▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP INC.
$_____________
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
February [__], 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇.
Bank ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
c/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International
Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc., a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
from time to time by the Company primarily outside the United States of up to
$_____________ (or the equivalent thereof in one or more foreign currencies or
composite currencies) aggregate initial public offering price of its Global
Medium-Term Notes, Series D and Series E, each due more than 9 months from the
date of issue (the "Notes") and, its Global Units, Series D and Series E , (the
"Units" and together with the Notes, "Program Securities"), in each case subject
to reduction as a result of the sale of the Company's Global Medium-Term Notes,
Series C and Global Units, Series C, to be sold primarily inside the United
States, and the sale of certain of the Company's other debt securities,
warrants, preferred stock, purchase contracts and units. The Series D Notes and
the Series D Units are intended to be listed on the London Stock Exchange
Limited (the "London Stock Exchange") or on another stock exchange or exchanges,
if so required by Section 3(i) hereof. The Series E Notes and the Series E Units
will not be listed on any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior
Notes") or as subordinated indebtedness (the "Subordinated Notes") of the
Company. The Senior Notes will be issued, either alone or as part of a Unit,
pursuant to the provisions of a senior indenture dated as of April 15, 1989, as
supplemented by a first supplemental senior indenture dated as of May 15, 1991
and a second supplemental senior indenture dated as of April 15, 1996 (as so
supplemented and as may be further supplemented or amended from time to time,
the "Senior Debt Indenture"), between the Company and The Chase Manhattan Bank
(formerly known as Chemical Bank), as trustee (the "Senior Debt Trustee"). The
Subordinated Notes will be issued pursuant to the provisions of a subordinated
indenture dated as of April 15, 1989, as supplemented by a first supplemental
subordinated indenture dated as of May 15, 1991 and a second supplemental
subordinated indenture dated as of April 15, 1996 (as so supplemented and as may
be further supplemented or amended from time to time, the "Subordinated Debt
Indenture"), between the Company and The First National Bank of Chicago, as
trustee (the "Subordinated Debt Trustee"). The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees."
The Units will be issued pursuant to the Unit Agreement dated as
of January 24, 1997, among the Company, The Chase Manhattan Bank, as Unit Agent,
as Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein
and the holders from time to time of the Units described therein. Units may
include one or more (i) Senior Notes, (ii) warrants ("Universal Warrants")
entitling the holders thereof to purchase or sell (a) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or indices
of such securities or any combination of the above, (b) currencies or composite
currencies or (c) commodities, (iii) purchase contracts ("Purchase Contracts")
requiring the holders thereof to purchase or sell (a) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or indices
of such securities or any combination of the above, (b) currencies or composite
currencies or (c) commodities or (iv) any combination thereof. The applicable
prospectus supplement will specify whether Notes, Universal Warrants and
Purchase Contracts comprised by a Unit may or may not be separated from any
series of Units. Universal Warrants issued as part of a Unit will be issued
pursuant to the Universal Warrant Agreement dated as of January 24, 1997 (the
"Universal Warrant Agreement"), between the Company and The Chase Manhattan
Bank, as Warrant Agent. Purchase Contracts entered into by the Company and the
holders thereof will be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants issued as part of a Unit will have the exercise prices,
exercise dates, expiration dates and other terms as set forth in supplements to
the Basic Prospectus. The Purchase Contracts issued as part of a Unit will have
the closing dates, purchase or sale prices and other terms as set forth in
supplements to the Basic Prospectus. The Company has initially appointed The
Chase Manhattan Bank, London Branch, at its principal office in London, as
principal paying agent (the "Principal Paying Agent") for the Notes.
The Notes will be issued in bearer form or in definitive
registered form without coupons (the "Registered Notes"), the Units will be
issued in bearer form or in definitive registered form (the "Registered Units")
and the securities included in a Unit will be in the form of such Unit. The
Notes and the Units, (the "Program Securities") issued in bearer form will be
represented initially by, in the case of the Notes, a temporary global Note and,
in the case of the Units, a temporary global Unit, each of which will be
delivered to a common depositary outside the United States for the operator of
the Euroclear System (the "Euroclear Operator") and Cedel Bank, societe anonyme
("Cedel"). Beneficial interests in a temporary global Note or a temporary global
Unit will be exchangeable for beneficial interests in, in the case of a
temporary global Note, a permanent global Note and, in the case of a temporary
global Unit, a permanent global Unit. Beneficial interests in a permanent global
Note will be exchangeable in whole, but not in part, for definitive Notes in
bearer form, with interest coupons attached upon receipt of the Principal Paying
Agent of an initial request to so exchange by any holder of a beneficial
interest in such permanent global Note (such temporary global Note, permanent
global Note and definitive Notes in bearer form are collectively referred to as
the "Bearer Notes"), or for Registered Notes. Beneficial interests in a
permanent global Unit (including an interest in the securities included in such
Unit) will be exchangeable in whole, but not in part, for definitive Units in
bearer form upon receipt of the Unit Agent of an initial request to so exchange
by any holder of a beneficial interest in such permanent global Unit (such
temporary global Unit, permanent global Unit and definitive Units in bearer form
are collectively referred to as the "Bearer Units"). As used in this Agreement,
the term "Note" includes any temporary global Note or permanent global Note
issued pursuant to the Indentures and the term "Unit" includes any temporary
global Unit or permanent global Unit issued pursuant to the Unit Agreement.
The Company hereby appoints you as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Program Securities from
the Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, you
agree to use reasonable efforts to solicit and receive offers to purchase
Program Securities upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify. In addition, you
may also purchase Program Securities as principal pursuant to the terms of a
terms agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof. Program Securities denominated or
payable in Deutsche Marks may only be offered and sold by the Company through
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG, the Deutsche ▇▇▇▇ arranger, on an agency or principal
basis. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG agrees to notify the German Central Bank at the
end of each month about the amounts, dates of issue and other terms of all
Program Securities denominated or payable in Deutsche Marks offered and sold by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG during the month in question. Program Securities
denominated or payable in French Francs may only be offered and sold by the
Company through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇. on an agency or principal basis, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇.▇. agrees to notify the French Tresor prior to the issuance of any
such Program Securities. Program Securities denominated, payable in or indexed
to Swiss Francs may only be offered and sold by the Company through Bank ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ on an agency or principal basis, and Bank ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ agrees to
notify the Swiss National Bank prior to the issuance of any such Program
Securities.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating to
the Program Securities. Such registration statement, including the exhibits
thereto, as amended at the Commencement Date (as hereinafter defined), is
hereinafter referred to as the "Registration Statement." The Company proposes to
file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Program Securities. The prospectus in the form in which it appears
in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement or supplements (each a "Prospectus Supplement")
specifically relating to Notes, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Basic Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with you as of the Commencement Date, as of each date on
which you solicit offers to purchase Program Securities, as of each date on
which the Company accepts an offer to purchase Program Securities (including any
purchase by you as principal pursuant to a Notes Terms Agreement or a Units
Terms Agreement), as of each date the Company issues and delivers Program
Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this Section
1(b) do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to you furnished to the
Company in writing by you expressly for use therein or (B) to those parts of the
Registration Statement that constitute the Statements of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustees and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any date on
which you solicit offers to purchase Program Securities or on which the Company
accepts an offer to purchase Program Securities, shall be deemed not to cover
information concerning an offering of particular Program Securities to the
extent such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined) has
been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and the Universal
Warrant Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at proceedings in equity or at law.
(g) The forms of Notes, whether issued alone or as part of a
Unit, have been duly authorized and established in conformity with the
provisions of the relevant Indenture and, when the Notes have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes will be
entitled to the benefits of such Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general principles
of equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(h) The forms of Units, including the forms of Universal Warrants
and Purchase Contracts which, in addition to the Notes, may comprise such Units,
have been duly authorized and established in conformity with the provisions of
(i) in the case of the Units and Purchase Contracts, the Unit Agreement and (ii)
in the case of Universal Warrants, the Universal Warrant Agreement. When the
Units have been delivered to and duly paid for by the purchasers thereof and (a)
any Purchase Contracts included in such Units have been executed by the Company
and countersigned and executed by the Unit Agent and (b) any Universal Warrants
included in such Units have been executed by the Company and countersigned by
the Warrant Agent, the Units (including any such Purchase Contracts or Universal
Warrants contained therein) will be entitled to the benefits of the Unit
Agreement and, in the case of the Universal Warrants, the Universal Warrant
Agreement and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(i) The execution and delivery by the Company of this Agreement,
the Notes (whether issued alone or as part of a Unit), the Units (including any
Purchase Contracts and Universal Warrants included therein) the Indentures, the
Unit Agreement, the Universal Warrant Agreement and any applicable Written Notes
Terms Agreement or Written Units Terms Agreement and the performance by the
Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Notes, the Units, the Indentures, the
Unit Agreement, the Universal Warrant Agreement and any applicable Notes Terms
Agreement or Units Terms Agreement; provided, however, that no representation is
made or warranty given as to whether the purchase of the Program Securities
constitutes a "prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(m) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered with
the Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
Notwithstanding the foregoing, it is understood and agreed that
the representations and warranties set forth in Section 1(b)(iii) and (iv), (g)
(except as to due authorization of the Notes) (h) (except as to due
authorization of the Units, Universal Warrants and Purchase Contracts) and (i),
when made as of the Commencement Date, or as of any date on which you solicit
offers to purchase Program Securities, with respect to any Program Securities
the payments of principal or interest on which, or any other payments with
respect to which, will be determined by reference to one or more currency
exchange rates, commodity prices, securities of entities unaffiliated with the
Company, baskets of such securities, equity indices or other factors, shall be
deemed not to address the application of the Commodity Exchange Act, as amended,
or the rules, regulations or interpretations of the Commodity Futures Trading
Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as
agents hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct you to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Program Securities. Upon receipt of at least
one business day's prior notice from the Company, you will forthwith suspend
solicitations of offers to purchase Program Securities from the Company until
such time as the Company has advised you that such solicitation may be resumed.
While such solicitation is suspended, the Company shall not be required to
deliver any certificates, opinions or letters in accordance with Sections 5(a),
5(b) and 5(c); provided, however, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for (i) in the case of
Notes, issued alone or as part of a Unit, a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the
Notes, (ii) in the case of Units, a change in the exercise price, exercise date
or period or expiration of an underlying Universal Warrant or a change in the
settlement date or purchase or sale price of an underlying Purchase Contract or
(iii) for a change you deem to be immaterial), you shall not be required to
resume soliciting offers to purchase Program Securities until the Company has
delivered such certificates, opinions and letters as you may request.
The Company agrees to pay to you, as consideration for the sale
of each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any underlying
Note's maturity or the terms of the Units and of the securities comprised by
such Units) of the principal amount of such Note or, in the case of Units, the
face amount of such Unit (provided that the commission for Notes having, or
Units including Notes or other securities having, a maturity of 30 years or
greater will be negotiated) or such other discount as may be specified in the
Prospectus Supplement relating to such Note or Unit.
You shall communicate to the Company, orally or in writing, each
offer to purchase Program Securities received by you as agent that in your
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Program Securities and may reject any offer
in whole or in part. You shall have the right to reject any offer to purchase
Program Securities that you consider to be unacceptable, and any such rejection
shall not be deemed a breach of your agreements contained herein. The procedural
details relating to the issue and delivery of Program Securities sold by you as
agent and the payment therefor shall be as set forth in the Administrative
Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to
you as principals shall be made in accordance with the terms of this Agreement.
In connection with each such sale, the Company will enter into a Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a written
agreement between you and the Company, which may be substantially in the form of
Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of Notes, a
"Written Notes Terms Agreement" and, in the case of Units, a "Written Units
Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal
pursuant to a Notes Terms Agreement or Units Terms Agreement 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 (i) Note Terms Agreement shall specify the principal amount of Notes
to be purchased by you pursuant thereto, the maturity date of such Notes, the
price to be paid to the Company for such Notes, the interest rate and interest
rate formula, if any, applicable to such Notes and any other terms of such Notes
and (ii) Unit Terms Agreement shall specify (a) the information set forth in (i)
above with respect to any Notes issued as part of a Unit, (b) with respect to
Universal Warrants issued as part of a Unit, the exercise price, the exercise
date or period, the expiration date and any other terms of such Universal
Warrants, and (c) with respect to Purchase Contracts issued as part of a Unit,
the settlement date, the purchase or sale price or any other terms of such
Purchase Contracts. Each such Notes Terms Agreement or Units Terms Agreement may
also specify any requirements for officers' certificates, opinions of counsel
and letters from the independent auditors of the Company pursuant to Section 4
hereof. A Notes Terms Agreement and a Unit Terms Agreement may also specify
certain provisions relating to the reoffering of such Notes or Units, as the
case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall
specify the time and place of delivery of and payment for such Notes or Units,
as the case may be. Unless otherwise specified in a Notes Terms Agreement or a
Units Terms Agreement, the procedural details relating to the issue and delivery
of Notes or Units, as the case may be, purchased by you as principal and the
payment therefor shall be as set forth in the Administrative Procedures. Each
date of delivery of and payment for Program Securities to be purchased by you as
principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as the
case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, if you are purchasing Notes or Units as principal you may
resell such Notes or Units to other dealers. Any such sales may be at a
discount, which shall not exceed the amount set forth in the Prospectus
Supplement relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Global Medium-Term Notes, Series D and Series E and the Global
Units, Series D and Series E, Administrative Procedures (attached hereto as
Exhibit B) (the "Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and you.
(d) Delivery. The documents required to be delivered by Section 4
of this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as agent of the Company shall
be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, your counsel, not later
than 4:00 p.m., New York time, on the date hereof, or at such other time and/or
place as you and the Company may agree upon in writing, but in no event later
than the day prior to the earlier of (i) the date on which you begin soliciting
offers to purchase Program Securities and (ii) the first date on which the
Company accepts any offer by you to purchase Program Securities as principal.
The date of delivery of such documents is referred to herein as the
"Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or any Notes Terms Agreement or Units
Terms Agreement, the Company will not file any Prospectus Supplement relating to
the Program Securities or any amendment to the Registration Statement unless the
Company has previously furnished to you a copy thereof for your review and will
not file any such proposed supplement or amendment to which you reasonably
object; provided, however, that the foregoing requirement shall not apply to any
of the Company's periodic filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies
of which filings the Company will cause to be delivered to you promptly after
being transmitted for filing with the Commission. Subject to the foregoing
sentence, the Company will promptly cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in accordance with Rule 424(b)
under the Securities Act. The Company will promptly advise you (i) of the filing
of any amendment or supplement to the Basic Prospectus, (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of the issuance by any
non-United States regulatory authority of any request for information relating
to the Program Securities or suspension of the listing of the Program Securities
on any stock exchange on which the Program Securities are then listed. The
Company will use its best efforts to prevent the issuance of any such stop order
or notice of suspension of qualification or listing and, if issued, to obtain as
soon as possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any document
incorporated by reference in the Prospectus, you shall not be obligated to
solicit offers to purchase Program Securities so long as you are not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or if, in your opinion or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified by the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to you in such quantities as
you may reasonably request. If any documents, certificates, opinions and letters
furnished to you pursuant to paragraph (e) below and Sections 5(a), 5(b) and
5(c) in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will resume the
solicitation of offers to purchase Program Securities hereunder. Notwithstanding
any other provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request and shall furnish to you pursuant to paragraph (e) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters
as you may request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Program Securities.
If such fiscal quarter is the last fiscal quarter of the Company's fiscal year,
such earning statement shall be made available not later than 90 days after the
close of the period covered thereby and in all other cases shall be made
available not later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to you, without charge, a signed
copy of the Registration Statement, including exhibits and all amendments
thereto, and as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto as you may
reasonably request.
(e) During the term of this Agreement, the Company shall furnish
to you such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Unit Agreement, the Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units Terms Agreement
and the performance by the Company of its obligations hereunder or thereunder as
you may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program
Securities is consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Notes Terms Agreement or Units Terms
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Program Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, of the Trustees and
their counsel, of the Unit Agent and its counsel, of the Warrant Agent and its
counsel and of the Principal Paying Agent and its counsel and any paying agents
for the Notes appointed by the Company, (iv) the fees and expenses incurred with
respect to listing the Series D Notes and the Series D Units on the London Stock
Exchange or on another stock exchange or exchanges if so required by Section
3(i), (v) the printing and delivery to you in quantities as hereinabove stated
of copies of the Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to you of copies of the Indentures, the Unit Agreement or the Universal
Warrant Agreement (vii) any fees charged by rating agencies for the rating of
the Program Securities, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.,
(ix) the fees and disbursements of your counsel incurred in connection with the
offering and sale of the Program Securities, including any opinions to be
rendered by such counsel hereunder, and (x) any out-of-pocket expenses incurred
by you; provided that any advertising expenses incurred by you shall have been
approved by the Company.
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect to
such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of (i) in the case of Notes, any debt securities of the Company substantially
similar to the Notes set forth in such Notes Terms Agreement (other than (A) the
Notes that are to be sold pursuant to such Notes Terms Agreement, (B) Notes
previously agreed to be sold by the Company and (C) commercial paper issued in
the ordinary course of business) or (ii) in the case of Units, any securities
substantially similar to such Units (other than (A) the Units that are sold
pursuant to such Units Terms Agreement or (B) Units previously agreed to be sold
by the Company), in each case, except as may otherwise be provided in the
applicable Notes Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest and
penalties, on the issue of the Program Securities in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement and on the
exchange of any temporary global Notes for definitive Notes or permanent global
Notes, of any temporary global Units for definitive Units or permanent global
Units, of any permanent global bearer Notes for definitive bearer Notes or of
any permanent global bearer Units for definitive bearer Units, that are or may
be required to be paid under the laws of the United Kingdom, the United States
or any political subdivision or taxing authority thereof or therein.
(j) In connection with the application to list the Series D Notes
and Series D Units on the London Stock Exchange, the Company will furnish from
time to time any and all documents, instruments, information and undertakings
and publish all advertisements or other material that may be necessary in order
to effect such listing and will maintain such listing until, (i) in the case of
the Notes, none of the Series D Notes is outstanding, either as part of a Unit
or otherwise, or until such time as payment of principal, premium, if any, and
interest in respect of all the Series D Notes, whether issued alone or as part
of a Unit, has been duly provided for, whichever is earlier and (ii) in the case
of the Units, none of the Series D Units is outstanding; provided, however, that
if the Company can no longer reasonably maintain such listing, it will use its
best efforts to obtain and maintain the quotation for, or listing of, the Series
D Notes and Series D Units on such other stock exchange or exchanges as you
shall reasonably request. In addition, for so long as the Series D Notes and
Series D Units are listed on a stock exchange and such exchange so requires, the
Company will maintain in London, or in such other place as the Series D Notes
and Series D Units are listed (if the Series D Notes and Series D Units are no
longer listed on the London Stock Exchange), a paying agent in respect of the
Series D Notes or Series D Units, as required.
4. Conditions of the Obligations of the Agents. Your obligation
to solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to solicit
offers to purchase Program Securities, at the time of such solicitation, and, in
the case of your or any other purchaser's obligation to purchase Program
Securities, at the time the Company accepts the offer to purchase such Program
Securities and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such solicitation
or at the time such offer to purchase was made, that, in your judgment,
is material and adverse and that makes it, in your judgment,
impracticable to market the Program Securities on the terms and in the
manner contemplated by the Prospectus, as so amended or supplemented;
(ii) there shall not have occurred such a change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely to
prejudice materially the success of the offering and distribution of
the Program Securities or dealings in the Program Securities in the
secondary market; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in the
case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received:
(i) The opinion, dated as of such date, of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
General Counsel and Secretary of the Company, or of other counsel
satisfactory to the Agent and who is an officer of the Company, to the
effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(B) each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ International Incorporated (each a "Material Subsidiary")
has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the
manner described in the Prospectus, as amended or supplemented,
except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written Notes
Terms Agreement or Written Units Terms Agreement has been duly
authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and
the Universal Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(F) the forms of Notes, whether issued alone or as part of
a Unit, have been duly authorized and established in conformity
with the provisions of the relevant Indenture and, if the Notes
had been executed by the Company and authenticated by the
relevant Trustee or its duly appointed agent in accordance with
the provisions of the relevant Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such
opinion, the Notes would be entitled to the benefits of such
Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(G) the forms of Units, including the forms of Universal
Warrants and Purchase Contracts which, in addition to the Notes,
may comprise such Units, have been duly authorized and
established in conformity with the provisions of (i) in the case
of Units and Purchase Contracts, the Unit Agreement and (ii) in
the case of the Universal Warrants, the Universal Warrant
Agreement, and if the Units (including the Universal Warrants and
the Purchase Contracts) had been delivered to and duly paid for
by the purchasers thereof (and any Universal Warrant included
therein had been executed by the Company and countersigned by the
Warrant Agent and any Purchase Contracts included therein had
been executed by the Company and executed and countersigned by
the Unit Agent) on the date of such opinion, the Units (including
the Universal Warrants and Purchase Contracts contained therein)
would be entitled to the benefits of the Unit Agreement and, in
the case of the Universal Warrants, the Universal Warrant
Agreement and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) and is subject to general principles of equity, regardless
of whether such enforceability is considered at a proceeding in
equity or at law;
(H) the execution and delivery by the Company of the Notes
(whether issued alone or as part of a Unit), the Units (including
any Purchase Contract or Universal Warrant included therein), the
Indentures, the Unit Agreement, the Universal Warrant Agreement
and any applicable Written Notes Terms Agreement or Written Units
Terms Agreement and the performance by the Company of its
obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement
and any applicable Notes Terms Agreement or Units Terms Agreement
will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its consolidated
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any U.S. governmental
body, agency or court having jurisdiction over the Company or any
of its consolidated subsidiaries, and no consent, approval,
authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or
Units Terms Agreement; provided, however, that no opinion is
expressed on whether the purchase of the Program Securities
constitutes a "prohibited transaction" under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended;
(I) the statements (1) in the Prospectus, as then amended
or supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement), "Description of Debt Securities" (in
the Basic Prospectus), "Description of Units" (in the Prospectus
Supplement and in the Basic Prospectus), "Plan of Distribution"
(in the Prospectus Supplement and in the Basic Prospectus),
"Description of Purchase Contracts" (in the Basic Prospectus) and
"Description of Warrants" (in the Basic Prospectus), (2) in the
Registration Statement, as then amended or supplemented, under
Item 15, (3) in "Item 3 - Legal Proceedings" of the Company's
most recent annual report on Form 10-K incorporated by reference
in the Prospectus and (4) in "Item 1 - Legal Proceedings" of Part
II of the Company's quarterly reports on Form 10-Q, if any, filed
since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(J) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its consolidated subsidiaries is a party or
to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus, as
then amended or supplemented, and are not so described or of any
U.S. federal or state statutes, regulations, contracts or other
documents governed by U.S. federal or state law that are required
to be described in the Registration Statement or the Prospectus,
as then amended or supplemented, or to be filed or incorporated
by reference as exhibits to such Registration Statement that are
not described, filed or incorporated by reference as required;
and
(K) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus, as then amended or supplemented
(except as to financial statements and schedules included therein
as to which such counsel need not express any opinion), complied
when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) has no reason to believe that any part
of the Registration Statement (except as to financial statements
and schedules as to which such counsel need not express any
belief and except for that part of the Registration Statement
that constitutes the Forms T-1 heretofore referred to), as then
amended, if applicable, when such part became effective
contained, and the Registration Statement (except as to financial
statements and schedules included therein, as to which such
counsel need not express any belief and except for the part of
the Registration Statement that constitutes the Form T-1) as of
the date such opinion is delivered, contains any untrue statement
of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules included therein as to which such counsel need not
express any opinion), comply as to form in all material respects
with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (4) has no reason to believe
that the Prospectus, as then amended or supplemented, if
applicable (except for financial statements and schedules as to
which such counsel need not express any belief), as of the date
such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the opinion and
belief set forth in clauses (3) and (4) above shall be deemed not
to cover information concerning an offering of particular Notes
or Units to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
your special counsel, covering the matters in subparagraphs (D), (E),
(F), (G) and (I) (with respect to statements in the Prospectus, as then
amended or supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement), "Description of Debt Securities" (in the
Basic Prospectus), "Description of Units" (in the Prospectus Supplement
and the Basic Prospectus), "Plan of Distribution" (in the Prospectus
Supplement and in the Basic Prospectus), "Description of Purchase
Contracts" (in the Basic Prospectus) and "Description of Warrants" (in
the Basic Prospectus)) and clauses (2), (3) and (4) of subparagraph (K)
in paragraph (b)(i) above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the Notes), (G)
(except as to due authorization of the Units, Universal Warrants and
Purchase Contracts), (H), (I)(1) and (K)(3) and (4) of paragraph (b)(i)
above, when contained in an opinion delivered on the Commencement Date
or pursuant to Section 5(b), shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or interest
on which, or any other payments with respect to which, will be
determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company,
baskets of such securities, equity indices or other factors.
With respect to subparagraph (K) of paragraph (b)(i) above,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or such other counsel for the Company may state that
his opinion and belief are based upon his participation, or the
participation of someone under his supervision, in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to
clauses (2), (3) and (4) of subparagraph (K) of paragraph (b)(i) above,
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their opinion and belief are based
upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but
not including documents incorporated therein by reference) and review
and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
(iii) The opinion, dated as of such date, of Shearman & Sterling,
special counsel to the Company, to the effect that the statements set
forth under the caption "United States Federal Taxation--Foreign
Holders" in the Prospectus Supplement and under the caption
"Limitations on Issuance of Bearer Debt Securities and Bearer Warrants"
in the Basic Prospectus, insofar as such statements relate to
statements of law or legal conclusions under the laws of the United
States or matters of United States law, fairly present the information
called for and fairly summarize the matters referred to therein.
The opinion of Shearman & Sterling, described in paragraph
(b)(iii) above shall be rendered to you at the request of the Company
and shall so state therein.
(c) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date,
the Company's independent auditors shall have furnished to you a letter or
letters, dated as of the Commencement Date or such Settlement Date, as the case
may be, in form and substance satisfactory to you containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
(f) On the Commencement Date, application to list the Series D
Notes and Series D Units on the London Stock Exchange shall have been made and,
prior to the issuance of the first Series D Note or Series D Unit, such listing
shall have been granted, subject to official notice of issuance.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement providing solely for (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in the
case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement date
or purchase or sale price of an underlying Purchase Contract or (iii) for a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished forthwith to you
a written opinion of counsel for the Company. Any such opinion shall be dated
the date of such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinion referred to in
Section 4(b)(i), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to you may
furnish to you a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person, if any, who controls you within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by you or any such controlling person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to you furnished to
the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you expressly
for use in the Registration Statement or the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party 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 and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein in connection with any offering of Program Securities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and you on the other hand from
the offering of such Program Securities or (ii) if the allocation provided by
clause (i) 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 you on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and you on the other hand in connection with the offering of such Program
Securities shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Program Securities (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by you in respect thereof. The relative fault of the Company on the one
hand and of you on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by you and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
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 6, you shall not be required to contribute any amount in excess of the
amount by which the total price at which the Program Securities referred to in
paragraph (d) above that were offered and sold to the public through you exceeds
the amount of any damages that you have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain in full force and effect
regardless of (i) any termination of this Agreement or any such Notes Terms
Agreement or Units Terms Agreement, (ii) any investigation made by or on behalf
of you or any person controlling you or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company
and agree with respect to the Program Securities that:
(a)(1) you have not (i) offered or sold and during the Restricted
Period (as defined below) will not offer or sell Bearer Notes (whether
offered alone or as part of a Unit) (including any Note that is
exchangeable for Bearer Notes) directly or indirectly in the United
States (as defined below) or to or for the account of any United States
person (as defined below), other than to a Qualifying Foreign Branch
(as defined below) or to certain other persons as provided under United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and
(C); and (ii) delivered and will not deliver within the United States
definitive Bearer Notes that are sold during the Restricted Period;
(2) you have, and throughout the Restricted Period will have, in
effect procedures reasonably designed to ensure that your employees or
agents who are directly engaged in selling Bearer Notes (whether
offered alone or as part of a Unit) are aware that such Bearer Notes
may not be offered or sold during the Restricted Period to a person who
is within the United States or to a United States person, except as
permitted by Section 7(a)(1)(i) above;
(3) if you are a United States person, you are acquiring the
Bearer Notes (whether offered alone or as part of a Unit) for purposes
of resale in connection with their original issuance and if you retain
Bearer Notes for your own account, you will only do so in accordance
with the requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(4) if you transfer to any affiliate Bearer Notes (whether
offered alone or as part of a Unit) for the purpose of offering or
selling such Bearer Notes during the Restricted Period, you will either
(i) obtain from such affiliate for the benefit of the Company the
representations and agreements contained in clauses (1), (2) and (3) or
(ii) repeat and confirm the representations and agreements contained in
clauses (1), (2) and (3) on such affiliate's behalf and obtain from
such affiliate the authority to so obligate it; and
(5) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (1), (2), (3) and
(4) from any person other than your affiliate with whom you enter into
a written contract, within the meaning of United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(4), for the offer or sale
during the Restricted Period of Bearer Notes (whether offered alone or
as part of a Unit).
For purposes of this Section 7(a), an offer or sale will be considered to be
made in the United States if the offeror or seller of such Notes (whether
offered alone or as part of a Unit) has an address within the United States for
the offeree or purchaser of such Notes with respect to the offer or sale. As
used in this Section 7(a), "United States person" means a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, or an estate or trust the income of which is subject to United States
federal income taxation regardless of its source, "United States" means the
United States (including the States and the District of Columbia), its
territories, its possessions and any other areas subject to its jurisdiction;
"Qualifying Foreign Branch" means a branch of a United States financial
institution, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v), located outside the United States that is purchasing for its
own account or for resale and that has agreed, as a condition to purchase, to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder; and "Restricted Period" with respect to each issuance
means the period which begins on the earlier of the date on which the Company
receives the proceeds of the sale of Notes with respect to such issuance or the
first date on which the Notes are offered to persons other than you, and which
ends 40 days after the date on which the Company receives the proceeds of the
sale of such Notes; provided that with respect to a Note held as part of an
unsold allotment or subscription, any offer or sale of such Note by the Company
or you shall be deemed to be during the Restricted Period.
(b) (1) In relation to Program Securities which have a maturity of one
year or more and which are to be listed on the London Stock Exchange, you have
not offered or sold and will not offer or sell any Program Securities to persons
in the United Kingdom prior to admission of such Program Securities to listing
in accordance with Part IV of the Financial Services ▇▇▇ ▇▇▇▇ (the "Act"),
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Act; (2) in relation to Program Securities which have a maturity of one year
or more and which are not to be listed on the London Stock Exchange, you have
not offered or sold and, prior to the expiry of the period of six months from
the date of issue of such Program Securities, will not offer or sell any such
Program Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (3) you have complied with and will
comply with all applicable provisions of the Act with respect to anything done
by you in relation to the Program Securities in, from or otherwise involving the
United Kingdom; and (4) you have only issued or passed on and will only issue or
pass on in the United Kingdom any document received by you in connection with
the issue of the Program Securities, other than any document which consists of
or any part of listing particulars, supplementary listing particulars or any
other document required or permitted to be published by the listing rules under
Part IV of the Act, to a person who is of a kind described in Article 11(3) of
the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order
1995 or is a person to whom such document may otherwise lawfully be issued or
passed on.
(c) You will not offer or sell any Program Securities in any
jurisdiction if such offer or sale would not be in compliance with any
applicable law or regulation or if any consent, approval or permission is needed
for such offer or sale by you or for or on behalf of the Company unless such
consent, approval or permission has been previously obtained. Without prejudice
to the provisions of this Section 7 above and subject to the obligations of the
Company set forth in Section 3 of this Agreement, the Company shall have no
responsibility for, and you will obtain, any consent, approval or permission
required by you for the subscription, offer, sale or delivery by you of Program
Securities under the laws and regulations in force in any jurisdiction to which
you are subject or in or from which you make any subscription, offer, sale or
delivery.
(d) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan including any corporation
or other entity organized under the laws of Japan) or to others for the
re-offering or re-sale, directly or indirectly, in Japan or to a resident of
Japan except pursuant to an exemption from the registration requirements of, and
otherwise in compliance with, the Securities and Exchange Law of Japan and other
relevant laws and regulations of Japan.
(e) You will not offer and sell any Program Securities in the Federal
Republic of Germany other than in compliance with the provisions of the German
Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of December 13, 1990,
as amended, and of any other laws applicable in the Federal Republic of Germany
governing the issue, offering and sale of securities.
(f) You will not offer and sell any Program Securities denominated or
payable in or indexed to Swiss Francs other than in compliance with Swiss law
and the regulations of the Swiss National Bank in effect from time to time.
(g) You will not offer and sell any Notes or Units denominated or
payable in or indexed to French Francs (in the case of Notes, "French Franc
Notes" and, in the case of Units, "French Franc Units") other than in compliance
with French law, including, without limitation, the marche de l'eurofranc from
time to time of the Comite des Emissions de Bourse ("French EuroFranc
Regulations"). Unless otherwise authorized pursuant to French law, including,
without limitation, the French EuroFranc Regulations, you agree that French
Franc Notes and French Franc Units will be issued outside the Republic of France
and that, in connection with their initial distribution, you will not offer or
sell, directly or indirectly, any French Franc Notes or French Franc Units to
the public in the Republic of France, and will not distribute or cause to be
distributed to the public in the Republic of France the Prospectus or any other
offering material relating to French Franc Notes or French Franc Units.
8. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had such
sale been consummated.
9. Termination. This Agreement may be terminated at any time
either by the Company or by you upon the giving of written notice of such
termination to the other parties hereto, but without prejudice to any rights,
obligations or liabilities of the other parties hereto accrued or incurred prior
to such termination. The termination of this Agreement shall not require
termination of any Notes Terms Agreement or Units Terms Agreement, and the
termination of any such Notes Terms Agreement or Units Terms Agreement shall not
require termination of this Agreement. If this Agreement is terminated, the
provisions of the third paragraph of Section 2(a), the last sentence of Section
3(b) and Sections 3(c), 3(g), 6, 7, 8, 10, 12 and 14 shall survive; provided
that if at the time of termination an offer to purchase Program Securities has
been accepted by the Company but the time of delivery to the purchaser or its
agent of such Program Securities has not occurred, the provisions of Sections
2(b), 2(c), 3(a), 3(b), 3(e), 3(f), 3(h), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited, will be mailed, delivered or telefaxed and confirmed to
(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, England, to the attention of Capital Markets - Debt
Syndicate (Telephone No.: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇; Telecopy No.:
011-44-71-425-7999), (b) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany to the attention of ▇▇▇ ▇▇▇▇▇▇▇
(Telephone No.: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇; Telecopy No.: 011-49-69-597-6627), (c)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇., ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ to the attention of
Debt Capital Markets (Telephone No.: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇ or 7300; Telecopy
No.: 011-33-1-5377-7899) or (d) Bank ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇▇
▇▇▇▇▇, ▇▇-▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, to the attention of ▇▇▇▇ ▇▇▇▇▇▇
(Telephone No. ▇▇▇-▇▇-▇-▇▇▇-▇▇▇▇; Telecopy No. 011-41-1-220-9800) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Secretary.
11. Successors. This Agreement and any Notes Terms Agreement or
Units Terms Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP INC.
By:__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
LIMITED
By: _______________________________
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK AG
By: _______________________________
Title:
By: _______________________________
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇.
By: _______________________________
Title:
By: _______________________________
Title:
BANK ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
By: _______________________________
Title:
By: _______________________________
Title:
EXHIBIT A
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP INC.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 19__
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Euro Distribution Agreement dated ________ ___,
1997 (the "Euro Distribution Agreement")
The undersigned agrees to purchase your Global Medium-Term Notes,
Series [D/E], having the following terms:
All Notes Fixed Rate Notes Floating Rate Notes
--------------------------- ---------------------------- ------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Initial Accrual Period Face Amount (if any): Minimum Interest Rate:
OID:
Total Amount of OID: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
Original Yield to Maturity: Aggregate Fixed Amount Calculation Agent:
of each Indexed Currency
(if any):
Optional Repayment Reporting Service:
Date(s):
Optional Redemption Index Currency:
Date(s):
Initial Redemption Date:
Initial Redemption
Percentage:
Annual Redemption
Percentage Reduction:
Ranking:
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and
10 through 14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 12, and 14 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required: ________________
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
LIMITED]
By _______________________________________
Title:
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK AG]
By _______________________________________
Title:
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇.]
By _______________________________________
Title:
[BANK ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇]
By _______________________________________
Title:
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP INC.
By ___________________________
Title:
EXHIBIT A-1
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP INC.
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
________________, 19 __
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Euro Distribution Agreement dated ________ __,
1997 (the "Euro Distribution Agreement")
The undersigned agrees to purchase your Global Units, Series
[D/E], [specified designation] having the following terms:
Universal Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
------------------------------- ---------------------------- ------------------------------
Settlement Date and Time Designation of the Series of Designation of the Series of
Warrants [Call] [Put] Purchase Contracts:
Warrants: [Purchase][Sale] Purchase
Contracts
Number (Face Amount) Warrant Property: Aggregate Number of
Purchase Contracts:
Severability: Aggregate Number of Purchase Contract
Warrants: Property:
Other Terms: Date(s) upon which Warrants Quantity per Purchase
may be exercised: Contract:
Currency in which exercise Purchase Price
payments shall be made:
Exchange Rate (or method of Settlement Date:
calculation:
Form of Settlement: Payment Location:
[Call Price:]
[Formula for determining Method of Settlement:
Cash Settlement Value:]
[Amount of Warrant Property Currency of Settlement
Salable per Warrant:] Payment:
[Put Price for such specified Contract Fees, if any:
amount of Warrant Property
per Warrant:]
[Method of delivery of any Corporation Acceleration:
Warrant Property to be
delivered for sale upon
exercise of Warrants:]
Other Terms: Holders' Acceleration:
Redemption Provisions:
Other Terms:
-------------------
* Applicable to Call Warrants
** Applicable to Put Warrants
*** Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
All Notes Fixed Rate Notes Floating Rate Notes
Issued as Part of a Unit: Issued as Part of a Unit: Issued as Part of a Unit:
----------------------------------------- ---------------------------- ------------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Initial Accrual Period Face Amount (if any): Minimum Interest Rate:
OID:
Total Amount of OID: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
Original Yield to Maturity: Aggregate Fixed Amount Calculation Agent:
of each Indexed Currency
(if any):
Optional Repayment Reporting Service:
Date(s):
Optional Redemption Index Currency:
Date(s):
Initial Redemption Date:
Initial Redemption
Percentage:
Annual Redemption
Percentage Reduction:
Ranking:
Series:
Minimum Denominations:
Other Terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and
10 through 14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 12, and 14 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ___________.
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
LIMITED]
By _______________________________________
Title:
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK AG]
By _______________________________________
Title:
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇.]
By _______________________________________
Title:
[BANK ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇]
By _______________________________________
Title:
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP INC.
By ___________________________
Title: