U.S. $500,000,000*
Polaroid Corporation
Medium-Term Notes, Series A
DISTRIBUTION AGREEMENT
November , 1996
▇▇▇▇▇▇ Brothers Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Polaroid Corporation, a Delaware corporation (the "Company"), confirms
its agreement with each of you (individually, an "Agent" and collectively,
the "Agents") with respect to the issuance and sale by the Company of up to
an aggregate of $500,000,000* in gross proceeds of its Medium-Term Notes,
Series A (the "Notes"). The Notes are to be issued from time to time
pursuant to an indenture, dated as of_____________, 1996 (as it may be
supplemented or amended from time to time, the "Indenture"), between the
Company and State Street Bank and Trust Company, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to
in Section 1(a) as it may be amended or supplemented from time to time,
including any supplement providing for the interest rate, maturity and other
terms of any Note (a "Pricing Supplement"). The Notes will be issued, and
the terms thereof established, from time to time, by the Company in
accordance with the Indenture and the Procedures referred to below. This
Agreement shall only apply to sales of the Notes and not to sales of any
other securities or evidences of indebtedness of the Company and only on the
specific terms set forth herein.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell its Notes directly on its own behalf and
of the right (notwithstanding anything to the contrary in Section 2(a) or
otherwise herein) to appoint, upon prior written notice to the Agents,
additional persons as "Agents" hereunder (provided that each such additional
person agrees to be bound by all of the terms of this Agreement (including
Exhibit A)), the Company hereby (i) appoints each of the Agents as the agent
of the Company for the purpose of soliciting and receiving offers to purchase
Notes from the Company and (ii) agrees that whenever the Company determines
to sell Notes directly to an Agent as principal it will enter into a separate
agreement (each a "Purchase Agreement"). Each such Purchase Agreement,
whether oral (and confirmed in writing, which may be by facsimile
transmission) or in writing, shall be with respect to such information (as
applicable) as specified in Exhibit C hereto, relating to such sale in
accordance with Section 2(e) hereof. Notwithstanding anything to the
contrary contained herein, including Section 2(a), the Company may accept
offers to purchase Notes through an agent other than the Agents if the
Company shall not have solicited such offers (provided that each such
additional agent agrees to be bound by all of the terms of this Agreement
(including Exhibit A)). The Company shall notify the Agents promptly after
the acceptance of any such offer pursuant to the preceding sentence.
_______________________________
* Or the U.S. dollar equivalent in certain specified foreign currencies or
currency units.
Section 1. Representations and Warranties.
The Company represents and warrants to each Agent as of the date hereof,
as of the Closing Date (defined herein) and as of the times referred to in
Sections 6(a) and 6(b) hereof (the Closing Date and each such time being
hereinafter sometimes referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (Registration No. 333-0791)
(the "Rule 429 Registration Statement") with respect to the Notes, as amended
by Pre-Effective Amendment No. 1 thereto which also constitutes Post
Effective Amendment No. 1 ("Post Effective Amendment No. 1") to a
registration statement on Form S-3 (Registration No. 33-44661) (the "Earlier
Registration Statement") with respect to the Notes, (i) has been prepared by
the Company in conformity with the requirements of the U.S. Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the U.S. Securities and Exchange Commission (the
"Commission") thereunder, (ii) has been filed by the Company with the
Commission under the Securities Act and (iii) has become effective under the
Securities Act. As provided in Section 3(b), a prospectus supplement
reflecting the terms of the Notes, the terms of the offering thereof and the
other matters set forth therein will be prepared and filed pursuant to Rule
424 under the Securities Act. In addition, a preliminary prospectus
supplement reflecting the terms of the Notes, the terms of the offering
thereof, and the other matters set forth therein may also be prepared and
filed pursuant to Rule 424 under the Securities Act. Such prospectus
supplement, in the form filed pursuant to Rule 424, is herein referred to as
the "Prospectus Supplement", and any such preliminary prospectus supplement
in the form filed pursuant to Rule 424 is hereafter referred to as the
"Preliminary Prospectus Supplement". Any prospectus accompanied by a
Preliminary Prospectus Supplement is hereinafter referred to, collectively
with such Preliminary Prospectus Supplement, as a "Preliminary Prospectus."
The Rule 429 Registration Statement and the Earlier Registration Statement,
as amended at the time of the applicable Representation Date, including the
exhibits thereto and the documents incorporated by reference therein, are
herein called the "Registration Statement", and the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement and the Pricing
Supplement, is herein called the "Prospectus", except that, if such basic
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case
including the documents filed by the Company with the Commission pursuant to
the U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"),
that are incorporated by reference therein. Any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any
annual or interim report of the Company or other documents 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. The Commission has not issued any order suspending the
effectiveness of the Registration Statement, and, to the knowledge of the
Company, no stop-order has been initiated or threatened by the Commission.
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(b) On the effective date of the Rule 429 Registration Statement and
Post-Effective Amendment No. 1 (the "effective date of the Registration
Statement"), the Registration Statement conformed in all material respects to
the requirements of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission under such acts and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the applicable Representation Date and at the times during each period during
which, in the reasonable opinion of counsel for the Agents, a prospectus
relating to the Notes is required to be delivered by the Company or the
Agents under the Act (each a "Marketing Period"), the Registration Statement
and the Prospectus will conform in all material respects to the requirements
of the Securities Act, the Trust Indenture Act and the Rules and Regulations,
and none of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that the
Company makes no representation or warranty under this Agreement as to that
part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (the "Form T-1") under the Trust Indenture Act
of the Trustee under the Indenture or information contained in or omitted
from the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Agent specifically for
inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(d) The Company has full corporate power and authority to execute and
deliver this Agreement and the Purchase Agreement (if any) and perform its
obligations hereunder and thereunder; each of this Agreement and the Purchase
Agreement (if any) has been duly authorized, executed and delivered by the
Company and constitutes the valid and legally binding obligation of the
Company.
(e) Neither the Company nor any of its subsidiaries (as defined in Rule
405 of the Rules and Regulations) (i) is in violation of its corporate
charter or by-laws, (ii) is in default, and no event has occurred which is
continuing and, with notice or lapse of time or both, would constitute a
default, under any agreement, indenture or instrument or (iii) is in
violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property may be subject or has failed to obtain any
license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its
business, the effect of which violation, default or failure in clauses (i),
(ii) and (iii) would be material to the Company and its subsidiaries taken as
a whole; the execution, delivery and performance of this Agreement and each
applicable Purchase Agreement, if any, and compliance by the Company with the
provisions of the Indenture and the Notes will not conflict with, result in
the creation or imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or any of its subsidiaries pursuant to the
terms of, or constitute a default under, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or by-laws of
the Company or any of its subsidiaries or any order, rule, or regulation of
any court or governmental agency having jurisdiction over the Company, any of
its subsidiaries or their respective properties; and except as required by
the Securities Act, the Trust Indenture Act, the Exchange Act, and applicable
state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement or each applicable
Purchase Agreement, if any, or compliance with the provisions of the
Indenture and the Notes by the Company.
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(f) Except as set forth or contemplated in the Registration Statement
and Prospectus, 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 Registration Statement and 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, and since
such date, there has not been any material change in the capital stock or
increases in the long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties, financial
condition or results of operations of the Company and its subsidiaries taken
as a whole.
(g) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and whose reports appear in the Registration
Statement and the Prospectus or are incorporated by reference therein, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(h) The Indenture conforms in all material respects to the requirements
of the Trust Indenture Act and the applicable rules and regulations
thereunder, and has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and constitutes the
valid and legally binding instrument of the Company enforceable in accordance
with its terms; the Notes have been duly authorized by the Company, and, when
the terms of the Notes and of their issue and sale have been duly established
in accordance with the Indenture and this Agreement, and the Notes have been
duly executed, authenticated, issued and delivered against payment therefor
as provided herein and the Indenture, the Notes will be duly executed and
duly issued by the Company and duly authenticated and delivered by the
Trustee, and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and will be enforceable against the
Company in accordance with their terms and the terms of the Indenture; and
the Notes and the Indenture will conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations in each jurisdiction in
which their respective ownership of property or the conduct of their
respective businesses requires such qualification (except where the failure
so to qualify would not have a material adverse effect upon the Company and
its subsidiaries taken as a whole), and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged; all of the outstanding shares of
capital stock of each of the Company's subsidiaries are validly issued and
outstanding, fully paid and non-assessable and, except as otherwise described
in the Registration Statement and the Prospectus, are owned, directly or
indirectly, by the Company free and clear of all liens, claims, or
encumbrances; and none of the subsidiaries of the Company (other than
Polaroid International B.V. or any other subsidiary identified in a writing
delivered by the Company to the Agents) is a significant subsidiary, as such
term is defined in Rule 405 under the Securities Act.
(j) The Company has an authorized capitalization as set forth in the
Registration Statement and 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 nonassessable.
(k) Except as described in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the Company
or any of its subsidiaries which might result in any material adverse change
in the financial condition, results of operations or business of the Company
and its subsidiaries taken as a whole or which is required to be disclosed in
the Registration Statement or the Prospectus.
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(l) Except as otherwise disclosed therein, the financial statements
filed as part of the Registration Statement or included or incorporated by
reference in any Preliminary Prospectus or the Prospectus present fairly the
financial condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(m) There are no contracts or other documents that are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
(n) There are no holders of securities of the Company who, by reason of
the filing of the Registration Statement under the Securities Act or the
execution by the Company of this Agreement or each applicable Purchase
Agreement, if any, have the right to request or demand that the Company
register under the Securities Act securities held by them.
(o) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
Section 2. Solicitations as Agent; Purchases as Principal
(a) Appointment. Subject to the terms and conditions stated herein,
the Company hereby appoints each of the Agents as one of the exclusive agents
of the Company for the purpose of soliciting or receiving offers to purchase
the Notes from the Company by others. On the basis of the representations and
warranties contained herein, but subject to the terms and conditions herein
set forth, each Agent agrees, as one of the exclusive agents of the Company,
to use its reasonable efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus. Except as otherwise
provided herein (including in the third paragraph hereof), so long as this
Agreement shall remain in effect with respect to any Agent, the Company shall
not, without the consent of each such Agent, solicit or accept offers to
purchase Notes otherwise than through one of the Agents provided, however,
the Company expressly reserves the right to sell Notes directly to investors,
in which case the Agents shall not receive any commission with respect to
such sale. Each Agent may also purchase Notes from the Company as principal
for purposes of resale, as more fully described in paragraph (e) of this
Section.
(b) Suspension of Solicitation. The Company reserves the right, in its
sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt
of at least one business day's prior written notice from the Company, the
Agents will forthwith suspend solicitation of offers to purchase Notes from
the Company until such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of this agreement, "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.
Upon receipt of notice from the Company as contemplated by Section
3(d) hereof, each Agent shall suspend its solicitation of offers to purchase
Notes until such time as the Company shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as
the case may be, contemplated by Section 3(d) and shall have advised such
Agent that such solicitation may be resumed.
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(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission, in accordance with the schedule relating to the Notes set forth
in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit
offers to purchase the Notes only in denominations as are specified in the
Prospectus at a purchase price as shall be specified by the Company. Each
Agent shall communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes received by it as an Agent. The Company shall have
the sole right to accept offers to purchase the Notes and may reject any such
offer in whole or in part. Each Agent shall have the right, in its
discretion reasonably exercised without advising the Company, to reject any
offer to purchase the Notes received by it, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Company, until such Note shall have been delivered to the purchaser thereof
against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal, for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale), shall be made in accordance
with the terms of this Agreement and a Purchase Agreement whether oral (and
confirmed in writing by such Agent to the Company, which may be by facsimile
transmission) or in writing, which will provide for the sale of such Notes
to, and the purchase thereof by, such Agent. A Purchase Agreement may also
specify certain provisions relating to the reoffering of such Notes by such
Agent. The commitment of any Agent to purchase Notes from the Company as
principal shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Purchase
Agreement shall specify the principal amount and terms of the Notes to be
purchased by an Agent, the time and date (each such time and date being
referred to herein as a "Time of Delivery") and place of delivery of and
payment for such Notes and such other information (as applicable) as is set
forth in Exhibit C hereto. The Company agrees that if any Agent purchases
from it Notes as principal for resale such Agent shall receive such
compensation, in the form of a discount or otherwise, as shall be indicated
in the applicable Purchase Agreement or, if no compensation is indicated
therein, a commission in accordance with Exhibit A hereto. Any Agent may
utilize a selling or dealer group in connection with the resale of such
Notes. In addition, the Agents may offer the Notes they have purchased as
principal to other dealers. Any Agent may sell Notes to any dealer at a
discount. Such Purchase Agreement shall also specify any requirements for
delivery of opinions of counsel, accountant's letters and officers'
certificates pursuant to Section 5 hereof.
(f) Purchase Agreement. If the parties to any Purchase
Agreement so agree, the following provisions shall be included in such
Purchase Agreement:
"If, at any Time of Delivery, any Purchaser defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting Purchasers shall be obligated to purchase the Notes which the
defaulting Purchaser agreed but failed to purchase at such Time of Delivery,
in the respective proportions which the principal amount of Notes set
opposite the name of each remaining non-defaulting Purchaser in Schedule 1
hereto bears to the aggregate principal amount of Notes set opposite the
names of all the remaining non-defaulting Purchasers in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Purchasers shall not be
obligated to purchase any Notes at such Time of Delivery if the aggregate
principal amount of Notes which the defaulting Purchaser or Purchasers agreed
but failed to purchase exceeds 9.09% of the total principal amount of Notes
to be purchased at such Time of Delivery and any remaining non-defaulting
Purchaser shall not be obligated to purchase more than 110% of the aggregate
principal amount of Notes which it agreed to purchase at such Time of
Delivery pursuant to this Agreement. If the foregoing maximums are exceeded,
the remaining non-defaulting Purchasers, or those other Purchasers or
underwriters who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportions as may be agreed upon among them, all the
Notes to be purchased at such Time of Delivery. If the remaining Purchasers
or other Purchasers or underwriters do not elect to purchase the Notes which
the defaulting Purchaser or Purchasers agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Purchaser or the Company, except that the Company will continue to be liable
for the payment of expenses to any non-defaulting Purchaser as set forth in
Section 4 of the Distribution Agreement. As used in this Agreement, the term
'Purchaser' includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant
to this provision, purchases Notes which a defaulting Purchaser agreed but
failed to purchase.
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"Nothing contained herein shall relieve a defaulting Purchaser of
any liability it may have to the Company for damages caused by its default.
If other Purchasers are obligated or agree to purchase the Notes of a
defaulting Purchaser, either the Purchasers or the Company may postpone the
Time of Delivery for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Purchasers may be necessary in the Registration Statement or the Prospectus
or in any other document or arrangement."
(g) Administrative Procedures. Administrative procedures respecting
the sale of Notes (the "Procedures") are set forth in Exhibit B hereto and
may be amended in writing from time to time by the Agents and the Company.
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them herein and
in the Procedures. The Procedures shall apply to all transactions
contemplated hereunder including sales of Notes to any Agent as principal
pursuant to a Purchase Agreement, unless otherwise set forth in such Purchase
Agreement.
(h) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of Cravath, Swaine &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, not later than 10:00
A.M., New York City time, on the date of this Agreement or at such later time
as may be mutually agreed upon by the Company and the Agents, which in no
event shall be later than the time at which the Agents commence solicitation
of offers to purchase Notes hereunder (the "Closing Date").
Section 3. Covenants of the Company
The Company agrees to furnish promptly to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Agents, one signed copy of the Registration Statement,
including all exhibits, in the form it became effective and of all amendments
thereto and, in connection with each offering of Notes, the Company further
agrees, except during any period of solicitation suspension pursuant to
Section 2(b):
(a) Delivery of Signed Registration Statement and Other Documents. To
deliver promptly to each Agent and counsel to the Agents such number of
conformed copies of the Registration Statement as originally filed and each
amendment thereto (in each case excluding exhibits other than the computation
of the ratio of earnings to fixed charges, the Indenture and this Agreement)
and of each Preliminary Prospectus, the Prospectus and any documents
incorporated by reference in the Preliminary Prospectus or Prospectus
(excluding exhibits thereto) and any amended or supplemented Prospectus, as
each Agent and counsel to the Agents may request;
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(b) Commission Filings. To file a Prospectus Supplement relating to
the Notes in a form approved by the Agents and to file the Prospectus,
including the Prospectus Supplement and any Pricing Supplement, with the
Commission pursuant to the applicable provisions of Rule 424(b) of the Rules
and Regulations within the time period provided therein and, during any
Marketing Period, (i) to file any amendment to the Registration Statement or
any supplement to the Prospectus that may, in the reasonable judgment of the
Company or the Agents, be required by the Securities Act or requested by the
Commission in conformity with the Securities Act or the Exchange Act, (ii) to
file under the Exchange Act any document incorporated by reference in the
Prospectus that may, in the reasonable judgment of the Company or the Agents,
be required by the Securities Act or requested by the Commission in
conformity with the Securities Act or the Exchange Act and (iii) to file
promptly with the Commission 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
subsequent to the date of the Prospectus;
(c) Copies of Filings with Commission. Prior to filing with the
Commission during any Marketing Period any amendment to the Registration
Statement or supplement to the Prospectus or to filing any Prospectus
pursuant to Rule 424(b)(1), (b)(3) or (b)(4) of the Rules and Regulations
(excluding any document incorporated by reference in the Prospectus and
excluding any amendment or supplement or Prospectus relating to an offering
of debt securities other than Notes), to furnish a copy thereof to the Agents
and counsel for the Agents and obtain the consent of the Agents (which
consent shall not be unreasonably withheld) regarding the filing;
(d) Notice to Agents of Certain Events. To advise the Agents promptly
(i) when any post-effective amendment to the Registration Statement becomes
effective, (ii) of any request or proposed request by the Commission for an
amendment to the Registration Statement, a supplement to the Prospectus or
any additional information, (iii) upon the Company receiving notice of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threat of any stop order
proceeding, (iv) of receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose,
(v) upon the Company learning of any downgrading in the rating accorded the
Notes or any other debt securities of the Company, or any proposal to
downgrade the rating of the Notes or any other debt securities of the
Company, by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations, or of any public announcement that any such
organization has under surveillance or review, with possible negative
implications, its rating of the Notes or any of the Company's debt securities
as soon as the Company learns of such downgrading, proposal to downgrade or
public announcement and (vi) upon the Company learning of the happening of
any event which makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus, or which requires the making of a
change in the Registration Statement or the Prospectus in order to make any
material statement therein not misleading;
(e) Stop Orders. If, during any Marketing Period, the Commission shall
issue a stop order suspending the effectiveness of the Registration
Statement, suspending or preventing the use of any Preliminary Prospectus or
Prospectuses, or if the qualification of the Notes for sale in any
jurisdiction shall be suspended, to make every reasonable effort to obtain
the lifting of that order or suspension at the earliest possible time;
(f) Earnings Statements. As soon as practicable, but not later than 16
months after the date of each acceptance by the Company of an offer to
purchase Notes hereunder, to make generally available to its security holders
and to the Agents an earning statement of the Company and its subsidiaries
(which need not be audited), conforming with the requirements of Section
11(a) of the Securities Act, covering a period of at least 12 months
beginning on the first day of the first fiscal quarter of the Company
commencing after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the date
of such acceptance and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
acceptance;
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(g) Copies of Reports, Releases and Financial Statements. For a period
of three years after the applicable Representation Date, to furnish to the
Agents copies of all public reports and all reports and financial statements
furnished by the Company to the principal national securities exchange or
quotation system upon which its Common Stock may be listed pursuant to the
requirements of or agreements with such exchange or system or to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Blue Sky Qualifications. Promptly from time to time to take such
action as the Agents may reasonably request to qualify the Notes for offering
and sale under the securities laws of such jurisdictions as the Agents may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes, provided 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;
(i) Holdback. Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, the Company, without the consent
of ▇▇▇▇▇▇ Brothers Inc. (which consent shall not be unreasonably withheld),
will not offer or sell, or enter into any agreement to sell, any of its debt
securities, other than borrowings under the Company's revolving credit
agreements and lines of credit, the private placement of securities and
issuances of its commercial paper;
(j) Use of Proceeds. To apply the net proceeds from the sale of the
Notes being sold by the Company as set forth in the Prospectus.
(k) Revisions to Prospectus - Material Changes. If, during any
Marketing Period, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, not misleading, or if it is
necessary at any time to amend any Prospectus to comply with the Securities
Act, to notify the Agents promptly, in writing, to suspend solicitation of
purchases of the Notes; and if the Company shall decide to amend or
supplement the Registration Statement or any Prospectus, to promptly advise
the Agents by telephone (with confirmation in writing) and to promptly, in
writing, prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance; provided, however, that if during the period referred
to above any Agent shall own any Notes which it has purchased from the
Company as principal with the intention of reselling them, the Company shall
promptly prepare and timely file with the Commission any amendment or
supplement to the Registration Statement or any Prospectus that may, in the
judgment of the Company or the Agents, be required by the Securities Act or
requested by the Commission in conformity with the Securities Act or the
Exchange Act.
(l) Pricing Supplement. To prepare, with respect to any Notes to be
sold through or to the Agents pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved by the
Agents and to file such Pricing Supplement pursuant to Rule 424 under the
Securities Act with the Commission, in each case, within the applicable time
period prescribed for such filing by the Rules and Regulations.
Section 4. Payment of Expenses
The Company will pay:
(i) the costs incident to the authorization, issuance, sale and
delivery of the Notes and any taxes payable in that connection,
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(ii) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto,
(iii) the costs incident to the preparation, printing and
filing of any document and any amendments and exhibits thereto required to
be filed by the Company under the Exchange Act,
(iv) the costs of distributing the Registration Statement,
as originally filed, and each amendment and post-effective amendment
thereof (including exhibits), the Basic Prospectus, each Prospectus, any
supplement or amendment to any Prospectus and any documents incorporated
by reference in any of the foregoing documents,
(v) the fees and disbursements of the Trustee, any paying
agent, any calculation agent, any exchange rate agent and any other agents
appointed by the Company, and their respective counsel,
(vi) the costs and fees in connection with the listing of the
Notes on any securities exchange,
(vii) the cost and fees in connection with any filings with the
National Association of Securities Dealers, Inc.,
(viii) the fees and disbursements of counsel to the Company and
counsel to the Agents (provided that, unless the Company shall agree to a
greater amount with respect to any calendar year, the Company's obligation to
pay fees and disbursements of counsel to the Agents in connection with the
filing by the Company with the Commission after the Closing of any document
incorporated by reference into any Prospectus pursuant to Item 12 of Form S-3
and the review by such counsel of the certificates, opinions and accountants'
letters referred to in Sections 6(b), (c) and (d) hereof shall be limited to
the annual amount of $16,000 with respect to services performed by such
counsel in any calendar year commencing with the calendar year 1997),
(ix) the fees paid to rating agencies in connection with the
rating of the Notes,
(x) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 3(h)
hereof and of preparing and printing a Blue Sky Memorandum (including fees
and disbursements of counsel for the Agents in connection therewith (not to
exceed $5,000)),
(xi) all advertising expenses in connection with the offering
of the Notes incurred with the consent of the Company, and
(xii) all other reasonable costs and expenses arising out of
the transactions contemplated hereunder and incident to the performance of
the Company's obligations under this Agreement or otherwise in connection
with the activities of the Agents under this Agreement.
Section 5. Conditions of Obligations of Agent
The obligation of the Agents, as the agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any
person who has agreed to purchase Notes to make payment for and take delivery
of Notes, and the obligation of any Agent to purchase Notes pursuant to any
Purchase Agreement, is subject to the accuracy, on each Representation Date,
of the representations and warranties of the Company contained herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) Registration Statement. The Prospectus as amended or supplemented
(including the Pricing Supplement) with respect to such Notes 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 and in accordance with Section 3(l) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof nor any order directed to any document incorporated by reference in
any Prospectus shall have been issued and no stop order proceeding shall have
been initiated or threatened by the Commission and no challenge shall have
been made to the accuracy or adequacy of any document incorporated by
reference in any Prospectus; any request of the Commission for inclusion of
additional information required by the Securities Act in the Registration
Statement or any Prospectus shall have been complied with; and the Company
shall not have filed with the Commission any amendment or supplement to the
Registration Statement or any Prospectus (or any document incorporated by
reference therein, excluding any document incorporated by reference in the
Prospectus and excluding any amendment or supplement or Prospectus relating
to an offering of debt securities other than Notes) without the consent of
the Agents (which consent shall not be unreasonably withheld).
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(b) No Suspension of Sale of the Notes. No order suspending the sale
of the Notes in any jurisdiction designated by the Agents pursuant to Section
3(h) hereof shall have been issued, and no proceeding for that purpose shall
have been threatened by any governmental agency or legally initiated.
(c) No Material Omissions or Untrue Statements. No Agent shall have
discovered and disclosed to the Company that the Registration Statement or
any Prospectus contains an untrue statement of a fact which, in the opinion
of counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(d) Legal Matters Satisfactory to Counsel. All corporate proceedings
and other legal matters incident to the authorization, form and validity of
this Agreement, the Notes, the Indenture, the form of the Registration
Statement, each Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be satisfactory in all respects to
counsel for the Agents and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable them
to pass upon such matters, and counsel to the Agents shall have furnished the
Agents their favorable opinion with respect to such matters and such
additional matters as the Agents may reasonably request.
(e) Opinions of Company Counsel. At the Closing Date, the Agents shall
have received:
(1) the opinion, addressed to the Agents and dated the Closing
Date, of Cravath, Swaine & ▇▇▇▇▇, outside counsel to the Company, in the form
of Exhibit E; and
(2) The opinion, addressed to the Agents and dated the
Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President, General
Counsel and Secretary of the Company, in the form of Exhibit F.
(f) Officers' Certificate. The Company shall have furnished to the
Agents on the Closing Date a certificate, dated the Closing Date, of its
President or Vice President and its Treasurer or an Assistant Treasurer
stating that:
(i) The representations and warranties of the
Company contained herein are true and correct as of the Closing Date; the
Company has complied with all its agreements contained herein; and the
conditions on its part to be fulfilled prior to the Closing Date set forth
herein have been fulfilled;
(ii) They have carefully examined the Registration
Statement, the Prospectus and the documents incorporated therein and, in
their opinion, (A) as of the effective date of the Registration Statement,
neither the Registration Statement nor the Prospectus included any 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,
(B) as of its date, the Prospectus did not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (C) since the effective date of the Registration
Statement or the date of the Prospectus, as the case may be, no event has
occurred which should have been set forth in an amendment of the Registration
Statement or a supplement to or amendment of the Prospectus which has not
been set forth in such a supplement or amendment.
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(g) Accountant's Letter. The Company shall have furnished to the
Agents on the Closing Date a letter of KPMG Peat Marwick LLP, addressed
jointly to the Company and the Agents and dated the Closing Date, of the type
described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 72, covering such specified financial
statement items and procedures as the Agents may reasonably request prior to
the execution of this Agreement and in form and substance satisfactory to the
Agents.
(h) Additional Conditions. There shall not have occurred: (a) 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) of the Rules and
Regulations, (b) any public announcement that any such organization has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities, (c) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange, the
Chicago Board Options Exchange or the over-the-counter market or the
establishment of minimum prices on one or more of such exchanges or such
market by the Commission or such exchange or other regulatory body or
governmental authority having jurisdiction, (d) a banking moratorium declared
by United States federal or New York State authorities, (e) any outbreak or
escalation in hostilities involving the United States or a declaration of a
national emergency or war by the United States, (f) any material adverse
change in national or international political, financial or economic
conditions, national or international equity markets or currency exchange
rates or controls as to make it, in the judgment of the Agents, inadvisable
or impracticable to proceed with the solicitation of offers to purchase Notes
or the purchase of Notes from the Company as principal pursuant to the
applicable Purchase Agreement, as the case may be, or (g)(i) the Company or
any of its subsidiaries shall have sustained since the date of the latest
[audited] financial statements included or incorporated by reference in the
Prospectus any 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 or (ii) since such date
there shall have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, 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, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the Agents, so
material and adverse as to make it impracticable or inadvisable to proceed
with the solicitation of offers to purchase Notes or the purchase of Notes
from the Company as principal pursuant to the applicable Purchase Agreement,
as the case may be.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are exactly in the form set forth above and,
if not, or if no particular form is set forth above, only if they are in form
and substance satisfactory to counsel for the Agents.
Section 6. Additional Covenants of the Company.
(a) Acceptance of Offer Affirms Representations and Warranties. The
Company covenants and agrees that each acceptance by it of an offer for the
purchase of Notes shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and
in any certificate theretofore given to the Agents pursuant hereto are true
and correct at the time of such acceptance, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the purchaser or such purchaser's agent of the Notes relating to
such acceptance as though made at and as of each such time (and such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended or supplemented to each such time).
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(b) Subsequent Delivery of Officers' Certificates. The Company agrees
that during each Marketing Period (unless a suspension shall be in effect
under Section 2(b)), each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes
or the principal amount of Notes remaining to be sold or similar changes and
other than an amendment or supplement relating exclusively to an offering of
debt securities other than Notes), each time the Company sells Notes to an
Agent as principal and the applicable Purchase Agreement specifies the
delivery of an officers' certificate under this Section 6(b) as a condition
to the purchase of Notes pursuant to such Purchase Agreement or the Company
files with the Commission any document incorporated by reference into any
Prospectus, the Company shall submit to the Agents a certificate, (i) as of
the date of such amendment, supplement, Time of Delivery relating to such
sale or filing or (ii) if such amendment, supplement or filing was not filed
during a Marketing Period, as of the first day of the next succeeding
Marketing Period (unless a suspension shall be in effect under Section 2(b)),
representing that the statements contained in the certificate referred to in
Section 5(f) hereof which was last furnished to the Agents are true and
correct at the time of such amendment, supplement or filing, as the case may
be, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and each Prospectus as
amended and supplemented to such time).
(c) Subsequent Delivery of Legal Opinions. The Company agrees that
during each Marketing Period (unless a suspension shall be in effect under
Section 2(b)), each time that the Registration Statement or any Prospectus
shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates or maturities of the Notes or the
principal amount of Notes remaining to be sold or similar changes and other
than an amendment or supplement relating exclusively to an offering of debt
securities other than Notes), each time the Company sells Notes to an Agent
as principal and the applicable Purchase Agreement specifies the delivery of
a legal opinion under this Section 6(c) as a condition to the purchase of
Notes pursuant to such Purchase Agreement or the Company files with the
Commission any document incorporated by reference into any Prospectus (other
than a Current Report on Form 8-K which contains no financial information and
which, in the reaosnable judgment of the Company, contains no information
that is materially important to the business, financial condition or results
of operations of the Company and its subsidiaries taken as a whole), the
Company shall, (i) concurrently with such amendment, supplement, Time of
Delivery relating to such sale or filing or (ii) if such amendment,
supplement or filing was not filed during a Marketing Period, on the first
day of the next succeeding Marketing Period (unless a suspension shall be in
effect under Section 2(b)), furnish the Agents and their counsel with the
written opinions of counsel to the Company specified in Section 5(e) hereof,
each addressed to the Agents and dated the date of delivery of such opinion,
in form satisfactory to the Agents, to the same effect as the opinions
referred to in Section 5(e) hereof, but modified, as necessary, to relate to
the Registration Statement and each Prospectus as amended or supplemented to
the time of delivery of such opinion; provided, however, that in lieu of any
such opinion, each such counsel may deliver to the Agents and their counsel a
letter to the effect that the Agents may rely on such prior opinion to the
same extent as if it were dated the date of such letter authorizing reliance
(except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and each Prospectus as amended or supplemented to
the time of delivery of such letter authorizing reliance); provided further
that in connection with any such filing, except the filing of the Company's
Annual Report on Form 10-K, the Company may deliver to the Agents and their
counsel only the legal opinion of counsel to the Company specified in Section
5(e)(2) hereof.
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(d) Subsequent Delivery of Accountants' Letters. The Company agrees
that during each Marketing Period (unless a suspension shall be in effect
under Section 2(b)), each time that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional financial
information, each time the Company sells Notes to an Agent as principal and
the applicable Purchase Agreement specifies the delivery of a letter under
this Section 6(d) as a condition to the purchase of Notes pursuant to such
Purchase Agreement or the Company files with the Commission any document
incorporated by reference into any Prospectus pursuant to Item 12 of Form S-3
which contains additional financial information, the Company shall cause KPMG
Peat Marwick LLP (or other independent accounts of the Company acceptable to
the Agents) to furnish the Agents, (i) concurrently with such amendment,
supplement, Time of Delivery relating to such sale or filing or (ii) if such
amendment, supplement, or filing was not filed during a Marketing Period, on
the first day of the next succeeding Marketing Period, a letter, addressed
jointly to the Company and the Agents and dated the date of delivery of such
letter, in form and substance reasonably satisfactory to the Agents, to the
same effect as the letter referred to in Section 5(g) hereof but modified to
relate to the Registration Statement and each 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; provided,
however, that if the Registration Statement or any Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, such accountants may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement [unless there
is contained therein any other accounting, financial or statistical
information that, in the reasonable judgment of the Agents, should be covered
by such letter, in which event such letter shall also cover such other
information].
Section 7. Indemnification and Contribution
(a) The Company shall indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Notes), to which that Agent or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, or the Registration
Statement or Prospectus as amended or supplemented, or (ii) 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 shall
reimburse each Agent and each such controlling person promptly upon demand
for any legal and other expenses reasonably incurred as incurred by that
Agent or controlling person in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action; 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, any untrue statement or alleged untrue statement or omission or
alleged omission made in (x) any Preliminary Prospectus, the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto,
made in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Agent specifically for inclusion
therein or (y) in the Form T-1 provided by the Trustee for inclusion therein;
and provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Agent or any person
controlling an Agent on account of any loss, claim, damage, liability or
action arising from the sale of Notes to any person by that Agent if that
Agent failed to send or give a copy of the Prospectus (or the Prospectus as
amended or supplemented) to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Notes
to such person, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or liability,
unless such failure resulted from non-compliance by the Company with Section
3(b) hereof. For purposes of the last proviso to the immediately preceding
sentence, the term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and no Agent shall be obligated to send or
give any supplement or amendment to any document incorporated by reference in
any Preliminary Prospectus or the Prospectus to any person other than a
person to whom such Agent had delivered such incorporated document or
documents in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise
have to any Agent or any controlling person of that Agent.
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(b) Each Agent severally, and not jointly, shall indemnify and hold
harmless the Company, each of its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Company, or any such director or officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented, or arises
out of, or is 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, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of that Agent
specifically for inclusion therein, and shall reimburse the Company, or any
such director or officer or controlling person promptly upon demand for any
legal and other expenses reasonably incurred by the Company or any such
director or officer or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action. The foregoing indemnity agreement is in addition to any liability
which any Agent may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
its obligations hereunder, except to the extent that the indemnifying party
is materially prejudiced by such failure to notify, or from any liability
which it may have to an indemnified party otherwise than under this Section
7. If any such claim or action shall be brought against an 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
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable investigation, provided, however, that the Agents shall have the
right to employ counsel to represent the Agents and their respective
controlling persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Agents against the Company
under this Section 7 if, in the reasonable judgment of the Agents, it is
advisable for the Agents and such controlling persons to be represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the indemnifying party. Except as provided above,
it is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiffs, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
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(d) If the indemnification provided for in this Section 7 shall be for
any reason unavailable or insufficient to hold the indemnified party
harmless, then each indemnifying party, with respect to its obligations as
provided in Section 7(a) or 7(b), shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agents on the other hand from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Agents on the other hand with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and any Agent on the other hand with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from
the sale of the Notes (before deducting expenses) received by the Company
bear to the total commissions received by such Agent with respect to such
offering. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or any Agent, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Agents agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 7(d) shall be deemed to include, for purposes of this Section
7(d) and subject to the limitations set forth above, 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 Section 7(d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
sold through such Agent and distributed to the public was offered to the
public exceeds the amount of any damages which such Agent has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Section 8. Status of each Agent
In soliciting offers to purchase Notes from the Company pursuant to this
Agreement (other than in respect of any Purchase Agreement), each Agent is
acting individually and not jointly and is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes from the Company has been solicited by such Agent and accepted
by the Company but such Agent shall have no liability to the Company in the
event any such purchase is not consummated for any reason. If the Company
shall default in its obligations to deliver Notes to a purchaser whose offer
it has accepted, the Company shall (i) hold the Agents harmless against any
loss, claim or damage arising from or as a result of such default by the
Company and (ii), in particular, pay to the Agents any commission to which
they would be entitled in connection with such sale.
Section 9. Representations, Warranties and Obligations to Survive
Delivery
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Agents contained in this Agreement,
or made by or on behalf of them, respectively, pursuant to this Agreement,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any person controlling
such Agent or by or on behalf of the Company, and shall survive each delivery
of and payment for any of the Notes.
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Section 10. Termination
This Agreement may be terminated for any reason with respect to any
party hereto, at any time, by any party hereto upon the giving of one day's
written notice of such termination to the other parties hereto; provided,
however, if such terminating party is an Agent, such termination shall be
effective only with respect to such terminating party. If, at the time of a
termination, an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser has not occurred, the
provisions of this Agreement shall remain in effect until such Notes are
delivered. The provisions of Sections 2(c), 3(b), 3(f), 3(g), 4, 7, 8 and 9
hereof shall survive any termination of this Agreement.
Section 11. Sales of Notes Denominated in a Foreign Currency and Indexed
Notes
If at any time the Company and any of the Agents shall determine to
issue and sell Notes 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 Exhibit
G. 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 Notes covered thereby. The Agents are authorized to
solicit offers to purchase Notes 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 Notes (whether offered on an
agency or principal basis), only in a minimum aggregate amount of $2,500,000.
Section 12. Notices
Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Agents shall be directed to it as follows:
▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Medium - Term Note Department, 12th Floor; Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇; Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇; [OTHER AGENTS]; notices
to the Company shall be directed to it as follows: Polaroid Corporation, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer
(▇.▇▇▇▇▇▇▇), Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇.
Section 13. Binding Effect; Benefits
This Agreement shall be binding upon each Agent, the Company, and their
respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Agent within the meaning of
Section 15 of the Securities Act, and (b) the indemnity agreement of the
Agents contained in Section 7 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company. Nothing in
this Agreement is intended or shall be construed to give any person, other
than the person referred to in this Section, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
-17-
Section 14. Governing Law; Counterparts
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument.
Section 15. Paragraph Headings
The paragraph headings used in this Agreement are for convenience of
reference only, and are not to affect the construction hereof or be taken
into consideration in the interpretation hereof.
-18-
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
Polaroid Corporation
By:_____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇ Brothers Inc.
By:_________________________________
Title:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By:_________________________________
Title:
Exhibit A
Polaroid Corporation
Medium-Term Notes, Series A
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the following
percentage of the aggregate U.S. dollar equivalent of the principal amount of
Notes:
Term Commission Rate
-------------------------------------------------------
9 months to less than 12 months 0.125%
-------------------------------------------------------
12 months to less than 18 months 0.150%
-------------------------------------------------------
18 months to less than 2 years 0.200%
-------------------------------------------------------
2 years to less than 3 years 0.250%
-------------------------------------------------------
3 years to less than 4 years 0.350%
-------------------------------------------------------
4 years to less than 5 years 0.450%
-------------------------------------------------------
5 years to less than 6 years 0.500%
-------------------------------------------------------
6 years to less than 7 years 0.550%
-------------------------------------------------------
7 years to less than 10 years 0.600%
-------------------------------------------------------
10 years to less than 15 years 0.625%
-------------------------------------------------------
15 years to less than 20 years 0.650%
-------------------------------------------------------
20 years to 30 years 0.750%
-------------------------------------------------------
More than 30 years To be negotiated
at time of sale
-------------------------------------------------------
EXHIBIT B
Polaroid Corporation
Medium-Term Notes, Series A
Administrative Procedures
Medium-Term Notes, Series A, due nine months or more from date of
issue (the "Notes") may be offered on a continuing basis by Polaroid
Corporation (the "Company"). ▇▇▇▇▇▇ Brothers Inc. and ▇. ▇. ▇▇▇▇▇▇
Securities Inc. (along with such other entities who may be appointed in
accordance with the Distribution Agreement (as defined herein), each an
"Agent" and collectively, the "Agents"), have each agreed to use their
reasonable efforts to solicit offers to purchase the Notes. The Notes are
being sold pursuant to a Distribution Agreement between the Company and the
Agents dated November __, 1996 (as it may be supplemented or amended from
time to time, the "Distribution Agreement") to which these administrative
procedures are attached as an exhibit. The Notes will be issued pursuant to
an Indenture, dated as of November __, 1996 (as it may be amended or
supplemented from time to time, the "Indenture"), between the Company and
State Street Bank and Trust Company, as trustee (the "Trustee"). The Notes
will rank equally with all other unsecured and unsubordinated indebtedness of
the Company and will have been registered with the Securities and Exchange
Commission (the "Commission"). Unless otherwise noted, terms not defined
herein shall have the same meanings as in the Prospectus Supplement relating
to the Notes (the "Prospectus") or in the Distribution Agreement, as
applicable. Special administrative procedures for Multi-Currency Notes and
for Global Securities for Book-Entry Notes follow these administrative
procedures.
Administrative procedures for the offering are explained below.
Registration
------------
Notes will be issued only in fully registered form as either a
Book-Entry Note or a Certificated Note. Certificated Notes may be presented
for registration of transfer or exchange at the New York office of the
Trustee's designated agent.
Denominations
-------------
Unless otherwise indicated in the applicable Pricing Supplement,
Notes will be issued and payable in U.S. dollars in denominations of $1,000
and any integral multiple thereof.
Interest Payments
-----------------
Interest on Fixed Rate Notes and Floating Rate Notes (each as
defined in the Prospectus Supplement) shall accrue and be payable on terms
specified in the Prospectus Supplement and the applicable Pricing Supplement.
Acceptance and Rejection of Offers
----------------------------------
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it other than those
rejected by such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any offers in
whole or in part.
Settlement
----------
The receipt of immediately available funds in U.S. Dollars by the
Company in The City of New York in payment for a Note (less the applicable
commission) and the authentication and issuance of such Note shall, with
respect to such Note, constitute "Settlement." All offers accepted by the
Company will be settled from one to three Business Days from the date of
acceptance by the Company pursuant to the timetable for Settlement set forth
below unless the Company and the purchaser agree to Settlement on a later
date; provided, however, that the Company will so notify the Trustee of any
such later date on or before the Business Day immediately prior to the
Settlement date.
Settlement Procedures for Certificated Notes
--------------------------------------------
In the event of a purchase of Notes by an Agent, as principal,
appropriate Settlement details will be set forth in the applicable Purchase
Agreement to be entered into between such Agent and the Company pursuant to
the Distribution Agreement. In the Event of the sale of a Multi-Currency
Note or an Indexed Note, additional or different Settlement details may be
set forth in the applicable Amendment to be entered into between the Agent
and the Company pursuant to the Distribution Agreement.
Settlement procedures with regard to each Certificated Note sold
through each Agent shall be as follows:
A. Such Agent will advise the Company by telex or facsimile of the
following Settlement information:
1. Exact name in which the Note is to be registered ("Registered
Owner").
2. Exact address of the Registered Owner and
address for payment of principal and interest,
if any.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount of the Note (and, if multiple
Notes are to be issued, denominations thereof).
5. Settlement date (Original Issue Date).
6. Stated Maturity.
7. Issue Price.
8. Trade Date.
9. Specified Currency and whether the option to
elect payments in a Specified Currency applies
and if the Specified Currency is not U.S.
Dollars, the authorized denominations.
B-2
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g.,
Commercial Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier, if any
iv) Interest Reset Dates, Interest
Reset Period and Interest
Determination Dates
v) Index Maturity
vi) maximum and minimum interest
rates, if any
(c) Indexed Notes
The applicable terms thereof
11. Interest Payment Date(s) and Regular Record Dates.
12. Optional Interest Reset Dates, if any, and Subsequent Interest
Periods, if any.
13. Extension Periods, if any, and
Final Maturity Dates, if any.
14. The date on or after which the Notes are
redeemable at the option of the Company or
repurchasable by the Company at the option
of the holder, and additional redemption
or repurchase provisions, if any.
15. Amortization schedule, if any.
16. Wire transfer information, if applicable.
17. Agent's commission (to be paid in the
form of a discount from the proceeds
remitted to the Company upon Settlement).
18. Whether such Certificated Note is issued
at an original issue discount ("OID"), and,
if so, the total amount of OID, the yield
to maturity and the initial accrual
period of OID.
19. Other provisions, if appropriate.
B. The Company will confirm the above Settlement information to the
Trustee by telex or facsimile. If the Company rejects an offer,
the Company will promptly notify such Agent by telephone.
B-3
C. The Trustee will assign a Note number to the transaction and will
complete the first page of the preprinted 4-ply Note packet, the
form of which was previously approved by the Company, the Agents
and the Trustee.
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Agent. Such
Agent will acknowledge receipt of the Note by completing the yellow
stub and returning it to the Trustee.
E. Such Agent will cause to be wire transferred to a bank account
designated by the Company immediately available funds in U.S.
dollars in the amount of the principal amount of the Note, less the
applicable commission or discount, if any.
F. Such Agent will deliver the Note (with the attached white
confirmation) to the purchaser against payment in immediately
available funds in the amount of the principal amount of the Note.
Such Agent will deliver to the purchaser a copy of the most recent
Prospectus applicable to the Note with or prior to any written
offer of Notes, delivery of the Note and the confirmation and
payment by the purchaser for the Note.
G. Such Agent will obtain the acknowledgement of receipt for the Note
and Prospectus by the purchaser through the purchaser's completion
of the blue stub.
H. The Trustee will mail the pink stub to the Company's Treasurer.
Settlement Procedures Timetable for Certificated Notes
------------------------------------------------------
For offers accepted by the Company, Settlement procedures "A"
through "H" set forth above shall be completed on or before the respective
times set forth below:
Settlement
Procedure Time (New York)
------------ -------------------
A 5:00 PM on date of order
B 3:00 PM on the Business Day prior to Settlement date
C-D 12 noon on the Settlement date
E 2:15 PM on the Settlement date
F-G 3:00 PM on the Settlement date
H 5:00 PM on Business Day after the Settlement date
Failure
-------
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Company
for Settlement, such Agent will immediately notify the Trustee and the
Company's Treasurer by telephone, confirmed in writing, of such failure and
return the Note to the Trustee. Upon the Trustee's receipt of the Note from
the Agent, the Company will promptly return to the Agent an amount of
immediately available funds in U.S. dollars equal to any amount previously
transferred to the Company in respect of the Note pursuant to advances made
by the Agent. 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 such Agent on
an equitable basis for its loss of the use of the funds during the period
when the funds were credited to the account of the Company. Upon receipt of
the Note in respect of which the default occurred, the Trustee will ▇▇▇▇ the
Note "cancelled", make appropriate entries in its records and deliver the
Note to the Company with an appropriate debit advice. Such Agent will not be
entitled to any commission with respect to any Note which the purchaser does
not accept or make payment for.
B-4
Redemption
----------
The Notes will be redeemable (if at all) prior to their Stated
Maturity on terms specified in the Prospectus Supplement and the applicable
Pricing Supplement.
Maturity
--------
Notes will be paid at Maturity on terms specified in the Prospectus
Supplement and the applicable Pricing Supplement.
Procedures for Establishing the Terms of the Notes
--------------------------------------------------
The Company and the Agents will discuss from time to time the rates
to be borne by the Notes that may be sold as a result of the solicitation of
offers by the Agents. Once any Agent has recorded any indication of interest
in Notes upon certain terms and communicated with the Company, if the Company
accepts an offer to purchase Notes upon such terms, the Company will prepare
a Pricing Supplement, in the form previously approved by the Agents,
reflecting the terms of such Notes and, after approval from such Agent, will
arrange to electronically transmit for filing with the SEC under the ▇▇▇▇▇
system a copy of such Pricing Supplement (together with the Prospectus, if
amended or supplemented) and will supply an appropriate number of copies of
the Prospectus, as then amended or supplemented, together with such Pricing
Supplement, to the Agent who presented such offer. See "Delivery of
Prospectus."
If the Company decides to post rates and a decision has been
reached to change interest rates, the Company will promptly notify each
Agent. Each Agent will forthwith suspend solicitation of purchases. At that
time, the Agents will recommend and the Company will establish rates to be so
"posted". Following establishment of posted rates and prior to the filing
described in the following sentence, the Agents may only record indications
of interest in purchasing Notes at the posted rates. Once any Agent has
recorded any indication of interest in Notes at the posted rates and
communicated with the Company, if the Company plans to accept an offer at the
posted rate, the Company will prepare a Pricing Supplement reflecting such
posted rates and, after approval from the Agents, will arrange to
electronically transmit for filing with the SEC under the ▇▇▇▇▇ system a copy
of such Pricing Supplement (together with the Prospectus if amended or
supplemented) and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, to the Agent who presented such
offer. See "Delivery of Prospectus."
Suspension of Solicitation; Amendment or Supplement
---------------------------------------------------
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there
shall be any orders outstanding which have not been settled, the Company will
promptly advise the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as theretofore amended and/or
supplemented as in effect at the time of the suspension may be delivered in
connection with the settlement of such orders. The Company will have the
sole responsibility for such decision and for any arrangements which may be
made in the event that the Company determines that such orders may not be
settled or that copies of such Prospectus may not be so delivered.
B-5
Delivery of Prospectus
----------------------
A copy of the Prospectus as most recently amended or supplemented
on the date of delivery thereof, together with the applicable Pricing
Supplement, must be delivered to a purchaser prior to or simultaneously with
the earlier of the delivery of (i) the written confirmation of a sale sent to
a purchaser or his agent and (ii) any Note purchased by such purchaser. The
Company shall ensure that the applicable Agent receives copies of the
Prospectus and each amendment or supplement thereto (including the applicable
Pricing Supplement) in such quantities and within such time limits as will
enable such Agent to deliver such confirmation or Note to a purchaser as
contemplated by these procedures and in compliance with the preceding
sentence. Copies of Pricing Supplements should be delivered to:
If to ▇▇▇▇▇▇ Brothers Inc.:
By facsimile delivery to:
▇▇▇▇▇▇ Brothers Inc.
c/o ADP
Prospectus Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇]
with a copy by hand to:
▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇.▇. ▇▇▇▇▇▇ Securities Inc.:
By facsimile delivery to:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Medium-Term Note Desk
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
B-6
with a copy by hand to:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Medium-Term Note Desk
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If, since the date of acceptance of a purchaser's offer, the Prospectus shall
have been supplemented solely to reflect any sale of Notes on terms different
from those agreed to between the Company and such purchaser or a change in
posted rates not applicable to such purchaser, such purchaser shall not
receive the Prospectus as supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect the terms of the Notes
being purchased by such purchaser and otherwise as most recently amended or
supplemented on the date of delivery of the Prospectus. The Trustee will
make all such deliveries with respect to all Notes sold directly by the
Company.
Authenticity of Signatures
--------------------------
The Company will cause the Trustee to furnish the Agents from time
to time with the specimen signatures of each of the Trustee's officers,
employees and agents who have been authorized by the Trustee to authenticate
Notes, but the Agents will have no obligation or liability to the Company or
the Trustee in respect of the authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on any Note.
Advertising Costs
-----------------
The Company will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Notes. Advertising
expenses incurred with the consent of the
Company will be paid by the Company.
B-7
SPECIAL ADMINISTRATIVE PROCEDURES
FOR MULTI-CURRENCY NOTES
Settlements, payments and other matters relating to any Multi-
Currency Note shall be effected in a manner consistent with the terms of such
Multi-Currency Note, as set forth therein and in the Prospectus Supplement,
the applicable Pricing Supplement and the Indenture.
B-8
SPECIAL ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for the Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by
DTC (a "Book-Entry Note") or a certificate delivered to the Holder thereof or
a Person designated by such Holder (a "Certificated Note"). An owner of a
Book-Entry Note will not be entitled to receive a certificate representing
such Note. In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representations from the Company and the Trustee to DTC dated as of
November __, 1996 and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated as of August 21, 1989, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System
("SDFS"). Except as otherwise set forth in this Exhibit B, Book-Entry Notes
will be issued in accordance with the administrative procedures set forth
below.
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Fixed Rate Book-Entry Notes, the
Company will issue one or more Global Securities in fully
registered form without coupons (a "Global Security"), having
the same CUSIP number, and representing all of such Notes that
have the same Original Issue Date, interest rate and Stated
Maturity. Similarly, on any settlement date for one or more
Floating Rate Book-Entry Notes, the Company will issue one or
more Global Securities, having the same CUSIP number, and
representing all of such Notes that have the same Original
Issue Date, Interest Rate Basis, Initial Interest Rate,
Interest Payment Period, Interest Payment Dates, Index
Maturity, Spread or Spread Multiplier, if any, minimum
interest rate (if any), maximum interest rate (if any),
redemption provisions, if any, and Stated Maturity. No Global
Security will represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note. If the Global
Securities having a single CUSIP number exceed the maximum
principal amount specified by DTC, one Global Security will be
authenticated and issued to represent each such maximum
principal amount and an additional Global Security will be
authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" below).
Identification
Numbers: The Company will arrange, on or prior to commencement of a
program for the offering of Book-Entry Notes, with the CUSIP
Service Bureau of Standard & Poor's Ratings Group (the "CUSIP
Service Bureau") for the reservation of a series of CUSIP
numbers (including tranche numbers), consisting of
approximately 900 CUSIP numbers and relating to Global
Securities representing the Book-Entry Notes. The Trustee has
or will obtain from the CUSIP Service Bureau a written list of
such series of reserved CUSIP numbers and will deliver to the
Company and DTC such written list of 900 CUSIP numbers of such
series. The Trustee will assign CUSIP numbers to Global
Securities as described below under Settlement Procedure "B".
DTC will notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Trustee has assigned to Global
Securities. The Trustee will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and if it deems necessary,
the Company will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-Entry Notes.
Upon obtaining such additional CUSIP numbers the Trustee shall
deliver such additional CUSIP numbers to the Company and DTC.
B-9
Registration: Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the Security Register maintained
under the Indenture. The beneficial owner of a Book-Entry
Note (or one or more indirect participants in DTC designated
by such owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such Note
in the account of such Participants. The ownership interest
of such beneficial owner in such Note will be recorded through
the records of such Participants or through the separate
records of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees of
such Note.
Consolidation and
Exchange: The Trustee may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation specifying (i) the
CUSIP numbers of two or more Outstanding Global Securities
that represent (A) Fixed Rate Book-Entry Notes having the same
Original Issue Date, interest rate and Stated Maturity and
with respect to which interest has been paid to the same date
or (B) Floating Rate Book-Entry Notes having the same Interest
Rate Basis, Original Issue Date, Initial Interest Rate,
Interest Payment Dates, Index Maturity, Spread or Spread
Multiplier, if any, minimum interest rate (if any), maximum
interest rate (if any), redemption provisions, if any, and
Stated Maturity and with respect to which interest has been
paid to the same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and at least
thirty days before the next Interest Payment Date for such
Book-Entry Notes, on which such Global Securities shall be
exchanged for one or more replacement Global Securities and
(iii) a single new CUSIP number, obtained from the Company, to
be assigned to such replacement Global Securities. Upon
receipt of such a notice, DTC will send to its participants
(including the Trustee) a written reorganization notice to the
effect that such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will deliver to the
CUSIP Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the Global Securities
to be exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global
Securities for one or more Global Securities bearing the
single new CUSIP number, and the CUSIP numbers of the
exchanged Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately
reassigned. If the Global Securities to be exchanged exceed
the maximum principal amount specified by DTC, one Global
Security will be authenticated and issued to represent each
such maximum principal amount of the exchanged Global
Securities and an additional Global Security will be
authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" below).
B-10
Denominations: Unless otherwise specified in the Prospectus Supplement or the
applicable Pricing Supplement, Book-Entry Notes will be issued
in principal amounts of $1,000 or any integral multiple
thereof.
Interest: Interest on each Book-Entry Note will accrue and be payable on
terms specified in the Prospectus Supplement and the
applicable Pricing Supplement. Standard & Poor's Ratings
Group will use the information received in the pending deposit
message described under Settlement Procedure "C", below in
order to include the amount of any interest payable and
certain other information regarding the related Global
Security in the appropriate weekly bond report published by
Standard & Poor's Ratings Group.
Promptly after each Interest Determination Date for Floating
Rate Notes, the Company will notify the Trustee, and the
Trustee in turn will notify Standard & Poor's Ratings Group,
of the interest rates determined on such Interest
Determination Date.
B-11
Payments of Principal and
Interest: Payments of Interest Only. Promptly after each Regular Record
Date, the Trustee will deliver to the Company and DTC a
written notice specifying by CUSIP number the amount of
interest to be paid on each Global Security on the following
Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts. DTC
will confirm the amount payable on each Global Security on
such Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Ratings Group. The
Company will pay to the Trustee, as paying agent, the total
amount of interest due on such Interest Payment Date (other
than at Maturity), and the Trustee will pay such amount to DTC
at the times and in the manner set forth below under "Manner
of Payment".
Payments at Maturity. On or about the first Business Day of
each month, the Trustee will deliver to the Company and DTC a
written list of principal and interest to be paid on each
Global Security maturing in the following month. The Company,
the Trustee and DTC will confirm the amounts of such principal
and interest payments with respect to each such Global
Security on or about the fifth Business Day preceding the
Maturity of such Global Security. The Company will pay to the
Trustee, as the paying agent, the principal amount of such
Global Security, together with interest due at such Maturity.
The Trustee will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment".
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest Payment Date
or at Maturity shall be paid by the Company to the Trustee in
funds available for use by the Trustee as of 9:30 A.M. (New
York City time) on such date. The Company will make such
payment on such Global Securities by wire transfer to the
Trustee, or, if the Company so directs, by instructing the
Trustee to withdraw funds from an account maintained by the
Company at the Trustee. The Company will confirm such
instructions in writing to the Trustee. For maturity,
redemption or any other principal payments: prior to 10 A.M.
(New York City time) on such date or as soon as possible
thereafter, the Trustee will make such payments to DTC in same
day funds in accordance with DTC's Same Day Funds Settlement
Paying Agent Operating Procedures. For interest payments:
the Trustee will make such payments to DTC in accordance with
existing arrangements between DTC and the Trustee. DTC will
allocate such payments to its participants in accordance with
its existing operating procedures. Neither the Company
(either as issuer or as Paying Agent) nor the Trustee shall
have any direct responsibility or liability for the payment by
DTC to such Participants of the principal of and interest on
the Book-Entry Notes.
B-12
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry Note
which will be registered in the name of the nominee of DTC
(unless otherwise indicated in the applicable Pricing
Supplement, "Cede & Co.") sold by the Company through an
Agent, as agent, shall be as follows:
A. Such Agent will advise the Company by telex or
facsimile of the following settlement information:
1. Principal amount of the Note (and, if multiple
Notes are to be issued, denominations thereof).
2. Settlement date (Original Issue Date).
3. Stated Maturity.
4. Issue Price.
5. Trade Date.
6. Specified Currency and whether the option to
elect payments in a Specified Currency applies
and if the Specified Currency is not U.S.
Dollars, the authorized denominations.
7. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
B-13
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g., Commercial
Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier, if any
iv) Interest Reset Dates, Interest Reset
Period and Interest Determination
Dates
v) Index Maturity
vi) maximum and minimum interest rates, if
any
(c) Currency Indexed Notes
The applicable terms thereof
8. Interest Payment Date(s) and Regular Record
Dates.
9. Optional Interest Reset Dates, if any, and
Subsequent Interest Periods, if any.
10. Extension Periods, if any, and Final Maturity
Dates, if any.
11.The date on or after which the Notes are
redeemable at the option of the Company or
repurchasable by the Company at the option of
the holder, and additional redemption or
repurchase provisions, if any.
12. Amortization schedule, if any.
13.Wire transfer information, if applicable.
14.Agent's Commission (to be paid in the form of a
discount from the proceeds remitted to the
Company upon Settlement).
15.Whether such Book-Entry Note is issued at an
original issue discount ("OID"), and, if so, the
total amount of OID, the yield to maturity and
the initial accrual period of OID.
B. The Company will advise the Trustee by electronic
transmission of the information set forth in
Settlement Procedure A above and the name of the
applicable Agent. Each such communication by the
Company shall constitute a representation and
warranty by the Company to the Trustee and each
Agent that (i) such Note is then, and at the time of
issuance and sale thereof will be, duly authorized
for issuance and sale by the Company, (ii) such
Note, and the Global Security representing such
Note, will conform with the terms of the Indenture
and (iii) upon authentication and delivery of such
Global Security, the aggregate initial offering
price of all Notes issued under the Indenture will
not exceed the maximum aggregate amount then
authorized (except for Book-Entry Notes represented
by Global Securities authenticated and delivered in
exchange for or in lieu of Global Securities
pursuant to the Indenture and except for
Certificated Notes authenticated and delivered upon
registration of transfer of, in exchange for, or in
lieu of Certificated Notes pursuant to any such
Section).
B-14
C. The Trustee will assign a CUSIP number to the Global
Security representing such Note and enter a pending
deposit message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, such Agent and Standard & Poor's
Ratings Group:
1. The applicable information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note
or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Note,
number of days by which such date succeeds the
related "DTC Regular Record Date" (which term
means the Regular Record Date except in the case
of floating rate notes which reset daily or
weekly in which case it means the date 5
calendar days immediately preceding the Interest
Payment Date) and amount of interest payable on
such Interest Payment Date per $1,000 of
principal amount of such Note.
4. Frequency of interest payments (monthly,
semiannually, quarterly, etc.).
5. CUSIP number of the Global Security representing
such Note.
6. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at
such time).
D. Such Agent will deliver to the purchaser a copy of
the most recent Prospectus applicable to the Note
with or prior to any written offer of Notes and the
confirmation and payment by the purchaser of the
Note.
B-15
Such Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
E. The Trustee, as Trustee, will complete and
authenticate the note certificate evidencing the
Global Security representing such Book-Entry Note.
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to such Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to the price
of such Note less such Agent's commission. The
entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC
that (i) the Global Security representing such
Book-Entry Note has been issued and authenticated
and (ii) the Trustee is holding such Global Security
pursuant to the Medium-Term Note Certificate
Agreement between the Trustee and DTC (the
"Certificate Agreement").
H. Such Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to such Agent's participant
account and credit such Note to the participant
accounts of the Participants with respect to such
Note 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 Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement
date.
J. The Trustee will transfer by wire to an account
designated by the Company, or, if the Company
so directs, credit to an account of the Company
maintained at the Trustee, funds available for
immediate use in the amount transferred to
the Trustee in accordance with Settlement
Procedure "G".
B-16
Settlement Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent, as
agent, and accepted by the Company for settlement, Settlement
Procedures "A" through "J" set forth above shall be completed
as soon as possible but not later than the respective times
(New York City time) set forth below:
Settlement.
Procedure Time
----------- ------
A 11:00 A.M. on the sale date
B 12 Noon on the sale date
C 2:00 P.M. on the sale date
D Day after sale date
E 3:00 P.M. on day before Settlement date
F 10:00 A.M. on Settlement date
G-H 2:00 P.M. on Settlement date
I 4:45 P.M. on Settlement date
J 5:00 P.M. on Settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M.,
12 Noon and 2:00 P.M., as the case may be, on the first
Business Day after the sale date. If the initial interest
rate for a Floating Rate Book-Entry Note 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 12:00 Noon and 2:00 P.M., respectively, on the
second Business Day before the Settlement date. Settlement
Procedure "J" 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 Note is rescheduled or canceled,
the Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 P.M. on the Business Day immediately preceding
the scheduled Settlement date.
Failure to
Settle: If the Trustee has not entered an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement Procedure
"G", then, upon written request (which may be effected by
facsimile transmission) of the Company, the Trustee shall
deliver to DTC, through DTC's Participant Terminal System, as
soon as practicable but no later than 2:00 P.M. on any
Business Day, a withdrawal message instructing DTC to debit
such Note to the Trustee's participant account. DTC will
process the withdrawal message, provided that the Trustee's
participant account contains a principal amount of the Global
Security representing such Note 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 Notes 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 not all, of the
Book-Entry Notes represented by a Global Security, the Trustee
will exchange such Global Security for two Global Securities,
one of which shall represent such Book-Entry Note or Notes and
shall be canceled immediately after issuance and the other of
which shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and shall bear
the CUSIP number of the surrendered Global Security.
B-17
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent for such
Note may enter SDFS deliver orders through DTC's Participant
Terminal System debiting such Book-Entry Note free to such
Agent's participant account and crediting such Book-Entry Note
free to the participant account of the Trustee and shall
notify the Trustee and the Company thereof. Thereafter, the
Trustee (i) will immediately notify the Company, once the
Trustee has confirmed that such Book-Entry Note has been
credited to its participant account, and the Company shall
immediately transfer by Fed wire (immediately available funds)
to such Agent an amount equal to the amount with respect to
such Book-Entry Note which was previously sent by wire
transfer to the account of the Company in accordance with
Settlement Procedure "J", and (ii) the Trustee will deliver
the withdrawal message and take the related actions described
in the preceding paragraph. Such debits and credits will be
made on the Settlement date, if possible, and in any event not
later than 5:00 P.M. on the following Business Day. If such
failure shall have occurred for any reason other than a
default by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then the
Company will reimburse the Agent on an equitable basis for the
loss of the use of the funds during the period when they were
credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "E", for the
authentication and issuance of a Global Security representing
the other Book-Entry Notes to have been represented by such
Global Security and will make appropriate entries in its
records.
B-18
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee to risk
or expend its own funds in connection with any payment to the
Company, DTC, the Agents, or the purchaser, it being
understood by all parties that payments made by the Trustee to
the Company, DTC, the Agents, or the purchaser shall be made
only to such extent that funds are provided to the Trustee for
such purpose. Similarly, nothing herein shall alter any duty,
or limit or diminish any right or immunity, of the Trustee
under the Indenture.
B-19
EXHIBIT C
PURCHASE AGREEMENT
------------------
Polaroid Corporation _______________, 19__
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ________________
Each of the undersigned purchaser(s) (the "Purchaser(s)") agree[s]
to purchase Notes, as described in the Distribution Agreement dated November
__, 1996 (as it may be supplemented or amended from time to time, the
"Distribution Agreement"), in the principal amount set opposite such
Purchaser's name on Schedule 1 hereto, such Notes to have the following
terms:
Aggregate Principal Amount [$]_________________________
Stated Maturity: _________________________
Specified Currency: _________________________
Interest Rate: ________%
Discount: ________% of Principal Amount
Aggregate Price to be
paid to Company
(in immediately
available funds): [$]_________________________
Time of Delivery: _________________________
Other Terms: _________________________
Except as otherwise expressly provided herein, all terms used
herein which are defined in the Distribution Agreement and not otherwise
defined herein shall have the meanings set forth in the Distribution
Agreement. The terms "Agent" or "Agents", as used in the Distribution
Agreement, shall be deemed to refer to the undersigned Purchaser(s) for
purposes of this Agreement.
Our obligation to purchase Notes hereunder is subject to the
continued accuracy of your representations and warranties contained in the
Distribution Agreement and to your performance and observance of all
applicable covenants and agreements contained therein, including, without
limitation, your obligations pursuant to Section 6 and Section 7 thereof.
Our obligation hereunder is subject to the conditions set forth in Section 5
of the Distribution Agreement [and to the further condition that we shall
receive (a) the opinions required to be delivered pursuant to Section 5(e) of
the Distribution Agreement, (b) the certificate required to be delivered
pursuant to Section 5(f) of the Distribution Agreement, (c) the letter
referred to in Section 5(g), in each case dated as of the above Time of
Delivery and (d) and such further information, certificates and documents as
the Purchaser(s) or counsel to the Purchaser(s) may reasonably request.] 1/
The parties to any Purchase Agreement may agree that provisions relating to
the payment of legal fees may be included in such Purchase Agreement.
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Time of Delivery, without the prior
written consent of ▇▇▇▇▇▇ Brothers Inc. (which consent shall not be
unreasonably withheld), you will not offer or sell, or enter into any
agreement to sell, any debt securities of the Company, other than borrowings
under your revolving credit agreements and lines of credit, the private
placement of securities and issuances of your commercial paper or other
issuances of Notes.
_______________________
1/ As agreed at the time of entering into the Purchase Agreement.
We may terminate this Agreement, in our absolute discretion, by
notice given to and received by the Company prior to delivery of and payment
for the Securities, if prior to that time (a) a downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations, (b) any such organization shall have publicly announced that is
has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities, (c) trading in securities
generally on the New York Stock Exchange, the Chicago Board Options Exchange
or the over-the-counter market shall have been suspended or materially
limited or minimum prices shall have been established on one or more of such
exchanges or such market by the Commission or such exchange or other
regulatory body or governmental authority having jurisdiction, (d) a banking
moratorium shall have been declared by United States federal or New York
State authorities, (e) the United States shall have become engaged in
hostilities or there shall have been an escalation in hostilities involving
the United States or a declaration of a national emergency or war shall have
been made by the United States, (f) there shall have been such a material
adverse change in national or international political, financial or economic
conditions, national or international equity markets or currency exchange
rates or controls as to make it, in the judgment of the Purchaser(s),
inadvisable or impracticable to proceed with the payment for and delivery of
the Notes, or (g)(i) the Company or any of its subsidiaries shall have
sustained since the date of the latest [audited] financial statements
included or incorporated by reference in the Prospectus any 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 or (ii) since such date there shall have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
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, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Purchaser(s), so material and adverse
as to make it impracticable or inadvisable to proceed with the offering or
the delivery of the Notes on the terms and in the manner contemplated in the
Prospectus.
If the parties to any Purchase Agreement so agree, the following
provisions shall be included in such Purchase Agreement:
"If, at any Time of Delivery, any Purchaser
defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting
Purchasers shall be obligated to purchase the Notes which the defaulting
Purchaser agreed but failed to purchase at such Time of Delivery, in the
respective proportions which the principal amount of Notes set opposite the
name of each remaining non-defaulting Purchaser in Schedule 1 hereto bears to
the aggregate principal amount of Notes set opposite the names of all the
remaining non-defaulting Purchasers in Schedule 1 hereto; provided, however,
that the remaining non-defaulting Purchasers shall not be obligated to
purchase any Notes at such Time of Delivery if the aggregate principal amount
of Notes which the defaulting Purchaser or Purchasers agreed but failed to
purchase exceeds 9.09% of the total principal amount of Notes to be purchased
at such Time of Delivery and any remaining non-defaulting Purchaser shall not
be obligated to purchase more than 110% of the aggregate principal amount of
Notes which it agreed to purchase at such Time of Delivery pursuant to this
Agreement. If the foregoing maximums are exceeded, the remaining non-
defaulting Purchasers, or those other Purchasers or underwriters who so
agree, shall have the right, but shall not be obligated, to purchase, in such
proportions as may be agreed upon among them, all the Notes to be purchased
at such Time of Delivery. If the remaining Purchasers or other Purchasers or
underwriters do not elect to purchase the Notes which the defaulting
Purchaser or Purchasers agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting Purchaser or
the Company, except that the Company will continue to be liable for the
payment of expenses to any non-defaulting Purchaser as set forth in Section 4
of the Distribution Agreement. As used in this Agreement, the term
'Purchaser' includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant
to this provision, purchases Notes which a defaulting Purchaser agreed but
failed to purchase.
C-2
"Nothing contained herein shall relieve a defaulting Purchaser of
any liability it may have to the Company for damages caused by its
default. If other Purchasers are obligated or agree to purchase the Notes of
a defaulting Purchaser, either the Purchasers or the Company may postpone the
Time of Delivery for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Purchasers may be necessary in the Registration Statement or the Prospectus
or in any other document or arrangement."
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
[Insert name(s) of Purchaser(s)]
By _________________________
[Title]
Accepted: 19__
Polaroid Corporation
By _________________________
[Title]
C-3
EXHIBIT D
Polaroid Corporation
Medium-Term Notes, Series A
[FOREIGN CURRENCY] [INDEXED NOTE]
AMENDMENT NO. ____________ TO DISTRIBUTION AGREEMENT,
DATED NOVEMBER __, 1996, AS AMENDED
[Insert Title of Foreign Currency and, in the case of Indexed Notes, the
Indexed Basis]
The undersigned hereby agree that for the purposes of the issue and
sale of Notes denominated in [title of currency or currency unit] (the
"Specified Currency") (and indexed to [title of index basis] (the "Index
Basis")] pursuant to the Distribution Agreement, dated November __, 1996 as
it may be amended (the "Distribution Agreement") among Polaroid Corporation,
▇▇▇▇▇▇ Brothers Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., 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 Specified
Currency [and indexed to the Index Basis], 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 Specified 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., in each case as mutually agreed by the parties]
_______________, 19__
Polaroid Corporation
By_________________________
Name:
Title:
[Name(s) of Agent(s) participating in the offering of Notes in the Specified
Currency]
By_________________________
Name:
Title: