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EXHIBIT 1.1
ROHM AND ▇▇▇▇ COMPANY
$300,000,000
Medium-Term Notes
Distribution Agreement
▇▇▇▇▇▇▇, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Citicorp Securities, Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Dear Sirs:
Rohm and ▇▇▇▇ Company, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes (the
"Securities") in an aggregate amount up to $300,000,000 and agrees with each of
you (individually, an "Agent", and collectively, the "Agents") as set forth in
this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly
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to any Agent as principal, it will enter into a separate agreement (each a
"Terms Agreement"), substantially in the form of Annex I hereto, relating to
such sale in accordance with Section 2(b) hereof. Unless otherwise agreed, this
Distribution Agreement shall not be construed to create either an obligation on
the part of the Company to sell any Securities or an obligation of any of the
Agents to purchase Securities as principal.
The Securities will be issued under an Indenture, dated as of April
1, 1986, as supplemented by a First Supplemental Indenture, dated as of December
15, 1988, and as amended by a Second Supplemental Indenture, dated as of May 1,
1992 (the "Indenture"), between the Company and Mellon Bank N.A., successor to
CoreStates Bank, N.A., formerly The Philadelphia National Bank, as Trustee (the
"Trustee"). The Securities shall have the maturity ranges, interest rates, if
any, redemption provisions and other terms set forth in the Prospectus referred
to below as it may be amended or supplemented from time to time. The Securities
will be issued, and the terms and rights established, from time to time by the
Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) A registration statement on Form S-3 (File No. 333-14017) relating to
$300,000,000 aggregate amount of Securities has been filed with the Securities
and Exchange Commission (the "Commission") in the form heretofore delivered or
to be delivered to such Agent, excluding exhibits to such registration statement
but including all documents incorporated by reference in the prospectus included
therein, and such registration statement in such form has been declared
effective by the Commission, other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which will become effective upon filing, and no stop order suspending
the effectiveness of such registration statement, any post-effective amendment
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thereto or any Rule 462(b) Registration Statement, has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in such registration statement being
hereinafter called a "Preliminary Prospectus"); the various parts of such
registration statement and any post-effective amendment thereto and any Rule
462(b) Registration Statement, including all documents included therein pursuant
to the applicable form under the Act, all exhibits thereto but excluding the
Form T-1 and, if applicable, including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) under the
Act, in accordance with Section 4(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of such registration statement, as amended at the time
such part became effective, or at the time such part of any post-effective
amendment thereto or any Rule 462(b) Registration Statement became or after the
date of this Agreement becomes effective, being hereinafter collectively called
the "Registration Statement"; the prospectus (including, if applicable, any
prospectus supplement) relating to the Securities, in the form in which it has
most recently been filed with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer
collectively to such document and the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated therein by reference;
and any statement contained in the Prospectus or in a document all or a portion
of which is incorporated or deemed to be incorporated by reference in the
Prospectus shall be modified or superseded for purposes of such Prospectus to
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the extent that a statement contained in such Prospectus or in any subsequently
filed document which is also, or is deemed to be, incorporated by reference in
the Prospectus modifies or supersedes such earlier statement, and any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to and include
the Prospectus as amended or supplemented (including by the applicable Pricing
Supplement filed in accordance with Section 4(a) hereof) in relation to
Securities to be sold pursuant to this Agreement, in the form filed or
transmitted for filing with the Commission pursuant to Rule 424(b) under the Act
and in accordance with Section 4(a) hereof, including any documents incorporated
by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
Preliminary Prospectus, when they were filed with the Commission or became
effective, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such documents
contained, on such applicable date, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
amendment or supplement thereto, when such documents are filed with the
Commission or become effective, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and
will not contain, on such applicable date, 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
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omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use in the
Prospectus as amended or supplemented to relate to a particular issuance
of Securities;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects
to the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date in case of the Registration Statement and any amendment
thereto and as of the applicable filing date in the case of the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by any Agent
expressly for use in the Prospectus as amended or supplemented to relate
to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries taken as a
whole has sustained since the date of the latest financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any material change on a consolidated basis
in the capital stock or long-term debt of the Company and its subsidiaries
or any material adverse change, or any development involving a
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prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company and each of its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
and each subsidiary have been duly and validly authorized and issued and
are fully paid and non-assessable and conform to the description of the
stock contained in the Prospectus;
(g) The Securities have been duly authorized, and, when duly
executed, authenticated, issued and delivered pursuant to the Indenture,
this Agreement and any Terms Agreement will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an exhibit
to the Registration Statement; the Indenture has been duly authorized and
qualified under the Trust Indenture Act and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms and
the Securities of any particular issuance of Securities will conform to
the descriptions thereof in the Prospectus as amended or supplemented to
relate to such issuance of Securities;
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(h) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the trans
actions herein and therein contemplated will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation, as amended, or the By-Laws
of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body is required for the solicitation of offers to purchase Securities,
the issue and sale of the Securities or the consummation by the Company of
the other transactions contemplated by this Agreement, any Terms Agreement
or the Indenture, except such as have been, or will have been prior to the
Commencement Date (as defined in Section 3 hereof), obtained under the Act
or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the solicitation by the Agents of
offers to purchase Securities from the Company and the resulting issue and
sale of securities by the Company through an Agent or in connection with
purchases of Securities from the Company by such Agent as principal, as
the case may be, in each case in the manner contemplated hereby;
(i) 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 that are likely to result in any
material adverse change in the consolidated
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financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(j) The Company is not, and after giving effect to each offering and
sale of the Securities will not be, an "investment company" or an entity
-controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(k) To the best of the Company's knowledge, KPMG Peat Marwick LLP,
who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder; and
(l) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of Securities
which shall have been issued and sold by the Company hereunder or under
any Terms Agreement and of any debt securities of the Company (other than
such Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company, to use its reasonable
efforts to solicit and receive offers to purchase the Securities from the
Company upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement shall remain in effect
with respect to any Agent, the Company shall not, without reasonable notice to
such Agent, solicit or accept offers to purchase, or sell, any debt securities
with a maturity at the time of original issuance
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of 9 months to 30 years except pursuant to this Agreement or any Terms
Agreement, or except pursuant to a private placement not constituting a public
offering under the Act or in connection with a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a continuous
offering of medium-term debt securities. However, the Company reserves the right
to sell, and may solicit and accept offers to purchase, Securities directly on
its own behalf, and, in the case of any such sale not resulting from a
solicitation made by any Agent, no commission will be payable with respect to
such sale. These provisions shall not limit Section 4(f) hereof or any similar
provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the
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Company as a result of a solicitation made by such Agent, in an amount equal to
the following applicable percentage of the principal amount of such Security
sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year ............ .125
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
20 years to 30 years ........................ .750
(b) Each sale of Securities to any Agent as principal shall be made
in accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. A Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent. The commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in
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the reoffering of the Securities and the time and date and place of delivery of
and payment for such Securities. Such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Each Agent proposes to offer
Securities purchased by it as principal for sale at prevailing market prices or
prices related thereto at the time of sale, which may be equal to, greater than
or less than the price at which such Securities are purchased by such Agent from
the Company.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to the issue
and delivery of such Securities and payment therefor shall be as set forth in
the Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency, except as permitted
by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, at 11:00 A.M., New York City time, on the date of
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this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be later than
the day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which any Terms Agreement is executed (such time and date
being referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus, other than any amendment or supplement
relating solely to debt securities of the Company other than the
Securities ("Other Securities"), (A) prior to the Commencement Date which
shall be disapproved by any Agent promptly after reasonable notice thereof
or (B) after the date of any Terms Agreement or other agreement by an
Agent to purchase Securities as principal and prior to the related Time of
Delivery which shall be disapproved by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable notice
thereof; (ii) to prepare, with respect to any Securities to be sold
through or to such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Securities in a form previously approved by such
Agent and to file such Pricing Supplement pursuant to Rule 424(b)(3) under
the 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; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than an amendment or supplement relating
solely to Other Securities or any Pricing Supplement, and documents
incorporated by reference therein, at any time prior to having afforded
each Agent a reasonable opportunity to review and comment on it; (iv) to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery
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of a prospectus is required in connection with the offering or sale of the
Securities, and during such time period to advise such Agent, promptly
after the Company receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or has become effective or
any supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by
such Agent) has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amendment or supplement of,
the Registration Statement or Prospectus; and (v) in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
reasonably may request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as such Agent may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein for as long as may be necessary to complete the
distribution or sale of the Securities; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the next date
succeeding the date of this Agreement which is a business day in New York
City, and from time to time, to furnish such Agent with copies of the
Registration Statement and each amendment thereto, with copies of the
Prospectus in New York City at each time
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as amended or supplemented, other than any Pricing Supplement or amendment
or supplement relating solely to Other Securities (except as provided in
the Administrative Procedure), in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, and with copies of the
documents incorporated by reference therein, all in such quantities as
such Agent may reasonably request; and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities (including Securities purchased from the Company by such Agent
as principal) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify such Agent and request such Agent, in its
capacity as agent of the Company, to suspend solicitation of offers to
purchase Securities from the Company (and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any event
not later than one business day later); and if the Company shall decide to
amend or supplement the Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed
promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance;
provided, however, that if during such same period such Agent continues to
own Securities purchased from the Company by such Agent as principal or
such Agent is otherwise required to deliver a prospectus in respect of
trans-
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actions in the Securities, the Company shall promptly prepare and file
with the Commission such an amendment or supplement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after (i) the
effective date of the Registration Statement, (ii) the effective date of
each post-effective amendment to the Registration Statement, and (iii) the
date of each filing by the Company with the Commission of an Annual Report
on Form 10-K that is incorporated by reference in the Registration
Statement, an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (or, at the option
of the Company, Rule 158);
(e) So long as Securities are outstanding, to furnish to such Agent
copies of all reports or other communications (financial or other)
furnished to stock holders, and deliver to such Agent (i) as soon as they
are available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on which
any class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company
as such Agent may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and
continuing to and including the earlier of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as notified
to the Company by such Agent and (ii) the related Time of Delivery, the
Company will not, without the prior written consent of such Agent,
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offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which both have a maturity at the time of original issuance
of 9 months to 30 years and are substantially similar to the Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the
Company contained in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such Terms Agreement, as
the case may be, as though made at and as of such date, and an undertaking
that such representations and warranties will be true and correct as of
the settlement date for the Securities relating to such acceptance or as
of the Time of Delivery relating to such sale, as the case may be, as
though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date relating to such
Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement and other than any amendment or supplement
relating solely to Other Securities) and each time a document filed under
the Act or the Exchange Act is incorporated by reference into the
Prospectus, and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies
the delivery of an opinion or opinions by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Counsel to
the Agents, as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish to such counsel such papers and
information as they may reasonably request to enable them to furnish to
such
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Agent the opinion or opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement or
any amendment or supplement relating solely to Other Securities), each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and each time the Company sells Securities
to such Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion under this Section 4(i) as
a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished forthwith to
such Agent a written opinion of the General Counsel of the Company or an
Associate General Counsel of the Company, or other counsel for the Company
satisfactory to such Agent, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, as the case may
be, in form satisfactory to such Agent, to the effect that such Agent may
rely on the opinion of such counsel referred to in Section 6(c) hereof
which was last furnished to such Agent to the same extent as though it
were dated the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinion, an opinion of the same tenor as
the opinion of such counsel referred to in Section 6(c) hereof but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented, other than any amendment or supplement
relating solely to Other Securities, and each time that a document filed
under the Act or the Exchange Act is incorporated by reference into the
Prospectus, in either case to set forth financial information included in
or derived from
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the Company's consolidated financial statements or accounting records, and
each time the Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the delivery of a
letter under this Section 4(j) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall cause the
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement forthwith to furnish such Agent a
letter, dated the date of such amendment, supplement, incorporation or
Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred to in
Section 6(d) hereof but modified to relate to the Registration Statement
and the Prospectus as amended or supplemented to the date of such letter,
with such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of
the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the
date of such letter; provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as true
and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or
other matter made in the letter referred to in Section 6(d) hereof which
was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement)
other than any amendment or supplement relating solely to Other
Securities, each time a document filed under the Act or the Exchange Act
is incorporated by reference into the Prospectus, and each time the
Company sells Securities to such Agent as principal and the applicable
Terms Agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of Securities pursuant
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to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officers of
the Company as shall be satisfactory to such Agent, to the effect that the
statements contained in the certificates referred to in Section 6(h)
hereof which were last furnished to such Agent are true and correct at
such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date), or, in lieu of such
certificate, certificates of the same tenor as the certificates referred
to in said Section 6(h) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities as
the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedure, any
condition set forth in Section 6(a), 6(e) or 6(f) hereof shall not have
been satisfied (it being understood that the judgment of such person with
respect to the impracticability or inadvisability of such purchase of
Securities shall be substituted, for purposes of this Section 4(l), for
the respective judgments of an Agent with respect to certain matters
referred to in such Sections 6(a), 6(e) and 6(f), and that such Agent
shall have no duty or obligation whatsoever to exercise the judgment
permitted under such Sections 6(a), 6(e) and 6(f) on behalf of any such
person).
(m) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of such election, and the
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Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees and expenses of the
Company's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to such Agent; (ii) the fees and expenses of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Agents, in connection with the
establishment of the program contemplated hereby, any opinions to be rendered by
such counsel hereunder and the transactions contemplated hereunder; (iii) the
cost of printing, preparing by word processor or reproducing this Agreement, any
Terms Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iv) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including fees and disbursements of counsel for the Agents
in connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (v) any fees charged by securities rating services for
rating the Securities; (vi) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vii) the cost of preparing the Securities; (viii) the fees and
expenses of any Trustee and any agent of any Trustee and any transfer or paying
agent of the Company and the fees and disbursements of counsel for any Trustee
or such agent in connection with any Indenture and the Securities; (ix) any
advertising connected with the solicitation of offers to
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purchase and the sale of Securities so long as such advertising expenses have
been approved by the Company; and (x) all other costs and expenses incurred by
the Company incident to the performance of the Company's obligations hereunder
which are not otherwise specifically provided for in this Section . Except as
provided in Sections 7 and 8 hereof, each Agent shall pay all other expenses it
incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus
as amended or supplemented (including the Pricing Supplement) with respect
to such Securities shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; (ii) if the Company has elected to rely upon
Rule 462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of such
election; (iii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose
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shall have been initiated or threatened by the Commission; and (iv) all
requests for additional information on the part of the Commission shall
have been complied with to the reasonable satisfaction of such Agent;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agents, shall have furnished
to such Agent (i) such opinion or opinions (a draft of each such opinion
is attached as Annex IV(a) hereto), dated the Commencement Date, with
respect to the incorporation of the Company, the validity of the
Indenture, the Securities, the Registration Statement, the Prospectus as
amended or supplemented and other related matters as such Agent may
reasonably request, and (ii) if and to the extent requested by such Agent,
with respect to each applicable date referred to in Section 4(h) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the
case may be, an opinion or opinions, dated such applicable date, to the
effect that such Agent may rely on the opinion or opinions which were last
