
transfer to such Agent funds available for immediate use in an amount equal
to the price of such Book-Entry Security which was credited to the account
of the Company maintained at the Trustee in accordance with Settlement
Procedure I, and (ii) deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to
perform its obligations hereunder or under the Distribution Agreement, the
Company will reimburse such Agent on an equitable basis for the loss of its
use of funds during the period when the funds were credited to the account
of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance
with its SDFS operating procedures then in effect. In the event of a
failure to settle with respect to one or more, but not all, of the
Book-Entry Securities to have been represented by a Global Security, the
Trustee will provide, in accordance with Settlement Procedure "D", for the
authentication and issuance of a Global Security representing the other
Book-Entry Securities to have been represented by such Global Security and
will make appropriate entries in its records. The Company will, from time
to time, furnish the Trustee with a sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated
Securities that may be sold as a result of the solicitation of offers by an
Agent. The Company may establish a fixed set of interest rates and
maturities for an offering period ("posting"). If the Company decides to
change already posted rates, it will promptly advise the Agents to suspend
solicitation of offers until the new posted rates have been established
with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated
Securities, other than those rejected by such Agent. Each Agent may, in
its discretion reasonably exercised, reject any offer received by it in
whole or in part. Each Agent also may make offers to the Company to
purchase Certificated Securities as a Purchasing Agent. The Company will
have the sole right to accept offers to purchase Certificated Securities
and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Certificated Securities. If the Company accepts an offer to
purchase Certificated Securities, it will confirm such acceptance in
writing to the Selling Agent or Purchasing Agent, as the case may be, and
the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following
details of the terms of such offer (the "Sale Information") to the Company
by telephone (confirmed in writing) or by facsimile transmission or other
acceptable written means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Interest Payment Dates;
(10) Regular Record Dates;
(11) Selling Agent's commission or Purchasing Agent's discount, as the case
may be;
(12) Net Proceeds to the Company;
(13) If a redeemable Certificated Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(14) If a Floating Rate Certificated Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Calculation Agent; and
(xi) Initial Interest Payment Date;
(15) Name, address and taxpayer identification number of the registered
owner(s);
(16) Denomination of certificates to be delivered at settlement;
(17) Book-Entry Security or Certificated Security; and
(18) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security,
it will prepare a Pricing Supplement reflecting the terms of such
Certificated Security and arrange to have delivered to the Selling Agent or
Purchasing Agent, as the case may be, at least ten copies of such Pricing
Supplement, not later than 5:00 p.m., New York City time, on the Business
Day following the Trade Date, or if the Company and the purchaser agree to
settlement on the date of acceptance of such offer, not later than noon,
New York City time, on such date. The Company will arrange to have ten
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth Business Day following the date on
which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented (including
the Pricing Supplement) in relation to such Certificated Security prior to
or together with the earlier of the delivery to such purchaser or its agent
of (a) the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or
made by a Purchasing Agent and accepted by the Company will be settled on a
date (the "Settlement Date") which is the fifth Business Day (or such
lesser period as may then be required by the Commission) after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another Business Day after the acceptance of such offer
or (b) with respect to an offer accepted by the Company prior to 10:00
a.m., New York City time, on the date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated
Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such
Sale Information to the Trustee by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement
Date. Such instruction will be given by the Company prior to 3:00 p.m.,
New York City time, on the Business Day immediately preceding the
Settlement Date unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Securities in which case such
instruction will be given by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt
of Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by a Selling Agent, the Trustee will, by 2:15 p.m., New York City
time, on the Settlement Date, deliver the Certificated Securities to the
Selling Agent for the benefit of the purchaser of such Certificated
Securities against delivery by the Selling Agent of a receipt therefor. On
the Settlement Date the Selling Agent will deliver payment for such
Certificated Securities in immediately available funds to the Company in an
amount equal to the issue price of the Certificated Securities less the
Selling Agent's commission; provided that the Selling Agent reserves the
right to withhold payment for which it has not received funds from the
purchaser. The Company shall not use any proceeds advanced by a Selling
Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing
Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Purchasing
Agent against delivery of payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue
price of the Certificated Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment
to the Selling Agent for a Certificated Security, the Selling Agent will
promptly notify the Trustee and the Company thereof by telephone (confirmed
in writing) or by facsimile transmission or other acceptable written means.
The Selling Agent will immediately return the Certificated Security to the
Trustee. Immediately upon receipt of such Certificated Security by the
Trustee, the Company will return to the Selling Agent an amount equal to
the amount previously paid to the Company in respect of such Certificated
Security. The Company will reimburse the Selling Agent on an equitable
basis for its loss of the use of funds during the period when they were
credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
ANNEX III
Accountants' Letter
Pursuant to Sections 4(j) and 6(e), as the case may be, of the
Distribution Agreement, the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent auditors with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
any supplementary financial information and schedules (and, if
applicable, prospective financial statements and/or pro forma
financial information) examined by them and included or incorporated
by reference in the Registration Statement or the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information, prospective financial
statements and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been furnished to the Agents;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been furnished
to the Agents; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations thereunder, nothing came
to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with or is derived from (specifying in each case which) the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company, inspection of the minute
books of the Company since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus (i) do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder, or (ii) are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or
incorporated by reference in the more recent of the Company's
Annual Report on Form 10-K for the most recent fiscal year or the
Prospectus;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the more recent of the Company's
Annual Report on Form 10-K for the most recent fiscal year or the
Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the more recent of the Company's
Annual Report on Form 10-K for the most recent fiscal year or the
Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the
published rules and regulations thereunder and, if applicable,
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Agents, as agreed to by
the auditors, or any increases in any items specified by the
Agents, as agreed to by the auditors, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net
income or other items specified by the Agents, as agreed to by
the auditors, or any increases in any items specified by the
Agents, as agreed to by the auditors, in each case as compared
with the comparable period of the preceding year and with any
other period of corresponding length specified by the Agents, as
agreed to by the auditors, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by
the Agents, as agreed to by the auditors, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Agents, as agreed to by the
auditors, or in documents incorporated by reference in the Prospectus
specified by the Agents, as agreed to by the auditors, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement
Date referred to in Section 6(e) thereof and to the Prospectus as amended
or supplemented (including the documents incorporated by reference therein)
as of the date of the amendment, supplement, incorporation or the Time of
Delivery relating to the Terms Agreement requiring the delivery of such
letter under Section 4(j) thereof.
ANNEX IV
List of Documents: