EXHIBIT 1.1
COLGATE-PALMOLIVE COMPANY
Medium-Term Notes Due More Than One Year
from Date of Issue
DISTRIBUTION AGREEMENT
April __, 2000
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LAZARD FRERES & CO. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
X.X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Colgate-Palmolive Company, a Delaware corporation (the "Company"), confirms
its agreement with Chase Securities Inc. ("Chase"), Xxxxxxx, Xxxxx & Co.
("Xxxxxxx Xxxxx"), Xxxxxx Freres & Co. LLC ("Lazard"), Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx & Co."), X.X.
Xxxxxx Securities Inc. ("X.X. Xxxxxx") and Xxxxxxx Xxxxx Xxxxxx Inc.("Xxxxxxx"
and, together with Chase, Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxx Xxxxx & Co. and X.X.
Xxxxxx, the "Agents") with respect to the issue and sale by the Company of its
Medium-Term Notes described herein (the "Notes"). The Notes are to be issued
pursuant to an indenture (as the same may be amended or restated from time to
time, the "Indenture") dated as of November 15, 1992 between the Company and The
Bank of New York. The Bank of New York will act as trustee with respect to the
Notes (the "Trustee").
Notes may be sold by the Company directly or to or through the Agents
pursuant to the terms of this Agreement or to or through such other agent or
agents as may be designated by the Company from time to time pursuant to the
terms of any such other agreement containing substantially the same terms as
this Agreement. The Company may from time to time, pursuant to an Officer's
Certificate delivered to the Trustee pursuant to Section 301 of the Indenture
(with an original copy thereof delivered to the Agents), reduce the authorized
aggregate principal amount of the Notes (but not below the aggregate principal
amount of Notes previously issued under the Indenture) or authorize the issuance
of additional Notes, and such additional Notes may be distributed directly by
the Company or through or to any agents designated by the Company, including the
Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to investors, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and the related Agent or Agents) to one or more Agents as
principal for resale to investors and other purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") one or more registration statements on Form S-3 for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statements have
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"),
and the Company has filed such post-effective amendments thereto as may be
required prior to its acceptance of any offer for the purchase of Notes and each
such post-effective amendment has been declared effective by the Commission. As
used herein, the term "Registration Statement" shall mean the registration
statement or registration statements (as so amended, if applicable) applicable
to a particular offering of Notes; provided that if the Company files any
further registration statements for the purpose of registering additional Notes
included in such offering and in connection with which this Agreement is
included or incorporated by reference as an exhibit, including a registration
statement filed by the Company with the Commission pursuant to Rule 462(b) of
the 1933 Act Regulations (the "Rule 462(b) Registration Statement"), then, after
any such filing, all references to the "Registration Statement" shall also be
deemed to include any such further registration statement. The term "Prospectus"
shall mean any final prospectus constituting a part of any such applicable
registration statement or registration statements, and any prospectus
supplements or pricing supplements relating to an offering of the Notes, in the
form first furnished to the applicable Agent, agent or other purchaser of Notes
for use in confirming sales of Notes; provided, further, that any revised
prospectus that shall be provided to the Agents by the Company for use in
connection with the offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations shall be
included in the term "Prospectus" from and after the time it is first provided
to the Agents for such use. A "preliminary prospectus" shall be deemed to refer
to any
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prospectus used before the Registration Statement became effective and any
prospectus furnished by the Company after the registration statement or
registration statements became effective and before any acceptance by the
Company of an offer for the purchase of Notes which omitted information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations. All references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to any acceptance by the Company of an
offer for the purchase of Notes. For purposes of this Agreement, all references
to the Registration Statement, Prospectus or preliminary prospectus or to any
amendment or supplement thereto shall be deemed to include any copy filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "disclosed," "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include all financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be; and all references in this agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. Appointment as Agents.
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(a) Appointment of Agents. Subject to the terms and conditions stated
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herein and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf, the Company hereby appoints each of the Agents as an
agent of the Company for the purpose of soliciting purchases of the Notes from
the Company by others and agrees that, except as otherwise contemplated herein,
whenever the Company determines to sell Notes directly to one or more Agents as
principal for resale to others, it will enter into a Terms Agreement (as
hereafter defined) relating to each such sale in accordance with the provisions
of Section 3(b) hereof if requested by such Agent.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
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receipt of instructions from the Company, the Agents will use their reasonable
efforts to solicit purchases of such principal amount of Notes as the Company
and the Agents shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, in
whole or in part, and any such rejection shall not be deemed
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a breach of the Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agents; Purchases as Principals. In soliciting
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purchases of the Notes on behalf of the Company, unless otherwise specified
pursuant to the terms hereof, each Agent shall act solely as agent for the
Company and not as principal. Each Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Company. No Agent
shall have any liability to the Company in the event any such purchase is not
consummated for any reason. No Agent shall have any obligation to purchase Notes
from the Company as principal, but may agree from time to time to purchase Notes
as principal. Any such purchase of Notes by an Agent as principal shall be made
pursuant to a Terms Agreement in accordance with Section 3(b) hereof if
requested by such Agent.
(d) Reliance. The Company and the Agents agree that any Notes the
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placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through the Agents as agents or to one or more Agents
as principal), as of the date of each delivery of Notes (whether through the
Agents as agents or to one or more Agents as principal) (the date of each such
delivery to one or more Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in the interest
rates, maturity or price of Notes or similar changes), or there is filed with
the Commission any document incorporated by reference into the Prospectus (other
than any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement other than the Notes) (each of the
times referenced above being referred to herein as a "Representation Date") as
follows:
(i) Registration Statement. The Registration Statement (or any
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Rule 462(b) Registration Statement) in respect of the Notes has been filed with
the Commission; such Registration Statement (or any Rule 462(b) Registration
Statement) and any post-effective amendment thereto, each in the form heretofore
delivered to the Agents (excluding exhibits thereto but including all documents
incorporated by reference in the Prospectus), have been declared effective by
the Commission in such form; and no stop order suspending the effectiveness of
the Registration Statement (or any Rule 462(b) Registration Statement) has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission.
(ii) Prospectus. No order preventing or suspending the use of
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the Prospectus has been issued by the Commission, and the Prospectus, at the
time of filing thereof, conformed in all material respects to the requirements
of the 1933 Act and the 1933 Act Regulations, and did not contain an untrue
statement of a material fact or omit to state a material fact required to
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be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Agents expressly for use therein; and each
preliminary prospectus and the Prospectus delivered to the applicable Agent(s)
for use in connection with the offering of Notes are identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(iii) Incorporated Documents. The documents incorporated by
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reference in the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the 1933 Act or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the 1933 Act or the
1934 Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the Agents
specifically for use therein.
(iv) Compliance. The Registration Statement and the Prospectus
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conform, and any amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
1933 Act, the 1939 Act and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Agents specifically
for use therein.
(v) No Material Changes. Since the respective dates as of
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which information is given in the Registration Statement and the Prospectus,
there has not been any material change in the capital stock or long-term debt of
the Company or any of its Significant Subsidiaries (as defined in Rule 405 under
the 1933 Act) (other than changes arising from funding activities which have not
resulted in any material change in the Company's ownership of such Significant
Subsidiaries or in the long term debt of the Company and its subsidiaries taken
as a whole) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
consolidated financial position or consolidated results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus.
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(vi) Due Incorporation, Good Standing and Due Qualification of
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the Company and Significant Subsidiaries; Authorization of Agreements. The
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Company (A) has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with corporate power
and authority to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company and its subsidiaries
taken as a whole; and each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation and is in good standing
under the laws of its jurisdiction of incorporation, (B) has or, in the case of
the Indenture, had the requisite corporate power and authority to execute and
deliver this Agreement, any Terms Agreement, the Indenture and the Notes and has
the requisite corporate power and authority to perform its obligations hereunder
and thereunder, and (C) has duly authorized, executed and delivered this
Agreement and at the time of the execution of any Terms Agreement will have duly
authorized, executed and delivered such Terms Agreement and this Agreement
constitutes and any such Terms Agreement will constitute the valid and binding
agreement of the Company.
(vii) Capitalization. The Company has an authorized
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capitalization as set forth in the Prospectus.
(viii) Validity of Notes. When the Notes are issued and
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delivered pursuant to this Agreement, such Notes will have been duly authorized,
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture; and the Indenture has been duly authorized by the Company and is
duly qualified under the 1939 Act and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law), and except further as enforcement thereof may be limited by requirements
that a claim with respect to any debt securities issued under the Indenture that
are payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the making of payments
outside the United States; and the Notes and the Indenture will conform in all
material respects to the descriptions thereof in the Prospectus.
(ix) Non-Contravention. The issue and sale of the Notes by the
------------------
Company and the compliance by the Company with all of the provisions of this
Agreement, any Terms Agreement and the Indenture and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, which conflict, breach or default would have a material adverse effect
on the consolidated financial position or consolidated results of operations of
the Company, nor will such action result in any violation of
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the provisions of the Certificate of Incorporation or By-laws of the Company or
any of its subsidiaries 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 subsidiaries or any of their properties, which violation in each case
would have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Notes or
the consummation by the Company of the transactions contemplated by this
Agreement, any Terms Agreement or the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as may be required
under the 1933 Act and the 1939 Act or under state or foreign securities or Blue
Sky laws.
(x) Absence of Proceedings. Other than as set forth or
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contemplated in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject, which are
probable to result in an adverse determination and which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company; and, to the best
of the Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(xi) Accountants. Xxxxxx Xxxxxxxx LLP, who have certified
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certain financial statements of the Company and its consolidated subsidiaries,
are independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(xii) Possession of Intellectual Property. The Company and its
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subsidiaries own or possess, or can acquire on reasonable terms, the patents,
patent rights, licenses, invention, copyrights (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names presently
employed by them in connection with the businesses now operated by them, except
where the failure so to own or possess or have the ability to acquire would not
have a material adverse effect on the consolidated financial position or
consolidated results of operations of the Company, and neither the Company nor
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse effect on the consolidated
financial position or consolidated results of operations of the Company.
(b) Additional Certifications. Any certificate signed by any director
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or officer of the Company and delivered to the Agents or to counsel to the
Agents in connection with an offering of Notes or the sale of Notes to one or
more of the Agents as principal shall be deemed a representation and warranty by
the Company to the Agents as to the matters covered thereby on the date of such
certificate and, to the extent contemplated by such certificate, at each
Representation Date subsequent thereto.
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SECTION 3. Solicitations as Agents; Purchases as Principals.
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(a) Solicitations as Agents. On the basis of the representations and
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warranties herein contained, but subject to the terms and conditions herein set
forth, the Agents agree, when acting as agents of the Company, to use their
reasonable efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, the Agents will forthwith suspend
solicitation of purchases 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, in the form of a
discount or otherwise as agreed to by the Company and the Agents, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto; provided, however, that the Company shall only be obligated to pay one
such fee with respect to any particular Note so sold.
The purchase price, interest rate or formula, maturity date and other
terms of the Notes shall be agreed upon by the Company and the Agents and set
forth in a pricing supplement to the Prospectus to be prepared following each
acceptance by the Company of an offer for the purchase of Notes. Except as may
be otherwise provided in such supplement to the Prospectus, the Notes will be
issued in denominations of $1,000 and integral multiples thereof. All Notes sold
through the Agents as agents will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and the Agents.
(b) Purchases as Principal. Each sale of Notes to one or more Agents as
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principal shall be made in accordance with the terms contained herein and, if
requested by such Agent, pursuant to a separate agreement which will provide for
the sale of such Notes to, and the purchase and reoffering thereof by, such
Agent or Agents. Each such separate agreement (which may be an oral agreement)
between one or more Agents and the Company, is herein referred to as a "Terms
Agreement". Unless the context otherwise requires, each reference contained
herein to "this Agreement" shall be deemed to include any Terms Agreement
between the Company and one or more Agents. Each such Terms Agreement, whether
oral or in writing, shall be with respect to such information (as applicable) as
is specified in Exhibit A hereto. An Agent's commitment to purchase Notes as
principal 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 Notes to be
purchased by each Agent pursuant thereto, the price to be paid to the Company
for such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agents in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. The
Agents may utilize a selling or dealer group in connection with the resale of
the Notes purchased. Such Terms Agreement shall also specify whether or not any
of the
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officer's certificate, opinions of counsel or comfort letter specified in
Sections 7(b), 7(c) and 7(d) hereof shall be required to be delivered by the
Company on the related Settlement Date.
(c) Administrative Procedures. Administrative procedures with respect
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to the sale of Notes shall be agreed upon from time to time by the Agents and
the Company (the "Procedures"). Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
(d) Delivery of Closing Documents. The documents required to be
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delivered by Section 5 hereof shall be delivered at the office of Brown & Wood,
LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the date hereof, or at
such other time or place as the Agents and the Company may agree.
SECTION 4. Covenants of the Company.
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The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will promptly notify (i) the
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Agents of the effectiveness of any amendment to the Registration Statement, (ii)
the related Agent or Agents of the transmittal to the Commission for filing of
any supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (iii) the
Agents of the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) the Agents of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or for additional information, (v) the Agents of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose, and (vi) the Agents of the issuance by the Commission of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for either such purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. Except as otherwise provided in
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subsection (k) of this Section, the Company will give the Agents notice of its
intention to file any additional registration statement with respect to the
registration of additional Notes, any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations) or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for the establishment of or change in, the interest rates,
maturity or price of Notes or other similar changes or an amendment or
supplement which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes and other than an amendment or
supplement arising through incorporation by reference), whether by the filing of
documents pursuant to the 1933 Act or otherwise, and will furnish the Agents
with copies of
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any such amendment or supplement or other documents proposed to be filed a
reasonable time in advance of such proposed filing. In the case of the filing of
any such amendment or supplement or other document filed pursuant to the 1934
Act, the Company will furnish the Agents with copies of such amendment or
supplement or other document within one day of the filing thereof. Following any
such filing pursuant to the 1934 Act, each Agent shall have the right to suspend
solicitation of purchases of the Notes until such time as such Agent shall
reasonably determine that solicitation of purchases should be resumed or such
Agent shall subsequently enter into a new Terms Agreement with the Company, and
any such suspension shall not be deemed a breach of such Agent's agreement
contained herein.
(c) Copies of the Registration Statement and the Prospectus. The
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Company will deliver to the Agents and to counsel for the Agents as many signed
and conformed copies of the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated, or
deemed to be incorporated, by reference therein and documents incorporated by
reference in the Prospectus) as the Agents may reasonably request. The Company
will furnish to the Agents and to counsel for the Agents as many copies of the
Prospectus (as amended or supplemented) (other than an amendment or supplement
which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) as the Agents shall reasonably
request so long as the Agent is required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes. The Registration
Statement and each amendment thereto and the Prospectus and any amendments or
supplements thereto furnished to the Agents will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) Preparation of Pricing Supplements. The Company will prepare, with
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respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
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provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel to the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes the
Agents may then own as principal pursuant to a Terms Agreement, and the Company
will promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act
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or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
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otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing.
(g) Earnings Statements. The Company, by applying the provisions of
--------------------
Rule 158 under the 1933 Act, will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering each twelve month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
------------------------
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(i) 1934 Act Filings. The Company, during the period when the
-----------------
Prospectus is required to be delivered under the 1933 Act will file promptly all
documents required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act. Such documents will comply in all material
respects with the requirements of the 1934 Act and the 1934 Act Regulations and
to the extent such documents are incorporated by reference in the Prospectus,
when read together with the other information in or incorporated by reference
into the Prospectus, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading.
(j) Stand-Off Agreement. Between the date of any Terms Agreement and
--------------------
the Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior written consent of each Agent party to such Terms Agreement,
directly or indirectly, sell, offer to sell, contract to sell or otherwise
dispose of, or announce the offering of, any debt securities denominated in the
same currency as the Notes to be purchased pursuant to such Terms Agreement, or
any security exchangeable into such debt securities (other than the Notes that
are
11
to be sold pursuant to such Terms Agreement and commercial paper in the ordinary
course of business), except as may otherwise be provided in any such Terms
Agreement.
(k) Suspension of Certain Obligations. The Company shall not be
----------------------------------
required to comply with the provisions of subsections (a), (b), (c), (e), (f) or
(i) of this Section or the provisions of Section 7 hereof during any period from
the time (i) the Agents shall have received written notification from the
Company to suspend solicitation of purchases of the Notes in their capacity as
agents and (ii) the earlier of the date on which no Agent shall then hold any
Notes as principal purchased pursuant to a Terms Agreement and the date which is
fifteen days (nine months with respect to subsections (e) and (i) of this
Section) from the date on which the Agents shall have received written notice
from the Company to suspend solicitation of purchases of the Notes, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with the
Agents.
(l) Use of Proceeds. The net proceeds from the sale of Notes will be
----------------
used by the Company as described in the Prospectus.
(m) Termination of Sale in Certain Circumstances. Any person who has
---------------------------------------------
agreed to purchase and pay for any Note pursuant to a solicitation by any of the
Agents shall have the right to refuse to purchase such Note if, subsequent to
the agreement to purchase such Note, any change, condition or development
specified in any of Sections 12(b)(i) through 12(b)(v) hereof shall have
occurred (with the judgment of the Agent which presented the offer to purchase
such Note being substituted for any judgment of a selling Agent required
therein) the effect of which is, in the judgment of the Agent which presented
the offer to purchase such Note, so material and adverse as to make it
impractical or inadvisable to proceed with the sale and delivery of such Note
(it being understood that under no circumstances shall any such Agent have any
duty or obligation to the Company or to any such person to exercise the judgment
to be exercised under this Section 4(m)).
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of the Agents to solicit offers to purchase the Notes
as agents of the Company, the obligations of any purchasers of the Notes sold
through the Agents as agents, and any obligation of the Agents to purchase Notes
as principals pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties in all material respects (to the
extent any such representation or warranty is not otherwise qualified therein)
on the part of the Company herein contained and to the accuracy of the
statements of the Company's officers made in any certificate, to the extent
contemplated by such certificate, furnished pursuant to the provisions hereof,
to the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) Effectiveness of Registration Statement. The Registration Statement
----------------------------------------
(including any Rule 462(b) Registration Statement) has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or shall be pending or threatened by the
Commission, and any request on the part of the Commission for additional
12
information shall have been complied with to the reasonable satisfaction of
counsel to the Agents.
(b) Legal Opinions. On the date hereof, the Agents shall have received
---------------
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents and their counsel:
(1) Opinion of Company Counsel. The opinion of Xxxxxx X.
---------------------------
Xxxxxx, Esq., Senior Vice President, General Counsel
and Secretary of the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus.
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns
or leases real properties, or conducts any business, so as to
require such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole (such counsel
being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that he believes that
both the Agents and he are justified in relying upon such
opinions and certificates).
(iii) Each Significant Subsidiary had been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
and all of the issued shares of capital stock of each such
Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and nonassessable, and (except for
directors' qualifying shares and except as otherwise set forth
in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims.
(iv) The Company has an authorized capitalization as
set forth in the Prospectus.
(v) This Agreement has been duly authorized,
executed and delivered by the Company.
(vi) The issuance and sale of the Notes have been
duly authorized by all necessary corporate action of the
Company. The Notes when duly authenticated by the Trustee and
issued in accordance with the provisions of this Agreement and
the Indenture will be duly executed, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture;
and the Notes and the Indenture conform in all material
respects
13
to the descriptions thereof in the Prospectus as amended or
supplemented under the heading "Description of Debt
Securities" and "Description of Notes".
(vii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding instrument of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at
law); and the Indenture has been duly qualified under the 1939
Act.
(viii) The issue and sale of the Notes by the Company
and the compliance by the Company with all of the provisions
of this Agreement, any Terms Agreement, the Indenture and the
Notes, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel as being material to the Company and its
subsidiaries taken as a whole to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
which conflict, breach or default would have a material
adverse effect on the consolidated financial position or
consolidated results of operations of the Company, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties, which violation in each case would
have a material adverse effect on the consolidated financial
position or consolidated results of operations of the Company.
(ix) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Notes or the consummation by the Company of the
transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as may be
required under the 1933 Act and the 1939 Act and those under
state securities, Blue Sky or foreign laws.
(x) To the best of such counsel's knowledge and other
than as set forth or contemplated in the Prospectus, there are
no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the
subject which are probable to result in an adverse
determination and which, if determined adversely to the
Company or any of its subsidiaries, would have a material
adverse effect on the consolidated financial position or the
annual pre-tax consolidated results of operations of the
Company; and, to the best of such counsel's knowledge, without
14
special inquiry, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(xi) To the best of such counsel's knowledge, all
contracts or other documents of a character required to be
filed as exhibits to the Registration Statement or required to
be incorporated by reference into the Prospectus or described
in the Registration Statement or the Prospectus have been
filed or incorporated by reference or described as required.
(xii) The Registration Statement has been declared
effective under the 1933 Act and, to their knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(xiii) The Registration Statement and the Prospectus,
or any further amendments or supplements thereto made by the
Company prior to the date hereof (other than the financial
statements and related schedules therein and other financial
data or the Statement of Eligibility on Form T-1 of the
Trustee under the Indenture, as to which such counsel need
express no opinion), when the Registration Statement became
effective complied, and as of the date hereof comply, as to
form in all material respects with the requirements of the
1933 Act and the 1939 Act and the rules and regulations of the
Commission thereunder.
(xiv) The information in the Prospectus under the
caption "Description of Notes", "Description of Debt
Securities", and information, if any, in the Prospectus under
the caption "United States Taxation" (or similar caption), to
the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by such counsel or by attorneys under the
supervision of such counsel and is correct in all material
respects.
(xv) The documents incorporated by reference into the
Registration Statement and the Prospectus or any further
amendments or supplements thereto made by the Company prior to
the date hereof (other than the financial statements and
schedules therein and other financial data or the Statement of
Eligibility on Form T-1 of the Trustee under the Indenture, as
to which such counsel need express no opinion), at the time
they were filed, complied, and as of the date hereof comply,
as to form in all material respects with the requirements of
the 1933 Act and the 1934 Act and the rules and regulations of
the Commission thereunder.
In giving such opinion such counsel shall also state that in the course
of his duties as General Counsel of the Company he consults with other
officers of the Company as to ongoing matters, and he or an attorney
under his supervision has reviewed the Registration Statement and the
Prospectus and has participated in the preparation of documents
incorporated by reference therein and, although such counsel has not
made any other specific inquiry for the purpose of rendering this
opinion and is not passing
15
upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus, no facts have come to such
counsel's attention that lead it to believe that the Registration
Statement at the time it became effective, or any further amendment
thereto (including the filing of an Annual Report on Form 10-K with the
Commission), as of its effective date, or (if such opinion is being
delivered in connection with a Terms Agreement pursuant to Section 7(c)
hereof) at the date of any Terms Agreement and at the Settlement Date
with respect thereto, as the case may be, contains or contained an
untrue statement of a material fact or omits or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, or any
further amendment or supplement thereto, as of its date, or (if such
opinion is being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms Agreement and
at the Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact or omitted
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 or that, as of the date hereof, either the Registration
Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to the date hereof contains an 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 (it being understood that
such counsel has not been required to and does not express any comment
with respect to the financial statements and schedules and other
financial data included in the Registration Statement or Prospectus or
the Statement of Eligibility on Form T-1 of the Trustee under the
Indenture).
In giving the opinion required by this Section 5(b)(1), such counsel
shall be entitled to rely upon opinions of local counsel and tax
counsel and, in respect of matters of fact, upon certificates of
officers of the Company or its subsidiaries, provided that such counsel
shall state that he believes that both the Agents and he are justified
in relying upon such opinions and certificates.
(2) Opinion of Counsel to the Agents. The opinion of Brown &
---------------------------------
Wood, LLP ("Brown & Wood") counsel to the Agents, with respect to the
incorporation of the Company, this Agreement, the Notes and the
Indenture, and other related matters as the Agents may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters.
In giving such opinion Brown & Wood shall additionally state that they
do not believe that the Registration Statement, at the time it became
effective, and if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement and prior to the date of such statement, then at the time
such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference in the
Registration Statement and Prospectus), and at the date hereof, or (if
such opinion is being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms Agreement and
at the Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact or omits
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
that the Prospectus, as amended or supplemented at the date hereof, or
(if such opinion is being delivered in connection with a Terms
Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement and at the Settlement Date with respect thereto, as the case
may be, contains or contained an untrue
16
statement of a material fact or omits 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, not misleading. Such
counsel may state that they express no view as to the financial
statements and other financial data included or incorporated by
reference in such Registration Statement or Prospectus.
(c) Officers' Certificate. At the date hereof the Agents shall have
----------------------
received a certificate of the President or any Vice President and the chief
financial, chief accounting officer or treasurer of the Company, dated as of the
date hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any Terms Agreement, there has not been any material adverse change,
or any development involving a prospective material adverse change, in or
affecting the general affairs, consolidated financial position or consolidated
results of operations of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, otherwise
than as set forth or contemplated in the Prospectus, (ii) the other
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate, (iii) the Company has performed or complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and,
to their knowledge, no proceedings for that purpose have been initiated or
threatened by the Commission.
(d) Comfort Letter. On the date hereof, the Agents shall have received
---------------
a letter from Xxxxxx Xxxxxxxx LLP, dated as of the date hereof, in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations;
(ii) In their opinion, the consolidated financial statements
and supporting schedule(s) audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the 1934 Act and the
1934 Act Regulations;
(iii) Based upon limited procedures set forth in detail in
such letter (which shall include, without limitation, the procedures specified
by the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim Financial
Information, with respect to the unaudited consolidated financial statements of
the Company and its subsidiaries, if any, included in the Registration
Statement), nothing has come to their attention which causes them to believe
that:
17
(A) any material modifications should be made to the
unaudited consolidated financial statements, if any, included
in the Registration Statement from them to be in conformity
with generally accepted accounting principles; or
(B) the unaudited consolidated financial statements,
if any, included in the Registration Statement do not comply
as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations;
(C) at a specified date not more than five days prior
to the date of such letter, there was any change in the
capital stock or any increase in the long-term debt of the
Company and its subsidiaries consolidated or any decrease in
consolidated net assets, in each case as compared with amounts
shown in the most recent consolidated balance sheet
incorporated by reference in the Registration Statement,
except in each case for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have
occurred or may occur; or
(D) for the period from the date of the most recent
financial statements incorporated by reference in the
Registration Statement to a specified date not more than five
days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues or net earnings,
except in each case for increases or decreases which the
Registration Statement and the Prospectus disclose have
occurred or may occur;
(iv) In addition to the examination referred to in their
report incorporated by reference in the Registration Statement and the
Prospectus, they have carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in the Registration Statement and the
Prospectus and which are specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
(e) Other Documents. On the date hereof and on each Settlement Date
----------------
with respect to any Terms Agreement, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as therein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be reasonably satisfactory in form and
substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agents, any Terms Agreement) may be terminated by the Agents by
notice to the Company at any time and any such termination shall be without
liability of any party to any other party, except that the covenant regarding
provision of an earnings statement set forth in Section 4(g) hereof, the
provisions concerning
18
payment of expenses under Section 10 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery set forth in
Section 11 hereof and the provisions set forth under "Parties" of Section 15
hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents. Delivery
----------------------------------------------------------
of Notes sold through an Agent as agent shall be made by the Company to such
Agent for the account of any purchaser only against payment therefor in
immediately available funds. In the event that a purchaser shall fail either to
accept delivery of or to make payment for a Note on the date fixed for
settlement, the Agent shall promptly notify the Company and deliver the Note to
the Company, and, if the Agent has theretofore paid the Company for such Note,
the Company will promptly return such funds to the Agent. If such failure
occurred for any reason other than default by the Agent in the performance of
its obligations hereunder, the Company will reimburse such Agent on an equitable
basis for its reasonable loss of the use of the funds for the period such funds
were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
------------------------------------------------
the Company of an offer for the purchase of Notes, and each delivery of Notes to
one or more Agents pursuant to a Terms Agreement, shall be deemed to be an
affirmation that the representations and warranties of the Company contained in
this Agreement and in any certificate theretofore delivered to the Agents
pursuant hereto, to the extent contemplated by such certificate, are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or its agent, or to the Agent or Agents,
of the Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Subject to the provisions of
------------------------------------
Section 4(k) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a supplement providing solely
for the establishment of the interest rates, maturity or price of Notes or
similar terms, and other than by an amendment or supplement which relates
exclusively to an offering of debt securities under the Registration Statement
other than the Notes), or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities under the
Registration Statement other than the Notes) or (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to one or more Agents
pursuant to a Terms Agreement, if requested by the Agents or counsel to the
Agents, the Company shall furnish or cause to be furnished to the Agents
forthwith a certificate dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form reasonably satisfactory to the Agents
to the effect that the statements contained in the certificate referred to in
Section 5(c) hereof which were last furnished to the Agents are true and correct
at the time of such amendment,
19
supplement, filing or sale, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(c), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate; provided, however, that if the Company
shall determine that it does not intend to be in the market for up to three
months after the date of filing of any such amendment or supplement, the Company
may deliver to the Agents a notice to such effect, in which event the request of
the Agents received by the Company with respect to such amendment or supplement
shall be deemed withdrawn until such time as the Company notifies the Agents
that it wishes to re-enter the market.
(c) Subsequent Delivery of Legal Opinions. Subject to the provisions
--------------------------------------
of Section 4(k) hereof, each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a supplement
providing solely for the establishment of the interest rates, maturity or price
of the Notes or similar terms or solely for the inclusion of additional
financial information, and other than by an amendment or supplement which
relates exclusively to an offering of debt securities under the Registration
Statement other than the Notes) or there is filed with the Commission any
document incorporated by reference into the Prospectus (other than any Current
Report on Form 8-K) or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to one or more Agents pursuant to a Terms Agreement, if
requested by the Agents or counsel to the Agents, the Company shall furnish or
cause to be furnished forthwith to the Agents and to counsel to the Agents a
written opinion of the General Counsel of the Company or other counsel selected
by the Company and reasonably satisfactory to the Agents dated the date of
filing with the Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form reasonably satisfactory to the Agents, of substantially the same tenor
as the opinion referred to in Section 5(b)(1) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agents with a letter substantially to the effect that the Agents may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance);
provided, however, that if the Company shall determine that it does not intend
to be in the market for up to three months after the date of filing of any such
amendment or supplement, the Company may deliver to the Agents a notice to such
effect, in which event the request of the Agents received by the Company with
respect to such amendment or supplement shall be deemed withdrawn until such
time as the Company notifies the Agents that it wishes to re-enter the market.
(d) Subsequent Delivery of Comfort Letters. Subject to the provisions
---------------------------------------
of Section 4(k) hereof, each time that (i) the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information (other than by an amendment or supplement relating solely to the
issuance and/or offering of securities other than the Notes) or (ii) (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
one or more Agents as principal pursuant to a Terms Agreement, the Company shall
cause Xxxxxx Xxxxxxxx LLP, or other independent certified public accountants
reasonably satisfactory to the
20
Agents, forthwith to furnish to the Agents a letter, dated the date of filing
with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
reasonably satisfactory to the Agents, of substantially the same tenor as the
letter referred to in Section 5(d) hereof, but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such letter, and with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company; provided, however, that the portions of the letter referred to
in Section 5(d)(iv) hereof shall, unless otherwise requested by the Agents, only
be provided in subsequent letters delivered in connection with the Company's
filing of its Annual Report on Form 10-K.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify
------------------------------
severally and hold harmless each Agent and each person, if any, who controls
each Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred (to the extent the party seeking such
indemnity is currently required to make a payment in respect of which
such indemnity is sought), arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all reasonable expense whatsoever, as
incurred (including the reasonable fees and disbursements of counsel
chosen by an Agent), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
21
furnished to the Company by the Agents expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company. Each Agent severally agrees to
---------------------------
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred (to the extent the party seeking
such indemnity is currently required to make a payment in respect of which such
indemnity is sought), but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to each
--------
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified party
by retaining counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) Foreign Currency Judgments. The Company agrees to indemnify the
---------------------------
Agents against any loss incurred by the Agents as a result of any judgment or
order being given or made for the amount due under this Agreement and such
judgment or order being paid in a currency (a "Judgment Currency") other than
U.S. dollars as a result of any variation between (i) the rate of exchange at
which U.S. dollars are converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the rate of exchange at which the applicable
Agent is able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such Agent. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of, or conversion into, the relevant currency.
22
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 hereof is unavailable
or insufficient to hold harmless an indemnified party thereunder, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in Section 8 in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Notes and also to reflect the relative fault of
the Company on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and each Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of Notes by such Agent (before deducting expenses) received by the
Company bears to the total underwriting discounts and commissions received by
such Agent. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or an Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this Section 9 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this Section 9. Notwithstanding the
provisions of this Section 9, an Agent shall not be required to contribute any
amount in excess of the amount by which the total price at which the Notes sold
by such Agent and distributed to the public exceeds the amount of any damages
which such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Agent within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as an Agent, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement
and all amendments thereto and any preliminary prospectus, the
Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
23
(d) The reasonable fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel and of any
Calculation Agent;
(e) The reasonable fees and disbursements of one counsel to
the Agents incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state securities laws
in accordance with the provisions of Section 4(h) hereof, including
filing fees, and the reasonable fees and disbursements of counsel to
the Agents in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, any preliminary prospectus and of the Prospectus
and any amendments or supplements thereto;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies, as reasonably requested, of the Indenture and all
supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The filing fees, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of such expense by the Company;
(l) The cost of preparing and providing any CUSIP or other
identification numbers for the Notes; and
(m) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery. All
---------------------------------------------------------------
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto or thereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Agents or any controlling person of
the Agents, or by or on behalf of the Company, and shall survive each delivery
of and payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
------------------------------
Agreement) may be terminated for any reason, at any time by either the Company
or the Agents on the giving of 15 days' written notice of such termination to
the other party hereto; provided, however, that the termination of this
Agreement by an Agent shall terminate this Agreement only between such Agent and
the Company and the Company's notice of termination as to any one Agent shall
terminate this Agreement only between itself and such Agent.
24
(b) Termination of a Terms Agreement. The Agent or Agents party to a
---------------------------------
Terms Agreement may terminate any Terms Agreement, immediately upon notice to
the Company, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
consolidated financial position or consolidated results of operations of the
Company, whether or not arising in the ordinary course of business, or (ii) if
there shall have occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Agent or Agents
party to such Terms Agreement (after consultation with the Company),
impracticable to market the Notes subject to such Terms Agreement or enforce
contracts for the sale of such Notes, or (iii) if trading in any securities of
the Company has been suspended by the Commission or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended other than a temporary
suspension in trading (not to exceed two hours) to provide for an orderly
market, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by federal or New York authorities
or if a banking moratorium shall have been declared by the relevant authorities
in the country or countries of origin of any foreign currency or currencies in
which the Notes subject to such Terms Agreement are denominated and/or payable,
or (iv) if the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of any Terms
Agreement shall have been lowered since that date or if any such rating agency
shall have publicly announced since that date that it has placed any debt
securities of the Company on what is commonly termed a "watch list" for possible
downgrading, or (v) if the Prospectus, at the time it was required to be
delivered to a purchaser of Notes subject to such Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, no party will have
--------
any liability to any other party hereto, except that (i) each Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) the Agents shall own
any Notes purchased pursuant to a Terms Agreement with the intention of
reselling them or (b) an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of the Note
or Notes relating thereto has not occurred, the obligations set forth in Section
5 hereof and the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be
(provided, however, that, except as provided in clause (iii) below, the
Company's obligations pursuant to Sections 4 and 7 hereof shall in any event
terminate no later than the date that is fifteen days (nine months with respect
to subsections (e) and (i) of Section 4 hereof) after the time of such
termination), and (iii) the covenant set forth in Section 4(g) hereof, the
indemnity and contribution agreements set forth in Sections 8 and 9 hereof, and
the provisions of Sections 10, 11 and 15 hereof shall remain in effect.
25
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, by telecopier or by telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company:
Colgate-Palmolive Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
If to Chase:
Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Medium-Term Note Desk
Telecopy: (000) 000-0000
If to Xxxxxxx Xxxxx:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Credit Department
Telecopy: (000) 000-0000
If to Lazard:
Lazard Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Telecopy: (000) 000-0000
If to Xxxxxxx Xxxxx & Co.:
26
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (000) 000-0000
If to X.X. Xxxxxx:
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transactioin Execution Group 5th Floor
Telecopy: (000) 000-0000
If to Xxxxxxx:
Xxxxxxx Xxxxx Xxxxxx Inc.
Medium-Term Note Department
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
-------------
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons, officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
------------
This Agreement may be executed in several counterparts, each of which
shall be deemed an original hereof.
27
SECTION 17. Captions.
--------
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or the provisions hereof.
SECTION 18. Additional Agents.
-----------------
Notwithstanding anything contrary contained in this Agreement, the
Company may from time to time appoint one or more additional agents (each, an
"Additional Agent" and collectively, the "Additional Agents") in accordance with
the following provisions:
(a) Appointment of Agent. The Company may appoint an
---------------------
Additional Agent or Agents, to act as an agent pursuant to the terms and
conditions set forth in this Agreement, provided that (i) such Additional Agent
shall deliver to the Company a letter substantially in the form of Exhibit B-1
hereto, and (ii) the Company shall have delivered to such Additional Agent a
letter substantially in the form of Exhibit C-1 hereto.
(b) Notice of Appointment of Additional Agents. The Company
-------------------------------------------
shall promptly notify the Agents of any such appointment pursuant to subsection
(a) of this Section 18 by supplying to such parties a copy of the applicable
letter or letters.
(c) Effect of Appointment. Upon satisfaction by the Company
----------------------
and any Additional Agent of the provisions of subsections 18(a) and (b) of this
Section 18, such Additional Agent shall be deemed to be an Agent hereunder and
all references to "Agent" in this Agreement shall be deemed to include such
additional Agent from and after the date such provisions are satisfied and such
appointment is effective.
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:
------------------------
Name:
Title:
Accepted:
CHASE SECURITIES INC.
By:
----------------------------
Name:
Title:
28
XXXXXXX, XXXXX & CO.
By:
--------------------------------
(Xxxxxxx, Xxxxx & Co.)
LAZARD FRERES & CO. LLC
By:
--------------------------------
Name:
Title:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By:
---------------------------------
Name:
Title:
XXXXXXX XXXXX XXXXXX INC.
By:
--------------------------------
Authorized Signatory
29
Exhibit A
The following terms, if applicable, shall be agreed to by the Agents
and the Company pursuant to each Terms Agreement:
Principal Amount: $
------
(or principal amount of foreign or composite currency)
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Original Issue Date:
Trade Date:
Issue Price: %
---
Agent's Discount or Commission:
Settlement Date and Time:
Interest Rate or Formula:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[ ] 30/360 for the period from to .
------- --------
[ ] Actual/360 for the period from to .
------- --------
[ ] Actual/Actual for the period from to .
------- --------
If Floating Rate Note:
Interest Calculation:
[ ] Regular Floating Rate Note
[ ] Floating Rate/Fixed Rate Note
Fixed Rate Commencement Date:
Fixed Interest Rate:
[ ] Inverse Floating Rate Note
Fixed Interest Rate:
Interest Rate Basis(es):
If LIBOR,
__ LIBOR Reuters Page:
__ LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
__ Weekly Average
__ Monthly Average
Designated CMT Maturity Index:
30
Initial Interest Rate:, if any:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
[ ] 30/360 for the period from to .
------ ------
[ ] Actual/360 for the period from to .
------- --------
[ ] Actual/Actual for the period from to .
------- ------
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction, if any:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
o Officers' Certificate pursuant to Section 7(b) of the Distribution Agreement.
o Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
o Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
o Stand-off Agreement pursuant to Section 4(j) of the Distribution Agreement.
o Legal Opinion of counsel to the Agents pursuant to Section 5(b)(2) of the
Distribution Agreement.
31
SCHEDULE A
As compensation for the services of the Agents hereunder, the
Company shall pay the applicable Agent, on a discount basis, a commission for
the sale of each Note by such Agent equal to the principal amount of such Note
multiplied by the appropriate percentage set forth below:
Maturity Ranges Percent of Principal Amount
---------------------------
From 1 year to less than 18 months......................... .150
From 18 months to less than 2 years........................ .200
From 2 years to less than 3 years.......................... .250
From 3 years to less than 4 years.......................... .350
From 4 years to less than 5 years.......................... .450
From 5 years to less than 6 years.......................... .500
From 6 years to less than 7 years.......................... .550
From 7 years to less than 10 years......................... .600
From 10 years to less than 15 years........................ .625
From 15 years to less than 20 years........................ .700
From 20 years to 30 years.................................. .750
Beyond 30 years............................................To be negotiated
32
EXHIBIT B-1
FORM OF LETTER APPOINTING ADDITIONAL AGENT - PROGRAM
----------------------------------------------------
[ ], 2000
To: Colgate-Palmolive Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Re: Medium-Term Notes of Colgate-Palmolive
Company (the "Company")
---------------------------------------
Dear Sirs:
We refer to Section 18(a) of the Distribution Agreement dated April __,
2000 entered into with respect to the distribution of the Company's Medium-Term
Notes (the "Notes"), and made between the Company and the Agents party thereto
(which agreement, as amended from time to time, is herein referred to as the
"Distribution Agreement").
Conditions Precedent
--------------------
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Distribution Agreement;
(ii) copies of such documents referenced in the
Distribution Agreement as we have
reasonably requested; and
(iii) side letters in a form approved by us from
the legal counsel referred to in Section
5(b)(1) and 5(b)(2), if required, of the
Distribution Agreement addressed to us and
giving us the full benefit of the existing
legal opinions.
For the purposes of Section 13 of the Distribution Agreement, our name,
address, telephone and telecopy number for the service of notices are as
follows:
[insert name, address, telecopy number and attention]
In consideration of the Company appointing us as an Agent under the
Distribution Agreement, we hereby undertake, for the benefit of the Company and
each of the other Agents, that we will perform and comply with all the duties
and obligations expressed to be assumed by an Agent under the Distribution
Agreement.
33
This letter is governed by, and shall be construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed wholly within such State.
Very truly yours,
[NAME OF NEW AGENT]
By:
Name:
Title:
34
EXHIBIT C-1
FORM OF COMPANY LETTER
----------------------
[ ], 2000
To: [NAME AND ADDRESS OF NEW AGENT]
Re: Medium-Term Notes of Colgate-Palmolive
Company (the "Company")
Dear Sirs:
We refer to the Distribution Agreement dated April __, 2000 (such
agreement, as amended from time to time, the "Distribution Agreement") entered
into with respect to the distribution of the Company's Medium Term Notes (the
"Notes") and hereby acknowledge receipt of your letter to us dated .
In accordance with Section 18(a) of the Distribution Agreement, we
hereby confirm that, with effect from the date hereof, you shall become a party
to the Distribution Agreement, vested with all the authority, rights, powers,
duties and obligations of an Agent as if originally named as an Agent under the
Distribution Agreement.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:
Name:
Title:
cc: [Other Agents party to the
Distribution Agreement]
35
