Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 1
NEWELL RUBBERMAID INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
_______________, 1999
BANC ONE CAPITAL MARKETS, INC.
One First National Plaza
Mail Suite 0595, 8th Floor
Chicago, Illinois 60670
CHASE SECURITIES INC.
One Chase Manhattan Plaza
New York, New York 10081
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway, 2nd Floor
New York, New York 10036
Dear Sirs:
Newell Rubbermaid Inc., a Delaware corporation (formerly known
as Newell Co., the "COMPANY"), Banc One Capital Markets, Inc. (formerly known as
First Chicago Capital Markets, Inc., "BANC ONE"), Chase Securities Inc.
("CHASE") and Morgan Stanley & Co. Incorporated ("MORGAN STANLEY") are parties
to that certain Distribution Agreement (as amended, supplemented or otherwise
modified, the "PRIOR AGREEMENT") dated May 3, 1996 relating to the issue and
sale by the Company of its Medium-Term Notes, Series A, Due Nine Months or More
from Date of Issue (the "SERIES A NOTES").
The parties hereto desire that the Prior Agreement be, and
hereby is, amended and restated in the form of this Agreement in order, among
other things, to add Goldman, Sachs & Co. ("Goldman Sachs;" each of Chase,
Morgan Stanley, Banc One and Goldman Sachs being an "AGENT" and, collectively,
the "AGENTS") as a party and to cover the issue and sale of Series B Notes (as
defined below).
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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This Agreement confirms the understanding and agreement of the
parties hereto with respect to (a) Series A Notes which have not previously been
issued and sold (the "REMAINING SERIES A NOTES"), and (b) the Company's
Medium-Term Notes, Series B, Due Nine Months or More from Date of Issue (the
"SERIES B NOTES," the Remaining Series A Notes and the Series B Notes being,
collectively, the "NOTES").
The Notes are to be issued pursuant to the senior indenture
(the "INDENTURE") dated as of November 1, 1995 between the Company and The Chase
Manhattan Bank, as trustee (the "TRUSTEE"). As of the date hereof, the Company
has authorized the issuance and sale of up to U.S. $779,500,000 aggregate
initial offering price (or its equivalent, based upon the applicable exchange
rate at the time of issuance, in such foreign currencies or units of two or more
currencies as the Company shall designate at the time of issuance) of Notes to
or through the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be sold to or through the
Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
The Company has filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 (No. 333-__________)
for the registration of securities, including the Notes, under the Securities
Act of 1933, as amended (the "1933 ACT"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the SEC under
the 1933 Act (the "1933 ACT REGULATIONS"). Such registration statement has been
declared effective by the SEC and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 ACT"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplement
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
ACT"), or the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "PROSPECTUS" shall
refer to such revised prospectus from and after the time it is first provided to
the Agents for such use.
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and
conditions stated herein, the Company hereby appoints each Agent as its agent
for the purpose of soliciting purchases of the
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Chase Securities Inc.
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Morgan Stanley & Co. Incorporated
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Notes from the Company by others and agrees that, except as otherwise
contemplated herein, whenever the Company determines to sell Notes directly to
an Agent as principal for resale to others, it will enter into a Terms Agreement
(hereafter defined) relating to such sale in accordance with the provisions of
Section 3(b) hereof. The Company agrees that, during the period the Agents are
acting as the Company's agents hereunder, the Company will not appoint any other
agent or agents to act on its behalf, or to assist it, in the placement of Notes
unless and until such agent or agents shall have agreed to be bound by the terms
and provisions of this Agreement or a separate agreement substantially similar
hereto. The Company reserves the right to (i) offer Notes for sale otherwise
than to or through an Agent and (ii) sell (and solicit and accept offers to
purchase) Notes directly on its own behalf in those jurisdictions in which it is
authorized to do so. In the case of any such sale not resulting from a
solicitation made by any Agent, no commission will be payable to an Agent with
respect to such sale.
(b) REASONABLE EFFORTS SOLICITATIONS; RIGHT TO REJECT
OFFERS. Upon receipt of instructions from the Company, each Agent will use its
reasonable efforts to solicit offers for purchases of such initial offering
price of the Notes (other than Notes, if any, being purchased by such Agent as
principal in accordance with Section 3(b) below) as the Company and such Agent
shall agree upon from time to time during the term of this Agreement, it being
understood that the Company shall not approve the solicitation of offers for the
purchase of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the aggregate initial offering price
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale, under the Registration Statement. Each applicable Agent will
communicate to the Company, orally or in writing, each offer to purchase Notes,
other than those offers rejected by such Agent. Each applicable Agent shall have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes through it, as a whole or in part, and any such rejection
shall not be deemed a breach of such Agent's agreement contained herein. The
Company may accept or reject any proposed purchase of the Notes, in whole or in
part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In
soliciting offers for the purchase of the Notes as agent of the Company, the
applicable Agent shall act solely as agent for the Company and not as principal.
Such Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but such Agent shall not have any
liability to the Company in the event any such purchase is not consummated for
any reason. If the Company shall default on its obligation to deliver Notes to a
purchaser whose offer to purchase Notes has been solicited by an Agent on an
agency basis and accepted by the Company, the Company shall (i) hold such Agent
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such default, pay to such Agent
any commission to which it
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Morgan Stanley & Co. Incorporated
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would be entitled in connection with such sale. None of the Agents shall have
any obligation to purchase Notes from the Company as principal, but one or more
Agents may agree from time to time to purchase Notes as principal. Any such
purchase shall be made in accordance with Section 3(b) hereof.
(d) RELIANCE. The Company and the Agents agree that any
Notes purchased by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as agent shall be placed by such
Agent, in reliance on the representations, warranties, covenants and agreements
of the Company contained herein and on the terms and conditions and in the
manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Agents as of the date hereof, as of the date of
each acceptance by the Company of an offer for the purchase of Notes (whether
through an Agent as agent or to an Agent as principal), as of the date of each
delivery of Notes (whether through an Agent as agent or to an Agent as
principal) (the date of each such delivery to an Agent as principal being
hereafter referred to as a "SETTLEMENT DATE"), and as of any time that the
Registration Statement or the Prospectus shall be amended or supplemented (each
of the times referenced above being referred to herein as a "REPRESENTATION
DATE") as follows:
(i) DUE INCORPORATION AND QUALIFICATION. The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement, the Indenture and the Notes; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise (a "MATERIAL ADVERSE EFFECT").
(ii) SUBSIDIARIES. Each subsidiary of the Company
which is a significant subsidiary as defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act (each a "SIGNIFICANT SUBSIDIARY") has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not have a Material Adverse Effect; and all
of the issued and outstanding capital stock, owned directly or indirectly by the
Company, of each Significant Subsidiary has been duly authorized and validly
issued is fully paid and non-assessable and is so owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. At
the time the Registration Statement became effective, the Registration Statement
and the Indenture complied, and as of each Representation Date will comply, in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the SEC under the
1939 Act (the "1939 ACT REGULATIONS"). The Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any amendment
to the Registration Statement becomes effective and any Annual Report on Form
10-K is filed by the Company with the SEC and as of each Representation Date,
will not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, as of the date hereof does not, and as
of each Representation Date will not, include an 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; provided, however, that the representations and warranties in this
subsection shall not apply, with respect to any Agent, to statements in or
omissions from the Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing by such
Agent with respect to itself expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which constitutes the
Trustee's Statement of Eligibility under the 1939 Act (Form T-1).
(iv) INCORPORATED DOCUMENTS. The documents
incorporated or deemed to be incorporated by reference in the Prospectus, at the
time they were filed or amended or hereafter are filed with the SEC, complied or
when so filed will comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 ACT REGULATIONS") and, when read together and with the
other information in the Prospectus, at the date hereof, at the date of the
Prospectus and at each Representation Date did not and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not misleading.
(v) ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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(vi) FINANCIAL STATEMENTS. The financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates indicated and the
consolidated results of their operations for the periods specified; except as
otherwise stated in the Registration Statement, said financial statements have
been prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis; and the supporting schedules
included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein.
(vii) AUTHORIZATION AND VALIDITY OF THIS
AGREEMENT, THE INDENTURE AND THE NOTES. This Agreement has been duly and validly
authorized, executed and delivered by the Company; the Indenture has been duly
and validly authorized, executed and delivered by the Company and is a valid and
binding obligation of the Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general equity principles; the
Notes have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement, the Indenture and the Officers'
Certificate with respect to the Notes heretofore delivered by the Company to the
Trustee (the "OFFICERS' CERTIFICATE") against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms Agreement, the
Notes will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights generally or by
general equity principles; the Notes and the Indenture will be substantially in
the form heretofore delivered to the Agents and conform in all material respects
to all statements relating thereto contained in the Prospectus; and each holder
of the Notes will be entitled to the benefits provided by the Indenture.
(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS.
Since the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and (b)
there have been no transactions entered into by the Company or any of its
subsidiaries that are material to the Company and its subsidiaries considered as
one enterprise, other than those in the ordinary course of business.