furnished to such Agent pursuant to this Section 6(b) to the same extent
as though it or they were dated the date of such letter authorizing
reliance (except that the statements in such last opinion or opinions
shall be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date) or, in any case, in lieu of such
an opinion or opinions, an opinion or opinions of the same tenor as the
opinion or opinions referred to in clause (i) but modified to relate to
the Registration Statement and the Prospectus as amended and supplemented
to such date; and in each case such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) The General Counsel of the Company or an Associate General
Counsel of the Company, or other counsel for the Company satisfactory to
such Agent, shall have furnished to such Agent their written opinions (a
draft of each such opinion is attached as
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Annex IV(b) hereto), dated the Commencement Date and each applicable date
referred to in Section 4(i) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect that:
(i) The Company and each of its domestic Significant
Subsidiaries (as defined in Rule 1-02 of Regulation S-X) has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus as amended
or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company and each of its domestic
Significant Subsidiaries have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(iv) The Securities have been duly authorized and, when duly
executed, authenticated, issued and delivered by the Company, will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the
Indenture conforms and the Securities will conform to the
descriptions thereof in the Prospectus as amended or supplemented;
(v) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy,
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insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(vi) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the
Indenture, this Agreement and any applicable Terms Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, of the Company or the 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 properties;
(vii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Company
of the other transactions contemplated by this Agreement, any
applicable Terms Agreement, or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the solicitation by the Agents of offers to purchase
Securities from the
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Company and the resulting issue and sale of Securities by the
Company through an Agent or in connection with purchases of
Securities from the Company by an Agent as principal, as the case
may be, in each case in the manner contemplated hereby;
(viii) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities" and
"Description of Notes", insofar as they purport to constitute a
summary of the terms of the Securities, under the caption
"Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Company's capital stock,
and under the caption "Supplemental Plan of Distribution", insofar
as they purport to describe the provisions of the laws and documents
referred to therein, are accurate summaries of such provisions;
(ix) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined
in the Investment Company Act;
(x) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein,
as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission there under; and they have no reason
to believe that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, 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, in the
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case of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(xi) The Registration Statement and the Prospectus as amended and
supplemented and any further amendments and supplements thereto made
by the Company prior to the date of such opinion (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; they have no reason to
believe that, as of the effective date of the Registration
Statement, either the Registration Statement or the Prospectus (or,
as of its date, any amendment or supplement thereto made by the
Company prior to the date of such opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of the date of such opinion,
either the Registration Statement or the Prospectus as amended and
supplemented contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(xii) The descriptions in the Registration Statement and
Prospectus as amended and supplemented of statutes, legal and
governmental proceedings, contracts and other documents are accurate
and fairly present the information required to be shown; and such
counsel does not know of any statutes or legal or governmental
proceedings required to be described in the
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Prospectus as amended and supplemented that are not described as
required, or of any contracts or documents of a character required
to be described in the Registration Statement or Prospectus as
amended and supplemented (or required to be filed under the Exchange
Act if upon such filing they would be incorporated by reference
therein) or to be filed as exhibits to the Registration Statement
that are not described and filed as required;
(d) Not later than 10:00 A.M., New York City time, on the Commencement
Date and on each applicable date referred to in Section 4(j) hereof that
is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, the independent certified public accountants who have certified
the financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to such Agent a letter, dated the Commencement Date or such
applicable date, as the case may be, in form and substance satisfactory to
such Agent, substantially to the effect set forth in Annex III hereto (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex III(a) hereto and a draft of the form of
letter to be delivered after the date of this Agreement under Section
4(j)is attached as Annex III(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus as amended or supplemented
and (ii) since the respective dates as of which information is given in
the Prospectus as amended or supplemented there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiar-
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ies or any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of such Agent so
material and adverse as to make it impracticable or inadvisable to proceed
with the solicitation by such Agent of offers to purchase Securities from
the Company or the purchase by such Agent of Securities from the Company
as principal, as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange or the American Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's securities
by either Federal or New York State authorities; (iii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of such Agent makes it
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Securities or the purchase of Securities from the Company as
principal, pursuant to the applicable Terms Agreement or otherwise, as the
case may be, on the terms and in the manner contemplated in the Prospectus
as amended or supplemented; (v) minimum or maximum prices for trading
shall have been fixed, or maximum range for prices for securities shall
have been required, on the New York Stock Exchange or the American Stock
Exchange, by such Exchange or by order of the Commission or any other
governmental authority having jurisdiction; or (vi) any downgrading in the
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rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(g) The Company shall have complied with the provisions of Section
4(c) hereof with respect to the furnishing of prospectuses on the next
date succeeding the date of this Agreement which is a business day in New
York City; and
(h) The Company shall have furnished or caused to be furnished to
such Agent certificates of officers of the Company dated the Commencement
Date and each applicable date referred to in Section 4(k) hereof that is
on or prior to such Solicitation Time or Time of Delivery, as the case may
be, in such form and executed by such officers of the Company as shall be
satisfactory to such Agent, as to the accuracy of the representations
and warranties of the Company herein at and as of the Commencement Date or
such applicable date, as the case may be, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to
the Commencement Date or such applicable date, as the case may be, as to
the matters set forth in subsections (a) and (e) of this Section 6, and as
to such other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
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supplemented or any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse such Agent for any legal or other expenses reasonably incurred by it
in connection with investigating or defending any such action or claim;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by such
Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and
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will reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
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liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required to contribute
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33
any amount in excess of the amount by which the total public offering price at
which the Securities purchased by or through it were sold exceeds the amount of
any damages which such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each of the
Agents under this subsection (d) to contribute are several in proportion to the
respective purchases made by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the
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34
Company and (ii) notwithstanding such default, pay to the Agent that solicited
such offer any commission to which it would be entitled in connection with such
sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (y) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination and
(z) in any event, this Agreement shall remain in full force and effect insofar
as the fourth paragraph of Section 2(a), Section 4(d), Section 4(e), Section 5,
Section 7, Section 8 and Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advice hereunder
shall be in writing, or by telephone if promptly confirmed in writing, and if to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. shall be sufficient in all respects when delivered or sent
by facsimile transmission or registered mail to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, facsimile transmission no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
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35
Credit Department, and if to Citicorp Securities, Inc. shall be sufficient in
all respects when delivered or sent by facsimile transmission or registered mail
to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile transmission no. (212)
291-4386, Attention: Operations Manager - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and if to ▇.▇.
▇▇▇▇▇▇ Securities Inc.shall be sufficient in all respects when delivered or sent
by facsimile transmission or registered mail to ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: [_________], and if to the Company shall be sufficient in
all respects when delivered or sent by facsimile transmission or registered mail
to Rohm and ▇▇▇▇ Company, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Treasurer; facsimile transmission no. (▇▇▇) ▇▇▇-▇▇▇▇.
12. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any Agent or the Company,
and their respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any Agent hereunder shall be deemed a successor or assign by reason of
such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
office of the Commission in Washington, D.C. is normally open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
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If the foregoing is in accordance with your under standing, please
sign and return to us 5 counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
ROHM AND ▇▇▇▇ COMPANY
By:___________________________
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
_____________________________________
(▇▇▇▇▇▇▇, Sachs & Co.)
CITICORP SECURITIES, INC.
By: _________________________________________
Name:
Title
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: _____________________________________
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37
Name:
Title:
-37-
38
ANNEX I
ROHM AND ▇▇▇▇ COMPANY
Medium-Term Notes
Terms Agreement
___________, 19__
[▇▇▇▇▇▇▇, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.]
[Citicorp Securities, Inc.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10268.]
[▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10260.]
Dear Sirs:
Rohm and ▇▇▇▇ Company (the "Company") proposes, subject to the terms
and conditions stated herein and in the Distribution Agreement, dated
____________, 1997 (the "Distribution Agreement"), between the Company on the
one hand and ▇▇▇▇▇▇▇, Sachs & Co., Citicorp Securities, Inc. and ▇.▇. ▇▇▇▇▇▇
Securities Inc. (the "Agents") on the other, to issue and sell to ▇▇▇▇▇▇▇, Sachs
& Co., Citicorp Securities, Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. the securities
specified in the Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement not specifically related to the
solicitation by the Agents, as agents of the Company, of offers to purchase
Securities is incorporated herein by reference in its
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39
entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and a warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [▇▇▇▇▇▇▇, Sachs & Co., Citicorp Securities, Inc. and ▇.▇.
▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇, Sachs & Co., Citicorp Securities, Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc.] agree to purchase from the Company the Purchased
Securities, at the time and place, in the principal amount and at the purchase
price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us ______ counterparts hereof, and upon acceptance hereof by
you this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein
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by reference, shall constitute a binding agreement between you and the Company.
ROHM AND ▇▇▇▇ COMPANY
By:______________________
Name:
Title:
Accepted:
[_________________________________________
(▇▇▇▇▇▇▇, Sachs & Co.)]
[CITICORP SECURITIES, INC.
By: ________________________________________
Name:
Title:]
[▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: ________________________________________
Name:
Title:]
▇-▇▇
▇▇
▇-▇▇
▇▇
Schedule to Annex I
Title of Purchased Securities:
[ %] Medium-Term Notes [Due ]
Aggregate Principal Amount:
[$ ]
[Price to Public:]
Purchase Price by [▇▇▇▇▇▇▇, Sachs & Co.] [Citicorp Securities, Inc.] [▇.▇.
▇▇▇▇▇▇ Securities Inc.]: % of the principal amount of the Purchased
Securities [, plus accrued interest from ________ to ____________ ] [and accrued
amortization, if any, from _____________ to ___________]
Method of and Specified Funds for Payment of Purchase Price:
[By Certified or official bank check or checks, payable to the order of
the Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Indenture:
Indenture, dated as of April 1, 1986, as supplemented by a First
Supplemental Indenture, dated as of December 15, 1988 and a Second Supplemental
Indenture dated as of May 1, 1992, between the Company and Mellon Bank, N.A.,
successor to CoreStates Bank, N.A., formerly The Philadelphia National Bank, as
Trustee
Time of Delivery:
Closing Location:
I-42
43
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agent referred to in
Section 4(h).]
[(2) The opinion of counsel to the Company referred to in Section
4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
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ANNEX II
ROHM AND ▇▇▇▇ COMPANY
Administrative Procedure
This Administrative Procedure relates to the Securities defined in
the Distribution Agreement, dated ___________, 1997 (the "Distribution
Agreement"), between Rohm and ▇▇▇▇ Company (the "Company") and ▇▇▇▇▇▇▇, Sachs &
Co., Citicorp Securities, Inc. and ▇.▇ ▇▇▇▇▇▇ Securities Inc. (the "Agents"), to
which this Administrative Procedure is attached as Annex II. Defined terms used
herein and not defined herein shall have the meanings given such terms in the
Distribution Agreement, the Prospectus as amended or supplemented or the
Indenture.
The procedures to be followed with respect to the settlement of
sales of Securities directly by the Company to purchasers solicited by an Agent,
as agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate
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regarding offers to purchase Securities and the related settlement details.
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates
of interest per annum to be borne by and the maturity of Securities that may be
sold as a result of the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Securities as a Purchasing Agent. The
Company will have the sole right to accept offers to purchase Securities and may
reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Securities. If the Company accepts an offer to purchase Securities, it
will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling Agent
or Purchasing Agent, as the case may be, will communicate the following details
of the terms of such
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offer (the "Sale Information") to the Company by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means:
(1) Principal amount of Securities to be purchased;
(2) If a Fixed Rate Security, the interest rate;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency;
(5) Issue Price;
(6) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date;
(9) If a redeemable Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of the
Redemption Commencement Date;
(10) If a Security repayable at the option of the Holder:
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(i) Repayment Date or Repayment Dates, and
(ii) Repayment Price;
(11) If a Floating Rate Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner; and
(13) Denomination of certificates to be delivered at settlement.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Security, it will
prepare a Pricing Supplement. The Company will supply at least ten copies of
such Pricing Supplement to the Selling Agent or Purchasing Agent, as the case
may be, and one copy to the Trustee not later than 5:00 P.M., New York City
time, on the business day following the date of acceptance of such offer. The
Company will arrange to have ten Pricing Supplements filed with the Commission
not later than the close of business of the Commission on the fifth business day
following the date on which such Pricing Supplement is first used.
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Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Security prior to or together with the earlier of the delivery
to such purchaser or its agent of (a) the confirmation of sale or (b) the
Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by a Purchasing
Agent and accepted by the Company will be settled on a date (the "Settlement
Date") which is the fifth business day after the date of acceptance of such
offer, unless the Company and the purchaser agree to settlement on any other
business day after the acceptance of such offer.
Instruction from Company to Trustee for Preparation of Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Securities no
later than 2:15 P.M., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 3:00 P.M., New York City time,
on the business day prior to the Settlement Date.
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Preparation and Delivery of Securities by Trustee and Receipt of Payment
Therefor:
The Trustee will prepare each Security and appropriate receipts
that will serve as the documentary control of the transaction.
In the case of a sale of Securities to a purchaser solicited by an
Agent, the Trustee will, by 2:15 P.M., New York City time, on the Settlement
Date, deliver the Securities to the Selling Agent for the benefit of the
purchaser of such Securities against delivery by the Selling Agent of a receipt
therefor. On the Settlement Date the Selling Agent will deliver payment for such
Securities by wire transfer to a bank account specified by the Company of
immediately available funds to the Company in an amount equal to the issue price
of the Securities less the Selling Agent's commission; provided that the Selling
Agent reserves the right to withhold payment for which it has not received funds
from the purchaser. The Company shall not use any proceeds advanced by a Selling
Agent to acquire securities.
In the case of a sale of Securities to a Purchasing Agent, the
Trustee will, by 2:15 P.M., New York City time, on the Settlement Date, deliver
the Securities to the Purchasing Agent against delivery of payment for such
Securities by wire transfer to a bank account specified by the Company of
immediately available funds to the Company in an amount equal to the issue price
of the Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment
to the Selling Agent for a Security, the Selling Agent will promptly notify the
Trustee and the Company thereof by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means. The Selling Agent will
immediately return the Security to the Trustee. Immediately upon receipt of such
Security by
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the Trustee, the Company will return to the Selling Agent an amount equal to the
amount previously paid to the Company in respect of such Security. The Company
will reimburse the Selling Agent on an equitable basis for its loss of the use
of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Security in respect of which the failure
occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Security.
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51
ANNEX III
Accountants' Letter
Pursuant to Section 4(j) and Section 6(d), as the case may be, of
the Distribution Agreement, the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data,
pro forma financial information and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the Agents;
(iii) In their opinion, the unaudited selected financial
information with respect to the consolidated results of operations and
financial position of the Company for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference in
Item 6 of the Company's Annual Report on Form 10-K for the most recent
fiscal year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial
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statements for the five such fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(iv) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other information
referred to below, a reading of the latest avail able interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of changes
in financial position included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act as
it applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated statements of
income, consolidated balance sheets and consolidated statements of
changes in financial position included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
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(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon
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54
exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increases in consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated net
current assets or net assets or other items specified by the Agents,
or any increases in any items specified by the Agents, in each case
as compared with amounts shown in the latest balance sheet included
or incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Agents, or any increases in any items specified by
the Agents, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Agents, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not
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55
constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Agents which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Agents or in documents incorporated by
reference in the Prospectus specified by the Agents, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them
to be in agreement.
All references in this Annex III to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement Date
referred to in Section 6(d) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) as of
the date of the amendment, supplement, incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
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