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EXHIBIT 1.1
UNITED PARCEL SERVICE, INC.
$500,000,000
UPS NOTES
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
January 29, 2001
ABN AMRO Incorporated
327 Plaza Real, Suite 225
Boca Raton, FL 33432
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, CA 94104
Edward D. Jones & Co., L.P.
12555 Manchester
Des Peres, MO 63131
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center, North Tower
New York, New York 10281-1307
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
PaineWebber Incorporated
800 Harbor Blvd.
Weehawken, New Jersey 07087
Salomon Smith Barney Inc.
Seven World Trade Center
New York, NY 10048
Loop Capital Markets
175 W. Jackson, Suite A 635
Chicago, IL 60604
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Dear Sirs:
United Parcel Service, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell up to $500,000,000 aggregate principal amount of its
UPS Notes (the "NOTES") with maturities of 9 months or more from date of issue
pursuant to the provisions of the Indenture, dated as of January 26, 1999, as
supplemented by the First Supplemental Indenture thereto, dated as of March 27,
2000, and as further supplemented from time to time (the "INDENTURE"), between
the Company and Citibank, N.A., as Trustee (the "TRUSTEE"). The Notes shall have
the maturity ranges, interest rates and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented from time to time. The
Notes will be issued, and the terms thereof established, from time to time by
the Company in accordance with the Indenture.
Subject to the terms and conditions contained in this Selling Agent
Agreement (the "AGREEMENT") and to the reservation by the Company of the right
to sell up to $50,000,000 aggregate principal amount of Notes directly on its
own behalf or indirectly through other agents in up to ten separate
transactions, the Company hereby (1) appoints each of you as an agent of the
Company (individually, an "AGENT" and collectively the "AGENTS") for the purpose
of soliciting and receiving offers to purchase Notes from the Company and you
hereby agree to use your reasonable best efforts to solicit and receive offers
to purchase Notes upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify and in accordance with
the terms hereof, and, after consultation with ABN AMRO Incorporated (the
"PURCHASING AGENT"), the Company reserves the right to enter into agreements
substantially identical hereto with other agents and (2) agrees that whenever
the Company determines to sell Notes pursuant to this Agreement, such Notes
shall be sold pursuant to a Terms Agreement (as defined in Section IV(b) below)
relating to such sale in accordance with the provisions of Section IV(b) hereof
between the Company and the Purchasing Agent with the Purchasing Agent
purchasing such Notes as principal for resale to others. This Agreement shall
not be construed to create either an obligation on the part of the Company to
sell any Notes or an obligation of any of the Agents to purchase Notes.
I.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (No. 333-08369) relating to
the Notes and the offering thereof, from time to time, in accordance with Rule
415 under the Securities Act of 1933, as amended (the "SECURITIES ACT"). Such
registration statement, including all documents incorporated therein by
reference, as from time to time amended or supplemented, is referred to herein
as the "REGISTRATION STATEMENT". The Registration Statement has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"). The Company
has prepared or will promptly prepare for filing with, or transmission for
filing to, the Commission, pursuant to Rule 424 under the Securities Act, a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") and a prospectus (the "BASE
PROSPECTUS") for the purpose of supplying information in respect of the public
offering of the Notes. The Prospectus Supplement, together with the Base
Prospectus, including all documents incorporated therein by reference, as from
time to time amended or supplemented, and including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the Notes (a
"PRICING SUPPLEMENT"), are referred to herein as the "PROSPECTUS".
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II.
Your obligations hereunder are subject to the following conditions,
each of which shall be met on such date as you and the Company shall
subsequently fix for the commencement of your obligations hereunder (the
"COMMENCEMENT DATE"):
(a) (i) No litigation or proceeding shall be threatened or pending to
restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes and (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse change in the
consolidated financial condition of the Company and its subsidiaries, considered
as a whole (a "MATERIAL ADVERSE CHANGE"), from that set forth in the
Registration Statement and the Prospectus; and you shall have received on the
Commencement Date a certificate of the Company dated such Commencement Date and
signed by an executive officer of the Company to the foregoing effect. The
officer making such certificate may rely upon the best of his knowledge as to
proceedings threatened.
(b) You shall have received a favorable opinion of King & Spalding,
counsel for the Company, dated the Commencement Date, to the effect that:
(i) the Company is a corporation validly existing and in
good standing under the laws of the State of Delaware and has the
corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, general equitable principles and the
discretion of courts in granting equitable remedies; and the Indenture
has been duly qualified under the Trust Indenture Act;
(iii) the Notes have been duly authorized and, when the terms
thereof have been established in accordance with the Indenture and when
executed, authenticated, issued and delivered in the manner provided
for in the Indenture against payment therefor, will constitute legal,
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject as to enforcement of
remedies, to bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) no authorization, consent or approval of, or
registration or filing with, any governmental or public body or
regulatory authority is required on the part of the Company for the
issuance of the Notes in accordance with the Indenture or the sale of
the
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Notes in accordance with this Agreement other than the registration of
the Notes under the Securities Act, qualification of the Indenture
under the Trust Indenture Act and compliance with the securities or
Blue Sky laws of various jurisdictions;
(vi) the statements in the Prospectus under the captions
"Description of Debt Securities", "Description of Notes" and "Certain
United States Federal Income Tax Considerations" insofar as such
statements constitute summaries of the documents (or provisions
thereof) or statutes (or provisions thereof) referred to therein,
fairly present the information required to be described with respect to
such documents (or provisions thereof) or statutes (or provisions
thereof) and fairly summarize in all material respects such documents
(or provisions thereof) or statutes (or provisions thereof).
(vii) the Indenture and the form of the Notes filed by the
Company with the Commission as an exhibit to the Company's Current
Report on Form 8-K on January 29, 2001 conform in all material respects
to the descriptions thereof in the Prospectus;
(viii) the Registration Statement has become effective under
the Securities Act, and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been instituted or
are pending under the Securities Act; and
(ix)(1) each document, if any, filed pursuant to the
Securities Exchange Act of 1934, as amended, (the "EXCHANGE ACT") and
incorporated by reference in the Prospectus, when such document was
filed with the Commission, complied as to form in all material respects
with the Exchange Act and the rules and regulations thereunder; and (2)
the Registration Statement, as of its effective date, and the
Prospectus, as of its issue date and the Commencement Date, complied as
to form in all material respects with the requirements of the Trust
Indenture Act and the Securities Act and the rules and regulations
thereunder (in each case other than the financial statements and notes
thereto, the financial statement schedules and the other financial and
statistical data and Form T-1 included or incorporated by reference
therein).
In addition, King & Spalding shall state that, although such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus as amended or supplemented,
nothing came to their attention that causes them to believe that (A)
the Registration Statement (other than the financial statements and
notes thereto, the financial statement schedules and the other
financial and statistical data and the Form T-1 included or
incorporated by reference therein), as of its effective date, contained
an untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or (B) the Prospectus (other than the financial
statements and notes thereto, the financial statement schedules and the
other financial and statistical data included or incorporated by
reference therein), as amended or supplemented, as of its issue date
and as of the Commencement Date, contained or contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(c) You shall have received a favorable opinion of counsel in the Legal
Department of the Company, reasonably satisfactory to the Agents, dated the
Commencement Date, to the effect that:
(i) the Company is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction in which it
owns or leases substantial properties or in which the conduct of its
business requires such qualification and in which the failure to so
qualify would have a material adverse effect on the Company and its
subsidiaries considered as a whole;
(ii) the execution and delivery of the Indenture, the
issuance of the Notes in accordance with the Indenture and the sale of
the Notes pursuant to this Agreement (a) do not and will not result in
any violation of the certificate of incorporation or bylaws of the
Company, (b) to the best of such counsel's knowledge, do not and will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any agreement or other instrument
binding upon the Company or any subsidiary of the Company that is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X
under the Securities Act (each, a "SIGNIFICANT SUBSIDIARY") that is
material to the Company and its subsidiaries considered as a whole, and
(c) do not and will not result in a violation of any existing material
law, rule or regulation applicable to the Company or any of its
subsidiaries or any material judgment, order, writ, injunction or
decree known to such counsel of any governmental authority or court
having jurisdiction over the Company or any of its subsidiaries;
(iii) the Company has full power and authority to authorize,
issue and sell the Notes as contemplated by this Agreement; and
(iv) the statements in the (a) documents incorporated by
reference into the Prospectus under the captions "Government
Regulations" and "Legal Proceedings" in the Company's Annual Report on
Form 10-K for the year ended December 31, 1999 and "Legal Proceedings"
in the Company's Quarterly Reports on Form 10-Q for each of the
quarters ended March 31, 2000, June 30, 2000 and September 30, 2000 and
(b) the Registration Statement under Item 15, insofar as such
statements constitute summaries of the documents (or provisions
thereof), statutes (or provisions thereof) or legal proceedings
referred to therein, fairly present the information required to be
described with respect to such documents (or provisions thereof),
statutes (or provisions thereof) or legal proceedings and fairly
summarize in all material respects such documents (or provisions
thereof), statutes (or provisions thereof), or legal proceedings; such
counsel does not know of any legal or governmental proceedings pending
or threatened to which the Company or any Significant Subsidiary is a
party, or to which any of the properties of the Company or any
Significant Subsidiary is subject, that are required to be described in
the Registration Statement or the Prospectus and are not so described
or of any statutes, regulations or contracts that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
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(d) You shall have received on the Commencement Date a letter dated the
Commencement Date from Deloitte & Touche LLP, independent auditors, containing
statements and information of the type ordinarily included in auditors' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus relating to the Notes.
(e) You shall have received a favorable opinion of Gibson, Dunn &
Crutcher LLP, counsel for the Agents, dated such Commencement Date, to the
effect set forth in Section II(b) in clauses (ii), (iii), (iv),(vii) and (ix)(2)
and subsection (B) of the paragraph following clause (ix).
(f) You shall have received a certificate of the secretary or assistant
secretary of the Company as to (i) the Certificate of Incorporation of the
Company, (ii) the Bylaws of the Company and (iii) the resolutions authorizing
the issuance and sale of the Notes and certain related matters.
The obligations of the Purchasing Agent to purchase Notes as principal,
both under this Agreement and under any Terms Agreement, are subject to the
conditions that (i) no litigation or proceeding shall be threatened or pending
to restrain or enjoin the issuance or delivery of the Notes, or which in any way
questions or affects the validity of the Notes, (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission and (iii) there shall have been no material adverse change in the
consolidated financial condition of the Company and its subsidiaries, considered
as a whole, from that set forth in the Registration Statement and the
Prospectus, each of which conditions shall be met on the corresponding
Settlement Date (as defined in Section IV(b) hereof). Further, if specifically
called for by any written agreement by the Purchasing Agent to purchase Notes as
principal, the Purchasing Agent's obligations hereunder and under such agreement
shall be subject to such of the additional conditions set forth in clause (a),
as it relates to the executive officer's certificate, and clauses (b), (c), (d)
and (e) above, as agreed to by the parties, each of which such agreed conditions
shall be met on the corresponding Settlement Date.
III.
In further consideration of your agreements herein contained, the
Company covenants as follows:
(a) To furnish to you, without charge, a copy of (i) the Indenture,
(ii) the resolutions of the Board of Directors (or Executive Committee) of the
Company authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly adopted,
(iii) the Registration Statement including exhibits and documents incorporated
by reference therein; provided, however, that the Company shall only be required
to provide the Company's periodic filings to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act to the
Purchasing Agent, on behalf of the Agents, on the date on which such filings are
to be transmitted for filing with the Commission; and (iv) as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as you may reasonably request.
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(b) Before amending or supplementing the Registration Statement or the
Prospectus (other than amendments or supplements to change interest rates and
other than amendments or supplements in the form of the Company's periodic
filings to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act that are incorporated by reference in the Prospectus),
to furnish you a copy of each such proposed amendment or supplement, and to
afford you a reasonable opportunity to comment on any such proposed amendment or
supplement.
(c) To furnish you copies of each amendment to the Registration
Statement and of each amendment and supplement to the Prospectus in such
quantities as you may from time to time reasonably request; and if at any time
when the delivery of a Prospectus shall be required by law in connection with
sales of any of the Notes, either (i) any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or (ii) for any other reason it shall be
necessary to amend or supplement the latest Prospectus, as then amended or
supplemented, or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the
Exchange Act, the Company will (A) notify you to suspend the solicitation of
offers to purchase Notes and if notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus as then amended or
supplemented and (B), if the Company notifies you that it would like you to
resume the solicitation of offers to purchase, promptly prepare and file with
the Commission such document incorporated by reference in the Prospectus or an
amendment or supplement to the Registration Statement or the Prospectus which
will correct such statement or omission or effect such compliance and will
provide to you without charge a reasonable number of copies thereof, which you
shall use thereafter.
(d) To endeavor to qualify such Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all reasonable expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of such Notes for investment under the laws of
such jurisdictions as you may designate; provided, that, in connection therewith
the Company shall not be required to qualify as a foreign corporation to do
business, or to file a general consent to service of process, in any
jurisdiction.
(e) The Company will make generally available to its security holders
and to you as soon as practicable earning statements that satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Notes.
(f) (i) If the Company and the Purchasing Agent mutually agree to list
Notes on any stock exchange (a "STOCK EXCHANGE"), to use its reasonable efforts,
in cooperation with the Purchasing Agent, to cause such Notes to be accepted for
listing on any such Stock Exchange, in each case as the Company and the
Purchasing Agent shall deem to be appropriate. In connection with any such
agreement to list Notes on a Stock Exchange, the Company shall use its
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reasonable efforts to obtain such listing promptly and shall furnish any and all
documents, instruments, information and undertakings that may be reasonably
necessary or advisable in order to obtain and maintain the listing.
(ii) So long as any Note remains outstanding and listed on a
Stock Exchange, if the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
relating to any matter described in the Prospectus the inclusion of which was
required by the listing rules and regulations of such Stock Exchange on which
any Notes are listed (the "LISTING RULES") or by such Stock Exchange, to provide
to the Purchasing Agent information about the change or matter and to amend or
supplement the Prospectus in order to comply with the Listing Rules or as
otherwise requested by the Stock Exchange.
(iii) To use reasonable efforts to comply with any
undertakings given by it from time to time to any Stock Exchange on which any
Notes are listed.
(g) To notify the Purchasing Agent promptly in writing in the event
that the Company does not have a security listed on the New York Stock Exchange.
(h) The Company will notify the Agents immediately, and confirm such
notice in writing, of any change in the rating assigned by any nationally
recognized statistical rating organization, as such term is defined in Rule
436(g)(2) under the Securities Act, to the Medium-Term Note Program under which
the Notes are issued (the "PROGRAM") or any debt securities (including the
Notes) of the Company, or the public announcement by any nationally recognized
statistical rating organization that it has under surveillance or review, with
possible negative implications, its rating of the Program or any such debt
securities, or the withdrawal by any nationally recognized statistical rating
organization of its rating of the Program or any such debt securities.
IV.
(a) Solicitations as Agent. You hereby agree, as Agents hereunder, to
use your reasonable best efforts to solicit and receive offers to purchase Notes
upon the terms and conditions set forth herein and in the Prospectus and upon
the terms communicated to you from time to time by the Company. For the purpose
of such solicitation you will use the Prospectus as then amended or supplemented
which has been most recently distributed to you by the Company, and you will
solicit offers to purchase only as permitted or contemplated thereby and herein
and will solicit offers to purchase Notes only as permitted by the Securities
Act and the applicable securities laws or regulations of any jurisdiction. The
Company reserves the right, in its sole discretion, to suspend solicitation of
offers to purchase Notes commencing at any time for any period of time or
permanently. Upon receipt of instructions (which may be given orally) from the
Company, you will as soon as practicable, but in any event no later than one
business day after receipt of such instructions, suspend solicitation of offers
to purchase until such time as the Company has advised you that such
solicitation may be resumed. In addition, the Company reserves the right to
sell, and may solicit and accept offers to purchase, up to $50,000,000 aggregate
principal amount of Notes directly on its own behalf in up to ten separate
transactions;
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and, in the case of any such sale not resulting from a solicitation made by any
Agent, no Concession (as defined below) will be payable with respect to such
sale.
You are authorized to solicit orders for the Notes only in
denominations of $1,000 or more (in multiples of $1,000). You are not authorized
to appoint subagents or to engage the service of any other broker or dealer in
connection with the offer or sale of the Notes without the consent of the
Company; provided, however, the Purchasing Agent may engage the service of any
other broker or dealer without the consent of the Company. The Purchasing Agent
will, however, on a periodic basis, provide the Company with a listing of those
brokers or dealers so engaged. In addition, unless otherwise instructed by the
Company, the Purchasing Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes. The Company shall have the sole right to
accept offers to purchase Notes offered through you and may reject any proposed
purchase of Notes as a whole or in part. You shall have the right, in your
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of your
agreements contained herein.
The Company agrees to pay the Purchasing Agent, as consideration for
soliciting the sale of the Notes, a concession in the form of a discount equal
to the percentages of the principal amount of each Note sold not in excess of
the concession set forth in Exhibit A hereto (the "CONCESSION"). Notwithstanding
the foregoing, for Zero-Coupon Notes (as defined below), the Company agrees to
pay the Purchasing Agent, as consideration for soliciting the sale of the
Zero-Coupon Notes, a Concession in the form of a discount equal to the
percentages of the initial offering price of each Zero-Coupon Note sold not in
excess of the Concession set forth in Exhibit A hereto. The Purchasing Agent and
the other Agents will share the Concession in such proportions as they may
agree.
Except as provided in Section IV(b) hereof, in soliciting offers to
purchase Notes from the Company, you are acting solely as agent for the Company
and not as principal. If acting on behalf of the Company on an agency basis, you
will make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been accepted by the Company,
but you shall not have any liability to the Company in the event such purchase
is not consummated for any reason, other than to repay to the Company any
Concession with respect thereto.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms of this Agreement and a separate
agreement, substantially in the form of Exhibit C hereto, to be entered into on
behalf of such Agent(s) by the Purchasing Agent, which will provide for the sale
of such Notes to, and the purchase and reoffering thereof by, the Purchasing
Agent as principal. Each such separate agreement (which may be an oral agreement
and confirmed in writing as described below between the Purchasing Agent and the
Company) is herein referred to as a "TERMS AGREEMENT". A Terms Agreement may
also specify certain provisions relating to the reoffering of such Notes by the
Purchasing Agent. The Purchasing Agent's agreement to purchase Notes pursuant to
any Terms Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Except pursuant
to a Terms Agreement, under no circumstances shall you be obligated to purchase
any Notes for your own account. Each Terms Agreement, whether oral (and
confirmed in writing which may be by
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facsimile transmission) or in writing, shall describe the Notes to be purchased
pursuant thereto by the Purchasing Agent as principal, and may specify, among
other things, the principal amount of Notes to be purchased, the interest rate
or formula and maturity date or dates of such Notes, the interest payment dates,
if any, the price to be paid to the Company for such Notes, the initial public
offering price at which the Notes are proposed to be reoffered, and the time and
place of delivery of and payment for such Notes (the "SETTLEMENT DATE"), whether
the Notes provide for a survivor's option or for optional redemption by the
Company and on what terms and conditions, and any other relevant terms. Terms
Agreements may take the form of an exchange of any standard form of written
telecommunication between the Purchasing Agent and the Company.
In connection with the resale of the Notes purchased, without the
consent of the Company, you are not authorized to appoint subagents or to engage
the service of any other broker or dealer, nor may you reallow any portion of
the discount paid to you by the Company in excess of the designated reallowance
portion; provided, however, that the Purchasing Agent may engage the service of
any other broker or dealer without the consent of the Company. The Purchasing
Agent will however, on a periodic basis, provide the Company with a listing of
those brokers or dealers so engaged. Unless authorized by the Purchasing Agent
in each instance, each Agent agrees not to purchase and sell Notes for which an
order from a client has not been received.
Each purchase of Notes by the Purchasing Agent from the Company shall
be at a discount from the principal amount of each such Note on the date of
issue not in excess of the applicable Concession set forth in Exhibit A hereto.
Notwithstanding the foregoing, for Zero-Coupon Notes (as defined below), each
purchase of Zero-Coupon Notes by the Purchasing Agent from the Company shall be
at a discount from the initial offering price of each such Note on the date of
issue not in excess of the applicable Concession set forth in Exhibit A hereto.
(c) Public Offering Price. Unless otherwise authorized by the Company,
all Notes shall be sold to the public at a purchase price not to exceed 100% of
the principal amount thereof, plus accrued interest, if any, with the exception
of Notes that bear a zero interest rate and are issued at a substantial discount
from the principal amount payable at the Maturity Date (a "ZERO-COUPON NOTE").
Zero-Coupon Notes shall be sold to the public at a purchase price no greater
than an amount, expressed as a percentage of the principal face amount of such
Notes, equal to (i) the net proceeds to the Company on the sale of such Notes,
plus (ii) the Concession, plus (iii) accrued interest, if any. Such purchase
price shall be set forth in the confirmation statement of the Selling Group (as
defined in Exhibit B) member responsible for such sale, and delivered to the
purchaser along with a copy of the Prospectus (if not previously delivered) and
Pricing Supplement.
(d) Procedures. Procedural details relating to the issue and delivery
of, and the solicitation of offers to purchase and payment for, the Notes,
whether under Section IV(a) or IV(b) of this Agreement, are set forth in the
Administrative Procedures attached hereto as Exhibit B, as amended from time to
time (the "PROCEDURES"). The provisions of the Procedures shall apply to all
transactions contemplated hereunder. You and the Company each agree to perform
the respective duties and obligations specifically provided to be performed by
each in
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the Procedures. The Procedures may only be amended by written agreement of the
Company and each of you.
(e) Prospectus Delivery. You shall, as required by applicable law,
furnish to each person to whom you sell or deliver Notes a copy of the
Prospectus (as then amended or supplemented) or, if delivery of the Prospectus
is not required by applicable law, inform each such person that a copy thereof
(as then amended or supplemented) will be made available upon request. You are
not authorized to give any information or to make any representation not
contained in the Prospectus or the documents incorporated by reference or
specifically referred to therein in connection with the offer and sale of the
Notes. You will not use any marketing materials other than the Prospectus in
connection with any offer or sale of the Notes except for marketing materials
subsequently prepared by the Company, if any, and previously furnished to you
together with written authorization form the Company to the Purchasing Agent to
use the same hereunder. If you elect to distribute these additional marketing
materials under the so called "free writing" exemption embodied in Section
2(10)(a) of the Securities Act (any such marketing materials, "FREE WRITING
MATERIALS"), you will use your best efforts to ensure that any intended
recipients of such Free Writing Materials receive a Prospectus either prior to
or concurrently with their receipt of the Free Writing Materials.
(f) Compliance With Laws. The Purchasing Agent is aware that other than
registering the Notes under the Securities Act, no action has been or will be
taken by the Company that would permit the offer or sale of the Notes or
possession or distribution of the Prospectus or any other offering material
relating to the Notes in any jurisdiction where action for that purpose is
required. Accordingly, the Purchasing Agent agrees that it will observe all
applicable laws and regulations in each jurisdiction in or from which it may
directly or indirectly acquire, offer, sell or deliver Notes or have in its
possession or distribute the Prospectus or any other offering material relating
to the Notes, and the Purchasing Agent will obtain any consent, approval or
permission required for the purchase, offer or sale by it of Notes under the
laws and regulations in force in any such jurisdiction to which it is subject or
in which it makes such purchase, offer or sale.
V.
The Company represents and warrants to the Agents that as of the date
hereof, as of each date on which the Company accepts an offer to purchase Notes
(including any purchase by the Purchasing Agent as principal, pursuant to a
Terms Agreement or otherwise), as of each date the Company issues and sells
Notes and as of each date the Registration Statement or the Prospectus is
amended or supplemented:
(a) (i) each document, if any, filed, or to be filed, pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied when so
filed, or will comply, in all material respects with such Act and the rules and
regulations thereunder; (ii) the Registration Statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to the
Securities Act relating to the Notes, when it became effective, did not contain
any 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; (iii) each Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with such Act
and the applicable rules and regulations thereunder; (iv) the Registration
Statement and each Prospectus comply and, as amended or supplemented, if
applicable, will
11
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comply in all material respects with the Securities Act and the applicable rules
and regulations thereunder; and (v) the Registration Statement and each
Prospectus relating to the Notes do not and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(b) 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, and has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(c) the Company has an authorized capitalization as set forth in the
Prospectus, 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
non-assessable;
(d) the Notes have been duly authorized and, when the terms thereof
have been established in accordance with the Indenture and when executed,
authenticated, issued and delivered in the manner provided for in the Indenture
against payment therefor, will constitute legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts in granting
equitable remedies; the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts in granting
equitable remedies; and the Indenture has been duly qualified under the Trust
Indenture Act; and the Indenture conforms and the Notes of any particular
issuance of Notes will conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented that relate to
such issuance of Notes;
(e) other than as set forth in the Prospectus, the Company and each of
its subsidiaries have conducted their businesses and are in compliance in all
material respects with all applicable federal and state laws and regulations,
except for any noncompliance which would not have a material adverse effect on
the Company and its subsidiaries considered as a whole;
(f) the issue and sale of the Notes, the compliance by the Company with
all of the provisions of the Notes, 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, (i) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, or (ii) any statute or any
order, rule or regulation of any court or governmental agency or
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13
body having jurisdiction over the Company or any of its properties, except for
such conflicts, breaches, violations or defaults under subsections (i) or (ii)
immediately above that would not result in a material adverse effect on the
Company and its subsidiaries considered as a whole, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or Bylaws
of the Company; and 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 Notes, the issue and sale of the
Notes 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, obtained under the
Securities 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 you of offers
to purchase Notes from the Company and with purchases of Notes by you as
principal, as the case may be, in each case in the manner contemplated hereby;
(g) other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending or, to the Company's knowledge, threatened 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 are of a character
that are required to be disclosed in the Prospectus which have not been properly
disclosed therein;
(h) immediately after any sale of Notes by the Company hereunder or
under any Terms Agreement, the aggregate amount of Notes 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 Notes) 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;
(i) the Company is not, and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described in
the Prospectus, the Company will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended; and
(j) at or prior to the Commencement Date on which Notes are first
issued, the Program, as well as the Notes, are or will be, as the case may be,
rated Aaa by Moody's Investors Service, Inc. and AAA by Standard & Poor's
Ratings Services, or such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section III(h) hereof.
The above representations and warranties shall not apply to any
statements or omissions made in the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by you expressly
for use therein. Each acceptance by the Company of an offer for the purchase of
Notes and each issuance of Notes shall be deemed an affirmation by the Company
that the foregoing representations and warranties are true and correct at the
time, as the case may be, of such acceptance or of such issuance, in each case
as though expressly made at such time. The representations, warranties and
covenants of the Company shall survive the execution and delivery of this
Agreement and the issuance and sale of the Notes.
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Unless the Company has suspended the solicitation of offers to purchase
Notes pursuant to paragraph (a) of Article IV, each time the Registration
Statement shall be amended by the filing of a post-effective amendment with the
Commission, or the filing by the Company of a Form 10-K or Form 10-Q pursuant to
Section 13 of the Exchange Act, or, if so agreed in connection with a particular
transaction, the Company shall furnish the Agents with (1) a written opinion,
dated the date of such amendment, filing or as otherwise agreed, of counsel to
the Company, in substantially the form previously delivered under Sections II(b)
and II(c), but modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented at such date; (2) a letter, dated
the date of such amendment, filing or as otherwise agreed, of Deloitte & Touche
LLP, independent auditors, in substantially the form previously delivered under
Section II(d), but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such date; and (3) a
certificate, dated the date of such amendment, filing or as otherwise agreed and
signed by an executive officer of the Company, in substantially the form
previously delivered under Section II(a), but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended or supplemented at
such date.
VI.
(a) The Company agrees to indemnify and hold harmless you, each person,
if any, who controls (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act) you and each of your and such person's
officers and directors against any and all losses, liabilities, costs or claims
(or actions in respect thereof) to which any of them may become subject
(including all reasonable legal and other costs of investigating, disputing or
defending any such claim or action), insofar as such losses, liabilities, costs
or claims (or actions in respect thereof) arise out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading provided, however: (i) that the Company shall not be liable for any
such loss, liability, cost, action or claim arising from any statements or
omissions made in reliance on and in conformity with written information
provided by you to the Company expressly for use in the Registration Statement
or Prospectus or any amendment or supplement thereto; and (ii) that the Company
shall not be liable to you or any person controlling you with respect to the
Prospectus to the extent any such loss, liability, cost, action or claim to you
or such controlling person results from the fact that you sold Notes to a person
to whom there was not sent or given, at or prior to the earlier of either the
mailing or delivery of the written confirmation of such sale or the delivery of
such Notes to such person, a copy of the Prospectus as then amended or
supplemented, if the Company has previously furnished copies thereof to you.
(b) Each Agent severally agrees to indemnify and hold harmless the
Company, each person, if any, who controls (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act), the Company, and
the Company's and such person's officers and directors from and against any and
all losses, liabilities, costs or claims (or actions in respect thereof) to
which any of them may become subject (including all reasonable legal and other
costs of investigating, disputing or defending any such claim or action),
insofar as such losses, liabilities, costs or claims (or actions in respect
thereof) (i) arise out of or in connection with any
14
15
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus, or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, in each case only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance on and in conformity with written information
furnished to the Company by such Agent expressly for use therein or (ii) arise
solely from the use by such Agent of Free Writing Materials that are not
preceded by or accompanied with a copy of the Prospectus.
(c) If any claim, demand, action or proceeding (including any
governmental investigation) shall be brought or alleged against an indemnified
party in respect of which indemnity is to be sought against an indemnifying
party pursuant to the preceding paragraphs, the indemnified party shall,
promptly after receipt of notice of the commencement of any such claim, demand,
action or proceeding, notify the indemnifying party in writing of the
commencement of such claim, demand, action or proceeding, enclosing a copy of
all papers served, if any; provided, that, the omission to so notify such
indemnifying party will not relieve the indemnifying party from any liability
that it may have to any indemnified party under the foregoing provisions of this
Section VI unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably 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 will not be liable to such indemnified party under this
Article VI for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the indemnifying party has assumed the defense
of such proceeding and has failed within a reasonable time to retain counsel
reasonably satisfactory to such indemnified party or (iii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential conflicts
of interests between them. It is agreed that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate law firm (in addition to local counsel where reasonably necessary) for
all such indemnified parties. Such firm shall be designated in writing by the
indemnified party. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified
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party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this Section VI is
unavailable to or insufficient to hold harmless an indemnified party under the
preceding paragraphs of this Section VI 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 Notes 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, 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 Notes (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) of Section VI
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) of Section VI. 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) of Section VI 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) of Section VI, no Agent
shall be required to contribute any amount in excess of the amount by which the
total public offering price at which the Notes purchased by it in the offering
giving rise to the damages 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, and no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities 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) of Section VI 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 indemnity and contribution agreements contained in this Section
VI and the representations and warranties of the Company and you in this
Agreement shall remain operative
16
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and in full force and effect regardless of: (i) any termination of this
Agreement; (ii) any investigation made by or on behalf of the Agents; (iii) any
investigation by an indemnified party or on such party's behalf or any person
controlling an indemnified party or by or on behalf of the indemnifying party,
its directors or officers or any person controlling the indemnifying party; and
(iv) acceptance of and payment for any of the Notes.
VII.
This Agreement may be terminated at any time by either party hereto
upon the giving of five business days written notice of such termination to the
other party hereto. In the event of any such termination, neither party shall
have any liability to the other party hereto, except for obligations hereunder
which expressly survive the termination of this Agreement and except that, if at
the time of termination an offer for the purchase of Notes shall have been
accepted by the Company but the time of delivery to the purchaser or his agent
of the Note or Notes relating thereto shall not yet have occurred, the Company
shall have the obligations provided herein with respect to such Note or Notes.
Subsequent to the execution of a Terms Agreement, (i) the Purchasing
Agent may terminate such Terms Agreement, and (ii), if the Purchasing Agent does
not elect to terminate such Terms Agreement pursuant to clause (i) of this
sentence, upon the request of an Agent with respect to Notes to be purchased
through the Purchasing Agent by such Agent, the Purchasing Agent shall terminate
such Terms Agreement to the extent of the Notes that were to be purchased
through the Purchasing Agent by such requesting Agent, in each case immediately
upon notice to the Company, at any time prior to the Settlement Date relating
thereto, if there shall have occurred any:
(A) change in the long-term debt of the Company or any change,
or any development involving a prospective change, in the financial
condition or in the earnings, business or operations of the Company,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which is, in the judgment of the Purchasing Agent or such
requesting Agent, so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering of such Notes or
enforce contracts for the sale of such Notes; or
(B) downgrading in the rating of the Company's debt securities
(including the Notes) by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Securities Act), and no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of such debt securities; or
(C) banking moratorium declared by Federal or New York
authorities, or the authorities of any country in whose currency any
Notes are denominated under the applicable Terms Agreement; or
(D) outbreak or escalation of hostilities in which the United
States or any country in whose currency any Notes are denominated under
the applicable Terms Agreement is involved, any declaration of war by
Congress, any material adverse change in financial markets or any other
substantial national or international calamity or emergency if, in the
17
18
judgment of the Purchasing Agent or such requesting Agent, the effect
of any such outbreak, escalation, material adverse change, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with the public offering of such Notes or enforce contracts for the
sale of such Notes; or
(E) action by any governmental authority or any change, or any
development involving a prospective change, involving currency exchange
rates or exchange controls, which makes it impracticable or inadvisable
in the judgment of the Purchasing Agent or such requesting Agent to
proceed with the public offering of such Notes or enforce contracts for
the sale of such Notes.
If this Agreement is terminated, the last sentence of the second
paragraph of Section IV(a), Section III(c), (d) and (e), Section VI, and the
first paragraph of Section XII shall survive; provided, that, if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of such Notes
has not occurred, the provisions of Section III(a) and (b), and Section IV(b)
and (d) shall also survive until time of delivery.
VIII.
Except as otherwise specifically provided herein, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if
promptly confirmed in writing, and if to you shall be sufficient in all respects
if delivered in person or sent by telex, facsimile transmission (confirmed in
writing), or registered mail to you at your address, telex or telecopier number
set forth below by your signature and if to the Company shall be sufficient in
all respects if delivered or sent by telex, telecopier or registered mail to the
Company at 55 Glenlake Parkway, N.E., Atlanta, Georgia 30328, Attention: Legal
Department, telecopier number (404) 828-6912. All such notices shall be
effective on receipt.
IX.
This Agreement shall be binding upon you and the Company, and inure
solely to the benefit of you and the Company and any other person expressly
entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement.
X.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this Agreement may be brought in
any Federal or New York State court sitting in the Borough of Manhattan, and, by
execution and delivery of this Agreement, such party hereby irrevocably accepts
and submits to the jurisdiction of each of the aforesaid courts in personam,
generally and unconditionally with respect to any such action or proceeding for
itself and in respect of its property, assets and revenues. Each party hereby
also irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any
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such action or proceeding brought in any such court and any claim that any such
action or proceeding has been brought in an inconvenient forum.
XI.
If this Agreement is executed by or on behalf of any party, such person
hereby states that at the time of the execution of this Agreement he has no
notice of revocation of the power of attorney by which he has executed this
Agreement as such attorney.
XII.
The Company will pay the expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement; (ii) the preparation, issuance and delivery of the
Notes; (iii) the fees and disbursements of the Company's counsel and auditors,
of the Trustee and its counsel and of any paying or other agents appointed by
the Company; (iv) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and the Prospectus; (v) the
reasonable fees and disbursements of Gibson, Dunn & Crutcher LLP, counsel for
the Agents (including "Blue Sky" fees and disbursements, if any); (vi) if the
Company lists Notes on a securities exchange, the costs and fees of such
listing; and (vii) any fees charged by rating agencies for the rating of the
Notes.
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
As used herein, "business day" means any day other than a Saturday,
Sunday or any day on which banking institutions are authorized or required by
law, regulation or executive order to be closed in the City of New York.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement between
the Company and you.
Very truly yours,
UNITED PARCEL SERVICE, INC.
By: /s/ THOMAS W. DELBROOK
--------------------------------------
Name: Thomas W. Delbrook
Title: Assistant Treasurer
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Confirmed and accepted
as of the date first above written:
ABN AMRO INCORPORATED
By: /s/ Patrick J. Kelly
-----------------------------------------
Name: Patrick J. Kelly
Title: Managing Director
ABN AMRO Incorporated
327 Plaza Real, Suite 225
Boca Raton, FL 33432
Attention: AAI - Legal & Compliance
----------------------------------
Telefax: 561-416-6105
----------------------------------
CHARLES SCHWAB & CO., INC.
By: /s/ James C. White
-----------------------------------------
Name: James C. White
Title: SVP
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, CA 94104
Attention:
----------------------------------
Telefax:
----------------------------------
EDWARD D. JONES & CO., L.P.
By: /s/ Philip R. Schwab
-----------------------------------------
Name: Philip R. Schwab
Title: General Partner
Edward D. Jones & Co., L.P.
12555 Manchester
Des Peres, Missouri 63131
Attention: Becca Heisler
----------------------------------
Telefax: 314-515-3502
----------------------------------
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ SCOTT G. PRIMROSE
----------------------------------------------------------
Name: Scott G. Primrose
Title: Authorized Signatory
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center, North Tower
New York, New York 10281-1307
Attention: MTN Product Management
---------------------------------------------------
Telefax: 212-449-2234
---------------------------------------------------
MORGAN STANLEY & CO. INCORPORATED
By: /s/ GERARD PASCIUCCO
----------------------------------------------------------
Name: Gerard Pasciucco
Title: Managing Director
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036 Attention: Manager,
Attention: Credit Department
Telefax: 212-761-0780
PAINEWEBBER INCORPORATED
By: /s/ JAMES LEBLANC
----------------------------------------------------------
Name: James LeBlanc
Title: Senior Vice President
PaineWebber Incorporated
Attention: Taxable Fixed Income Department -- Corporate Desk
800 Harbor Blvd.
Weehawken, New Jersey 07087
Telephone: (201) 352-7150
Telecopier: (201) 352-6900
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SALOMON SMITH BARNEY INC.
By: /s/ MARINE D. BAILEY
-----------------------------------------
Name: Marine D. Bailey
Title: First Vice President
Salomon Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
Attention:
----------------------------------
Telefax:
----------------------------------
LOOP CAPITAL MARKETS
By: /s/ ALBERT R. GRACE, JR.
-----------------------------------------
Name: Albert R. Grace, Jr.
Title: President
Loop Capital Markets
175 W. Jackson, Suite A 635
Chicago, IL 60604
Attention: Albert Grace
----------------------------------
Telefax: (312) 913-4928
----------------------------------
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EXHIBIT A
UPS Notes
UNITED PARCEL SERVICE, INC.
DEALER AGENT PROGRAM
The following Concessions are payable as a percentage of the Price to Public of
each note sold to or through the Purchasing Agent and will not exceed the
amounts listed below.
9 months to less than 23 months......................... 0.600%
23 months to less than 35 months........................ 0.850%
35 months to less than 47 months........................ 1.375%
47 months to less than 59 months........................ 1.625%
59 months to less than 71 months........................ 2.000%
71 months to less than 83 months........................ 2.250%
83 months to less than 95 months........................ 2.250%
95 months to less than 107 months....................... 2.375%
107 months to less than 119 months...................... 2.375%
119 months to less than 131 months...................... 2.500%
131 months to less than 143 months...................... 2.750%
143 months to less than 179 months...................... 3.250%
179 months to less than 239 months...................... 3.500%
239 months to 360 months................................ 5.000%
A-1
24
EXHIBIT B
UNITED PARCEL SERVICE, INC.
$500,000,000
UPS Notes
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
UPS Notes with maturities of 9 months or more from date of issue (the "NOTES")
are offered on a continuing basis by United Parcel Service, Inc. The Notes will
be offered by ABN AMRO Incorporated (the "PURCHASING AGENT"), Charles Schwab &
Co., Inc., Edward D. Jones & Co., L.P., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, PaineWebber Incorporated,
Salomon Smith Barney Inc. and Loop Capital Markets (collectively, the "AGENTS")
pursuant to a Selling Agent Agreement among the Company and the Agents dated as
of the date hereof (the "SELLING AGENT AGREEMENT") and one or more terms
agreements substantially in the form attached to the Selling Agent Agreement as
Exhibit C (each a "TERMS AGREEMENT"). The Notes are being resold by the
Purchasing Agent (and by any Agent that purchases them from the Purchasing
Agent) to (i) customers of the Agents or (ii) selected broker-dealers (the
"SELLING GROUP") for distribution to their customers pursuant to a Master
Selected Dealers Agreement (a "DEALERS AGREEMENT") attached hereto as Exhibit E.
The Agents have agreed to use their reasonable best efforts to solicit offers to
purchase Notes. The Notes will be senior debt and have been registered with the
Securities and Exchange Commission (the "COMMISSION"). Citibank, N.A. is trustee
(the "TRUSTEE") under an Indenture, dated as of January 26, 1999, as
supplemented by the First Supplemental Indenture thereto, dated as of March 27,
2000, and as further amended or supplemented from time to time, between the
Company and the Trustee (the "INDENTURE") covering the Notes. Pursuant to the
terms of the Indenture, Citibank, N.A. also will serve as authenticating agent,
issuing agent and paying agent.
Each tranche of Notes will be issued in book-entry form and represented by one
or more fully registered global notes without coupons (each, a "GLOBAL NOTE")
held by the Trustee, as agent for the Depository Trust Corporation ("DTC") and
recorded in the book-entry system maintained by DTC. Each Global Note will have
the annual interest rate, maturity and other terms set forth in the relevant
Pricing Supplement (as defined in the Selling Agent Agreement). Owners of
beneficial interests in a Global Note will be entitled to physical delivery of
Notes issued in certificated form equal in principal amount to their respective
beneficial interests only upon certain limited circumstances described in the
Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities will be handled for the Company by its
Treasury Department; accountable document control and record-keeping
responsibilities will be performed by its Legal Department. The Company will
advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
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Notes will be issued in accordance with the administrative procedures set forth
herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreement or the Prospectus and the Pricing Supplement (together, the
"PROSPECTUS"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreement and the Prospectus shall control. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Selling Agent Agreement, the Prospectus in the form most recently filed with the
Commission pursuant to Rule 424 of the Securities Act, or the Indenture.
ADMINISTRATIVE PROCEDURES FOR NOTES
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated January 18, 2001, and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "CERTIFICATE AGREEMENT"), dated October 31,
1988, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS"). The procedures set forth below may be modified
in compliance with DTC's then applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the "MATURITY DATE") not
less than nine months after the date of delivery by the
Company of such Note. Notes will mature on any date
selected by the initial purchaser and agreed to by the
Company. "MATURITY" when used with respect to any Note
means the date on which the outstanding principal amount
of such Note becomes due and payable in full in accordance
with its terms, whether at its Maturity Date or by
declaration of acceleration, call for redemption,
repayment or otherwise.
Issuance: All Notes having the same terms will be represented
initially by a single Global Note. Each Global Note will
be dated and issued as of the date of its authentication
by the Trustee.
All Discount Notes which have the same terms
(collectively, the "ZERO-COUPON TERMS") will be
represented initially by a single Global Certificate in
fully registered form without coupons.
Each Global Note will bear an original issue date (the
"ORIGINAL ISSUE DATE"). The Original Issue Date shall
remain the same for all Notes subsequently issued upon
registration of transfer, exchange or substitution of an
original Note regardless of their dates of authentication.
B-2
26
Identification
Numbers: The Company has received from the CUSIP Service Bureau
(the "CUSIP SERVICE BUREAU") of Standard & Poor's
Corporation ("STANDARD & POOR'S") one series of CUSIP
numbers consisting of approximately 900 CUSIP numbers for
future assignment to Global Notes. The Company will
provide DTC and the Trustee with a list of such CUSIP
numbers. The Company will assign CUSIP numbers as
described below under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Company has assigned to Global Notes. The
Company will reserve additional CUSIP numbers when
necessary for assignment to Global Notes and will provide
the Trustee and DTC with the list of additional CUSIP
numbers so obtained.
Registration: Unless otherwise specified by DTC, Global Notes will be
issued only in fully registered form without coupons. Each
Global Note will be registered in the name of Cede & Co.,
as nominee for DTC, on the Note Register maintained under
the Indenture by the Trustee. The beneficial owner of a
Note (or one or more indirect participants in DTC
designated by such owner) will designate one or more
participants in DTC (with respect to such Note, the
"PARTICIPANTS") to act as agent or agents for such owner
in connection with the book-entry system maintained by
DTC, and DTC will record in book-entry form, in accordance
with instructions provided by such Participants, a credit
balance with respect to such beneficial owner of such Note
in the account of such Participants. The ownership
interest of such beneficial owner in such Note will be
recorded through the records of such Participants or
through the separate records of such Participants and one
or more indirect participants in DTC.
Transfers: Transfers of interests in a Global Note will be
accomplished by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such interests.
Exchanges: The Trustee, at the Company's request, may deliver to DTC
and the CUSIP Service Bureau at any time a written notice
of consolidation specifying (a) the CUSIP numbers of two
or more Global Notes outstanding on such date that
represent Notes having the same terms (except that Issue
Dates need not be the same) and for which interest, if
any, has been paid to the same date and which otherwise
constitute Notes of the same series and tenor under the
Indenture, (b) a date, occurring at least 30 days after
such written notice is delivered and at least 30 days
before the next Interest Payment Date, if any, for the
related Notes, on which such Global Notes shall be
exchanged for a single replacement Global Note; and (c) a
new CUSIP number, obtained from the Company, to be
assigned to such replacement Global Note. Upon receipt of
such a
B-3
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notice, DTC will send to its participants (including the
Issuing Agent) and the Trustee a written reorganization
notice to the effect that such exchange will occur on such
date. Prior to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau written notice
setting forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the CUSIP
numbers of the Global Notes to be exchanged will no longer
be valid. On the specified exchange date, the Trustee will
exchange such Global Notes for a single Global Note
bearing, the new CUSIP number and the CUSIP numbers of the
exchanged Global Notes will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the foregoing, if
the Global Notes to be exchanged exceed $400,000,000 in
aggregate principal or face amount, one replacement Global
Note will be authenticated and issued to represent each
$400,000,000 of principal or face amount of the exchanged
Global Notes and an additional Global Note will be
authenticated and issued to represent any remaining
principal amount of such Global Notes (See "Denominations"
below).
Denominations: Notes will be issued in denominations of $1,000 or more
(in multiples of $1,000). Global Notes will be denominated
in principal or face amounts not in excess of
$400,000,000. If one or more Notes having an aggregate
principal or face amount in excess of $400,000,000 would,
but for the preceding sentence, be represented by a single
Global Note, then one Global Note will be issued to
represent each $400,000,000 principal or face amount of
such Note or Notes and an additional Global Note will be
issued to represent any remaining principal amount of such
Note or Notes. In such case, each of the Global Notes
representing such Note or Notes shall be assigned the same
CUSIP number.
Issue Price: Unless otherwise specified in an applicable Pricing
Supplement, each Note will be issued at the percentage of
principal amount specified in the Prospectus relating to
such Note.
Interest: Each Note will bear interest at a fixed rate, which may be
zero during all or any part of the term in the case of
certain Notes issued at a price representing a substantial
discount from the principal amount payable at Maturity.
Interest on each Note will accrue from the Issue Date of
such Note for the first interest period and from the most
recent Interest Payment Date to which interest has been
paid for all subsequent interest periods. Except as set
forth hereafter, each payment of interest on a Note will
include interest accrued to but excluding, as the case may
be, the Interest Payment Date or the date of Maturity
(other than a Maturity Date of a Note occurring on the
31st day of a month in which case such payment of interest
will include interest accrued to but excluding the 30th
day of such month). Any payment of principal, premium or
interest required to be made on a day that is not a
Business Day (as defined
B-4
28
below) may be made on the next succeeding Business Day and
no interest shall accrue as a result of any such delayed
payment.
Each pending deposit message described under Settlement
Procedure "C" below will be routed to Standard & Poor's,
which will use the message to include certain information
regarding the related Notes in the appropriate daily bond
report published by Standard & Poor's.
Each Note will bear interest from and including its Issue
Date at the rate per annum set forth thereon and in the
applicable Pricing Supplement until the principal amount
thereof is paid, or made available for payment, in full.
Unless otherwise specified in the applicable Pricing
Supplement, interest on each Note (other than a
Zero-Coupon Note) will be payable either monthly,
quarterly, semi-annually or annually on each Interest
Payment Date and at Maturity (or on the date of redemption
or repayment if a Note is repurchased by the Company prior
to maturity pursuant to mandatory or optional redemption
provisions or the Survivor's Option). Interest will be
payable to the person in whose name a Note is registered
at the close of business on the Regular Record Date next
preceding each Interest Payment Date; provided, however,
that interest payable at Maturity, on a date of redemption
or in connection with the exercise of the Survivor's
Option will be payable to the person to whom principal
shall be payable.
Any payment of principal, and premium, if any, or interest
required to be made on a Note on a day which is not a
Business Day need not be made on such day, but may be made
on the next succeeding Business Day with the same force
and effect as if made on such day, and no additional
interest shall accrue as a result of such delayed payment.
Unless otherwise specified in the applicable Pricing
Supplement, any interest on the Notes will be computed on
the basis of a 360-day year of twelve 30-day months. The
interest rates the Company will agree to pay on
newly-issued Notes are subject to change without notice by
the Company from time to time, but no such change will
affect any Notes already issued or as to which an offer to
purchase has been accepted by the Company.
The Interest Payment Dates for a Note that provides for
monthly interest payments shall be the fifteenth day of
each calendar month (or the next Business Day if not a
Business Day), commencing in the calendar month that next
succeeds the month in which the Note is issued. In the
case of a Note that provides for quarterly interest
payments, the Interest Payment Dates shall be the
fifteenth day of each third month (or the next Business
Day if not a Business Day), commencing in the third
succeeding calendar month following the month in which the
Note is issued. In the case of a Note that provides for
semi-annual interest payments, the Interest Payment dates
shall be the fifteenth day of each sixth month (or the
next Business Day if not a Business Day), commencing in
the sixth
B-5
29
succeeding calendar month following the month in which the
Note is issued. In the case of a Note that provides for
annual interest payments, the Interest Payment Date shall
be the fifteenth day of every twelfth month (or the next
Business Day if not a Business Day), commencing in the
twelfth succeeding calendar month following the month in
which the Note is issued. The Regular Record Date with
respect to any Interest Payment Date shall be the date
fifteen calendar days prior to such Interest Payment Date,
whether or not such date shall be a Business Day;
provided, however, that interest payable at Maturity will
be payable to the person to whom principal shall be
payable. Each payment of interest on a Note shall include
accrued interest from and including the Issue Date or from
and including the last day in respect of which interest
has been paid (or duly provided for), as the case may be,
to, but excluding, the Interest Payment Date or Maturity
Date, as the case may be.
Calculation
of Interest: Unless otherwise specified in the applicable Pricing
Supplement, interest on the Notes (including interest for
partial periods) will be calculated on the basis of a
360-day year of twelve 30-day months. (Examples of
interest calculations are as follows: October 1, 2000 to
April 1, 2001 equals 6 months and 0 days, or 180 days; the
interest paid equals 180/360 times the annual rate of
interest times the principal amount of the Note. The
period from December 3, 2000 to April 1, 2001 equals 3
months and 28 days, or 118 days; the interest payable
equals 118/360 times the annual rate of interest times the
principal amount of the Note.)
Business Day: "Business Day" means, unless otherwise specified in the
applicable Pricing Supplement, any day, other than a
Saturday or Sunday, that meets the following applicable
requirement: such day is not a day on which banking
institutions are authorized or required by law, regulation
or executive order to be closed in the City of New York.
Payments of
Principal and
Interest: Payments of Principal and Interest. Promptly after each
Regular Record Date, the Trustee will deliver to the
Company and DTC a written notice specifying by CUSIP
number the amount of interest, if any, to be paid on each
Global Note on the following Interest Payment Date (other
than an Interest Payment Date coinciding with a Maturity
Date) and the total of such amounts. DTC will confirm the
amount payable on each Global Note on such Interest
Payment Date by reference to the daily bond reports
published by Standard & Poor's. On such Interest Payment
Date, the Company will pay to the Trustee, and the Trustee
in turn will pay to DTC, such total amount of interest due
(other than on the Maturity Date), at the times and in the
manner set forth below under "Manner of
B-6
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Payment". If any Interest Payment Date for any Note is not
a Business Day, the payment due on such day shall be made
on the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Interest Payment Date.
Payments on the Maturity Date. On or about the first
Business Day of each month, the Trustee will deliver to
the Company and DTC a written list of principal, premium,
if any, and interest to be paid on each Global Note
representing Notes maturing or subject to redemption
(pursuant to a sinking fund or otherwise) or repayment
("MATURITY") in the following month. The Trustee, the
Company and DTC will confirm the amounts of such
principal, premium, if any, and interest payments with
respect to each Global Note on or about the fifth Business
Day preceding the Maturity Date of such Global Note. On
the Maturity Date, the Company will pay to the Trustee,
and the Trustee in turn will pay to DTC, the principal
amount of such Global Note, together with interest and
premium, if any, due on such Maturity Date, at the times
and in the manner set forth below under "Manner of
Payment". If the Maturity Date of any Global Note is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Maturity Date. Promptly after payment to DTC of the
principal and interest due on the Maturity Date of such
Global Note and all other Notes represented by such Global
Note, the Trustee will cancel and destroy such Global Note
in accordance with the Indenture and so advise the
Company.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on any
Interest Payment Date or at Maturity shall be paid by the
Company to the Trustee in immediately available funds on
such date. The Company will make such payment on such
Global Notes by instructing the Trustee to withdraw funds
from an account maintained by the Company with Citibank,
N.A., by wire transfer to Citibank, N.A. or as otherwise
agreed with the Trustee. The Company will confirm such
instructions in writing to the Trustee. Prior to 10:00
a.m., New York City time, on the Maturity Date or as soon
as possible thereafter, the Trustee will make payment to
DTC in accordance with existing arrangements between DTC
and the Trustee, in funds available for immediate use by
DTC, each payment of interest, principal and premium, if
any, due on a Global Note on such date. On each Interest
Payment Date (other than on the Maturity Date) the Trustee
will pay DTC such interest payments in same-day funds in
accordance with existing arrangements between the Trustee
and DTC. Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate use
to the respective Participants with payments in amounts
proportionate to their respective holdings in principal
amount of beneficial interest in such Global Note as are
recorded in the book-entry system maintained by
B-7
31
DTC. Neither the Company nor the Trustee shall have any
direct responsibility or liability for the payment by DTC
of the principal of, or premium, if any, or interest on,
the Notes to such Participants.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on
a Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible
for forwarding payments and materials directly to the
beneficial owner of such Note.
Procedure for Rate
Setting and
Posting: The Company and the Agents will discuss, from time to
time, the aggregate principal amounts of, the Maturities,
the Issue Price and the interest rates to be borne by
Notes that may be sold as a result of the solicitation of
orders by the Agents. If the Company decides to set
interest rates borne by any Notes in respect of which the
Agents are to solicit orders (the setting of such interest
rates to be referred to herein as "POSTING"), or if the
Company decides to change interest rates previously posted
by it, it will promptly advise the Agents of the prices
and interest rates to be posted.
The Company will assign a separate CUSIP number for each
tranche of Notes to be posted, and will so advise and
notify the Trustee and Purchasing Agent of said assignment
by telephone and/or by telecopier or other form of
electronic transmission. The Purchasing Agent will, in
turn, include the assigned CUSIP number on all Posting
notices communicated to the Agents and Selling Group
members.
Offering of Notes: In the event that there is a Posting, the
Purchasing Agent will communicate to each of the Agents
and Selling Group members the aggregate principal amount
and Maturities of, along with the interest rates to be
borne by, each tranche of Notes that is the subject of the
Posting. Thereafter, the Purchasing Agent, along with the
other Agents and the Selling Group, will solicit offers to
purchase the Notes accordingly.
Purchase of Notes
by the Purchasing
Agent: The Purchasing Agent will, no later than 4:00 p.m. (New
York City time) on the sixth day subsequent to the day on
which such Posting occurs, or if such sixth day is not a
Business Day, on the preceding Business Day, or on such
other Business Day and time as shall be mutually agreed
upon by the Company and the Agents (any such day, a "TRADE
DAY"), (i) complete, execute and deliver to the Company a
Terms Agreement that sets forth, among other things, the
amount of each tranche that the Purchasing Agent is
offering to purchase or (ii) inform the Company that
B-8
32
none of the Notes of a particular tranche will be
purchased by the Purchasing Agent.
Acceptance and
Rejection of
Orders: Unless otherwise agreed by the Company and the Agents, the
Company has the sole right to accept orders to purchase
Notes and may reject any such order in whole or in part.
Unless otherwise instructed by the Company, the Purchasing
Agent will promptly advise the Company by telephone of all
offers to purchase Notes received by it, other than those
rejected by it in whole or in part in the reasonable
exercise of its discretion. No order for less than $1,000
principal amount of Notes will be accepted.
Upon receipt of a completed and executed Terms Agreement
from the Purchasing Agent, the Company will (i) promptly
execute and return such Terms Agreement to the Purchasing
Agent or (ii) inform the Purchasing Agent that its offer
to purchase the Notes of a particular tranche has been
rejected, in whole or in part. The Purchasing Agent will
thereafter promptly inform the other Agents and
participating Selling Group members of the action taken by
the Company.
Preparation of
Pricing
Supplement: If any offer to purchase a Note is accepted by or on
behalf of the Company, the Company will provide a Pricing
Supplement (substantially in the form attached to the
Selling Agent Agreement as Exhibit D) reflecting the terms
of such Note and will have filed such Pricing Supplement
with the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will supply a
copy thereof (or additional copies if requested) to the
Purchasing Agent, by no later than 11:00 a.m. on the
Business Day immediately following the Trade Day, and one
copy to the Trustee. The Purchasing Agent will cause a
Prospectus and Pricing Supplement to be delivered to each
of the other Agents and Selling Group members that
purchased such Notes, and each of these, in turn, will,
pursuant to the terms of the Selling Agent Agreement and
the Master Selected Dealer Agreement, cause to be
delivered a copy of the applicable Pricing Supplement to
each purchaser of Notes from such Agent or Selling Group
member.
In each instance that a Pricing Supplement is prepared,
the Agents will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements and the Prospectuses to which they are
attached (other than those retained for files) will be
destroyed.
B-9
33
Delivery of
Confirmation and
Prospectus to
Purchaser by
Purchasing Agent: Subject to "Suspension of Solicitation; Amendment or
Supplement" below, the Agents will deliver a Prospectus
(including the Pricing Supplement) as herein described
with respect to each Note sold by it. For each offer to
purchase a Note solicited by an Agent and accepted by or
on behalf of the Company, the Purchasing Agent will issue
a confirmation to the purchaser, with a copy to the
Company, setting forth the terms of such Note and other
applicable details described above and delivery and
payment instructions. In addition, the Purchasing Agent
will deliver to such purchaser the Prospectus (including
the Pricing Supplement) in relation to such Note prior to
or together with the earlier of any written offer of such
Note, delivery of the confirmation of sale or delivery of
the Note.
Settlement: The receipt of immediately available funds by the Company
in payment for Notes and the authentication and issuance
of the Global Note representing such Notes shall
constitute "SETTLEMENT" with respect to such Note. All
orders accepted by the Company will be settled within one
to three Business Days pursuant to the timetable for
Settlement set forth below, unless the Company and the
purchaser agree to Settlement on a later date, and shall
be specified upon acceptance of such offer; provided,
however, that in all cases the Company will notify the
Trustee on the date issuance instructions are given.
Settlement
Procedures: In the event of a purchase of Notes by any Agent, as
principal, appropriate Settlement details, if different
from those set forth below, will be set forth in the
applicable Terms Agreement to be entered into between such
Agent and the Company pursuant to the Selling Agent
Agreement. Settlement Procedures with regard to each Note
sold by an Agent, as agent for the Company, shall be as
follows:
A. After the acceptance of an offer by the Company with
respect to a Note, the Purchasing Agent will
communicate the following details of the terms of
such offer (the "NOTE SALE INFORMATION") to the
Company by telephone confirmed in writing or by
facsimile transmission or other acceptable written
means:
1. Principal amount of the purchase;
2. Interest Rate;
B-10
34
3. Interest Payment Dates;
4. Settlement Date;
5. Maturity Date;
6. Purchase Price;
7. Purchasing Agent's commission determined
pursuant to Section IV(a) of the Selling
Agent Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the Company, such
of the following as are applicable:
(i) The date on and after which such
Note may be redeemed (the
"REDEMPTION COMMENCEMENT DATE"),
(ii) Initial redemption price (% of
par), and
(iii) Amount (% of par) that the initial
redemption price shall decline (but
not below par) on each anniversary
of the Redemption Commencement
Date;
11. Whether the Note has the Survivor's Option;
12. If a Discount Note, the total amount of
original issue discount, the yield to
maturity and the initial accrual period of
original issue discount;
13. DTC Participant Number of the institution
through which the customer will hold the
beneficial interest in the Global Note; and
14. Such other terms as are necessary to
complete the applicable form of Note.
B. The Company will advise the Trustee by telephone
(confirmed in writing and signed by an authorized
person at any time on the same date) or by facsimile
transmission signed by an authorized person of the
information set forth in Settlement Procedure "A"
above and the name of the Purchasing Agent. The
Trustee will assign a CUSIP number to the Global
Security representing such
B-11
35
Note. The Trustee will notify the Company and the
Purchasing Agent of such CUSIP number by telephone as
soon as practicable..
C. The Trustee will communicate to DTC and the
Purchasing Agent through DTC's Participant Terminal
System, a pending deposit message specifying the
following Settlement information:
1. The information received in accordance with
Settlement Procedure "A".
2. The numbers of the participant accounts
maintained by DTC on behalf of the Trustee
and the Purchasing Agent.
3. The initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related DTC record date (which
term means the Regular Record Date), and if
then calculated, the amount of interest
payable on such Initial Interest Payment
Date (which amount shall have been confirmed
by the Trustee).
4. The CUSIP number of the Global Note
representing such Notes.
5. The frequency of interest.
6. Whether such Global Note represents any
other Notes issued or to be issued (to the
extent then known).
D. DTC will credit such Note to the participant account
of the Trustee maintained by DTC.
E. The Trustee will complete and deliver a Global Note
representing such Note in a form that has been
approved by the Company, the Agents and the Trustee.
F. The Trustee will authenticate the Global Note
representing such Note and maintain possession of
such Global Note.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to the participant
account of the Agent maintained by DTC and (ii) debit
the settlement account of the Agent and credit the
settlement account of the Trustee maintained by DTC,
in an amount equal to the price of such Note less the
Purchasing Agent's commission. The entry of such a
deliver order shall be deemed to constitute a
representation and warranty by the Trustee
B-12
36
to DTC that (a) the Global Note representing such
Note has been issued and authenticated and (b) the
Trustee is holding such Global Note pursuant to the
Certificate Agreement.
H. The Purchasing Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC to (i) debit such Note to the Purchasing Agent's
participant account and credit such Note to the
participant accounts of the Participants to whom such
Note is to be credited maintained by DTC and (ii)
debit the settlement accounts of such Participants
and credit the settlement account of the Purchasing
Agent maintained by DTC, in an amount equal to the
price of the Note so credited to their accounts.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Trustee will credit to an account of the Company
maintained at Citibank, N.A. funds available for
immediate use in an amount equal to the amount
credited to the Trustee's DTC participant account in
accordance with Settlement Procedure "G".
K. The Trustee will send a copy of the Global Note
representing such Note by first-class mail to the
Company.
L. The Purchasing Agent will confirm the purchase of
each Note to the purchaser thereof either by
transmitting to the Participant to whose account such
Note has been credited a confirmation order through
DTC's Participant Terminal System or by mailing a
written confirmation to such purchaser. In all cases
the Prospectus, as most recently amended or
supplemented, must accompany or precede such
confirmation.
M. Upon request by the Company, the Trustee will send to
the Company a statement setting forth the principal
amount of Notes outstanding as of that date under the
Indenture and setting forth the CUSIP number(s)
assigned to, and a brief description of, any orders
which the Company has advised the Trustee but which
have not yet been settled.
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Settlement
Procedures
Timetable: In the event of a purchase of Notes by the Purchasing
Agent, as principal, appropriate Settlement details, if
different from those set forth below, will be set forth in
the applicable Terms Agreement to be entered into between
the Purchasing Agent and the Company pursuant to the
Selling Agent Agreement. For orders of Notes solicited by
an Agent, as agent, and accepted by the Company,
Settlement Procedures "A" through "M" 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 4:00 p.m. on the Trade Day.
B 5:00 p.m. on the Trade Day.
C 2:00 p.m. on the Business Day before the
Settlement Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 p.m. on the Settlement Date.
G-H 2:00 p.m. on the Settlement Date.
I 4:45 p.m. on the Settlement Date.
J-L 5:00 p.m. on the Settlement Date
M At the request of the Company.
NOTE: The Prospectus as most recently amended or
supplemented must accompany or precede any written
confirmation given to the customer (Settlement Procedure
"L"). Settlement Procedure "I" is subject to extension in
accordance with any extension Fedwire closing deadlines
and in the other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If Settlement of a Note is rescheduled or cancelled, the
Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by
no later than 2:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled
Settlement Date.
B-14
38
Failure to Settle: If the Trustee fails to enter an SDFS deliver order with
respect to a Note pursuant to Settlement Procedure "G",
the Trustee may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to the
participant account of the Trustee maintained at DTC. DTC
will process the withdrawal message; provided, that, such
participant account contains Notes having the same terms
and having a principal amount that is at least equal to
the principal amount of such Note to be debited. If
withdrawal messages are processed with respect to all the
Notes issued or to be issued represented by a Global Note,
the Trustee will cancel such Global Note in accordance
with the Indenture, make appropriate entries in its
records and so advise the Company. The CUSIP number
assigned to such Global Note shall, in accordance with
CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. If withdrawal messages are
processed with respect to one or more, but not all, of the
Notes represented by a Global Note, the Trustee will
exchange such Global Note for two Global Notes, one of
which shall represent such Notes and shall be cancelled
immediately after issuance, and the other of which shall
represent the remaining Notes previously represented by
the surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note. If the purchase
price for any Note is not timely paid to the Participants
with respect to such Note by the beneficial purchaser
thereof (or a person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participants and, in turn, the related Agent may enter
SDFS deliver orders through DTC's participant Terminal
System reversing the orders entered pursuant to Settlement
Procedures "G" and "H", respectively. Thereafter, the
Trustee will 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 Agent in the performance of its obligations
hereunder or under the Selling Agent Agreement, the
Company will reimburse the 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.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Note, DTC 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 Notes that were to have
been represented by a Global Note, the Trustee will
provide, in accordance with Settlement Procedures "D" and
"E", for the authentication and issuance of a Global Note
representing the other Notes to have been represented by
such Global Note and will make appropriate entries in its
records.
B-15
39
Procedure for
Rate Changes: Each time a decision has been reached to change rates, the
Company will promptly advise the Agents of the new rates,
who will forthwith suspend solicitation of purchases of
Notes at the prior rates. The Agents may telephone the
Company with recommendations as to the changed interest
rates.
Suspension of
Solicitation;
Amendment or
Supplement: Subject to the Company's representations, warranties and
covenants contained in the Selling Agent Agreement, the
Company may instruct the Agents to suspend at any time for
any period of time or permanently, the solicitation of
orders to purchase Notes. Upon receipt of such
instructions (which may be given orally), each Agent will
forthwith suspend solicitation until such time as the
Company has advised it that solicitation of offers to
purchase may be resumed.
In the event that at the time the Company suspends
solicitation of offers to purchase there shall be any
orders outstanding for settlement, the Company will
promptly advise the Agents and the Trustee whether such
orders may be settled and whether copies of the Prospectus
as in effect at the time of the suspension may be
delivered in connection with the settlement of such
orders. The Company will have the sole responsibility for
such decision and for any arrangements which may be made
in the event that the Company determines that such orders
may not be settled or that copies of such Prospectus may
not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will promptly
advise the Agents and furnish the Agents and the Trustee
with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the
extent required by and in accordance with the terms of the
Selling Agent Agreement. Subject to the provisions of the
Selling Agent Agreement, the Company may file with the
Commission any supplement to the Prospectus relating to
the Notes. The Company will provide the Agents and the
Trustee with copies of any such supplement, and confirm to
the Agents that such supplement has been filed with the
Commission.
Trustee Not to Risk
Funds: Nothing herein shall be deemed to require the Trustee to
risk or expend its own funds in connection with any
payment to the Company, or the Agents or the purchasers,
it being understood by all parties that payments made by
the Trustee to either the Company or the Agents shall be
made only to the extent that funds are provided to the
Trustee for such purpose.
B-16
40
Advertising Costs: The Company shall have the sole right to approve the form
and substance of any advertising an Agent may initiate in
connection with such Agent's solicitation to purchase the
Notes. The expense of such advertising will be solely the
responsibility of such Agent, unless otherwise agreed to
by the Company.
B-17
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EXHIBIT C
UNITED PARCEL SERVICE, INC.
UPS Notes
TERMS AGREEMENT
__________ __, 200_
United Parcel Service, Inc.
55 Glenlake Parkway, N.E.
Atlanta, Georgia 30328
The undersigned agrees to purchase the following aggregate principal amount of
Notes:
$_____________________
The terms of such Notes shall be as follows:
CUSIP Number:________________________
Interest Rate:_______________________%
Maturity Date: ______________________
Price to Public:_____________________
Agent's Concession:__________________%
Settlement Date, Time
and Place:_______________
Survivor's Option:___________________
Interest Payment Dates:______________
Optional Redemption, if any:_________
Initial Redemption Date:___________
Redemption Price: Initially % of Principal Amount and declining ____% of the
Principal Amount on each anniversary of the Initial Redemption Date until the
Redemption Price is 100% of the Principal Amount.
[Any other terms and conditions agreed to by such Agent and the Company]
ABN AMRO INCORPORATED
By:
------------------------------------
Name:
Title:
ACCEPTED:
UNITED PARCEL SERVICE, INC.
By:
-------------------------------------
Name:
Title:
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EXHIBIT D
FORM OF PRICING SUPPLEMENT
Registration No. 333-08369
Filed Pursuant to Rule 424(b)(_)
United Parcel Service, Inc.
UPS Notes
With Maturities of 9 Months or More from Date of Issue
- --------------------------------------------------------------------------------
Pricing Supplement No. __ Trade Date: __/__/__
(To Prospectus Supplement dated January __, 2001) Issue Date: __/__/__
The date of this Pricing Supplement is _______ __, ____
CUSIP
or
Common Code Principal Amount Interest Rate Maturity Date Price to Public
- ----------- ---------------- ------------- ------------- ---------------
Interest Payment
Frequency Subject to Dates and terms of redemption
(begin date) Survivor's Option Redemption (including the redemption price)
- ---------------- ----------------- ---------- --------------------------------
Discounts and
Proceeds to UPS Commissions Reallowance Dealer
- --------------- ------------- ----------- ------
- ---------------------------
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EXHIBIT E
Form of Master Selected Dealer Agreement
[Name of Dealer]
[Dealer's Address]
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof
for which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions of
this Agreement shall be applicable to any public offering of securities
("SECURITIES"), pursuant to a registration statement filed under the Securities
Act of 1933 (the "SECURITIES ACT"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein ABN AMRO Incorporated (acting for its own account or
for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected dealers ("SELECTED DEALERS") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of Securities to you
as a Selected Dealer is hereinafter called an "OFFERING". In the case of any
Offering where we are acting for the account of any underwriting or similar
group or syndicate ("UNDERWRITERS"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any Offering
will be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. We will
advise you by telegram, telex or other form of written communication ("WRITTEN
COMMUNICATION", which term, in the case of any Offering described in Section
3(a) or 3(b) hereof, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances and
other communications by you with respect to an Offering should be sent to ABN
AMRO Incorporated, 327 Plaza Real, Suite 225, Boca Raton, Florida 33432
(Telecopy: (561) 416-6180). We reserve the right to reject any acceptance in
whole or in part. Unless notified otherwise by us, Securities purchased by you
shall be paid for on such date as we shall determine, on one day's prior notice
to you, by certified
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44
or official bank check, in an amount equal to the Public Offering Prices (as
hereinafter defined) or, if we shall so advise you, at such Public Offering
Price less the Concession (as hereinafter defined), payable in New York Clearing
House funds to the order of ABN AMRO Incorporated, against delivery of the
Securities. If Securities are purchased and paid for at such Public Offering
Price, such Concession will be paid after the termination of the provisions of
Section 3(c) hereof with respect to such Securities. Notwithstanding the
foregoing, unless notified otherwise by us, payment for and delivery of
Securities purchased by you shall be made through the facilities of The
Depository Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written Communication to you from
us or, if you are not a member, settlement may be made through a correspondent
who is a member pursuant to instructions which you will send to us prior to such
specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of
Securities that are registered under the Securities Act ("REGISTERED OFFERING"),
we shall provide you with such number of copies of each preliminary prospectus
and of the final prospectus relating thereto as you may reasonably request for
the purposes contemplated by the Securities Act and the Securities Exchange Act
of 1934 (the "EXCHANGE ACT") and the applicable rules and regulations of the
Securities and Exchange Commission thereunder. You represent and warrant that
you are familiar with Rule 15c2-8 under the Exchange Act relating to the
distribution of preliminary and final prospectuses and agree that you will
comply therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised
preliminary prospectus, you will, upon our request, promptly forward copies
thereof to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to a
prospectus or by any Underwriter to give any information or to make any
representation not contained in the prospectus in connection with the sale of
such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of any
Offering of Securities, other than a Registered Offering, which is made pursuant
to an offering circular or other document comparable to a prospectus in a
Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession,
E-2
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the reallowance (if any) to dealers and the time when you may commence selling
Securities to the public. After such public offering has commenced, we may
change the public offering price, the selling concession and the reallowance to
dealers. The offering price, selling concession and reallowance (if any) to
dealers at any time in effect with respect to an Offering are hereinafter
referred to, respectively, as the "PUBLIC OFFERING PRICE", the "CONCESSION" and
the "REALLOWANCE". With respect to each Offering of Securities, until the
provisions of this Section 3(c) shall be terminated pursuant to Section 4
hereof, you agree to offer Securities to the public at no more than the Public
Offering Price. If notified by us, you may sell securities to the public at a
lesser negotiated price than the Public Offering Price, but in an amount not to
exceed the Concession. If a Reallowance is in effect, a reallowance from the
Public Offering Price not in excess of such Reallowance may be allowed as
consideration for services rendered in distribution to dealers who are actually
engaged in the investment banking or securities business, who execute the
written agreement prescribed by Rule 2740(c) of the Conduct Rules of the
National Association of Securities Dealers. Inc. (the "NASD") and who are either
members in good standing of the NASD or foreign banks, dealers or institutions
not eligible for membership in the NASD who represent to you that they will
promptly reoffer such Securities at the Public Offering Price and will abide by
the conditions with respect to foreign banks, dealers and institutions set forth
in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree not to
purchase and sell Securities for which an order from a client has not been
received without our consent in each instance. You further agree that, upon our
request at any time and from time to time prior to the termination of the
provisions of Section 3(c) hereof with respect to any Offering, you will report
to us the amount of Securities purchased by you pursuant to such Offering which
then remain unsold by you and will, upon our request at any such time, sell to
us for our account or the account of one or more Underwriters such amount of
such unsold Securities as we may designate at the Public Offering Price less an
amount to be determined by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of Section 3(c) hereof with
respect to any Offering or (ii) the covering by us of any short position created
by us in connection with such Offering for our account or the account of one or
more Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with respect to such
Securities (unless you shall have purchased such Securities pursuant to Section
2 hereof at the Public Offering Price in which case we shall not be obligated to
pay such Concession to you pursuant to Section 2) plus transfer taxes and
broker's commissions or dealer's mark-up, if any, paid in connection with such
purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged
in the investment banking or securities business and either a member in good
standing of the NASD or, if you are not such a member, you are a foreign bank,
dealer or institution not eligible for membership in the NASD which agrees to
make no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein, and in making other sales
to comply with the NASD's interpretation with respect to free riding and
withholding. You
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further represent, by your participation in an Offering, that you have provided
to us all documents and other information required to be filed with respect to
you, any related person or any person associated with you or any such related
person pursuant to the supplementary requirements of the NASD's interpretation
with respect to review of corporate financing as such requirements relate to
such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling Concession, discount or other allowance is received
or granted, (1) you will comply with the provisions of Rule 2740 of the Conduct
Rules of the NASD and (2) if you are a non-NASD member broker or dealer in a
foreign country, you will also comply (a), as though you were an NASD member,
with the provision of Rules 2730, 2740 and 2750 of the Conduct Rules and (b)
with Rule 2420 of the Conduct Rules as that Rule applies to a non-NASD member
broker or dealer in a foreign country.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement (whether we
are acting as manager, as a member of an underwriting syndicate or a selling
group or otherwise), if a selling Concession, discount or other allowance is
granted to you, clauses (1) and (2) of the preceding paragraph will be
applicable.
(f) Relationship among Underwriters and Selected Dealers. We may
buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, without consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. You are not authorized to
act as agent for us, any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Neither we nor any
Underwriter shall be under any obligation to you except for obligations assumed
hereby or in any Written Communication from us in connection with any Offering.
Nothing contained herein or in any Written Communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another. If the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership for Federal
income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and
agree not to take any position inconsistent with that election. You authorize
us, in our discretion, to execute and file on your behalf such evidence of that
election as may be required by the Internal Revenue Service. In connection with
any Offering, you shall be liable for your proportionate amount of any tax,
claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of them,
constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred in
defending against any such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you as
to any advice we have received from counsel concerning the jurisdictions in
which Securities have been qualified for sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
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(h) Compliance with Law. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, the applicable rules and regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules
and regulations specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments. This Agreement may be
terminated by Written Communication to the other affected party or parties.
Until so terminated, this Agreement shall continue in full force and effect.
This Agreement may be supplemented or amended by us by written notice thereof to
you, and any such supplement or amendment to this Agreement shall be effective
with respect to any Offering to which this Agreement applies after the date of
such supplement or amendment. Each reference to "this Agreement" herein shall,
as appropriate, be to this Agreement as so amended and supplemented. The terms
and conditions set forth in Section 3(c) hereof with regard to any Offering will
terminate at the close of business on the 30th day after the commencement of the
public offering of the Securities to which such Offering relates, but in our
discretion may be extended by us for a further period not exceeding 30 days and
in our discretion, whether or not extended, may be terminated at any earlier
time.
5. Successors and Assigns. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary terms
and conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of New York.
Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to, or your acceptance of any reservation of,
any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
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Very truly yours,
ABN AMRO INCORPORATED
By:
---------------------------------------
Name:
Title:
CONFIRMED: ________ __, 2000
(NAME OF DEALER)
By:
-----------------------------------------
Name:
Title:
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