COMMERCIAL PAPER DEALER AGREEMENT
between
DENTSPLY International Inc., as Issuer
and
Credit Suisse First Boston Corporation, as Dealer
Concerning Notes to be issued pursuant to an Issuing
and Paying Agency Agreement dated as of August 12, 1999
between the Issuer and JPMorgan Chase Bank (formerly
The Chase Manhattan Bank), as Issuing and Paying Agent.
Dated as of
April 30, 2002
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COMMERCIAL PAPER DEALER AGREEMENT
This agreement ("Agreement") sets forth the
understandings between the Issuer and the Dealer, each
named on the cover page hereof, in connection with the
issuance and sale by the Issuer of its short-term
promissory notes (the "Note") through the Dealer.
Certain terms used in this Agreement are
defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes
or Exhibits described in this Agreement or such
Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no
obligation to sell the Notes to the Dealer or to permit
the Dealer to arrange any sale of the Notes for the
account of the Issuer, and (ii) the Dealer has and
shall have no obligation to purchase the Notes from the
Issuer or to arrange any sale of the Notes for the
account of the Issuer, the parties hereto agree that in
any case where the Dealer purchases Notes from the
Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the
Dealer in reliance on the representations, warranties,
covenants and agreements of the Issuer contained herein
or made pursuant hereto and on the terms and conditions
and in the manner provided herein.
1.2 So long as this Agreement shall remain in
effect, and in addition to the limitations contained in
Section 1.7 hereof, the Issuer shall not, without the
consent of the Dealer, offer, solicit or accept offers
to purchase, or sell, any Notes, in the United States
except (a) in transactions with one or more dealers
which may from time to time after the date hereof
become dealers with respect to the Notes by executing
with Issuer one or more agreements which contain
provisions substantially identical to those contained
in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice
or (b) in transactions with the other dealers listed on
the Addendum hereto, which are executing or have
executed agreements with the Issuer which contain
provisions substantially identical to Section 1 of this
Agreement. In no event shall the Issuer offer, solicit
or accept offers to purchase, or sell, any Notes
directly on its own behalf in transactions with persons
other than broker-dealers as specifically permitted in
this Section 1.2.
1.3 The Notes shall be in a minimum denomination
of $250,000 or integral multiples of $1,000 in excess
thereof, will bear such interest rates, if interest
bearing, or will be sold at such discount from their
face amounts, as shall be agreed upon by the Dealer and
the Issuer, shall have a maturity not exceeding 365
days from the date of issuance (exclusive of days of
grace) and shall not contain any provision for
extension, renewal or automatic "rollover."
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1.4 The authentication and issuance of, and
payment for, the Notes shall be effected in accordance
with the Issuing and Paying Agency Agreement, and the
Notes shall be either individual physical certificates
or book-entry notes evidenced by a Master Note
registered in the name of DTC or its nominee, in the
form or forms annexed to the Issuing and Paying Agency
Agreement.
1.5 If the Issuer and the Dealer shall agree on
the terms of the purchase of any Note by the Dealer or
the sale of any Note arranged by the Dealer (including,
but not limited to, agreement with respect to the date
of issue, purchase price, principal amount, maturity
and interest rate (in the case of interest-bearing
Notes) or discount thereof (in the case of Notes issued
on a discount basis), and appropriate compensation for
the Dealer's services hereunder) pursuant to this
Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of
the Issuing and Paying Agency Agreement and payment for
such Note shall be made by the purchaser thereof,
either directly or through the Dealer, to the Issuing
and Paying Agent, for the account of the Issuer.
Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall
either fail to accept delivery of or make payment for a
Note on the date fixed for settlement, the Dealer shall
promptly notify the Issuer, and if the Dealer has
theretofore paid the Issuer for the Note, the Issuer
will promptly return such funds to the Dealer against
its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in
the case of a book-entry Note. If such failure
occurred for any reason other than default by the
Dealer, the Issuer shall reimburse the Dealer on an
equitable basis for the Dealer's loss of the use of
such funds for the period such funds were credited to
the Issuer's account.
1.6 The Dealer and the Issuer hereby establish
and agree to observe the following procedures in
connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or
through the Dealer shall be made only to: (i)
investors reasonably believed by the Dealer to be
Qualified Institutional Buyers ("QIBs"),
Institutional Accredited Investors or
Sophisticated Individual Accredited Investors and
(ii) non-bank fiduciaries or agents that will be
purchasing Notes for one or more accounts, each of
which is reasonably believed by the Dealer to be
an Institutional Accredited Investor or
Sophisticated Individual Accredited Investor.
(b) Resales and other transfers of the Notes
by the holders thereof shall be made only in
accordance with the restrictions in the legend
described in clause (e) below.
(c) No general solicitation or general
advertising shall be used in connection with the
offering of the Notes. Without limiting the
generality of the foregoing, without the prior
written approval of the other party, a party shall
not issue any press release or place or publish
any "tombstone" or other advertisement relating to
the Notes.
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(d) No sale of Notes to any one purchaser
shall be for less than $250,000 principal or face
amount, and no Note shall be issued in a smaller
principal or face amount. If the purchaser is a
Non-bank fiduciary acting on behalf of others,
each person for whom such purchaser is acting must
purchase at least $250,000 principal or face
amount of Notes.
(e) Offers and sales of the Notes by the
Issuer through the Dealer acting as agent for the
Issuer shall be made in accordance with Rule 506
under the Securities Act, and shall be subject to
the restrictions described in the legend appearing
on Exhibit A hereto. A legend substantially to
the effect of such Exhibit A shall appear as part
of the Private Placement Memorandum used in
connection with offers and sales of Notes
hereunder, as well as on each individual
certificate representing a Note and each Master
Note representing book-entry Notes offered and
sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have
furnished to each purchaser of Notes for which it
has acted as the Dealer a copy of the then-current
Private Placement Memorandum unless such purchaser
has previously received a copy of the Private
Placement Memorandum as then in effect. The
Private Placement Memorandum shall expressly state
that any person to whom Notes are offered shall
have an opportunity to ask questions of, and
receive publicly available information from, the
Issuer and the Dealer and shall provide the names,
addresses and telephone numbers of the persons
from whom information regarding the Issuer may be
obtained.
(g) The Issuer agrees, for the benefit of
the Dealer and each of the holders and prospective
purchasers from time to time of the Notes that, if
at any time the Issuer shall not be subject to
Section 13 or 15(d) of the Exchange Act, the
Issuer will furnish, upon request and at its
expense, to the Dealer and to holders and
prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with
Rule 144A(d).
(h) In the event that any Note offered or to
be offered by the Dealer would be ineligible for
resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone,
confirmed in writing) of such fact and shall
promptly prepare and deliver to the Dealer an
amendment or supplement to the Private Placement
Memorandum describing the Notes that are
ineligible, the reason for such ineligibility and
any other relevant information relating thereto.
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(i) The Issuer represents that it is not
currently issuing commercial paper in the United
States market in reliance upon the exemption
provided by Section 3(a)(3) of the Securities
Act. However, the Issuer agrees that if the
Issuer were to issue such 3(a)(3) commercial
paper, (a) the proceeds from the sale of the Notes
would be segregated from the proceeds of the sale
of any such commercial paper by being placed in a
separate account; (b) the Issuer would institute
appropriate corporate procedures to ensure that
the offers and sales of notes issued by the Issuer
pursuant to the Section 3(a)(3) exemption would
not be integrated with offerings and sales of
Notes hereunder; and (c) the Issuer would comply
with each of the requirements of Section 3(a)(3)
of the Securities Act in selling commercial paper
or other short-term debt securities other than the
Notes in the United States.
(j) The Issuer hereby agrees that, not later
than 15 days after the first sale of Notes as
contemplated by this Agreement, it will file with
the SEC a notice on Form D in accordance with Rule
503 under the Securities Act and that will
thereafter file such amendments to such notice as
Rule 503 may require.
1.7 The Issuer hereby represents and warrants to
the Dealer, in connection with offers, sales and
resales of Notes, as follows:
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(a) The Issuer hereby confirms to the Dealer
that (except as permitted by Section 1.6(i))
within the preceding six months neither the Issuer
nor any person other than the Dealer or the other
dealers referred to in Section 1.2 hereof acting
on behalf of the Issuer has offered or sold within
the United States any Notes, or any substantially
similar security of the Issuer (including, without
limitation, medium-term notes issued by the
Issuer, but excluding, for the avoidance of doubt,
loan notes issued under the Issuer's revolving
credit facility, Note Purchase Agreement dated
March 1, 2001 as amended September 1, 2001 among
Dentsply International Inc. and the Noteholders
and Note Purchase Agreement dated December 28,
2001 among Dentsply International and the
Noteholders), to, or solicited offers to buy any
such security from , any person other than the
Dealer or the other dealers referred to in Section
1.2 hereof. The Issuer also agrees that (except
as permitted by Section 1.6(i)), as long as the
Notes are being offered for sale by the Dealer and
the other dealers referred to in Section 1.2
hereof as contemplated hereby and until at least
six months after the offer of Notes hereunder has
been terminated, neither the Issuer nor any person
other than the Dealer or the other dealers
referred to in Section 1.2 hereof (except as
contemplated by Section 1.2 hereof) will offer the
Notes or any substantially similar security of the
Issuer for sale to, or solicit offers to buy any
such security from, any person other than the
Dealer or the other dealers referred to in Section
1.2 hereof which could adversely affect the
entitlement of the Notes to the exemption from
registration under the Securities Act pursuant to
Section 4(2) thereof. The Issuer hereby represents
and warrants that it has not taken or omitted to
take, and will not take or omit to take, any
action that would cause the offering and sale of
Notes hereunder to be integrated with any other
offering of securities, whether such offering is
made by the Issuer or some other party or parties.
(b) In the event that the Dealer purchases
Notes as principal and does not resell such Notes
on the day of such purchase, to the extent
necessary to comply with Regulation T and the
interpretations thereunder, the Dealer will sell
such Notes either (i) only to offerees it
reasonably believes to be QIBs or to QIBs it
reasonably believes are acting for other QIBs, in
each case in accordance with Rule 144A or (ii) in
a manner which would not cause a violation of
Regulation T and the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized,
validly existing and in good standing under the laws of
the jurisdiction of its incorporation and has all the
requisite power and authority to execute, deliver and
perform its obligations under the Notes, this Agreement
and the Issuing and Paying Agency Agreement.
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2.2 This Agreement and the Issuing and Paying
Agency Agreement have been duly authorized, executed
and delivered by the Issuer and constitute legal, valid
and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and
subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in
a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when
issued as provided in the Issuing and Paying Agency
Agreement, will be duly and validly issued and will
constitute legal, valid and binding obligations of the
Issuer enforceable against the Issuer in accordance
with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at
law).
2.4 The offer and sale of Notes in the manner
contemplated hereby do not require registration of the
Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2)
thereof and Regulation D thereunder, and no indenture
in respect of the Notes is required to be qualified
under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with
all other unsecured and unsubordinated indebtedness of
the Issuer.
2.6 Except as provided in Section 1.6(j), no
consent or action of, or filing or registration with,
any governmental or public regulatory body or
authority, including the SEC, is required to authorize,
or is otherwise required in connection with the
execution, delivery or performance of, this Agreement,
the Notes or the Issuing and Paying Agency Agreement,
except as may be required by the securities or Blue Sky
Laws of the various states in connection with the offer
and sale of the Notes.
2.7 Neither the execution and delivery of this
Agreement and the Issuing and Paying Agency Agreement,
nor the issuance of the Notes in accordance with the
Issuing and Paying Agency Agreement, nor the
fulfillment of or compliance with the terms and
provisions hereof or thereof by the Issuer, will (i)
result in the creation or imposition of any mortgage,
lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of the Issuer, or
(ii) violate or result in a breach or a default under
any of the terms of the Issuer's charter documents or
by-laws, any contract or instrument to which the Issuer
is a party or by which it or its property is bound, or
any law or regulation, or any order, writ, injunction
or decree of any court or government instrumentality,
to which the Issuer is subject or by which it or its
property is bound, which breach or default might have a
material adverse effect on the condition (financial or
otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the
Issuing and Paying Agency Agreement.
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2.8 Except as disclosed in the Company
Information, there is no litigation or governmental
proceeding pending, or to the knowledge of the Issuer
threatened, against or affecting the Issuer or any of
its subsidiaries which would likely result in a
material adverse change in the condition (financial or
otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the
Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or
an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor
the Company Information contains any untrue statement
of a material fact or omits to state a material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
2.11 Each (a) issuance of Notes by the Issuer
hereunder and (b) amendment or supplement of the
Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the
Dealer, as of the date thereof, that, both before and
after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the
representations and warranties given by the Issuer set
forth above in this Section 2 remain true and correct
on and as of such date as if made on and as of such
date, (ii) in the case of an issuance of Notes, the
Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding
obligations of the Issuer, enforceable against the
Issuer in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as
to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) in the case
of an issuance of Notes, since the date of the most
recent Private Placement Memorandum, there has been no
material adverse change in the condition (financial or
otherwise), or operations of the Issuer which has not
been disclosed to the Dealer in writing.
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice
(but in any event prior to any subsequent issuance of
Notes hereunder) of any amendment to, modification of
or waiver with respect to, the Notes or the Issuing and
Paying Agency Agreement, including a complete copy of
any such amendment, modification or waiver.
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3.2 The Issuer shall, whenever there shall occur
any change in the Issuer's condition (financial or
otherwise), operations or business prospects or any
development or occurrence in relation to the Issuer
that would be material to holders of the Notes or
potential holders of the Notes (including any
downgrading or receipt of any notice of intended or
potential downgrading or any review for potential
change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical
rating organization which has published a rating of
Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the
Dealer (by telephone, confirmed in writing) of such
change, development or occurrence; provided, that the
Issuer shall not be obligated to notify the Dealer of
such change, development or occurrence if such
notification would result in the disclosure of
non-public information in violation of the provisions
of Regulation FD.
3.3 The Issuer shall from time to time furnish to
the Dealer such publicly available information as the
Dealer may reasonably request, including, without
limitation, any press releases or material provided by
the Issuer to any national securities exchange or
rating agency, regarding (i) the Issuer's operations
and financial condition, (ii) the due authorization and
execution of the Notes and (iii) the Issuer's ability
to pay the Notes as they mature.
3.4 The Issuer will take all such action as the
Dealer may reasonably request to ensure that each offer
and each sale of the Notes will comply with any
applicable state Blue Sky laws; provided, however, that
the Issuer shall not be obligated to file any general
consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is
not so qualified or subject itself to taxation in
respect of doing business in any jurisdiction in which
it is not otherwise so subject.
3.5 The Issuer will not be in default of any of
its obligations hereunder, under the Notes or under the
Issuing and Paying Agency Agreement, at any time that
any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder
until the Dealer shall have received (a) an opinion of
counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a
copy of the executed Issuing and Paying Agency
Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer,
satisfactory in form and substance to the Dealer and
certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the
Issuer of this Agreement, the Issuing and Paying Agency
Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby,
(d) prior to the issuance of any Notes represented by a
book-entry note registered in the name of DTC or its
nominee, a copy of the executed Letter of
Representations among the Issuer, the Issuing and
Paying Agent and DTC and (e) such other certificates,
opinions, letters and documents as the Dealer shall
have reasonably requested.
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3.7. As long as any Note is outstanding, the
Issuer shall maintain liquidity facilities in an
available amount at least equal to the amount of
outstanding Notes relative to outstanding Notes on a no
less than one to one ratio. Prior to the first
issuance of Notes through the Dealer, the Issuer shall
deliver to the Dealer copies of the agreements with
respect to such liquidity facilities as then in effect,
and shall deliver to the Dealer copies of any
amendments to such liquidity facilities as shall be
entered into from time to time promptly following the
effectiveness thereof.
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its
contents (other than the Dealer Information) shall be
the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement
expressly offering an opportunity for each prospective
purchaser to ask questions of, and receive answers
from, the Issuer concerning the offering of Notes and
to obtain relevant additional publicly available
information which the Issuer possesses or can acquire
without unreasonable effort or expense.
4.2 The Issuer agrees to promptly furnish the
Dealer the Company Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the
Dealer promptly upon the occurrence of any event
relating to or affecting the Issuer that would cause
the Company Information then in existence to include an
untrue statement of a material fact or to omit to state
a material fact necessary in order to make the
statements contained therein, in light of the
circumstances under which they are made, not
misleading, which notice may include an instruction
from the Issuer to not disclose such information to
holders and prospective holders of Notes as a result of
the Issuer's determination that such disclosure of such
information would violate Regulation FD.
(b) In the event that the Issuer gives the
Dealer notice pursuant to Section 4.3(a) and the Dealer
notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to
supplement or amend the Private Placement Memorandum so
that the Private Placement Memorandum, as amended or
supplemented shall not contain an untrue statement of a
material fact or omit to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading, and the Issuer shall make such
supplement or amendment available to the Dealer;
provided, that the Issuer shall not be obligated to
supplement or amend the Private Placement Memorandum to
the extent that such amendment or supplement would
result in the disclosure of non-public information in
violation of the provisions of Regulation FD.
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(c) In the event that (i) the Issuer gives
the Dealer notice pursuant to Section 4.3(a), (ii) the
Dealer does not notify the Issuer that it is then
holding Notes in inventory and (iii) the Issuer chooses
not to promptly amend or supplement the Private
Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes
shall be suspended until such time as the Issuer has so
amended or supplemented the Private Placement
Memorandum, and made such amendment or supplement
available to the Dealer.
Section 5. Indemnification and Contribution
5.1 The Issuer will indemnify and hold harmless
the Dealer, each individual, corporation, partnership,
trust, association or other entity controlling the
Dealer, any affiliate of the Dealer or any such
controlling entity and their respective directors,
officers, employees, partners, incorporators,
shareholders, servants, trustees and agents
(hereinafter the "Indemnitees") against any and all
liabilities, penalties, suits, causes of action,
losses, damages, claims, costs and expenses (including,
without limitation, fees and disbursements of counsel)
or judgments of whatever kind or nature (each a
"Claim"), imposed upon, incurred by or asserted against
the Indemnitees arising out of or based upon (i) any
allegation that the Private Placement Memorandum, the
Company Information or any information provided by the
Issuer to the Dealer included (as of any relevant time)
or includes an untrue statement of a material fact or
omitted (as of any relevant time) or omits to state any
material fact necessary to make the statements therein,
in light of the circumstances under which they were
made, not misleading or (ii) arising out of or based
upon the breach by the Issuer of any agreement,
covenant or representation made in or pursuant to this
Agreement. This indemnification shall not apply to the
extent that the Claim arises out of or is based upon
Dealer Information.
5.2 Provisions relating to claims made for
indemnification under this Section 5 are set forth on
Exhibit B to this Agreement.
5.3 In order to provide for just and equitable
contribution in circumstances in ;which the
indemnification provided for in this Section 5 is held
to be unavailable or insufficient to hold harmless the
Indemnitees, although applicable in accordance with the
terms of this Section 5, the Issuer shall contribute to
the aggregate costs incurred by the Dealer in
connection with any Claim in the proportion of the
respective economic interests of the Issuer and the
Dealer; provided, however, that such contribution by
the Issuer shall be in an amount such that the
aggregate costs incurred by the Dealer do not exceed
the aggregate of the commissions and fees earned by the
Dealer hereunder with respect to the issue or issues of
Notes to which such Claim relates. The respective
economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes
issued hereunder and the aggregate commissions and fees
earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in
Section 5.1.
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6.2 "Company Information" at any given time shall
mean the Private Placement Memorandum together with, to
the extent applicable, (i) the Issuer's most recent
report on Form 10-K filed with the SEC and each report
on Form 10-Q or 8-K filed by the Issuer with the SEC
since the most recent Form 10-K, (ii) the Issuer's most
recent annual audited financial statements and each
interim financial statement or report prepared
subsequent thereto, if not included in item (i) above,
(iii) the Issuer's and its affiliates' other publicly
available recent reports, including, but not limited to
, any publicly available filing or reports provided to
their respective shareholders, (iv) any other
information or disclosure prepared pursuant to Section
4.3 hereof and (v) any information prepared or approved
by the Issuer for dissemination to investors or
potential investors in the Notes.
6.3 "Dealer Information" shall mean material
concerning the Dealer provided by the Dealer in writing
expressly for inclusion in the Private Placement
Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities
Exchange Act of 1934, as amended.
6.6 "Indemnitee" shall have the meaning set forth
in Section 5.1.
6.7 "Institutional Accredited Investor" shall
mean an institutional investor that is an accredited
investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and
experience in financial and business matters that it is
capable of evaluating and bearing the economic risk of
an investment in the Notes, including, but not limited
to, a bank, as defined in Section 3(a)(2) of the
Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of
the Securities Act, whether acting in its individual or
fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall
mean the issuing and paying agency agreement described
on the cover page of this Agreement, as such agreement
may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the
party designated as such on the cover page of this
Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor
thereto in accordance with the Issuing and Paying
Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a
fiduciary or agent other than (a) a bank, as defined in
Section 3(a)(2) of the Securities Act, or (b) a savings
and loan association, as defined in Section 3(a)(5)(A)
of the Securities Act.
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6.11 "Private Placement Memorandum" shall mean
offering materials prepared in accordance with Section
4 (including materials referred to therein or
incorporated by reference therein) provided to
purchasers and prospective purchasers of the Notes, and
shall include amendments and supplements thereto which
may be prepared from time to time in accordance with
this Agreement (other than any amendment or supplement
that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have
the meaning assigned to that term in Rule 144A under
the Securities Act.
6.13 "Regulation D" shall mean Regulation D (Rules
501 et seq.) under the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the
Securities Act.
6.15 "SEC" shall mean the U.S. Securities and
Exchange Commission.
6.16 "Securities Act" shall mean the U.S.
Securities Act of 1933, as amended.
6.17 "Sophisticated Individual Accredited
Investor" shall mean an individual who (a) is an
accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her
pre-existing relationship with the Dealer, is
reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience
(or represented by a fiduciary or agent possessing such
knowledge and experience) in financial and business
matters that he or she is capable of evaluating and
bearing the economic risk of an investment in the Notes
and (ii) having a net worth of at least $5 million.
Section 7. General.
7.1 Unless otherwise expressly provided herein,
in all notices under this Agreement to parties hereto
shall be in writing and shall be effective when
received at the address of the respective party set
forth in the Addendum to this Agreement.
7.2 This Agreement shall be governed by and
construed in accordance with the laws of the State of
New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or
proceeding brought by the Issuer against the Dealer in
connection with or arising out of this Agreement or the
Notes or the offer and sale of the Notes shall be
brought solely in the United States federal courts
located in the Borough of Manhattan or the courts of
the State of New York located in the Borough of
Manhattan. EACH OF THE DEALER AND THE ISSUER WAIVES
ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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7.4 This Agreement may be terminated, at any
time, by the Issuer, upon one business day's prior
notice to such effect to the Dealer, or by the Dealer
upon one business day's prior notice to such effect to
the Issuer. Any such termination, however, shall not
affect the obligations of the Issuer under Sections
3.7, 5 and 7.3 hereof or the respective
representations, warranties, agreements, covenants,
rights or responsibilities of the parties made or
arising prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either
party hereto without the written consent of the other
party; provided, however, that the Dealer may assign
its rights and obligations under this Agreement to any
affiliate of the Dealer.
7.6 This Agreement may be signed in any number of
counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto
were upon the same instrument.
7.7 This Agreement is for the exclusive benefit
of the parties, hereto, and their respective permitted
successors and assigns hereunder, and shall not be
deemed to give any legal or equitable right, remedy or
claim to any other person whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date and year
first above written.
DENTSPLY INTERNATIONAL INC., as
Issuer
By:
-------------------------------
-------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
CORPORATION, as Dealer
By:
-------------------------------
-------------------------------
Authorized Signatory
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ADDENDUM
The following additional clause shall apply to the
Agreement and be deemed a part thereof:
1. The other dealers referred to in clause (b) of
Section 1.2 of the Agreement are Xxxxxxx, Sachs & Co.
and Credit Suisse First Boston.
2. The addresses of the respective parties for
purposes of notices under Section 7.1 are as follows:
For the Issuer DENTSPLY International
Inc.
Address 000 Xxxx Xxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Treasurer
Telephone number: 000-000-0000
Fax number: 000-000-0000
For the Dealer: Credit Suisse First
Boston Corporation
Address: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short-Term Product Group
Telephone number: (000) 000-0000
Fax number: (000) 000-0000
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FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1993, AS AMENDED (THE "ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAW AND OFFERS AND SALES THEREOF
MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER WILL DEEMED TO
REPRESENT THAT IT HAS BEEN AFFORDED AN OPPORTUNITY TO
INVESTIGATE MATTERS RELATING TO THE ISSUER AND THE
NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW
TO ANY DISTRIBUTION THEREOF AND THAT IT IS EITHER (A)
AN INSTITUTIONAL INVESTOR OR HIGHLY SOPHISTICATED
INDIVIDUAL INVESTOR THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(a) UNDER THE ACT AND
WHICH, IN THE CASE OF AN INDIVIDUAL, (i) POSSESSES SUCH
KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS
MATTERS THAT HE OR SHE IS CAPABLE OF EVALUATING AND
BEARING THE ECONOMIC RISK OF AN INVESTMENT IN THE NOTES
AND (ii) HAS A NET WORTH OF AT LEAST $5 MILLION (AN
"INSTITUTIONAL ACCREDITED INVESTOR" OR "SOPHISTICATED
INDIVIDUAL ACCREDITED INVESTOR", RESPECTIVELY) AND THAT
EITHER IS PURCHASING NOTES FOR ITS OWN ACCOUNT, IS A
U.S. BANK (AS DEFINED IN SECTION 3(a)(2) OF THE ACT) OR
A SAVINGS AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS
DEFINED IN SECTION 3(a)(5)(A) OF THE ACT) ACTING IN ITS
INDIVIDUAL OR FIDUCIARY CAPACITY OR IS A FIDUCIARY OR
AGENT (OTHER THAN A U.S. BANK OR SAVINGS AND LOAN
ASSOCIATION) PURCHASING NOTES FOR ONE OR MORE ACCOUNTS
EACH OF WHICH IS SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR OR SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR (i) WHICH ITSELF POSSESSES SUCH KNOWLEDGE AND
EXPERIENCE OR (ii) WITH RESPECT TO WHICH SUCH PURCHASER
HAS SOLE INVESTMENT DISCRETION; OR (B) A QUALIFIED
INSTITUTIONAL BUYER ("QIB") WITHIN THE MEANING OF RULE
144A UNDER THE ACT WHICH IS ACQUIRING NOTES FOR ITS OWN
ACCOUNT OR FOR ONE OR MORE ACCOUNTS. EACH OF WHICH IS
A QIB AND WITH RESPECT TO EACH OF WHICH THE PURCHASER
HAS SOLE INVESTMENT DISCRETION; AND THE PURCHASER
ACKNOWLEDGES THAT IT IS AWARE THAT THE SELLER MAY RELY
UPON THE EXEMPTION FROM THE REGISTRATION PROVISIONS OF
SECTION 5 OF THE ACT PROVIDED BY RULE 144A. BY ITS
ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF SHALL ALSO
BE DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER
THEREOF WILL BE MADE ONLY (A) IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE ACT, EITHER (1) TO THE
ISSUER OR TO CREDIT SUISSE FIRST BOSTON CORPORATION OR
ANOTHER PERSON DESIGNATED BY THE ISSUER AS A PLACEMENT
AGENT FOR THE NOTES (COLLECTIVELY, THE "PLACEMENT
AGENTS"), NONE OF WHICH SHALL HAVE ANY OBLIGATION TO
ACQUIRE SUCH NOTE, (2) THROUGH A PLACEMENT AGENT TO AN
INSTITUTIONAL ACCREDITED INVESTOR, SOPHISTICATED
INDIVIDUAL ACCREDITED INVESTOR OR A QIB, OR (3) TO A
QIB IN A TRANSACTION THAT MEETS THE REQUIREMENTS OF
RULE 144A AND (B) IN MINIMUM AMOUNTS OF $250,000.
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EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer agrees to reimburse each Indemnitee for
all expenses (including reasonable fees and disbursements of
internal and external counsel) as they are incurred by it in
connection with investigating or defending any loss, claim,
damage, liability or action in respect of which
indemnification may be sought and is required under Section 5
of the Agreement (whether or not it is a party to any such
proceedings), except to the extent that the expenses relate
to a claim which is not, on its face, subject to the coverage
of Section 5.
(b) Promptly after receipt by an Indemnitee of notice
of the existence of a Claim, such Indemnitee will, if a claim
in respect thereof is to be made against the Issuer, notify
the Issuer in writing of the existence thereof; provided that
(i) the omission so to notify the Issuer will not relieve the
Issuer from any liability which it may have hereunder unless
and except to the extent it did not otherwise learn of such
Claim and such failure results in the forfeiture by the
Issuer of substantial rights and defenses, and (ii) the
omission so to notify the Issuer will not relieve it from
liability which it may have to an Indemnitee otherwise than
on account of this indemnity agreement. In case any such
Claim is made against any Indemnitee and it notifies the
Issuer of the existence thereof, the Issuer will be entitled
to participate therein, and the extent that it may elect by
written notice delivered to the Indemnitee , to assume the
defense thereof, with counsel reasonably satisfactory to such
Indemnitee; provided that if the defendants in any such Claim
include both the Indemnitee and the Issuer, and the
Indemnitee shall have concluded that there may be legal
defenses available to it which are different from or
additional to those available to the Issuer, the Issuer shall
not have the right to direct the defense of such Claim on
behalf of such Indemnitee, and the Indemnitee shall have the
right to select separate counsel to assert such legal
defenses on behalf of such Indemnitee. Upon receipt of
notice from the Issuer to such Indemnitee of the Issuer's
election so to assume the defense of such Claim and approval
by the Indemnitee of counsel, the Issuer will not be liable
to such Indemnitee for expenses incurred thereafter by the
Indemnitee in connection with the defense thereof (other than
reasonable costs of investigation) unless (i) the Indemnitee
shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to
the next preceding sentence (it being understood, however,
that the Issuer shall not be liable for the expenses of more
than one separate counsel (in addition to any local counsel
in the jurisdiction in which any Claim is brought), approved
by the Dealer, representing the Indemnitee who is party to
such Claim), (ii) the Issuer shall not have employed counsel
reasonably satisfactory to the Indemnitee to represent the
Indemnitee within a reasonable time after notice of existence
of the Claim or (iii) the Issuer has authorized in writing
the employment of counsel for the Indemnitee. The indemnity,
reimbursement and contribution obligations of the Issuer
hereunder shall be in addition to any other liability the
Issuer may otherwise have to an Indemnitee and shall be
binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of the Issuer and
any Indemnitee. The Issuer agrees that without the Dealer's
prior written consent, it will not settle, compromise or
consent to the entry of any judgment in any Claim in respect
of which indemnification may be sought under the
indemnification provision of the Agreement (whether or not
the Dealer or any other Indemnitee is an actual or potential
party to such Claim).
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