(ix) NO DEFAULTS. Neither the Company nor any of
its Significant Subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
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loan agreement, note, lease or other instrument to which it is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its Significant Subsidiaries is subject, except when
such default would not have a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the Notes, the
compliance by the Company with its obligations hereunder and thereunder and the
consummation of the transactions contemplated herein, therein and pursuant to
any applicable Terms Agreement will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its Significant
Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any such subsidiary is
subject, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative regulation or
administrative or court order or decree of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the Company.
(x) LEGAL PROCEEDINGS; CONTRACTS. Except as may
be set forth in the Registration Statement, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any of its subsidiaries, which will, in the opinion
of the Company, result in any Material Adverse Effect or will materially and
adversely affect the consummation of this Agreement; and there are no contracts
or documents of the Company or any of its subsidiaries which are required to be
filed or incorporated by reference as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been so filed or
incorporated by reference.
(xi) NO AUTHORIZATION, APPROVAL OR CONSENT
REQUIRED. No authorization, approval, consent, order or decree of any court or
governmental agency or body including the SEC is required for the consummation
by the Company of the transactions contemplated by this Agreement or in
connection with the sale of the Notes hereunder, except such as have been
obtained or rendered, as the case may be, or as may be required under state
securities ("BLUE SKY") laws.
(xii) INAPPLICABILITY OF INVESTMENT COMPANY ACT OF
1940. The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xiii) COMMODITY EXCHANGE ACT. The Notes, when
issued, authenticated and delivered pursuant to the provisions of this Agreement
and the Indenture, will be excluded or exempted under the provisions of the
Commodity Exchange Act, unless the Company has otherwise notified the Agent to
or through which such Notes will be sold prior to any offer thereof.
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(xiv) RATINGS. As of the date hereof, the senior
unsecured long term debt of the Company is rated ["A2"] by Moody's Investors
Service, Inc. ("MOODY'S") and ["A"] by Standard & Poor's Ratings Group ("S&P").
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by
any director or officer of the Company and delivered to an Agent or to counsel
for an Agent in connection with an offering of Notes or the sale of Notes to
such Agent as principal shall be deemed a representation and warranty by the
Company to such Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENTS. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees, when acting as agent of the
Company, to use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. The Agents
are not authorized to appoint sub-agents with respect to Notes sold through them
as agent.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation of
purchases from the Company until such time as the Company has advised the Agents
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form
of a discount, equal to the applicable percentage of the principal amount of
each Note sold by the Company in a completed transaction (subject to Section
1(c)(ii) hereof) as a result of a solicitation made by such Agent as set forth
in Schedule A hereto. The Company will not be required to pay a commission to
any Agent in connection with any sale of Notes made by the Company directly to
one or more investors which did not result from a solicitation made by such
Agent.
(b) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an
Agent and the Company, Notes shall be purchased by one or more Agents as
principal in accordance with terms agreed upon by such Agent or Agents and the
Company (which terms, unless otherwise agreed, shall, to the extent applicable,
include those terms specified in EXHIBIT A hereto and be agreed upon orally,
with written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes
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from the Company as principal. Each purchase of Notes, unless otherwise agreed,
shall be at a discount from the principal amount of each such Note equivalent to
the applicable commission set forth in Schedule A hereto. The Agents may engage
the services of any other broker or dealer in connection with the resale of the
Notes purchased by them as principal and may allow all or any portion of the
discount received in connection with such purchases from the Company to such
brokers and dealers. At the time of each purchase of Notes by one or more Agents
as principal, such Agent or Agents shall specify the requirements for the
stand-off agreement, officers' certificate, opinions of counsel and comfort
letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d) hereof.
(c) ADMINISTRATIVE PROCEDURES, ETC. Administrative
procedures with respect to the sale of Notes shall be agreed upon from time to
time by the Agents and the Company (the "PROCEDURES"). The Agents and the
Company agree to perform, and the Company shall direct the Trustee to perform,
the respective duties and obligations specifically provided to be performed by
them in the Procedures. A copy of the Procedures in effect as of the date of
this Agreement is attached hereto as EXHIBIT B.
The purchase price, interest rate or formula, maturity date
and other terms of the Notes shall be agreed upon by the Company and the
applicable Agent and set forth in a Pricing Supplement (as defined in Section
4(b) hereof) to be prepared following each acceptance by the Company of an offer
for the purchase of Notes. Except as may be otherwise provided in such
supplement to the Prospectus, the Notes will be issued in denominations of U.S.
$1,000 or any larger amount that is an integral multiple of U.S. $1,000. All
Notes sold to or through the Agents will be sold at 100% of their principal
amount, unless otherwise agreed to by the Company and the applicable Agent.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the
Agents immediately of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the SEC for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) the receipt of any comments
from the SEC with respect to the Registration Statement or the Prospectus,
including any document incorporated by reference therein, (iv) any request by
the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (v) the issuance
by the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment. In addition, after learning of either such events, the Company
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will forthwith notify the Agents if the rating assigned to any debt securities
of the Company by any nationally recognized securities rating agency shall have
been lowered, or if any such rating agency shall have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will
give the Agents notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than a supplement providing solely for the specification of
the interest rates or formulas, maturity dates, issuance prices, redemption
terms and prices, if any, and other terms of Notes sold pursuant hereto (any
such supplement being hereinafter referred to as a "PRICING SUPPLEMENT")),
whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed or used a reasonable time in
advance of such proposed filing or use, as the case may be.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE
PROSPECTUS. The Company will deliver to each Agent as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as each Agent may
reasonably request. The Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as each Agent shall reasonably request
so long as the requesting Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes. The
Registration Statement and the Prospectus and any amendments or supplements
thereto furnished to the Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will
prepare, with respect to any Notes to be sold to or through any Agent pursuant
to this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by such Agent and will file such Pricing Supplement pursuant
to Rule 424(b) under the 1933 Act within the time period prescribed therefor
under Rule 424(b).
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except
as otherwise provided in subsection (l) of this Section, if at any time during
the term of this Agreement any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Agents or counsel
for the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the
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opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes an Agent
may then own as principal, and the Company will promptly prepare and file with
the SEC such amendment or supplement, whether by filing documents pursuant to
the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements. For purposes of this subsection, the
Company will furnish such information with respect to itself to the Agents,
counsel for the Agents and counsel for the Company as may be necessary for
counsel for the Agents and counsel for the Company to be aware of and to consult
with the Agents and the Company with respect to the need to amend or supplement
the Prospectus, and shall furnish such further information as the Agents may
from time to time reasonably request.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL
INFORMATION. Except as otherwise provided in subsection (l) of this Section,
promptly after the date on which there shall be released to the general public
interim financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall inform
the Agents of the filing and shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference capsule financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations (if any) as shall be required by the 1933 Act or
the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL
INFORMATION. Except as otherwise provided in subsection (l) of this Section,
promptly on or prior to the date on which there shall be released to the general
public financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall cause
the Registration Statement and the Prospectus to be amended, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, to
include or incorporate by reference such audited financial statements and the
report or reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of
such financial statements or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) EARNINGS STATEMENTS. The Company will timely file
such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its security holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11 (a) of the 1933 Act.
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(i) BLUE SKY QUALIFICATIONS. The Company will endeavor,
in cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will promptly
advise the Agents of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any such state
or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(j) 1934 ACT FILINGS. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the SEC pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) STAND-OFF AGREEMENT. If specified by the applicable
Agent or Agents in connection with a purchase of Notes from the Company, as
principal, between the date of the agreement to purchase such Notes and the
Settlement Date with respect to such purchase, the Company will not, without the
prior written consent of such Agent or Agents, offer or sell, or enter into any
agreement to sell, any debt securities of the Company (other than the Notes that
are to be sold pursuant to such agreement and commercial paper in the ordinary
course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall
not be required to comply with the provisions of subsections (e), (f) or (g) of
this Section or subsections (c)(ii) and (d)(ii) of Section 7 during any period
from the time the Agents shall have been instructed by the Company to suspend
solicitation of purchases of the Notes in their capacity as agents to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or an Agent shall subsequently purchase Notes from the Company as
principal; provided, however, that compliance with such subsections shall be
required for any portion of such period during which any of the Agents shall
hold any Notes as principal purchased pursuant to this Agreement with the
intention of resale and shall so notify the Company when the distribution
of such Notes is completed.
(m) USE OF PROCEEDS. The Company will use the net
proceeds received by it from the issuance and sale of the Notes in the manner
specified in the Prospectus.
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SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of any Agent to solicit offers to purchase the
Notes as agent of the Company, the obligations of any purchasers of the Notes
sold through an Agent as agent, and any obligation of an Agent to purchase Notes
from the Company as principal, will be subject to the accuracy of the
representations and warranties on the part of the Company herein contained and
to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof relating to such Notes,
to the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions precedent
(the first date on which all of the following additional conditions precedent
are satisfied being the "EFFECTIVE DATE"):
(a) LEGAL OPINIONS. The Agents shall have received the
following legal opinions, dated as of the Effective Date, and otherwise in form
and substance satisfactory to the Agents:
(1) OPINION OF GENERAL COUNSEL OF COMPANY. The
opinion of the General Counsel of the Company to the effect that:
(i) Each Significant Subsidiary is
validly existing in good standing under the laws of the jurisdiction of its
organization and, to the best of such counsel's knowledge, each of the Company
and each Significant Subsidiary is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing would
not have a Material Adverse Effect.
(ii) Each Significant Subsidiary has the
power and authority to own, lease and operate its properties and to conduct its
business as currently conducted and as described in the Prospectus.
(iii) All of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and except for directors'
qualifying shares, if any, is owned directly or indirectly by the Company, free
and clear of any recorded security interest, lien, encumbrance or claim.
(iv) To the best of such counsel's
knowledge, there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the Prospectus, other than
those disclosed therein.
(v) The execution and delivery by the
Company of this Agreement, the Indenture and the Notes, the performance by the
Company of its agreements herein and therein
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and the incurrence by the Company of the indebtedness to be evidenced by the
Notes will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary under any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
known to such counsel and to which the Company or any Significant Subsidiary is
a party or by which any of them are bound or to which any property or assets of
the Company or any such Significant Subsidiary is subject.
(2) OPINION OF COMPANY COUNSEL. The opinion of
Schiff Hardin & Waite, counsel to the Company, to the effect that:
(i) The Company and each Significant
Subsidiary has been duly incorporated (or, in the case of a Significant
Subsidiary that is not a corporation, duly formed or organized, as the case may
be) and is validly existing in good standing under the laws of the jurisdiction
of its incorporation (or, if applicable, formation or organization).
(ii) The Company has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement, the Indenture and the Notes.
(iii) The Company is duly qualified as a
foreign corporation to transact business and is in good standing under the laws
of the State of Illinois.
(iv) This Agreement has been duly and
validly authorized, executed and delivered by the Company.
(v) The Indenture has been duly and
validly authorized, executed and delivered by the Company and (assuming the
Indenture has been duly authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to or affecting enforcement of
creditors' rights generally, or by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(vi) The forms of the Notes filed as
exhibits to the Registration Statement comply with the requirements of the
Indenture applicable thereto; the Notes have been duly and validly authorized
for issuance, offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement, the
Indenture and the Officers' Certificate against payment of the consideration
therefor, will constitute valid and legally
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binding obligations of the Company, enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws relating
to or affecting enforcement of creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law); and each holder of Notes will be entitled to the benefits of
the Indenture.
(vii) The information in the Prospectus
under the captions "Description of Notes," "Description of Debt Securities,"
"Particular Terms of the Senior Debt Securities," "Particular Terms of the
Subordinated Debt Securities," "Description of Capital Stock" and "United States
Federal Income Taxation," to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal conclusions, has
been reviewed by such counsel and is correct in all material respects.
(viii) The Indenture is qualified under
the 1939 Act.
(ix) The Registration Statement is
effective under the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
SEC.
(x) At the time the Registration
Statement became effective, the Registration Statement (other than the financial
statements and related schedules and other financial information included or
incorporated by reference therein) complied as to form in all material respects
with the requirements of the 1933 Act, the 1939 Act and the regulations under
each of those Acts.
(xi) The execution, delivery and
performance by the Company of this Agreement, the Indenture and the Notes, the
performance by the Company of its agreements herein and therein and the
incurrence by the Company of the indebtedness to be evidenced by the Notes will
not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any Material Contract nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or any law, administrative regulation or administrative or court order
or decree known to such counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator having jurisdiction
over the Company. For purposes of the preceding sentence, "MATERIAL CONTRACT"
shall mean each indenture, loan agreement, contract, agreement or arrangement,
as each shall have been amended to the date of such opinion, filed as an exhibit
to, or incorporated by reference in, the most recent Annual Report to the SEC on
Form 10-K
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of the Company or any report filed since the date of such report with the SEC
under Section 13 of the 1934 Act.
(xii) To the best of such counsel's
knowledge, there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments or documents required to be described or
referred to in the Registration Statement or Prospectus or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(xiii) No authorization, consent,
approval, order or decree of any court or governmental agency or body including
the SEC is required for the consummation by the Company of the transactions
contemplated by this Agreement or in connection with the sale of the Notes
hereunder, except such as may be required under the 1933 Act, the 1933 Act
Regulations, the 1939 Act, the 1939 Act Regulations or state securities laws.
(xiv) Each document filed pursuant to the
1934 Act and incorporated by reference in the Prospectus (other than the
financial statements and related schedules and other financial information
included or incorporated by reference therein) complied when filed or, if
amended, when so amended, as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
(3) OPINION OF COUNSEL TO THE AGENTS. The
opinion of Brown & Wood LLP, counsel to the Agents, covering the matters
referred to in subparagraph (2) under the subheadings (i) and (v) to (xi)
(except the caption "United States Federal Income Taxation" under (viii),
inclusive, above.
(4) DISCLOSURE. In giving their opinions
required by subsections (a)(1), (a)(2) and (a)(3) of this Section, the General
Counsel of the Company, Schiff Hardin & Waite and Brown & Wood LLP shall each
additionally state that nothing has come to their attention that leads them to
believe that the Registration Statement (other than the financial statements and
related schedules and other financial information included or incorporated by
reference therein), at the time it became effective (or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed by the
Company with the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at the time of
the most recent such filing, as the case may be) and at the date hereof, or (if
such opinion is being delivered in connection with the purchase of Notes from
the Company by one or more Agents as principal pursuant to Section 7(c) hereof)
at the date of any agreement by any Agent or Agents to purchase Notes from the
Company as principal and at the Settlement Date with respect thereto, as the
case may be, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading
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or that the Prospectus (other than the financial statements and related
schedules and other financial information included or incorporated by reference
therein), at the date hereof (or, if such opinion is being delivered in
connection with the purchase of Notes from the Company by one or more Agents as
principal pursuant to Section 7(c) hereof, at the date of any agreement by such
Agent or Agents to purchase Notes from the Company as principal and at the
Settlement Date with respect thereto, as the case may be) (included or) includes
an untrue statement of a material fact or (omitted or) omits 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.
The Company hereby requests that counsel render the opinions
provided for in Sections 5(a)(l) and 5(a)(2) of this Agreement, and any opinions
called for by Section 7(c) of this Agreement, on its behalf.
(b) OFFICER'S CERTIFICATE. On the Effective Date and on
each Settlement Date with respect to the purchase of Notes from the Company by
one or more Agents as principal, there shall not have been since the respective
dates as of which information is given in the Registration Statement and the
Prospectus or since the date of the agreement by such Agent or Agents to
purchase such Notes from the Company as principal, any material adverse change
in the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and the
Agents shall have received a certificate or certificates of the chief financial
officer, the treasurer or any assistant treasurer of the Company, substantially
in the form of APPENDIX I hereto and dated as of a date that is satisfactory to
the Agents, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties of the Company contained in
Section 2 hereof are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) the Company has
performed or complied with all agreements and satisfied all conditions on its
part to be performed, complied with or satisfied hereunder at or prior to the
date of such certificate, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the SEC.
(c) COMFORT LETTER. The Agents shall have received a
letter from Arthur Andersen LLP, dated as of the Effective Date, and otherwise
in form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements and supporting schedule(s) of the Company and its subsidiaries
examined by them and included or incorporated by
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reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures,
not constituting an audit, including a reading of the latest available interim
financial statements of the Company and its indicated subsidiaries, a reading of
the minute books of the Company and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of the Company and such
subsidiaries responsible for financial and accounting matters with respect to
any unaudited consolidated financial statements included in the Registration
Statement and Prospectus and the latest available interim unaudited financial
statements of the Company and its subsidiaries, and such other inquiries and
procedures as may be specified in such letter, and on the basis of such
inquiries and procedures nothing came to their attention that caused them to
believe that: (A) any material modifications should be made to the unaudited
consolidated financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement and Prospectus for
them to be in conformity with generally accepted accounting principles in the
United States, (B) any unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and the
1934 Act Regulations, (C) any other unaudited financial statement data included
in the Registration Statement and Prospectus do not agree with the corresponding
items in the unaudited financial statements from which such data were derived or
any such unaudited financial statement data were not determined on a basis
substantially consistent with the corresponding amounts in the audited financial
statements included in the Registration Statement and Prospectus, (D) any
unaudited pro forma financial statements included in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of those
statements, or (E) at a specified date not more than five days prior to the date
of such letter, there was any change in the consolidated capital stock or any
increase in consolidated long-term debt of the Company and its subsidiaries
(other than changes resulting from the exercise of stock options granted under
the Company's existing stock option plans or drawings under the Company's
existing revolving credit agreements with The Chase Manhattan Bank and certain
other banks referred to therein) or any decrease in the consolidated net assets
of the Company and its subsidiaries, in each case as compared with the amounts
shown on the most recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and Prospectus or, during the period from the date of such balance sheet to a
specified date not more than five days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the preceding
year, in consolidated revenues or net income of the Company and its
subsidiaries, except in each such case as set forth in or contemplated by the
Registration Statement and Prospectus or
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except for such exceptions enumerated in such letter as shall have been agreed
to by the Agents and the Company.
(iv) In addition to the examination referred to
in their report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to in clause
(iii) above, they have carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the Agents, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(d) RATINGS. With respect to the purchase of any Notes by
or through an Agent, neither Moody's nor S&P shall have lowered its rating as to
such Notes since the date on which the Company agreed to issue and sell such
Notes nor, since such date, shall either of such rating agencies have publicly
announced that it has under surveillance or review with possible negative
implications its rating of the Notes.
(e) OTHER DOCUMENTS. On the date hereof and on each
applicable Settlement Date, counsel to the Agents shall have been furnished with
such documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be reasonably satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by an Agent (as to itself) by notice to the Company (in writing, or
orally if promptly confirmed in writing) at any time and any such termination
shall be without liability of any party to any other party, except that the
covenant regarding the provision of an earnings statement set forth in Section
4(h) hereof, the provisions concerning payment of expenses set forth in Section
10 hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 11 hereof and the provisions
concerning governing law and forum set forth in Section 14 hereof shall remain
in effect.
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SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made
by the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment for a Note on the
date fixed for settlement, the applicable Agent shall promptly notify the
Company and deliver the Note to the Company, and, if such Agent has theretofore
paid the Company for such Note, the Company will promptly return such funds to
the Agent. If such failure occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse the Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by the Company of an offer for the purchase of Notes (whether to one
or more Agents as principal or through an Agent as agent), and each delivery of
Notes (whether to one or more Agents as principal or through an Agent as agent),
shall be deemed to be an affirmation that the representations and warranties of
the Company contained in this Agreement and in any certificate theretofore
delivered to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or his or its agent, or to the Agents, of the Note or Notes
relating to such acceptance or sale, as the case may be, as though made at and
as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that
(i) the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a Pricing Supplement, or an amendment or supplement
providing solely for the inclusion of additional financial information and,
unless an Agent shall otherwise specify, other than by an amendment or
supplement which relates exclusively to an offering of debt securities other
than the Notes), or (ii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company sells Notes to
one or more Agents as principal, the Company shall furnish or cause to be
furnished forthwith to the Agents (or, in the case of clause (ii), such Agent or
Agents as the case may be) a certificate of the chief financial officer, the
treasurer or any assistant treasurer of the Company, dated the date of filing
with the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form satisfactory to
such Agents to the effect that the statements contained in the certificate
referred to in Section 5(b)
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hereof which were last furnished to such Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that
(i) the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a Pricing Supplement or an amendment or supplement
providing solely for the inclusion of additional financial information, and,
unless an Agent shall otherwise specify, other than by an amendment or
supplement which relates exclusively to an offering of debt securities other
than the Notes), (ii) there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K or
Quarterly Report on Form 10-Q, unless an Agent shall otherwise specify) or (iii)
(if required in connection with the purchase of Notes from the Company by one or
more Agents as principal) the Company sells Notes to one or more Agents as
principal, the Company shall furnish or cause to be furnished forthwith to the
Agents (or in the case of clause (iii), such Agent or Agents as the case may be)
the written opinions of the General Counsel of the Company and Schiff Hardin &
Waite, counsel to the Company, or other counsel satisfactory to such Agents,
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance satisfactory to such Agents, of the same tenor as the
opinions referred to in Section 5(a)(l) and (2) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion; or, in lieu of such
opinion or opinions, counsel last furnishing such opinion or opinions to such
Agents shall furnish such Agents with a letter or letters substantially in the
form of APPENDIX II hereto to the effect that such Agents may rely on such last
opinion or opinions to the same extent as though it was or they were dated the
date of such letter or letters authorizing reliance (except that statements in
such last opinion or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time
that (i) the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, (ii) there is filed
with the SEC any document incorporated by reference into the Prospectus which
contains additional financial information (other than any current Report on Form
8-K or Quarterly Report on Form 10-Q, unless an Agent shall otherwise specify)
or (iii) (if required in connection with the purchase of Notes from the Company
by one or more Agents as principal) the Company sells Notes to one or more
Agents as principal, the Company shall cause its outside public accountants
forthwith to furnish the Agents (or in the case of clause (iii), such Agent or
Agents as
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the case may be) a letter, dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to such Agents, of the
same tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clause (iii) of
said Section 5(c) and, as to audited financial statements only, clause (iv) of
said Section 5(c), in each case with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include (or
incorporate by reference) financial information as of and for a fiscal quarter,
such outside public accountants may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement (or so
incorporated) unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the reasonable
judgment of such Agents, such letter should cover such other information.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by the Agents),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
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body, commenced or threatened or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company with
respect to an Agent by an Agent expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto), or made in reliance upon the Trustee's Statement of Eligibility under
the 1939 Act filed as an exhibit to the Registration Statement.
(b) INDEMNIFICATION OF COMPANY. Each Agent severally
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company with respect to an
Agent by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 8(a) hereof, counsel to the indemnified parties shall be selected by
the applicable Agent(s) and, in the case of parties indemnified pursuant to
Section 8(b) hereof, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened or, any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or Section 9 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason unavailable or insufficient, the Company and the Agents shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
the Agents, as incurred, in such proportions that each Agent is responsible for
that portion represented by the percentage that the total commissions and
underwriting discounts received by such Agent bears to the total sales price
received by the Company, in each case from the sale of Notes to or through such
Agent to the date of such liability, and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as such Agent, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing or other reproduction,
issuance and delivery of the Notes, including any fees and expenses relating to
the use of book-entry Notes;
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
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(d) The fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel, and of any calculation
agent;
(e) The reasonable fees and disbursements of counsel to
the Agents incurred in connection with the establishment of the program relating
to the Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing or other reproduction and
delivery to the Agents of copies of the Indenture and all supplements and
amendments thereto;
(i) Any fees charged by rating agencies for the rating of
the Notes;
(j) The fees and expenses, if any, incurred with respect
to any filing with the National Association of Securities Dealers, Inc. or
listing on a securities exchange;
(k) Any advertising and other out-of-pocket expenses of
the Agents incurred with the approval of the Company;
(l) The cost of providing any CUSIP or other
identification numbers for the Notes; and
(m) The fees and expenses of any Depositary (as defined
in the Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of an Agent or any
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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controlling person of such Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement
(excluding any agreement by one or more Agents to purchase Notes from the
Company as principal) may be terminated for any reason, at any time by either
the Company or by an Agent with regard to such Agent upon the giving of 30 days'
written notice of such termination to each other party hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS
PRINCIPAL. The Agent or Agents may terminate any agreement by such Agent or
Agents to purchase Notes from the Company as principal, immediately upon notice
to the Company, at any time prior to the Settlement Date relating thereto (i) if
there shall have been, since the date of such agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if, since the date of such
agreement, there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the judgment of such Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes, or (iii) if,
since the date of such agreement, trading in any securities of the Company shall
have been suspended by the SEC or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by either of said Exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities or if a banking moratorium shall have
been declared by the relevant authorities in the country or countries of origin
of any foreign currency or currencies in which the Notes are denominated or
payable, or (iv) if the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company as of the date of such
agreement shall have been lowered since that date or if any such rating agency
shall have publicly announced since such date that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Company, or (v) if there shall have come to such Agent's attention any
facts that would cause such Agent to reasonably believe that the Prospectus, at
the time it was required to be delivered to a purchaser of Notes, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time of such delivery, not misleading.
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Chase Securities Inc.
Goldman, Sachs & Co.
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(c) GENERAL. In the event of any such termination, no
party will have any liability to any other party to this Agreement, except that
(i) each Agent shall be entitled to any commission earned by it in accordance
with the third paragraph of Section 3(a) hereof, (ii) if at the time of
termination (a) an Agent shall own any Notes purchased from the Company as
principal with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his or its agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant regarding the provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses set forth in
Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery set forth in Section 11 hereof and
the provisions concerning governing law and forum set forth in Section 14 hereof
shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either delivered by hand,
by mail or by telex, telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Newell Rubbermaid Inc.
29 East Stephenson Street
Freeport, Illinois 61032
Attention: Clarence R. Davenport
Telecopier: 815-233-8060
If to Chase Securities:
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Medium Term Note Desk
Telecopier: 212-834-6081
If to Goldman Sachs:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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Attention: Credit Department, Credit Control -
Medium Term Note
Telecopier: 212-346-2793
If to Morgan Stanley:
Morgan Stanley & Co. Incorporated
1585 Broadway, 29th Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telecopier: 212-761-0780
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Peter Cooper,
Investment Banking Information Center
Telecopier: 212-761-0260
If to Banc One:
Banc One Capital Markets, Inc.
One First National Plaza
Mail Suite 0595, 8th Floor
Chicago, Illinois 60670
Attention: Evonne Taylor
Telecopier: 312-732-4172
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW.
This Agreement and all the rights and obligations of the
parties created hereby shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in such state. Any suit, action or proceeding brought by the Company against an
Agent in connection with or arising under this Agreement shall be brought solely
in the state or federal court of appropriate jurisdiction located in The City of
New York.
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding
upon each Agent and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
If the foregoing is in accordance with the Agents'
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all counterparts
will become a binding agreement between the Agents and the Company in
accordance with its terms.
Very truly yours,
NEWELL RUBBERMAID INC.
By:
-----------------------------------
Name: C.R. Davenport
Title: Vice President - Treasurer
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
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Accepted:
BANC ONE CAPITAL MARKETS, INC.
By:
-----------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
-----------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By:
-----------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
-----------------------------
Name:
Title: