Exhibit 1.1
COLGATE-PALMOLIVE COMPANY
Medium-Term Notes, Series E
Due One Year or More from Date of Issue
FORM OF DISTRIBUTION AGREEMENT
, 2001
DEUTSCHE BANC ALEX. BROWN INC.
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial Center
New York, New York 10080
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Colgate-Palmolive Company, a Delaware corporation (the "Company"), confirms
its agreement with Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc. ("Deutsche Banc"), ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇.▇. ▇▇▇▇▇▇"),
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇▇▇" and, together with Deutsche Banc, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the "Agents") with respect
to the issue and sale by the Company of its Medium-Term Notes described herein
(the "Notes"). The Notes are to be issued pursuant to an indenture (as the same
may be amended
or restated from time to time, the "Indenture") dated as of November 15, 1992
between the Company and The Bank of New York. The Bank of New York will act as
trustee with respect to the Notes (the "Trustee").
Notes may be sold by the Company directly or to or through the Agents
pursuant to the terms of this Agreement or to or through such other agent or
agents as may be designated by the Company from time to time pursuant to the
terms of any such other agreement containing substantially the same terms as
this Agreement. The Company may from time to time, pursuant to an Officer's
Certificate delivered to the Trustee pursuant to Section 301 of the Indenture
(with an original copy thereof delivered to the Agents), reduce the authorized
aggregate principal amount of the Notes (but not below the aggregate principal
amount of Notes previously issued under the Indenture) or authorize the issuance
of additional Notes, and such additional Notes may be distributed directly by
the Company or to or through any agents designated by the Company, including the
Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to one or
more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the applicable Agent or Agents), in which case
the applicable Agent or Agents will act as agent of the Company in soliciting
offers for the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") one or more registration statements on Form S-3 for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statements have
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"),
and the Company has filed such post-effective amendments thereto as may be
required prior to its acceptance of any offer for the purchase of Notes and each
such post-effective amendment has been declared effective by the Commission. As
used herein, the term "Registration Statement" shall mean the registration
statement or registration statements (as so amended, if applicable) applicable
to a particular offering of Notes; provided that if the Company files any
further registration statements for the purpose of registering additional Notes
included in such offering and in connection with which this Agreement is
included or incorporated by reference as an exhibit, including a registration
statement filed by the Company with the Commission pursuant to Rule 462(b) of
the 1933 Act Regulations (the "Rule 462(b) Registration Statement"), then, after
any such filing, all references to the "Registration Statement" shall also be
deemed to include any such further registration statement. The term "Prospectus"
shall mean any final prospectus constituting a part of any such applicable
registration statement or registration statements, and any prospectus
supplements or pricing supplements relating to an offering of the Notes, in the
form first furnished to the applicable Agent, agent or other purchaser of Notes
for use in confirming sales of Notes; provided, further, that any revised
prospectus that shall be provided to the Agents by the Company for use in
connection with the offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations shall be
included in the term "Prospectus" from and after the time it is first provided
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to the Agents for such use. A "preliminary prospectus" shall be deemed to refer
to any prospectus used before the Registration Statement became effective and
any prospectus furnished by the Company after the registration statement or
registration statements became effective and before any acceptance by the
Company of an offer for the purchase of Notes which omitted information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations. All references to the "Registration
Statement", the "Prospectus" and the "preliminary prospectus" shall also be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to any
acceptance by the Company of an offer for the purchase of Notes. For purposes of
this Agreement, all references to the Registration Statement, Prospectus or
preliminary prospectus or to any amendment or supplement thereto shall be deemed
to include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "disclosed," "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include all financial statements and
schedules and other information which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be; and all references in this agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. Appointment as Agents.
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(a) Appointment. Subject to the terms and conditions stated herein and
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subject to the reservation by the Company of the right to sell Notes directly on
its own behalf or through such additional agents as it may appoint pursuant to
Section 18 hereof, the Company hereby agrees that Notes will be sold exclusively
to or through the Agents.
(b) Sale of Notes. The Company shall not sell or approve the solicitation
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of purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the principal amount of Notes
registered pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
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purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal or resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
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(d) Solicitations as Agent. If agreed upon between an Agent and the
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Company, such Agent, acting solely as an agent for the Company and not as
principal, will use its reasonable efforts to solicit purchases of Notes. Such
Agent will communicate to the Company, orally or in writing, each offer for the
purchase of Notes solicited by such Agent on an agency basis other than those
offers rejected by such Agent. Such Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, in
whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein. The Company may accept or reject any proposed
purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent on an agency basis and accepted
by the Company. Such Agent shall not have any liability to the Company in the
event that any such purchase is not consummated for any reason.
(e) Reliance. The Company and the Agents agree that any Notes purchased by
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the Agents shall be purchased, and any Notes the placement of which the Agents
arrange shall be placed, by the Agents in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to one or more Agents as principal or through the
Agents as agents), as of the date of each delivery of Notes (whether to one or
more Agents as principal or through the Agents as agents) (the date of each such
delivery to one or more Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in the interest
rates, maturity or price of Notes or similar changes), or there is filed with
the Commission any document incorporated by reference into the Prospectus (other
than any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement other than the Notes) (each of the
times referenced above being referred to herein as a "Representation Date") as
follows:
(i) Registration Statement. The Registration Statement (including
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any Rule 462(b) Registration Statement) in respect of the Notes has been filed
with the Commission; such Registration Statement (including any Rule 462(b)
Registration Statement) and any post-effective amendment thereto, each in the
form heretofore delivered to the Agents (excluding exhibits thereto but
including all documents incorporated by reference in the Prospectus), have been
declared effective by the Commission in such form; and no stop order suspending
the effectiveness of the Registration Statement (including any Rule 462(b)
Registration Statement) has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission.
(ii) Prospectus. No order preventing or suspending the use of the
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Prospectus has been issued by the Commission, and the Prospectus, at the time of
filing thereof, conformed in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations, and
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did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Agents expressly for
use therein; and each preliminary prospectus and the Prospectus delivered to the
applicable Agent(s) for use in connection with the offering of Notes are
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(iii) Incorporated Documents. The documents incorporated by reference
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in the Registration Statement or the Prospectus, when they became effective or
were filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the 1933 Act or the 1934 Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and incorporated by
reference in the Registration Statement or the Prospectus or any further
amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the 1933 Act or the 1934 Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(iv) Compliance. The Registration Statement and the Prospectus
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conform, and any amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
1933 Act, the 1939 Act and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Agents specifically
for use therein.
(v) No Material Changes. Since the respective dates as of which
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information is given in the Registration Statement and the Prospectus, there has
not been any material change in the capital stock or long-term debt of the
Company or any of its Significant Subsidiaries (as defined in Rule 405 under the
1933 Act) (other than changes arising from funding activities which have not
resulted in any material change in the Company's ownership of such Significant
Subsidiaries or in the long term debt of the Company and its subsidiaries taken
as a whole) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
consolidated financial position or consolidated results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus.
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(vi) Due Incorporation, Good Standing and Due Qualification of the
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Company and Significant Subsidiaries; Authorization of Agreements. The Company
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(A) has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company and its subsidiaries
taken as a whole; and each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation and is in good standing
under the laws of its jurisdiction of incorporation, (B) has or, in the case of
the Indenture, had the requisite corporate power and authority to execute and
deliver this Agreement, any Terms Agreement, the Indenture and the Notes and has
the requisite corporate power and authority to perform its obligations hereunder
and thereunder, and (C) has duly authorized, executed and delivered this
Agreement and at the time of the execution of any Terms Agreement will have duly
authorized, executed and delivered such Terms Agreement and this Agreement
constitutes and any such Terms Agreement will constitute the valid and binding
agreement of the Company.
(vii) Capitalization. The Company has an authorized capitalization as set
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forth in the Prospectus.
(viii) Validity of Notes. When the Notes are issued and delivered pursuant
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to this Agreement, such Notes will have been duly authorized, executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture; and the Indenture has been duly authorized by the Company and is duly
qualified under the 1939 Act and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law), and except further as enforcement thereof may be limited by requirements
that a claim with respect to any debt securities issued under the Indenture that
are payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the making of payments
outside the United States; and the Notes and the Indenture will conform in all
material respects to the descriptions thereof in the Prospectus.
(ix) Non-Contravention. The issue and sale of the Notes by the Company
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and the compliance by the Company with all of the provisions of this Agreement,
any Terms Agreement and the Indenture and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, which
conflict, breach or default would have a material adverse effect on the
consolidated financial position or consolidated results of operations of the
Company, nor will such action result in (A) any
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violation of the provisions of the Certificate of Incorporation or By-laws of
the Company or any of its subsidiaries or (B) any violation of the provisions of
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or any
of their properties, which violation in each case would have a material adverse
effect on the consolidated financial position or consolidated results of
operations of the Company; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Notes or the consummation by
the Company of the transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such consents, approvals, authorizations,
registrations or qualifications as may be required under the 1933 Act and the
1939 Act or under state or foreign securities or Blue Sky laws.
(x) Absence of Proceedings. Other than as set forth or contemplated in
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the Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject, which are probable to
result in an adverse determination and which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a material adverse effect on the consolidated financial position or consolidated
results of operations of the Company; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(xi) Accountants. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain
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financial statements of the Company and its consolidated subsidiaries, are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(xii) Possession of Intellectual Property. The Company and its
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subsidiaries own or possess, or can acquire on reasonable terms, the patents,
patent rights, licenses, invention, copyrights (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names presently
employed by them in connection with the businesses now operated by them, except
where the failure so to own or possess or have the ability to acquire would not
have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company, and neither the Company nor
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse effect on the consolidated
financial position or consolidated results of operations of the Company.
(xiii) Investment Company Act. The Company is not, and upon the issuance
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and sale of the Notes as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
(xiv) Ratings. The Medium-Term Note Program under which the Notes are
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issued (the "Program"), as well as the Notes, are rated Aa3 by ▇▇▇▇▇'▇ Investors
Service, Inc. and AA- by Standard & Poor's Ratings Service, or such other rating
as to which the Company shall have most recently notified the Agents pursuant to
Section 4(a) hereof.
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(b) Additional Certifications. Any certificate signed by any director or
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officer of the Company and delivered to one or more Agents or to counsel for the
Agents in connection with an offering of Notes or the sale of Notes to one or
more of the Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby on the date of such certificate and, to the extent
contemplated by such certificate, at each Representation Date subsequent
thereto.
SECTION 3. Purchases as Principals; Solicitations as Agents.
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(a) Purchases as Principal. Each sale of Notes to one or more Agents as
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principal shall be made in accordance with the terms contained herein and, if
requested by such Agent, pursuant to a separate agreement which will provide for
the sale of such Notes to, and the purchase and reoffering thereof by, such
Agent or Agents. Each such separate agreement (which may be an oral agreement)
between one or more Agents and the Company, is herein referred to as a "Terms
Agreement". Unless the context otherwise requires, each reference contained
herein to "this Agreement" shall be deemed to include any Terms Agreement
between the Company and one or more Agents. Each such Terms Agreement, whether
oral or in writing, shall be with respect to such information (as applicable) as
is specified in Exhibit A hereto. An Agent's commitment to purchase Notes as
principal shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by each Agent pursuant thereto, the
price to be paid to the Company for such Notes (which, if not so specified in a
Terms Agreement, shall be at a discount equivalent to the applicable commission
set forth in Schedule A hereto), the time and place of delivery of and payment
for such Notes, any provisions relating to rights of, and default by, purchasers
acting together with the Agents in the reoffering of the Notes, and such other
provisions (including further terms of the Notes) as may be mutually agreed
upon. The Agents may utilize a selling or dealer group in connection with the
resale of the Notes purchased. Such Terms Agreement shall also specify whether
or not any of the officer's certificate, opinions of counsel or comfort letter
specified in Sections 7(b), 7(c) and 7(d) hereof shall be required to be
delivered by the Company on the related Settlement Date.
(b) Solicitations as Agents. On the basis of the representations and
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warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. All Notes
sold through the Agents as agents will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and the Agents.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as an agent of the
Company, commencing at any time for any period of time or permanently. As soon
as practicable after receipt of instructions from the Company, such Agent will
forthwith suspend solicitation of purchases from the Company until such time as
the Company has advised such Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and such Agent, equal to the
applicable percentage of the
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principal amount of each Note sold by the Company as a result of a solicitation
made by such Agent, as an agent of the Company; as set forth in Schedule A
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hereto; provided, however, that the Company shall only be obligated to pay one
such fee with respect to any particular Note so sold.
(c) Administrative Procedures. The purchase price, interest rate or
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formula, maturity date and other terms of the Notes shall be agreed upon by the
Company and the applicable Agent(s) and set forth in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared by the Company in
connection with each sale of Notes. Except as may be otherwise provided in the
applicable Pricing Supplement, the Notes will be issued in denominations of
$1,000 and integral multiples thereof. Administrative procedures with respect to
the sale of Notes shall be agreed upon from time to time by the Agents and the
Company (the "Procedures"). Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
(d) Delivery of Closing Documents. The documents required to be delivered
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by Section 5 hereof shall be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the date hereof, or at
such other time or place as the Agents and the Company may agree.
SECTION 4. Covenants of the Company.
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The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will promptly notify (i) the
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Agents of the effectiveness of any amendment to the Registration Statement, (ii)
the related Agent or Agents of the transmittal to the Commission for filing of
any supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (iii) the
Agents of the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) the Agents of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or for additional information, (v) the Agents of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose, and (vi) the Agents of the issuance by the Commission of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for either such purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. Except as otherwise provided in
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subsection (k) of this Section, the Company will give the Agents notice of its
intention to file any additional registration statement with respect to the
registration of additional Notes, any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for the establishment of or change in,
the interest rates, maturity or price of Notes or other similar changes or an
amendment or supplement which relates exclusively to an offering of debt
securities under the Registration Statement other than the Notes and other than
an amendment or supplement arising through incorporation by reference), whether
by the filing of documents pursuant to the 1933 Act or otherwise, and will
furnish the Agents with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of such proposed
filing. In the case of the filing of any such amendment or supplement or other
document filed pursuant to the 1934 Act, the Company will furnish the Agents
with copies of such amendment or supplement or other document within one day of
the filing thereof. Following any such filing pursuant to the 1934 Act, each
Agent shall have the right to suspend solicitation of purchases of the Notes
until such time as such Agent shall reasonably determine that solicitation of
purchases should be resumed or such Agent shall subsequently enter into a new
Terms Agreement with the Company, and any such suspension shall not be deemed a
breach of such Agent's agreement contained herein.
(c) Copies of the Registration Statement and the Prospectus. The Company
-------------------------------------------------------
will deliver to the Agents and to counsel for the Agents as many signed and
conformed copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated, or deemed
to be incorporated, by reference therein and documents incorporated by reference
in the Prospectus) as the Agents may reasonably request. The Company will
furnish to the Agents and to counsel for the Agents as many copies of the
Prospectus (as amended or supplemented) (other than an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) as the Agents shall reasonably
request so long as the Agent is required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes. The Registration
Statement and each amendment thereto and the Prospectus and any amendments or
supplements thereto furnished to the Agents will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Preparation of Pricing Supplements. The Company will prepare promptly,
----------------------------------
with respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
-------------------------------------------
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel to the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the
10
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice shall
be given, and confirmed in writing, to the Agents to cease the solicitation of
offers to purchase the Notes in the Agents' capacity as agents and to cease
sales of any Notes the Agents may then own as principal, and the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
------------------------------------------------------
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing.
(g) Earnings Statements. The Company, by complying with the provisions of
-------------------
Rule 158 under the 1933 Act, will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation with
-----------------------
the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(i) 1934 Act Filings. The Company, during the period when the Prospectus is
----------------
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act. Such documents will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations and to the
extent such documents are incorporated by reference in the Prospectus, when read
together with the other information in or incorporated by reference into the
Prospectus, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
are made, not misleading.
11
(j) Stand-Off Agreement. Between the date of any Terms Agreement and the
-------------------
Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior written consent of each Agent party to such Terms Agreement,
directly or indirectly, sell, offer to sell, contract to sell or otherwise
dispose of, or announce the offering of, any debt securities denominated in the
same currency as the Notes to be purchased pursuant to such Terms Agreement, or
any security exchangeable into such debt securities (other than the Notes that
are to be sold pursuant to such Terms Agreement and commercial paper in the
ordinary course of business), except as may otherwise be provided in any such
Terms Agreement.
(k) Suspension of Certain Obligations. The Company shall not be required to
---------------------------------
comply with the provisions of subsections (a), (b), (c), (e), (f) or (i) of this
Section or the provisions of Section 7 hereof during any period from the time
(i) the Agents shall have received written notification from the Company to
suspend solicitation of purchases of the Notes in their capacity as agents and
(ii) the earlier of the date on which no Agent shall then hold any Notes as
principal and the date which is fifteen days (nine months with respect to
subsections (e) and (i) of this Section) from the date on which the Agents shall
have received written notice from the Company to suspend solicitation of
purchases of the Notes, to the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or shall subsequently
enter into a new Terms Agreement with the Agents.
(l) Use of Proceeds. The net proceeds from the sale of Notes will be used
---------------
by the Company as described in the Prospectus.
(m) Termination of Sale in Certain Circumstances. Any person who has agreed
--------------------------------------------
to purchase and pay for any Note pursuant to a solicitation by any of the Agents
as an agent of the Company shall have the right to refuse to purchase such Note
if, subsequent to the agreement to purchase such Note, any change, condition or
development specified in any of Sections 12(b)(i) through 12(b)(v) hereof shall
have occurred (with the judgment of the Agent which presented the offer to
purchase such Note being substituted for any judgment of a selling Agent
required therein) the effect of which is, in the judgment of the Agent which
presented the offer to purchase such Note, so material and adverse as to make it
impractical or inadvisable to proceed with the sale and delivery of such Note
(it being understood that under no circumstances shall any such Agent have any
duty or obligation to the Company or to any such person to exercise the judgment
to be exercised under this Section 4(m)).
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of one or more Agents to purchase Notes as principal
pursuant to a Terms Agreement or otherwise, any obligation of one or more Agents
to solicit offers to purchase the Notes as an agent of the Company, and the
obligations of any purchasers of Notes sold through an Agent as an agent of the
Company, will be subject to the accuracy of the representations and warranties
in all material respects (to the extent any such representation or warranty is
not otherwise qualified therein) on the part of the Company herein contained and
to the accuracy of the statements of the Company's officers made in any
certificate, to the extent contemplated by such certificate, furnished pursuant
to the provisions hereof, to the performance and observance by the Company of
all its covenants and agreements herein contained and to the following
additional conditions precedent:
12
(a) Effectiveness of Registration Statement. The Registration Statement
---------------------------------------
(including any Rule 462(b) Registration Statement) has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or shall be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Agents.
(b) Legal Opinions. On the date hereof, the Agents shall have received the
--------------
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents and their counsel:
(1) Opinion of Company Counsel. The opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
--------------------------
Esq., Senior Vice President, General Counsel and Secretary of the
Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus.
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns or
leases real properties, or conducts any business, so as to
require such qualification, except where the failure to be so
qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such
counsel shall state that he believes that both the Agents and he
are justified in relying upon such opinions and certificates).
(iii) Each Significant Subsidiary had been duly incorporated
and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation; and all of the
issued shares of capital stock of each such Significant
Subsidiary have been duly and validly authorized and issued, are
fully paid and nonassessable, and (except for directors'
qualifying shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(iv) The Company has an authorized capitalization as set
forth in the Prospectus.
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The issuance and sale of the Notes have been duly
authorized by all necessary corporate action of the Company. The
Notes when duly authenticated
13
by the Trustee and issued in accordance with the provisions of this
Agreement and the Indenture will be duly executed, issued and
delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; and the
Notes and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented
under the heading "Description of Debt Securities" and "Description of
the Notes".
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting
creditors' rights and to general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at
law); and the Indenture has been duly qualified under the 1939 Act.
(viii) The issue and sale of the Notes by the Company and the
compliance by the Company with all of the provisions of this
Agreement, any Terms Agreement, the Indenture and the Notes, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel as being material to the Company and
its subsidiaries taken as a whole to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, which conflict, breach
or default would have a material adverse effect on the consolidated
financial position or consolidated results of operations of the
Company, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, which violation in each case would have a material
adverse effect on the consolidated financial position or consolidated
results of operations of the Company.
(ix) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Notes or the
consummation by the Company of the transactions contemplated by this
Agreement, any Terms Agreement or the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as may be
required under the 1933 Act and the 1939 Act and those under state
securities, Blue Sky or foreign laws.
(x) To the best of such counsel's knowledge and other than as
set forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which are
14
probable to result in an adverse determination and which, if
determined adversely to the Company or any of its subsidiaries, would
have a material adverse effect on the consolidated financial position
or the annual pre-tax consolidated results of operations of the
Company; and, to the best of such counsel's knowledge, without special
inquiry, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xi) To the best of such counsel's knowledge, all contracts or
other documents of a character required to be filed as exhibits to the
Registration Statement or required to be incorporated by reference
into the Prospectus or described in the Registration Statement or the
Prospectus have been filed or incorporated by reference or described
as required.
(xii) The Registration Statement has been declared effective
under the 1933 Act and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xiii) The Registration Statement and the Prospectus, or any
further amendments or supplements thereto made by the Company prior to
the date hereof (other than the financial statements and related
schedules therein and other financial data or the Statement of
Eligibility on Form T-1 of the Trustee under the Indenture, as to
which such counsel need express no opinion), when the Registration
Statement became effective complied, and as of the date hereof comply,
as to form in all material respects with the requirements of the 1933
Act and the 1939 Act and the rules and regulations of the Commission
thereunder.
(xiv) The information in the Prospectus under the caption
"Description of the Notes", "Description of Debt Securities", and
information, if any, in the Prospectus under the caption "Certain
United States Federal Income Tax Considerations" (or similar caption),
to the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by such counsel or by attorneys under the supervision of such
counsel and is correct in all material respects.
(xv) The documents incorporated by reference into the
Registration Statement and the Prospectus or any further amendments or
supplements thereto made by the Company prior to the date hereof
(other than the financial statements and schedules therein and other
financial data or the Statement of Eligibility on Form T-1 of the
Trustee under the Indenture, as to which such counsel need express no
opinion), at the time they were filed, complied, and as of the date
hereof comply, as to form in all material respects with the
requirements of the 1933 Act and the 1934 Act and the rules and
regulations of the Commission thereunder.
In giving such opinion such counsel shall also state that in the course of
his duties as General Counsel of the Company he consults with other
officers of the Company as to
15
ongoing matters, and he or an attorney under his supervision has reviewed
the Registration Statement and the Prospectus and has participated in the
preparation of documents incorporated by reference therein and, although
such counsel has not made any other specific inquiry for the purpose of
rendering this opinion and is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, no facts have come
to such counsel's attention that leads him to believe that the Registration
Statement or any amendment thereto (except for financial statements and
schedules and other financial data included therein and for the Statement
of Eligibility on Form T-1, as to which such counsel makes no statement) at
the time the Registration Statement or any amendment thereto (including the
filing of an Annual Report on Form 10-K with the Commission) became
effective and (if such opinion is being delivered in connection with a
Terms Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and
schedules and other financial data included therein, as to which such
counsel makes no statement) as of its date and at the Settlement Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
In giving the opinion required by this Section 5(b)(1), such counsel shall
be entitled to rely upon opinions of local counsel and tax counsel and, in
respect of matters of fact, upon certificates of officers of the Company or
its subsidiaries, provided that such counsel shall state that he believes
that both the Agents and he are justified in relying upon such opinions and
certificates.
(2) Opinion of Counsel to the Agents. The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Brown & Wood, LLP ("SAB&W") counsel to the Agents, with respect to the
incorporation of the Company, this Agreement, the Notes and the Indenture,
and other related matters as the Agents may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
In giving such opinion SAB&W shall additionally state that they do not
believe that the Registration Statement, at the time it became effective,
or if an amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement and prior to the date of
such statement, then at the time such amendment became effective or at the
time of the most recent such filing (to the extent deemed to be
incorporated by reference in the Registration Statement and Prospectus),
and (if such opinion is being delivered in connection with a Terms
Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, as of its date and at the Settlement Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact
16
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel may
state that they express no view as to the financial statements and other
financial data included or incorporated by reference in such Registration
Statement or Prospectus. Such counsel may also state that they express no
view with respect to the Statement of Eligibility on Form T-1.
(c) Officers' Certificate. At the date hereof the Agents shall have
---------------------
received a certificate of the President or any Vice President and the chief
financial, chief accounting officer or treasurer of the Company, dated as of the
date hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any Terms Agreement, there has not been any material adverse change,
or any development involving a prospective material adverse change, in or
affecting the general affairs, consolidated financial position or consolidated
results of operations of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, otherwise
than as set forth or contemplated in the Prospectus, (ii) the other
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate, (iii) the Company has performed or complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and,
to their knowledge, no proceedings for that purpose have been initiated or
threatened by the Commission.
(d) Comfort Letter. On the date hereof, the Agents shall have received a
--------------
letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated as of the date hereof, in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations;
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act and the
1934 Act Regulations;
(iii) Based upon limited procedures set forth in detail in such letter
(which shall include, without limitation, the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial Information,
with respect to the unaudited condensed consolidated financial statements of the
Company and its subsidiaries, if any, included in the Registration Statement),
nothing has come to their attention which causes them to believe that:
(A) any material modifications should be made to the unaudited
condensed consolidated financial statements, if any, included in the
Registration Statement for them to be in conformity with generally
accepted accounting principles; or
17
(B) the unaudited condensed consolidated financial statements, if
any, included in the Registration Statement do not comply as to form
in all material respects with the applicable accounting requirements
of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations; or
(C) at a specified date not more than three business days prior
to the date of such letter, there was any change in the capital stock
or any increase in the long-term debt, or any decrease in consolidated
net assets, in each case as compared with amounts shown in the most
recent consolidated balance sheet incorporated by reference in the
Registration Statement, except in each case for changes, increases or
decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur; or
(D) for the period from the date of the most recent financial
statements incorporated by reference in the Registration Statement to
a specified date not more than three business days prior to the date
of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues
or net earnings, except in each case for increases or decreases which
the Registration Statement and the Prospectus disclose have occurred
or may occur;
(iv) In addition to the examination referred to in their report
incorporated by reference in the Registration Statement and the Prospectus, they
have carried out certain other specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information which are
included in the Registration Statement and the Prospectus and which are
specified by the Agents, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such letter.
(e) Other Documents. On the date hereof and on each Settlement Date with
---------------
respect to any Terms Agreement, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
therein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be reasonably satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
Agents, any Terms Agreement) may be terminated by the Agents by notice to the
Company at any time and any such termination shall be without liability of any
party to any other party, except that the covenant regarding provision of an
earnings statement set forth in Section 4(g) hereof, the provisions concerning
payment of expenses under Section 10 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery set forth in
Section 11 hereof and the provisions set forth under "Parties" of Section 15
hereof shall remain in effect.
18
SECTION 6. Delivery of and Payment for Notes Sold through an Agent as Agent.
----------------------------------------------------------------
Delivery of Notes sold through an Agent as an agent of the Company shall be made
by the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment for a Note on the
date fixed for settlement, the Agent shall promptly notify the Company and
deliver the Note to the Company, and, if the Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to the Agent.
If such failure occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its reasonable loss of the use of the funds for the
period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by the
-----------------------------------------------
Company of an offer for the purchase of Notes (whether to one or more Agents as
principal or through the Agents as agents), and each delivery of Notes to one or
more Agents (whether to one or more Agents as principal or through the Agents as
agents), shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to the Agents pursuant hereto, to the extent contemplated
by such certificate, are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the Agent or
Agents or to the purchaser or its agent, as the case may be, of the Note or
Notes relating to such acceptance or sale, as the case may be, as though made at
and as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Subject to the provisions of
-----------------------------------
Section 4(k) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a supplement providing solely
for the establishment of the interest rates, maturity or price of Notes or
similar terms, and other than by an amendment or supplement which relates
exclusively to an offering of debt securities under the Registration Statement
other than the Notes), or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities under the
Registration Statement other than the Notes) or (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to one or more Agents
pursuant to a Terms Agreement, if requested by the Agents or counsel to the
Agents, the Company shall furnish or cause to be furnished to the Agents
forthwith a certificate dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form reasonably satisfactory to the Agents
to the effect that the statements contained in the certificate referred to in
Section 5(c) hereof which were last furnished to the Agents are true and correct
at the time of such amendment, supplement, filing or sale, as the case may be,
as though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(c), modified as
necessary to relate to the
19
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate; provided, however, that if the Company
shall determine that it does not intend to be in the market for up to three
months after the date of filing of any such amendment or supplement, the Company
may deliver to the Agents a notice to such effect, in which event the request of
the Agents received by the Company with respect to such amendment or supplement
shall be deemed withdrawn until such time as the Company notifies the Agents
that it wishes to re-enter the market.
(c) Subsequent Delivery of Legal Opinions. Subject to the provisions of
-------------------------------------
Section 4(k) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a supplement providing solely
for the establishment of the interest rates, maturity or price of the Notes or
similar terms or solely for the inclusion of additional financial information,
and other than by an amendment or supplement which relates exclusively to an
offering of debt securities under the Registration Statement other than the
Notes) or there is filed with the Commission any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K) or (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
one or more Agents pursuant to a Terms Agreement, if requested by the Agents or
counsel to the Agents, the Company shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents a written opinion of the
General Counsel of the Company or other counsel selected by the Company and
reasonably satisfactory to the Agents dated the date of filing with the
Commission of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form reasonably
satisfactory to the Agents, of substantially the same tenor as the opinion
referred to in Section 5(b)(1) hereof, but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion; or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a letter
substantially to the effect that the Agents may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter authorizing reliance); provided, however, that
if the Company shall determine that it does not intend to be in the market for
up to three months after the date of filing of any such amendment or supplement,
the Company may deliver to the Agents a notice to such effect, in which event
the request of the Agents received by the Company with respect to such amendment
or supplement shall be deemed withdrawn until such time as the Company notifies
the Agents that it wishes to re-enter the market.
(d) Subsequent Delivery of Comfort Letters. Subject to the provisions of
--------------------------------------
Section 4(k) hereof, each time that (i) the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information (other than by an amendment or supplement relating solely to the
issuance and/or offering of securities other than the Notes) or (ii) (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
one or more Agents pursuant to a Terms Agreement, the Company shall cause ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, or other independent certified public accountants reasonably
satisfactory to the Agents, forthwith to furnish to the Agents a letter, dated
the date of filing with the Commission or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form reasonably satisfactory to the Agents, of substantially the same
tenor as the letter referred to in Section 5(d) hereof, but modified to relate
to the Registration Statement and
20
Prospectus as amended and supplemented to the date of such letter, and with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company; provided,
however, that the portions of the letter referred to in Section 5(d)(iv) hereof
shall, unless otherwise requested by the Agents, only be provided in subsequent
letters delivered in connection with the Company's filing of its Annual Report
on Form 10-K.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify
-----------------------------
severally and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred (to the extent the party seeking such indemnity is
currently required to make a payment in respect of which such indemnity is
sought), arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all reasonable expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by an
Agent), reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
21
(b) Indemnification of Company. Each Agent severally agrees to indemnify
--------------------------
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred (to the extent the party seeking
such indemnity is currently required to make a payment in respect of which such
indemnity is sought), but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to each
-------
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified party
by retaining 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. In
no event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) Foreign Currency Judgments. The Company agrees to indemnify the Agents
--------------------------
against any loss incurred by the Agents as a result of any judgment or order
being given or made for the amount due under this Agreement and such judgment or
order being paid in a currency (a "Judgment Currency") other than U.S. dollars
as a result of any variation between (i) the rate of exchange at which U.S.
dollars are converted into the Judgment Currency for the purpose of such
judgment or order and (ii) the rate of exchange at which the applicable Agent is
able to purchase U.S. dollars with the amount of the Judgment Currency actually
received by such Agent. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
22
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 hereof is unavailable or
insufficient to hold harmless an indemnified party thereunder, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in Section 8 in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Notes to which such loss, claim, damage or
liability relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 8(c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
each Agent on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and each
Agent on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of Notes to which such loss, claim, damage or
liability relates by such Agent (before deducting expenses) received by the
Company bears to the total underwriting discounts and commissions received by
such Agent in connection with such Notes. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or an Agent and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this Section 9 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this Section 9.
Notwithstanding the provisions of this Section 9, an Agent shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Notes sold by such Agent to which such loss, claim, damage or
liability relates and distributed to the public exceeds the amount of any
damages which such Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In addition, in connection with an
offering of Notes purchased from the Company by two or more Agents as principal,
the respective obligations of such Agents to contribute pursuant to this Section
9 are several, and not joint, in proportion to the aggregate principal amount of
Notes that each such Agent has agreed to purchase from the Company.
For purposes of this Section, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as an Agent, and each director of the Company, each officer of the
Company who signed the Registration
23
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and any preliminary prospectus, the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The reasonable fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel and of any Calculation Agent;
(e) The reasonable fees and disbursements of one counsel to the Agents
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(h) hereof, including filing
fees, and the reasonable fees and disbursements of counsel to the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, any preliminary prospectus and of the Prospectus and
any amendments or supplements thereto;
(h) The preparation, printing, reproducing and delivery to the Agents
of copies, as reasonably requested, of the Indenture and all supplements
and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The filing fees, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of such expense by the Company;
(l) The cost of preparing and providing any CUSIP or other
identification numbers for the Notes; and
24
(m) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery. All
--------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto or thereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Agents or any controlling person of
the Agents, or by or on behalf of the Company, and shall survive each delivery
of and payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
-----------------------------
Agreement) may be terminated for any reason, at any time by either the Company
or the Agents on the giving of 15 days' written notice of such termination to
the other party hereto; provided, however, that the termination of this
Agreement by an Agent shall terminate this Agreement only between such Agent and
the Company and the Company's notice of termination as to any one Agent shall
terminate this Agreement only between itself and such Agent.
(b) Termination of a Terms Agreement. The Agent or Agents party to a Terms
--------------------------------
Agreement may terminate any Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of such Terms Agreement or since the respective dates
as of which information is given in the Registration Statement, any material
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
consolidated financial position or consolidated results of operations of the
Company, whether or not arising in the ordinary course of business, or (ii) if
there shall have occurred any material adverse change in the financial markets
in the United States or, if such Notes are denominated and/or payable in, or
indexed to, one or more foreign or composite currencies, in the international
financial markets, or any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States or, if such Notes are denominated and/or payable in, or indexed to, one
or more foreign or composite currencies, on the international financial markets,
in each case is such as to make it, in the reasonable judgment of the Agent or
Agents party to such Terms Agreement (after consultation with the Company),
impracticable to market the Notes subject to such Terms Agreement or enforce
contracts for the sale of such Notes, or (iii) if trading in any securities of
the Company has been suspended by the Commission or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium shall have been
declared by federal or New York authorities or if a banking moratorium shall
have been declared by the relevant authorities in the country or countries of
origin of any foreign currency or currencies in which the Notes subject to such
Terms Agreement are denominated and/or payable, or (iv) if the rating assigned
by any nationally recognized securities rating agency to any debt securities of
the Company as of the date of any Terms Agreement shall have been lowered since
that date or if any such rating
25
agency shall have publicly announced since that date that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for possible
downgrading, or (v) if the Prospectus, at the time it was required to be
delivered to a purchaser of Notes subject to such Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, no party will have
-------
any liability to any other party hereto, except that (i) each Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) the Agents shall own
any Notes purchased by such Agent with the intention of reselling them or (b) an
offer to purchase any of the Notes has been accepted by the Company but the time
of delivery to the purchaser or its agent of such Note or Notes relating thereto
has not occurred, the obligations set forth in Section 5 hereof and the
covenants set forth in Sections 4 and 7 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be (provided, however, that,
except as provided in clause (iii) below, the Company's obligations pursuant to
Sections 4 and 7 hereof shall in any event terminate no later than the date that
is fifteen days (nine months with respect to subsections (e) and (i) of Section
4 hereof) after the time of such termination), and (iii) the covenant set forth
in Section 4(g) hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 10, 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, by telecopier or by telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company:
Colgate-Palmolive Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Deutsche Banc:
Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc.
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Debt Capital Markets
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
26
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Credit Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇.▇. ▇▇▇▇▇▇:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Execution Group
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial Center, 15th Floor
New York, New York 10080
Attention: MTN Product Management
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager - COPS Group
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
27
SECTION 14. Governing Law.
-------------
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons, officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
------------
This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
SECTION 17. Captions.
--------
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or the provisions hereof.
SECTION 18. Additional Agents.
-----------------
Notwithstanding anything contrary contained in this Agreement, the
Company may from time to time appoint one or more additional agents (each, an
"Additional Agent" and collectively, the "Additional Agents") in accordance with
the following provisions:
(a) Appointment of Agent. The Company may appoint an Additional
--------------------
Agent or Agents, to act as an agent of the Company pursuant to the terms and
conditions set forth in this Agreement, provided that (i) such Additional Agent
shall deliver to the Company a letter substantially in the form of Exhibit B
hereto, and (ii) the Company shall have delivered to such Additional Agent a
letter substantially in the form of Exhibit C hereto.
(b) Notice of Appointment of Additional Agents. The Company shall
------------------------------------------
promptly notify the Agents of any such appointment pursuant to subsection (a) of
this Section 18 by supplying to such parties a copy of the applicable letter or
letters.
28
(c) Effect of Appointment. Upon satisfaction by the Company and any
---------------------
Additional Agent of the provisions of subsections (a) and (b) of this Section
18, such Additional Agent shall be deemed to be an Agent hereunder and all
references to "Agent" in this Agreement shall be deemed to include such
Additional Agent from and after the date such provisions are satisfied and such
appointment is effective.
29
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:_______________________________
Name:
Title:
Accepted:
DEUTSCHE BANC ALEX. BROWN INC.
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:______________________________________
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:_______________________________________
Name:
Title:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ____________________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED.
By: ____________________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ____________________________________________
Name:
Title:
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note by such Agent equal to the principal amount of such Note multiplied
by the appropriate percentage set forth below:
Maturity Ranges Percent of Principal Amount
--------------- ---------------------------
From 1 year to less than 18 months ..................... .150
From 18 months to less than 2 years .................... .200
From 2 years to less than 3 years ...................... .250
From 3 years to less than 4 years ...................... .350
From 4 years to less than 5 years ...................... .450
From 5 years to less than 6 years ...................... .500
From 6 years to less than 7 years. ..................... .550
From 7 years to less than 10 years ..................... .600
From 10 years to less than 15 years .................... .625
From 15 years to less than 20 years .................... .700
From 20 years to 30 years .............................. .750
Beyond 30 years ........................................ To be negotiated
Schedule A
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents
and the Company pursuant to each Terms Agreement:
Principal Amount: $
-------
(or principal amount of foreign or composite currency)
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Original Issue Date:
Trade Date:
Issue Price: %
---
Agent's Discount or Commission:
Settlement Date and Time:
Interest Rate or Formula:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[_] 30/360 for the period from ___to___.
[_] Actual/360 for the period from ____to____.
[_] Actual/Actual for the period from _____to_____.
If Floating Rate Note:
Interest Calculation:
[_] Regular Floating Rate Note
[_] Floating Rate/Fixed Rate Note
Fixed Rate Commencement Date:
Fixed Interest Rate:
[_] Inverse Floating Rate Note
Fixed Interest Rate:
Interest Rate Basis(es):
If LIBOR,
__ LIBOR Reuters Page:
__ LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
__ Weekly Average
__ Monthly Average
Designated CMT Maturity Index:
A-1
Initial Interest Rate:, if any:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
[_] 30/360 for the period from ___to___.
[_] Actual/360 for the period from ____to____.
[_] Actual/Actual for the period from _____to_____.
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction, if any:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
. Officers' Certificate pursuant to Section 7(b) of the Distribution Agreement.
. Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
. Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
. Stand-off Agreement pursuant to Section 4(j) of the Distribution Agreement.
. Legal Opinion of counsel to the Agents pursuant to Section 5(b)(2) of the
Distribution Agreement.
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EXHIBIT B
FORM OF LETTER APPOINTING ADDITIONAL AGENT-PROGRAM
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[ ], 2001
To: Colgate-Palmolive Company
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Attention: Treasurer
Re: Medium-Term Notes, Series E of Colgate-Palmolive
Company (the "Company")
------------------------------------------------
Dear Sirs:
We refer to Section 18(a) of the Distribution Agreement dated October ,
2001 entered into with respect to the distribution of the Company's Medium-Term
Notes, Series E (the "Notes"), and made between the Company and the Agents party
thereto (which agreement, as amended from time to time, is herein referred to as
the "Distribution Agreement").
Conditions Precedent
--------------------
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Distribution Agreement;
(ii) copies of such documents referenced in the
Distribution Agreement as we have reasonably
requested; and
(iii) side letters in a form approved by us from the
legal counsel referred to in Section 5(b)(1) and
5(b)(2), if required, of the Distribution
Agreement addressed to us and giving us the full
benefit of the existing legal opinions.
For the purposes of Section 13 of the Distribution Agreement, our name,
address, telephone and telecopy number for the service of notices are as
follows:
[insert name, address, telecopy number and attention]
In consideration of the Company appointing us as an Agent under the
Distribution Agreement, we hereby undertake, for the benefit of the Company and
each of the other Agents, that we will perform and comply with all the duties
and obligations expressed to be assumed by an Agent under the Distribution
Agreement.
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This letter is governed by, and shall be construed in accordance with, the
laws of the State of New York applicable to agreements made and to be performed
wholly within such State.
Very truly yours,
[NAME OF NEW AGENT]
By:
----------------
Name:
Title:
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EXHIBIT C
FORM OF COMPANY LETTER
----------------------
[ ], 2001
To: [NAME AND ADDRESS OF NEW AGENT]
Re: Medium-Term Notes, Series E of Colgate-Palmolive
Company (the "Company")
------------------------------------------------
Dear Sirs:
We refer to the Distribution Agreement dated October , 2001 (such
agreement, as amended from time to time, the "Distribution Agreement") entered
into with respect to the distribution of the Company's Medium Term Notes, Series
E (the "Notes") and hereby acknowledge receipt of your letter to us dated______.
In accordance with Section 18(a) of the Distribution Agreement, we hereby
confirm that, with effect from the date hereof, you shall become a party to the
Distribution Agreement, vested with all the authority, rights, powers, duties
and obligations of an Agent as if originally named as an Agent under the
Distribution Agreement.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:_____________________
Name:
Title:
cc: [Other Agents party to the
Distribution Agreement]
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