U.S. $150,000,000
INTERNATIONAL MULTIFOODS CORPORATION
Medium-Term Notes, Series B
DISTRIBUTION AGREEMENT
February 1, 1996
▇▇▇▇▇▇ Brothers
▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
BA Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BT Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Chicago Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
International Multifoods Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time its Medium-Term Notes,
Series B (the "Securities") in an aggregate offering price of up to U.S.
$150,000,000, or its equivalent based on the applicable exchange rate in foreign
currencies or currency composites or currency units, and agrees with ▇▇▇▇▇▇
Brothers, ▇▇▇▇▇▇ Brothers Inc., BA Securities, Inc., BT Securities Corporation,
First Chicago Capital Markets, Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (each
individually an "Agent," and collectively, the "Agents") as set forth in this
Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a
separate agreement in the form attached hereto as Annex I or such other form as
provided herein (each a "Purchase Agreement"), relating to such sale in
accordance with Section 2(b) hereof.
The Securities will be issued under an Indenture dated as of January
1, 1990, as supplemented by the First Supplemental Indenture dated as of May 29,
1992 (as it may be further supplemented or amended from time to time, the
"Indenture"), between the Company and First Trust of New York, National
Association (successor to ▇▇▇▇▇▇ Guaranty Trust Company of New York), as Trustee
(the "Trustee"). The Securities shall have the maturity ranges, applicable
interest rates or interest rate formulas, if any, redemption and repayment
provisions, specified currency, issue price and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) A registration statement on Form S-3 in respect of the
Securities has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to such Agent
(excluding exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus included therein) has been declared
effective by the Commission in such form; and no stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the registration statement,
including all exhibits thereto (but excluding Form T-1) and the documents
incorporated by reference in the prospectus contained in the registration
statement, when it became effective under the Act, and as amended or
supplemented from time to time, being hereinafter collectively called the
"Registration Statement"; the prospectus (including, if applicable, any
prospectus supplement) relating to the Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, and as amended or supplemented from time to
time, being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include the Prospectus
as amended or supplemented (including by the applicable Pricing Supplement filed
in accordance with Section 4(a) hereof) in relation to Securities sold pursuant
to this Agreement, in the form filed, or transmitted for filing, with the
Commission pursuant to Rule 424(b) under the Act and in accordance with Section
4(a) hereof, including any documents incorporated by reference therein as of the
date of such filing);
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(b) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations thereunder,
and none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, or any further amendment or
supplement thereto, when such documents are filed with the Commission will
conform in all material respects to the requirements of the Exchange Act and the
rules and regulations thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by any Agent expressly for use in the Prospectus as amended or supple-
mented to relate to a particular issuance of Securities; the Indenture has been
duly qualified under the Trust Indenture Act; the Indenture, including any
supplements and amendments thereto, conforms with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any decrease in
the consolidated capital stock of the Company in excess of $5,000,000 or any
increase in the consolidated long-term debt of the Company in excess of
$30,000,000 or any material adverse change in or affecting the general affairs,
management, business, properties or financial position of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus;
(e) This Agreement has been, and each Purchase Agreement when
executed and delivered pursuant to this Agreement will be, duly executed and
delivered by the Company;
(f) 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 and has the power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus;
(g) The authorized capital stock of the Company is 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;
3
(h) When the terms of the Securities have been established in
accordance with the Indenture, and the Securities are issued and delivered
pursuant to this Agreement and any Purchase Agreement, the Securities will have
been duly authorized, executed, authenticated and delivered, will be validly
issued and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture and enforceable in accordance
with their terms and the terms of the Indenture (subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles),
which will be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented to relate to such
issuance of Securities;
(i) The Company is not in violation of its corporate charter or
bylaws; the issue and sale of the Securities, the compliance by the Company with
all of the provisions of the Securities, the Indenture, this Agreement and any
Purchase Agreement, the execution and delivery of the Securities, the Indenture,
this Agreement and any Purchase Agreement and the consummation of the
transactions herein and therein contemplated have been duly authorized by all
necessary corporate action and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the Bylaws of the Company (or the charter or
bylaws of any of its subsidiaries) or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties, except for any such conflicts, breaches,
violations or defaults which, individually or in the aggregate, would not be
material to the Company and its subsidiaries, taken as whole; 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 Securities, the issue and sale of the Securities or the consummation
by the Company of the other transactions contemplated by this Agreement, any
Purchase Agreement or the Indenture, except such as have been, or will have been
prior to the Closing Date (as defined in Section 3 hereof), obtained under the
Act or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under any securities or Blue
Sky laws of any state or foreign jurisdiction in connection with the
solicitation by such Agent of offers to purchase Securities from the Company and
with purchases of Securities by such Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(j) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is subject which, individually or in the aggregate,
would reasonably be expected to have a material adverse effect on the business,
properties or consolidated financial position of the Company and its
subsidiaries, taken as a whole, or which is required to be disclosed in the
Registration Statement and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(k) Immediately after any sale of Securities by the Company
hereunder or under any Purchase Agreement, the aggregate amount of Securities
which shall have been issued and sold by
4
the Company hereunder or under any Purchase Agreement and of any debt securities
of the Company (other than such Securities) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the amount of debt
securities registered under the Registration Statement;
(l) The audited financial statements of the Company included or
incorporated by reference in each Prospectus present fairly the consolidated
financial position, results of operations and cash flows of the entities
purported to be shown thereby in conformity with generally accepted accounting
principles, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the period or periods involved, except as otherwise
set forth therein; the supporting consolidated financial statement schedule or
schedules, if any, included or incorporated by reference in each Prospectus,
when considered in relation to the basic consolidated financial statements taken
as a whole, present fairly, in all material respects, the information set forth
therein; and the unaudited financial statements of the Company, if any, and the
related notes, contained in any Form 10-Q of the Company and included or
incorporated by reference in each Prospectus present fairly the consolidated
financial position, results of operations and cash flows of the Company at the
dates and for the periods indicated in conformity with generally accepted
accounting principles (except that the unaudited financial statements are
condensed and therefore do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements) applied on a consistent basis throughout the periods shown, except
as otherwise set forth therein and subject to changes resulting from year-end
audit adjustments, and prepared in accordance with the instructions to Form 10-
Q;
(m) To the best knowledge of the Company, KPMG Peat Marwick LLP,
whose report appears in the Company's most recent Annual Report on Form 10-K,
which is incorporated by reference in each Prospectus, are independent public
accountants with respect to the Company as required by the Act and the rules and
regulations thereunder; and
(n) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by the rules
and regulations promulgated thereunder, or which are required to be filed as
exhibits to any document incorporated by reference in any Prospectus by the
Exchange Act or the rules and regulations promulgated thereunder, which have not
been filed as exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by the rules and regulations
promulgated thereunder.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions herein set forth, each of the Agents hereby
agrees to use its reasonable efforts to solicit and receive offers to purchase
the Securities from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time.
The Company agrees to pay the applicable Agent a commission, at the
time of settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent or an offer to purchase received by such Agent,
in an amount equal to the following applicable percentage of the principal
amount of such Security sold:
5
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year 0.125%
From 1 year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.675%
20 years to 30 years 0.750%
The commission payable by the Company to the Agents with respect to
Securities with maturities greater than 30 years will be negotiated at the time
the Company issues such Securities. Procedural details relating to the issue
and delivery of Securities, the solicitation of offers to purchase Securities
and the payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II (except as provided
otherwise herein) as it may be amended from time to time by written agreement
between the Agents and the Company (the "Administrative Procedure"). The
provisions of the Administrative Procedure shall apply to all transactions
contemplated hereunder including those made pursuant to a Purchase Agreement,
unless otherwise set forth in such Purchase Agreement. Each Agent and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed. During such period, the
Company shall not be required to comply with the provisions of Sections 4(i),
4(j) and 4(k), except as otherwise provided in Section 10. Promptly upon
advising the Agents that such solicitation may be resumed, however, the Company
shall provide the documents required to be delivered by Sections 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to purchase the
Securities until such documents have been received by the Agents.
The Company reserves the right to sell, and may solicit and accept
offers to purchase, Securities directly on its own behalf, and, in the case of
any such sale not resulting from a solicitation made by any Agent, no commission
will be payable with respect to such sale. These provisions shall not limit
Section 4(f) hereof or any similar provision included in any Purchase Agreement.
The Company reserves the right to offer Securities for sale otherwise
than to or through an Agent; PROVIDED, HOWEVER, that so long as this Agreement
is in effect the Company will not appoint
6
any other agent for the purpose of soliciting purchases of the Securities on a
continuous basis. It is understood, however, that if from time to time the
Company is approached by a prospective agent offering to solicit a specific
purchase of Securities, the Company may engage such agent with respect to such
specific purchase, provided that the Agents are given notice of such purchase
promptly, including the terms thereof and a copy of any agreement setting forth
the terms of engagement of such agent by the Company, in each case after the
purchase is agreed to.
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the Company and
such Agent shall otherwise agree) a Purchase Agreement which will provide for
the sale of such Securities to, and the purchase thereof by, such Agent. A
Purchase Agreement may also specify certain provisions relating to the
reoffering of such Securities by such Agent. The commitment of any Agent to
purchase Securities as principal, whether pursuant to any Purchase Agreement or
otherwise, shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Purchase Agreement shall specify the
principal amount of Securities to be purchased by any Agent pursuant thereto,
the price to be paid to the Company for such Securities, any provisions relating
to rights of, and default by, underwriters acting together with such Agent in
the reoffering of the Securities and the time and date and place of delivery of
and payment for such Securities. Such Purchase Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Purchase Agreement, the procedural details relating to the issue
and delivery of such Securities and payment therefor shall be as set forth in
the Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Purchase Agreement, the Company agrees
to pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Purchase Agreement or
in accordance with the Administrative Procedure, is referred to herein as a
"Time of Delivery."
(c) Each Agent agrees, with respect to any Security denominated
in a currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Purchase Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency (or if such Security
is denominated in a composite currency, in any country issuing a currency
comprising a portion of such composite currency), except as permitted by
applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Closing Date (as defined below) shall be delivered at the offices
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, at 10:00 a.m., Chicago time, on the
date of this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be later than
the day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which any Purchase Agreement is executed (such time and date
being referred to herein as the "Closing Date").
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4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Closing Date which shall be
reasonably disapproved by any Agent promptly after reasonable notice thereof or
(B) after the date of any Purchase Agreement or other agreement by an Agent to
purchase Securities as principal and prior to the related Time of Delivery which
shall be reasonably disapproved by any Agent party to such Purchase Agreement or
so purchasing as principal promptly after reasonable notice thereof; (ii) to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such Securities
in a form previously approved by such Agent and to file such Pricing Supplement
pursuant to Rule 424 under the Act within the applicable time period specified
by Rule 424; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus (other than any Pricing Supplement, any supplement
relating to an offering of securities other than the Securities, or any periodic
report filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus) at any time prior to having afforded each Agent a reasonable
opportunity to review and comment thereon; (iv) to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such same
period to advise such Agent, promptly after the Company receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or
has become effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to Securities not
purchased through or by such Agent) has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional information; and (v)
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities; PROVIDED, HOWEVER, that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto in the form filed with the Commission, with
copies of the Prospectus as each time amended or supplemented, other than any
Pricing Supplement (except as provided in the Administrative Procedure), in the
form in which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference therein, all in
such quantities as such Agent may reasonably request from time to time; and, if
the delivery of a Prospectus is required at any time in connection with the
offering or sale of the Securities (including Securities purchased from the
Company by such Agent as principal) and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus
8
or to file under the Exchange Act any document to be incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify such Agent and request such Agent, in its capacity as
agent of the Company, to suspend solicitation of offers to purchase Securities
from the Company (and, if so notified, such Agent shall cease such solicitations
as soon as practicable, but in any event not later than one business day later);
and if the Company shall decide to amend or supplement the Registration
Statement or the Prospectus as then amended or supplemented, to so advise such
Agent promptly by telephone (with confirmation in writing) and promptly to
prepare and cause to be filed with the Commission an amendment or supplement to
the Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance;
PROVIDED, HOWEVER, that if during such same period such Agent continues to own
Securities purchased from the Company by such Agent as principal or such Agent
is otherwise required to deliver a Prospectus in respect of transactions in the
Securities, the Company shall promptly prepare and file with the Commission such
an amendment or supplement;
(d) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period this Agreement is in effect with respect
to any Agent, to furnish to such Agent copies of all reports or other
communications (financial or other) furnished to stockholders, and deliver to
such Agent (i) as soon as they are available, copies of any reports and
financial statements filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as such Agent may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(f) That, from the date of any Purchase Agreement with such
Agent or other agreement by such Agent to purchase Securities as principal and
continuing to and including the earlier of (i) the termination of the trading
restrictions for the Securities purchased thereunder, as notified to the Company
by such Agent and (ii) the related Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which both mature more than 9 months after such Time of Delivery and are
substantially similar to the Securities, without the prior written consent of
such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Purchase Agreement), and each execution and delivery by the
Company of a Purchase Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the Company
contained in or made pursuant to this Agreement are true and correct as of the
date of such acceptance or of such Purchase Agreement, as the case may be, as
though made at and as of such date, and an undertaking that such representations
and warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date (except
that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented relating
to such Securities);
9
(h) That each time the Company sells Securities to such Agent as
principal pursuant to a Purchase Agreement and such Purchase Agreement specifies
the delivery of an opinion or opinions by Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇,
counsel to the Agents, as a condition to the purchase of Securities pursuant to
such Purchase Agreement, the Company shall furnish to such counsel such
documents and information as they may reasonably request to enable them to
furnish to such Agent the opinion or opinions referred to in Section 6(b)
hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), each time
a document is incorporated by reference into the Prospectus and each time the
Company sells Securities to such Agent as principal pursuant to a Purchase
Agreement and such Purchase Agreement specifies the delivery of an opinion under
this Section 4(i) as a condition to the purchase of Securities pursuant to such
Purchase Agreement, the Company shall furnish or cause to be furnished forthwith
to such Agent a written opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and General
Counsel of the Company, or other counsel for the Company satisfactory to such
Agent, dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form satisfactory to such
Agent, to the effect that such Agent may rely on the opinion of such counsel
referred to in Section 6(c) hereof which was last furnished to such Agent to the
same extent as though it were dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinion, an opinion of the same tenor as the
opinion of such counsel referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement) and each
time that a document is incorporated by reference into the Prospectus, in either
case to set forth financial information included in or derived from the
Company's consolidated financial statements or accounting records, and each time
the Company sells Securities to such Agent as principal pursuant to a Purchase
Agreement and such Purchase Agreement specifies the delivery of a letter under
this Section 4(j) as a condition to the purchase of Securities pursuant to such
Purchase Agreement, the Company shall cause the independent certified public
accountants who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
forthwith to furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as the case
may be, in form satisfactory to such Agent, of the same tenor as the letter
referred to in Section 6(d) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date of such
letter, with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the date of
such letter; PROVIDED, HOWEVER, that, with respect to any financial information
or other matter, such letter may reconfirm as true and correct at such date as
though made at and as of such date, rather than repeat, statements with respect
to such financial information or other matter made in the letter referred to in
Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), each time
a document is incorporated by reference into the Prospectus, and each time the
Company sells Securities to such Agent as principal pursuant to a Purchase
Agreement and the applicable Purchase Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Purchase Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of
10
such supplement, amendment, incorporation or Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officer of the
Company as shall be satisfactory to such Agent, to the effect that the
statements contained in the certificate referred to in Section 6(g) hereof which
was last furnished to such Agent are true and correct at such date as though
made at and as of such date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in Section 6(g) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
as the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Administrative Procedure, any condition set forth in
Section 6(a), 6(e) or 6(f) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the impracticability
or inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section 4(l), for the respective judgments of an Agent with
respect to certain matters referred to in such Sections 6(a), 6(e) and 6(f), and
that such Agent shall have no duty or obligation whatsoever to exercise the
judgment permitted under such Sections 6(a), 6(e) and 6(f) on behalf of any such
person).
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to such Agent; (ii) the reasonable fees,
disbursements and expenses of counsel for the Agents in connection with the
establishment of the program contemplated hereby and any opinions to be rendered
by such counsel hereunder and under any Purchase Agreement (up to a maximum of
$60,000, to be described in a reasonably detailed statement); (iii) the cost of
printing, producing or reproducing this Agreement, any Purchase Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iv) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Company in
connection with such qualification and in connection with the Blue Sky and legal
investments surveys; (v) any fees charged by securities rating services for
rating the Securities; (vi) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vii) the cost of preparing the Securities; (viii) the fees and
expenses of any Trustee and any agent of any Trustee and any transfer or paying
agent of the Company and the fees and disbursements of counsel for any Trustee
or such agent in connection with any Indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of offers to purchase and
the sale of Securities so long as such advertising expenses have been approved
in advance in writing by the Company; (x) the costs and fees in connection with
any listing of the Securities on any securities exchange; and (xi) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. Except as
provided in Sections 7 and 8 hereof, each Agent shall pay all other expenses it
incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Purchase Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the
11
Company herein (and, in the case of an obligation of an Agent under a Purchase
Agreement, in or incorporated in such Purchase Agreement by reference) are true
and correct at and as of the Closing Date and any applicable date referred to in
Section 4(k) hereof that is prior to such Solicitation Time or Time of Delivery,
as the case may be, and at and as of such Solicitation Time or Time of Delivery,
as the case may be, the condition that prior to such Solicitation Time or Time
of Delivery, as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of such Agent;
(b) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Agents,
shall have furnished to such Agent (i) such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Prospectus and other related matters
as such Agent may reasonably request, and (ii) if and to the extent requested by
such Agent, with respect to each applicable date referred to in Section 4(h)
hereof that is on or prior to such Solicitation Time or Time of Delivery, as the
case may be, an opinion or opinions, dated such applicable date, to the effect
that such Agent may rely on the opinion or opinions which were last furnished to
such Agent pursuant to this Section 6(b) to the same extent as though it or they
were dated the date of such letter authorizing reliance (except that the
statements in such last opinion or opinions shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in clause (i)
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and in each case such counsel shall have
received from the Company such documents and information as they may reasonably
request to enable them to pass upon such matters;
(c) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and General Counsel of the
Company, or other counsel for the Company satisfactory to such Agent, shall have
furnished to such Agent his written opinion, dated the Closing Date and each
applicable date referred to in Section 4(i) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation and has the power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) The authorized capital stock of the Company is
as set forth in the Prospectus as amended or supplemented;
(iii) To the best of such counsel's knowledge and other
than as set forth or contemplated in the Prospectus, there are no legal or
governmental proceed-
12
ings pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the
subject which, individually or in the aggregate, would reasonably be
expected to have a material adverse effect on the consolidated financial
position of the Company and its subsidiaries, taken as a whole, or which is
required to be disclosed in the Registration Statement and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) The Company has the corporate power and authority to
execute and deliver this Agreement and any Purchase Agreement and to
perform its obligations hereunder and thereunder; and this Agreement and
any applicable Purchase Agreement have been duly authorized, executed and
delivered by the Company;
(v) Assuming that at the time of the issuance, sale and
delivery of each particular Security there will not have occurred any
change in law affecting the validity, legally binding character or enforce-
ability of such Security, that the terms of the Securities have been
established in accordance with the Indenture and that the Securities are
issued and delivered by the Company in accordance with this Agreement and
any Purchase Agreement, the Securities will have been duly authorized,
executed and delivered by the Company and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture and enforceable in accordance with their terms and the terms of
the Indenture (subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles); and the
Indenture conforms and the Securities will conform, in all material re-
spects, to the descriptions thereof in the Prospectus as amended or
supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance
by the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any applicable Purchase Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, of the Company or the Bylaws of the Company or,
to such counsel's knowledge, any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body is required for the
13
solicitation of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any applicable Purchase Agreement, or the
Indenture, except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under any securities or Blue Sky laws
of any state or foreign jurisdiction in connection with the solicitation by
the Agents of offers to purchase Securities from the Company and with
purchases of Securities by an Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(ix) The documents incorporated by reference in the
Prospectus (other than the financial statements and related schedules or
other financial data therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when they were so filed,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading;
(x) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and supplements thereto
made by the Company prior to the date of such opinion (other than the
financial statements and related schedules or other financial data therein,
as to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment or supplement thereto made by the Company prior to the
date of such opinion (other than the financial statements and related
schedules or other financial data therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of the date of
such opinion, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the date of
such opinion (other than the financial statements and related schedules or
other financial data therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; and such counsel
does not know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be incor-
porated by reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by reference or
described as required; and
(xi) The Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the
Commission;
14
(d) The independent certified public accountants who have
certified the financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement shall have furnished
to such Agent a letter, dated the Closing Date and each applicable date referred
to in Section 4(j) hereof that is on or prior to such Solicitation Time or Time
of Delivery, as the case may be, in form and substance satisfactory to such
Agent;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or supplemented,
(ii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have been any decrease in
the consolidated capital stock of the Company in excess of $5,000,000 or any
increase in consolidated long-term debt of the Company in excess of $30,000,000,
the effect of which, in any such case described in clause (i) or clause (ii),
is, in the judgment of such Agent, so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation by such Agent of
offers to purchase Securities from the Company or the purchase by such Agent of
Securities from the Company as principal, as the case may be, on the terms and
in the manner contemplated in the Prospectus as amended or supplemented, or
(iii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have been any material
adverse change in or affecting the general affairs, management, financial
position, business, properties, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented;
(f) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or on the Nasdaq National
Market; (ii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; (iii) the outbreak or
escalation of hostilities or the declaration by the United States of a national
emergency or war or any other substantial calamity or emergency; (iv) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act; (v) any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities; or (vi) any material adverse change in the existing financial,
political or economic conditions in the United States, including any effect of
international conditions on the financial markets in the United States, that, in
any such case described in clause (iii) or clause (vi), in the judgment of such
Agent makes it impracticable or inadvisable to proceed with the solicitation of
offers to purchase Securities or the purchase of Securities from the Company as
principal pursuant to the applicable Purchase Agreement or otherwise, as the
case may be; and
(g) The Company shall have furnished or caused to be furnished
to such Agent certificates of an officer of the Company dated the Closing Date
and each applicable date referred to in Section 4(k) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in such form
and executed by such officers of the Company as shall be satisfactory to such
Agent, as to the accuracy of the representations and warranties of the Company
herein at and as of the Closing Date or such applicable date, as the case may
be, as to the performance by the Company in all material respects of all of
its obligations hereunder to be performed at or prior to the Closing Date or
such
15
applicable date, as the case may be, as to the matters set forth in subsections
(a) and (e) of this Section 6, and as to such other matters as such Agent may
reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent from
and against any losses, claims, damages or liabilities, joint or several, and
any action in respect thereof, to which such Agent may become subject, under the
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the Prospec-
tus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse such Agent for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
upon an untrue or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company from
and against any losses, claims, damages or liabilities, and any action in
respect thereof, to which the Company may become subject, under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to that extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under such subsection. In case
any such claim or action shall be brought against any indemnified party and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such
16
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, that such indemnified party shall have the right to employ a single
separate counsel if the indemnified party reasonably determines that there may
be a conflict between the positions of the indemnifying party and of the
indemnified party in conducting the defense of such action or that there may be
legal defenses available to such indemnified party different from or in addition
to those available to the indemnifying party, and in that event the fees and
expenses of such counsel shall be paid by the Company. In no event shall the
indemnifying party be liable for the fees and expenses of more than one separate
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. No indemnifying party shall,
without the prior written consent of the indemnified party (which consent shall
not be unreasonably withheld, delayed or conditioned), effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party
is a party; PROVIDED, HOWEVER, that no consent shall be required if such
settlement includes an unconditional release of such indemnified party from all
liabilities or claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required to contribute
any amount in excess of the amount by which the total public offering price at
which the Securities purchased by or through it were sold exceeds the amount of
any damages which such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person
17
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of each of the Agents under
this subsection (d) to contribute are several in proportion to the respective
purchases made by or through it to which such loss, claim, damage or liability
(or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Purchase
Agreement or otherwise), is acting individually and not jointly and solely as
agent for the Company and not as principal. Each Agent will make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Securities from the Company was solicited by such Agent and
has been accepted by the Company, but such Agent shall not have any liability to
the Company in the event such purchase is not consummated for any reason. If
the Company shall default on its obligation to deliver Securities to a purchaser
whose offer it has accepted, the Company shall (i) hold each Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii) notwithstanding such default, pay to the Agent that
solicited such offer any commission to which it would be entitled in connection
with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (i) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (ii) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously
accrued, (iii) if at the time of such suspension or termination, an offer for
the purchase of Securities shall have been accepted by the Company but the
delivery of Securities relating thereto to the purchaser or his agent shall not
yet have occurred or the proviso in Section 4(c) applies, this Agreement shall
remain in full force and effect with respect to the obligations set forth in
subsection (c), (e), (f), (h), (i), (j) and (k) of Section 4 and (iv) in any
event, this Agreement shall remain in full force and effect insofar as the
second paragraph of Section 2(a), Section 4(d), Section 5, Section 7, Section 8
and Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly
18
confirmed in writing, and if to ▇▇▇▇▇▇ Brothers Inc. shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to:
▇▇▇▇▇▇ Brothers, World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇, Facsimile Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Medium
Term Note Department; if to BA Securities, Inc. shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to:
BA Securities, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Facsimile Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
if to BT Securities Corporation shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to BT Securities
Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Facsimile
Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇; if to First Chicago
Capital Markets, Inc. shall be sufficient in all respects when delivered or sent
by facsimile or registered mail to First Chicago Capital Markets, Inc., One
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile
Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Credit Officer; if to ▇.▇. ▇▇▇▇▇▇
Securities Inc., shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to: ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Facsimile Transmission No. (212) 648-
5909, Attention: Medium Term Note Desk; and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to: International Multifoods Corporation, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile Transmission No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
12. If at any time the Company and any of the Agents shall determine
to issue and sell securities denominated in a currency or currency unit other
than U.S. Dollars, which other currency may include a composite currency, or
with respect to which an index is used to determine the amounts of payments of
principal and any premium or interest, the Company and any such Agent shall
execute and deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as Annex III.
Such amendment shall establish, as appropriate additions and modifications that
shall apply to the sales, whether offered on an agency or principal basis, of
the Securities covered thereby. The Agents are authorized to solicit offers to
purchase Securities with respect to which an index is used to determine the
amounts of payments of principal and any premium and interest, and the Company
shall agree to any sales of such Securities (whether offered on an agency or
principal basis), only in a minimum aggregate amount of $2,500,000.
13. This Agreement and any Purchase Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any Agent or the Company,
and their respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Purchase Agreement. No purchaser of any of the Securities
through or from any Agent hereunder shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence in this Agreement and any Purchase
Agreement. As used herein, the term "business day" shall mean any day which is
not a Saturday or Sunday and which is not a day on which (i) banking
institutions are generally authorized or obligated by law to close in The City
of New York and (ii) The New York Stock Exchange, Inc. is closed for trading.
15. This Agreement and any Purchase Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
19
16. This Agreement and any Purchase Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
20
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between the
Company and each of you in accordance with its terms.
Very truly yours,
International Multifoods Corporation
By:
------------------------------------
Name:
Title:
Confirmed and accepted in New York,
New York, as of the date first written
above:
▇▇▇▇▇▇ Brothers Inc.
By:
--------------------------
Authorized Signatory
BA Securities, Inc.
By:
--------------------------
Authorized Signatory
BT Securities Corporation
By:
--------------------------
Authorized Signatory
First Chicago Capital Markets, Inc.
By:
--------------------------
Authorized Signatory
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By:
--------------------------
Authorized Signatory
ANNEX I
PURCHASE AGREEMENT
[DATE]
International Multifoods Corporation
▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
The undersigned agrees to purchase the following principal amount of the
Securities described in the Distribution Agreement dated February 1, 1996 (as it
may be supplemented or amended from time to time, the "Distribution Agreement"):
PRINCIPAL AMOUNT: $ __________
SPECIFIED CURRENCY:
DENOMINATED AND INDEXED CURRENCIES:
INTEREST RATE: ____%
DISCOUNT: _____% of Principal Amount
AGGREGATE PRICE TO BE PAID TO COMPANY
(IN IMMEDIATELY AVAILABLE FUNDS): $ __________
SETTLEMENT DATE:
OTHER TERMS:
Terms defined in the Prospectus relating to the Securities and in the
Distribution Agreement shall have the same meaning when used herein.
In the case of Securities issued in a Specified Currency other than U.S.
dollars, payments of principal of (and premium, if any) and interest on all
Securities will be made in the applicable Specified Currency, PROVIDED, HOWEVER,
that payments of principal of (and premium, if any) and interest on Securities
denominated in other than U.S. dollars will nevertheless be made in U.S. dollars
(i) at the option of the Holders thereof, (ii) at the option of the Company in
the case of imposition of exchange controls or other circumstances beyond the
control of the Company as described below or (iii) if so specified in the
applicable Pricing Supplement.
The U.S. dollar amount to be received by a Holder of a Security denominated
in other than U.S. dollars who elects to receive payments in U.S. dollars will
be based on the highest indicated bid quotation for the purchase of U.S. dollars
in exchange for the Specified Currency obtained by the Currency Determination
Agent at approximately 11 a.m. New York City time on the second Business Day
next
preceding the applicable payment date from the bank composite or
multicontributor pages of the Quoting Source for three (or two if three are not
available) major banks in The City of New York. If two such bid quotations are
not available at 11:00 a.m., New York City time, on the second Business Day
preceding the date of payment of principal (and premium, if any) or interest
with respect to any such Security, such payment will be based on the Market
Exchange Rate as of the second Business Day next preceding the applicable
payment date. If the Market Exchange Rate for such date is not then available,
such payment will be made in the Specified Currency. All currency exchange
costs associated with any payment in U.S. dollars on any such Security will be
borne by the Holder thereof by deductions from such payment.
Our obligation to purchase Securities hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance in all material respects of all
applicable covenants and agreements contained therein, including, without
limitation, your obligations pursuant to Section 7 thereof. Our obligation
hereunder is subject to further condition that we shall receive (a) the opinions
required to be delivered pursuant to Sections 6(b) and 6(c) of the Distribution
Agreement, (b) the certificate required to be delivered pursuant to Section 6(g)
of the Distribution Agreement, (c) the letter referred to in Section 6(d) of the
Distribution Agreement, in each case dated as of the Settlement Date and (d)
[insert other conditions as appropriate].
In further consideration of our agreement hereunder, you agree that between
the date hereof and the above Settlement Date, you will not offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which both mature more than 9 months after such time of delivery and are
substantially similar to the Securities without our prior written consent.
We may terminate this Agreement, immediately upon notice to you, at any
time prior to the Settlement Date, if prior thereto there shall have occurred:
(i) any material adverse change in or affecting the general affairs, management,
business, properties or financial position of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented to the date hereof; (ii) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market; (iii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; (iv) any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act; (v) any such organization publicly announcing that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities; (vi) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national calamity or emergency; or
(vii) any material adverse change in the existing financial, political or
economic conditions in the United States, including any effect of international
conditions on the financial markets in the United States, that, in any such case
described in clause (vi) or clause (vii), in the judgment of such Agent makes it
impracticable or inadvisable to proceed with the purchase of securities from the
Company as principal pursuant to this Agreement or you are unable to provide any
of the opinions, certificates or letters referred to in the second preceding
paragraph. In the event of such termination, no party shall have any liability
to the other party hereto, except as provided in Sections 5, 7 and 13 of the
Distribution Agreement.
I-2
This Agreement shall be governed by and construed in accordance with the
laws of New York.
[INSERT NAME[S] OF AGENT[S]]
By:
-----------------------------------
[Title]
ACCEPTED: , 19
---
INTERNATIONAL MULTIFOODS CORPORATION
By:
--------------------------------
[Authorized Signatory]
I-3
ANNEX II
INTERNATIONAL MULTIFOODS CORPORATION
MEDIUM-TERM NOTES, SERIES B
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated February 1, 1996 (the "Distribution Agreement"),
between International Multifoods Corporation (the "Company") and ▇▇▇▇▇▇
Brothers, ▇▇▇▇▇▇ Brothers Inc., BA Securities, Inc., BT Securities Corporation,
First Chicago Capital Markets, Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (together,
the "Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture as amended or supplemented. To the extent any
procedure set forth below conflicts with the provisions of the Securities, the
Indenture or the Distribution Agreement, the relevant provisions of the
Securities, the Indenture or the Distribution Agreement shall control.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Purchase Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Purchase Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons from the
Company with whom such Agent is to communicate regarding offers to purchase
Securities and the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global certificate (a "Global Security") delivered to
the Trustee, as custodian for The Depository Trust Company (the "Depositary")
and recorded in the book-entry system maintained by the Depositary (a
"Book-Entry Security") or a certificate (a "Certificated Security") delivered to
a person designated by an Agent as set forth in the applicable Pricing
Supplement. An owner of a Book-Entry Security will not be entitled to receive a
certificate representing such a Security, except as provided in the Indenture or
the Prospectus as amended or supplemented.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of January 31, 1991 (the "Certificate Agreement"),
and its obligations as a participant in the Depositary, including the
Depositary's Same-Day Funds Settlement System ("SDFS").
POSTING RATES BY THE COMPANY:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
ACCEPTANCE OF OFFERS BY THE COMPANY:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO THE COMPANY BY AGENT AND SETTLEMENT
PROCEDURES:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate, initial
interest payment date, Interest Payment Dates and Regular Record
Dates;
(3) Trade Date;
(4) Settlement Date;
II-2
(5) Stated Maturity;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable exchange rate for such Specified
Currency (it being understood that currently the Depositary
accepts deposits of Global Securities denominated in U.S. dollars
only) and the Exchange Rate Agent;
(7) Selected Currencies, the Base Exchange Rate and the Determination
Agent, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Initial Redemption Date,
(ii) Initial Redemption Percentage (% of par), and
(iii) Annual Redemption Percentage Reduction;
(12) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
II-3
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such
Sale Information to the Trustee by facsimile transmission or other
acceptable written means. The Trustee will assign a CUSIP number to the
Global Security from a list of CUSIP numbers previously obtained by the
Company representing such Book-Entry Security and then the Company will
advise the Selling Agent or Purchasing Agent, as the case may be, of such
CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following
settlement information to the Depositary, and the Depositary shall forward
such information to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may
be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (or, in the case of Floating Rate
Securities which reset daily or weekly, the date five calendar
days immediately preceding the applicable Interest Payment Date
and, in the case of all other Book-Entry Securities, the Regular
Record Date, as defined in the Security) and, if calculable at
that time, the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i)
debit such Book-Entry Security to the Trustee's participant account and
credit such Book-Entry Security to such Agent's participant account and
(ii) debit such Agent's settlement account and credit the Trustee's
settlement account for an amount equal
II-4
to the price of such Book-Entry Security less such Agent's commission. The
entry of such a deliver order shall constitute a representation and
warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and
(b) the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to such Agent's participant account and
credit such Book-Entry Security to the participant accounts of the
Participants with respect to such Book-Entry Security and (ii) to debit the
settlement accounts of such Participants and credit the settlement account
of such Agent for an amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer
to the account of the Company maintained at First Bank National
Association, or such other account as the Company may have previously
specified to the Trustee, in funds available for immediate use in the
amount transferred to the Trustee in accordance with Settlement Procedure
"F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as
of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security
to the purchaser either by transmitting to the Participants with respect to
such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. The Depositary will, at any time, upon request of the Company or
the Trustee, promptly furnish to the Company or the Trustee a list of the
names and addresses of the Participants for whom the Depositary has
credited Book-Entry Securities.
II-5
PREPARATION OF PRICING SUPPLEMENT:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies (or one copy if sent by facsimile) of such
Pricing Supplement, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date (as defined below), or if the Company and
the purchaser agree to settlement on the Business Day following the date of
acceptance of such offer, not later than noon, New York City time, on such date.
The Company will file, or arrange to have filed, the Pricing Supplement with the
Commission not later than the close of business of the Commission on the fifth
Business Day following the date on which such Pricing Supplement is first used.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
DATE OF SETTLEMENT:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third Business Day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Company and the
purchaser agree to settlement on another Business Day which shall be no earlier
than the next Business Day after the Trade Date.
SETTLEMENT PROCEDURE TIMETABLE:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
II-6
SETTLEMENT
PROCEDURE TIME
--------- ----
A 11:00 a.m. on the Business Day following the Trade Date
B 1:00 p.m. on the Business Day following the Trade Date
C 2:00 p.m. on the second Business Day immediately preceding
the Settlement Date
D 3:00 p.m. on the Business Day immediately preceding
Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If a sale is to be settled one Business Day after the Trade Date,
Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable
but no later than 11:00 a.m., 1:00 p.m. and 2:00 p.m. on the Trade Date. If the
initial interest rate for a Floating Rate Book-Entry Security has not been
determined at the time that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as such rate has been
determined but no later than 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date. Settlement Procedure "H" is subject to extension
in accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m. on the Business Day immediately preceding
the scheduled Settlement Date.
FAILURE TO SETTLE:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
▇▇▇▇ such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but
II-7
not all, of the Book-Entry Securities represented by a Global Security, the
Trustee will exchange such Global Security for two Global Securities, one of
which shall represent such Book-Entry Security or Securities and shall be
canceled immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the
Participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such Participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such Participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall
have occurred for any reason other than solely as a result of a default by the
applicable Agent to perform its obligations in all material respects hereunder
or under the Distribution Agreement, the Company will reimburse such Agent on an
equitable basis for the loss of its use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
POSTING RATES BY COMPANY:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
ACCEPTANCE OF OFFERS BY COMPANY:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part.
II-8
Each Agent also may make offers to the Company to purchase Certificated Securi-
ties as a Purchasing Agent. The Company will have the sole right to accept
offers to purchase Certificated Securities and may reject any such offer in
whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO COMPANY BY AGENT:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate, initial
interest payment date, Interest Payment Dates and Regular Record
Dates;
(3) Trade Date;
(4) Settlement Date;
(5) Stated Maturity;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable exchange rate for such Specified
Currency and the Exchange Rate Agent;
(7) Selected Currencies, the Base Exchange Rate and the Determination
Agent, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following as
are applicable:
(i) Initial Redemption Date,
(ii) Initial Redemption Percentage (% of par), and
(iii) Annual Redemption Percentage Reduction;
(12) If a Floating Rate Certificated Security, such of the following
as are applicable:
II-9
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Certificated Security; and
(16) Selling Agent or Purchasing Agent.
PREPARATION OF PRICING SUPPLEMENT BY COMPANY:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies (or one copy if sent by facsimile) of
such Pricing Supplement, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date, or if the Company and the purchaser agree
to settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will file, or arrange to have filed,
the Pricing Supplement with the Commission not later than the close of business
of the Commission on the fifth Business Day following the date on which such
Pricing Supplement is first used.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing
II-10
Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the confir-
mation of sale or (b) the Certificated Security.
DATE OF SETTLEMENT:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the third Business Day after the date of acceptance
of such offer, unless the Company and the purchaser agree to settlement (a) on
another Business Day after the acceptance of such offer or (b) with respect to
an offer accepted by the Company prior to 10:00 a.m., New York City time, on the
date of such acceptance.
INSTRUCTION FROM COMPANY TO TRUSTEE FOR PREPARATION OF CERTIFICATED SECURITIES:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent (as the case may be), but no later than 3:00 p.m. on the Business Day
immediately preceding the Settlement Date, the Company will communicate such
Sale Information to the Trustee by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 12 noon, New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 9:00 a.m., New York City time,
on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
PREPARATION AND DELIVERY OF CERTIFICATED SECURITIES BY TRUSTEE AND RECEIPT OF
PAYMENT THEREFOR:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction at or
prior to 12 noon, New York City time, on the Settlement Date.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 12 noon, New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. At or prior to 2:15 p.m., New York
City time, on the Settlement Date the Selling Agent will deliver payment for
such Certificated Securities in immediately available funds to the Company in an
amount equal to the issue price of the Certificated Securities less the Selling
Agent's commission; provided that the Selling Agent reserves the right to
withhold payment for which it has not received funds from the purchaser. The
Company shall not use any proceeds advanced by a Selling Agent to acquire
securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
II-11
FAILURE OF PURCHASER TO PAY SELLING AGENT:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount of immediately available
funds equal to the amount previously paid to the Company in respect of such
Certificated Security. Such returns will be made on the Settlement Date, if
possible, and in any event not later than 12 noon, New York City time, on the
Business Day following the Settlement Date. The Company will reimburse the
Selling Agent on an equitable basis for its loss of the use of funds during the
period when they were credited to the account of the Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
II-12
ANNEX III
[INDEXED NOTE]
AMENDMENT NO. __
TO DISTRIBUTION AGREEMENT DATED _________ __, 19__, AS AMENDED
[Insert Title of the Denominated
and Indexed Currencies]
The undersigned hereby agree that for the purpose of the issue and sale of
Notes denominated in [title of currency or currency unit] (the "Denominated
Currency") and indexed to [title of currency or currency unit] (the "Indexed
Currency") pursuant to the Distribution Agreement, dated _________ __, 19__, as
it may be amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under the
Distribution Agreement of all Notes denominated in the Denominated Currency and
indexed to the Indexed Currency, whether offered on an agency or principal
basis, but shall be of no effect with respect to Notes denominated in any
currency or currency unit other than the Applicable Foreign Currency.
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Distribution Agreement shall have the same meanings as in the
Distribution Agreement. The term[s] Agent [or Agents], as used in the
Distribution Agreement, shall be deemed to refer [only] to the undersigned
Agent[s], for purposes of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
, 19
------------------------- ---
[NAME OF COMPANY]
By:
----------------------------
Name:
Title:
[NAME(S) OF AGENT(S) PARTICIPATING
IN THE OFFERING OF THE INDEXED NOTES]
By:
----------------------------
Name:
Title:
