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EXHIBIT 1.2
COMPAQ COMPUTER CORPORATION
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
February 14, 2001
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XXX-000-00-00
Xxxxxxxxx, XX 00000
Banc One Capital Markets, Inc.
0 Xxxx Xxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, XX 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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Xxxxxx Brothers Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Compaq Computer Corporation, a Delaware corporation (the "Company"),
confirms its agreement (this "Agreement") with Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Banc of America Securities LLC, Banc One Capital Markets,
Inc., Credit Suisse First Boston Corporation, Xxxxxx Brothers Inc., Chase
Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Xxxxx Xxxxxx Inc.
(each, an "Agent", and collectively, the "Agents") with respect to the issue and
sale by the Company of its Medium-Term Notes Due Nine Months or More From Date
of Issue (the "Notes"). The Notes are to be issued pursuant to an Indenture,
dated as of May 2, 2000, as amended or modified from time to time (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee"). As of the date hereof, the Company has authorized the issuance and
sale of up to U.S. $1,425,000,000 aggregate initial offering price of Notes (or
its equivalent, based upon the exchange rate on the applicable trade date in
such foreign or composite currencies as the Company shall designate at the time
of issuance) to or through the Agents pursuant to the terms of this Agreement.
It is understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the applicable Agent), in which case the
applicable Agent will act as an agent of the Company in soliciting offers for
the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-36750) 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
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regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement has 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. Such registration statement (as so amended, if
applicable) is referred to herein as the "Registration Statement"; and the final
prospectus and all applicable amendments or supplements thereto (including the
final prospectus supplement and pricing supplement relating to the offering of
Notes but excluding any prospectus supplement which does not relate to the
Notes), in the form first furnished to the applicable Agent(s) for use in
confirming sales of Notes, are collectively referred to herein as the
"Prospectus"; provided, however, that 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; provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. A "preliminary prospectus" shall
be deemed to refer to any prospectus used before the Registration Statement
became effective and any prospectus furnished by the Company after the
registration statement 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. 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 such 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 Agent.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold exclusively to
or through the Agents; provided, however, that after notice to each Agent, the
Company may appoint an additional agent who shall become an Agent, as defined
herein, upon becoming a party to this Agreement.
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(b) Sale of Notes. The Company shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally, each offer for the purchase of Notes
solicited by it on an agency basis other than those offers rejected by such
Agent. Such Agent shall have the right, in its discretion reasonably exercised,
to reject any offer for the purchase of Notes, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. The
Company may accept or reject any offer for the purchase of Notes, in whole or in
part. Such Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer for the purchase of Notes
has been solicited by it on an agency basis and accepted by the Company. Such
Agent shall not have any liability to the Company in the event that any such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer has been solicited by
such Agent on an agency basis and accepted by the Company, the Company shall
hold such Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company.
(e) Reliance. The Company and the Agents agree that any Notes purchased
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, 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.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
such Agent as principal is referred to herein as a "Settlement Date"), and as of
any
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time that the Registration Statement or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
(i) Due Incorporation, Good Standing and Due
Qualification of the Company. The Company has been duly organized 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, lease
and operate its properties and to conduct its business as described in
the Prospectus and to enter into this Agreement and consummate the
transactions contemplated in the Prospectus. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"). All of the issued and outstanding shares of
capital stock of the Company have been duly authorized and are validly
issued, fully paid and non-assessable.
(ii) Due Incorporation, Good Standing and Due
Qualification of Compaq Financial Services Corporation. Compaq
Financial Services Corporation has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect. All of the issued and outstanding
shares of capital stock of Compaq Financial Services Corporation have
been duly authorized and are validly issued, fully paid and
non-assessable and are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim.
As of December 31, 2000, except for Compaq Financial Services
Corporation, there is no subsidiary of the Company that has
non-intercompany assets with an aggregate book value exceeding 10% of
the Company's Consolidated Tangible Net Worth as defined in Exhibit D
hereto.
(iii) Registration Statement and Prospectus. The
Company meets the requirements for use of Form S-3 under the 1933 Act;
the Registration Statement (or any Rule 462(b) Registration Statement)
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement (or any Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission. The
Indenture has been duly qualified under the 1939 Act. At the respective
times that the Registration Statement (including any Rule 462(b)
Registration Statement) and any post-effective amendment thereto
(including the filing of
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the Company's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")) became effective and at
each Representation Date, the Registration Statement (including any
Rule 462(b) Registration Statement) and any amendments thereto complied
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules
and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not 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 not misleading.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations.
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; and at the date hereof, at the date of the
Prospectus and each amendment or supplement thereto and at each
Representation Date, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Agent
expressly for use in the Registration Statement or the Prospectus, or
that part of the Registration Statement that constitutes the Statement
of Eligibility under the 1939 Act.
(iv) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations") and, when
read together with the other information in the Prospectus, at the date
hereof, at the date of the Prospectus and at each Representation Date,
did not and will not include an untrue statement of a material fact or
omit 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.
(v) Independent Accountants. The accountants who
certified the financial statements and any supporting schedules thereto
included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(vi) Financial Statements. The consolidated financial
statements of the Company included in the Registration Statement and
the Prospectus, together with the related schedules and notes present
fairly the consolidated financial position of the Company and its
subsidiaries at the dates indicated and the consolidated statement of
operations, stockholders' equity and cash flows of the Company and its
subsidiaries, for
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the periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved, and The
supporting schedules, if any, included in the Registration Statement
and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein The selected financial data
and the summary financial information included in the Registration
Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement and
the Prospectus Any pro forma consolidated financial statements of the
Company and its subsidiaries and the related notes thereto included in
the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(vii) No Material Changes. Since the date of the last
report by the Company on Form 10-K, except as otherwise stated therein
or disclosed on a subsequently filed Form 10-Q or Form 8-K (exclusive
of any amendments or supplements thereto subsequent to the date of this
Agreement), there has not been a Material Adverse Effect.
(viii) Authorization, etc. of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company; the Indenture has been duly
authorized, executed and delivered by the Company and will be a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by 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. The Notes have been duly authorized by the Company for offer,
sale, issuance and delivery pursuant to this Agreement and, when
issued, authenticated and delivered in the manner provided for in the
Indenture and delivered against payment of the consideration therefor,
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by 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
Notes payable in a foreign or composite currency (or a foreign or
composite
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currency judgment in respect of such claim) be converted into U.S.
dollars at a rate or 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. The Notes
will be substantially in a form previously certified to the Agents and
contemplated by the Indenture. Each holder of Notes will be entitled to
the benefits of the Indenture.
(ix) Descriptions of the Indenture and the Notes. The
Indenture and the Notes conform and will conform in all material
respects to the statements relating thereto contained in the Prospectus
and are substantially in the form filed or incorporated by reference,
as the case may be, as an exhibit to the Registration Statement.
(x) Absence of Defaults and Conflicts. The execution
and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Indenture and the Notes will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any Significant Subsidiary that
is material to the Company and its subsidiaries, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Significant Subsidiary, and
no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture or the
Notes, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Securities. Neither the Company nor Compaq Financial Services
Corporation is in violation of the provisions of their charters or
by-laws. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Notes will not, whether with or without the
giving of notice or the passage of time or both, conflict with or
constitute a breach of, or default under any material contract or any
note or agreement relating to indebtedness for borrowed money.
(xi) Absence of Proceedings. There is no action,
suit, proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now pending,
or to the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed in
the Registration Statement and the Prospectus (other than as stated
therein).
(xii) Investment Company Act. The Company is not, and
upon the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) Ratings. The Medium-Term Note Program under
which the Notes are issued (the "Program"), as well as the Notes, are
rated at least Baa2 by Xxxxx'x Investors Service, Inc. and BBB by
Standard & Poor's Ratings Services, or such other
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rating as to which the Company shall have most recently notified the
Agents pursuant to Section 4(a) hereof.
(xiv) Possession of Intellectual Property. The Company owns,
possesses, or has the right to use, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights, and
know-how necessary to carry on its business as now operated by it.
(xv) Commodity Exchange Act. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules
and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act.
(b) Additional Certifications. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Notes purchased from the Company by the
Agents, individually or in a syndicate, as principal shall be purchased in
accordance with terms agreed upon between such Agent or Agents and the Company
(which terms, unless otherwise agreed, shall, to the extent applicable, include
those terms specified in Exhibit A hereto and shall be agreed upon orally, with
written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each purchase of Notes from
the Company by one or more Agents as principal, such Agent or Agents shall
specify the requirements for the officers' certificate, opinion of counsel and
comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof.
If the Company and two or more Agents enter into an agreement pursuant
to which such Agents agree to purchase Notes from the Company as principal and
one or more of such Agents shall fail at the Settlement Date to purchase the
Notes which it or they are obligated to purchase (the "Defaulted Notes"), then
the nondefaulting Agents shall have the right, within 24 hours thereafter, to
make arrangements for one of them or one or more other Agents or underwriters to
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purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(a) if the aggregate principal amount of Defaulted Notes does
not exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents; or
(b) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default which
does not result in a termination of such agreement, either the nondefaulting
Agents or the Company shall have the right to postpone the Settlement Date for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or
arrangements.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers for the purchase of
Notes upon the terms set forth in the Prospectus. The Agents are not authorized
to appoint sub-agents with respect to Notes sold through them as agent. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Company, such Agent
will suspend solicitation of offers for the purchase of Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, 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 an
agent of the Company, as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
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each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the issuance and sale of the Notes (the "Procedures")
shall be substantially in the form of the guidelines set forth in Exhibit E
hereto. The Agents and the Company agree to perform, and the Company agrees to
use its commercially reasonable best efforts to cause the Trustee to perform,
their respective duties and obligations specifically provided to be performed by
them in the Procedures. Exhibit E may only be amended by written agreement of
all the parties hereto.
SECTION 4. Covenants of the Company.
The Company covenants and agrees with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
promptly, and confirm such notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
amendment or supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the variable terms
of the Notes or relating solely to the offering of securities other than the
Notes), (ii) the receipt of any comments from the Commission relating to the
Registration Statement, Prospectus or any amendment or supplement to the
Prospectus, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, or of any order
preventing or suspending the use of any preliminary prospectus, or of the
initiation of any proceedings for that purpose or (v) any change in the rating
assigned by any nationally recognized statistical rating organization to the
Program or any debt securities (including the Notes) of the Company, or the
public announcement by any nationally recognized statistical rating organization
that it has under surveillance or review, with possible negative implications,
its rating of the Program or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities. 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) Filing or Use of Amendments. The Company will give the Agents
advance notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus
(other than an amendment or supplement thereto providing solely for the
determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes or an amendment effected by the
filing of a document incorporated by reference into the Registration Statement
in the Prospectus), whether pursuant to the 1933 Act, the 1934 Act or otherwise,
which relates to the Notes and will furnish to the Agents copies of any such
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such document to which the Agents or
counsel for the Agents shall reasonably object.
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(c) Delivery of the Registration Statement. The Company has made
available to each Agent and to counsel for the Agents, without charge, conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and copies of all consents and certificates of experts. The Registration
Statement and each amendment 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) Delivery of the Prospectus. The Company will deliver to each Agent,
without charge, as many copies of each preliminary prospectus as such Agent may
reasonably request, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each Agent,
without charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request. 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.
(e) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents. The Company will deliver such Pricing
Supplement no later than 12:00 p.m., New York City time, on the business day
following the date of the Company's acceptance of the offer for the purchase of
such Notes 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.
(f) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Company, to amend the Registration Statement in order that the Registration
Statement 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 not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a 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
opinion of either such counsel, to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers for the
purchase of Notes in their capacity as agents and to cease sales of any Notes
they may then own as principal, and the Company will promptly prepare and file
with the Commission, subject to Section 4(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement and Prospectus comply with such requirements, and the
Company will furnish to the Agents, without charge, such number of copies of
such amendment or supplement as the Agents may reasonably request. In addition,
the
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Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the distribution
of each offering of Notes.
(g) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, within twenty-four hours
of a release 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, and shall
cause the Prospectus to be amended or supplemented to include financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be required by the 1933 Act or the 1933
Act Regulations. All information required to be delivered pursuant to this
paragraph (g) shall be deemed delivered upon the filing of the information with
the SEC.
(h) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, within twenty-four hours
of a release to the general public financial information included in or derived
from the audited consolidated financial statements of the Company for the
preceding fiscal year, the Company shall furnish such information to the Agents,
and thereafter it shall cause the Prospectus to be amended or supplemented to
include such audited consolidated financial statements and the report or
reports, and consent or consents to such inclusion, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be required by the 1933 Act or the 1933 Act Regulations.
All information required to be delivered pursuant to this paragraph (h) shall be
deemed delivered upon the filing of the information with the SEC.
(i) Earnings Statements. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(k) Restriction on Offers and Sales of Securities. Unless otherwise
agreed upon between one or more Agents acting as principal and the Company,
between the date of the agreement by such Agent(s) to purchase the related Notes
from the Company and the Settlement Date with respect thereto, the Company will
not, without the prior written consent of such Agent(s), issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of, any
debt securities of the Company other than (i) the Notes that are to be sold
pursuant to such agreement (ii) commercial paper in the ordinary course of
business or (iii) borrowings under the Company's revolving credit agreements and
lines of credit.
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(l) Use of Proceeds. The Company will use the net proceeds received by
it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(m) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (f), (g) or (h) of this
Section 4 during any period from the time (i) the Agents shall have suspended
solicitation of offers for the purchase of Notes in their capacity as agents
pursuant to a request from the Company and (ii) no Agent shall then hold any
Notes purchased from the Company as principal, as the case may be, until the
time the Company shall determine that solicitation of offers for the purchase of
Notes should be resumed or an Agent shall subsequently purchase Notes from the
Company as principal.
(n) Blue Sky Laws. The Company shall endeavor to qualify the Securities
for offer and sale under the securities or Blue Sky laws of such jurisdictions
as you shall reasonably request and to pay all reasonable expenses (including
fees and disbursements of counsel) in connection therewith as well as all fees,
if any, payable in connection with the review of the offering of the Securities
by the National Association of Securities Dealers, Inc. and the determination of
the eligibility of the Securities for investment under the laws of such
jurisdictions as the Manager may designate.
SECTION 5. Conditions of Agents' Obligations.
The obligations of one or more Agents to purchase Notes from the
Company as principal and to solicit offers for the purchase of Notes as an agent
of the Company, and the obligations of any prospective purchaser of Notes sold
through an Agent as an agent of the Company to purchase Notes from the Company,
will be subject to the accuracy of the representations and warranties on the
part of the Company herein contained or contained in any certificate of an
officer of the Company or any of its subsidiaries delivered pursuant to the
provisions hereof, to the performance and observance by the Company of its
covenants and other obligations hereunder, 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
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 in form and substance
reasonably satisfactory to the Agents:
(1) Opinion of Counsel for the Company. The opinion of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, to
the effect set forth in Exhibit B-1 hereto and an opinion of senior
in-house counsel to the Company to the effect set forth in Exhibit B-2
hereto.
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(2) Opinion of Counsel for the Agents. The favorable opinion
of Xxxx, Gotshal & Xxxxxx LLP, counsel for the Agents, to the effect
set forth in Exhibit B-3 hereto.
(c) Officer's Certificate. On the date hereof, there shall not have
been, since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, and the Agents shall have received a certificate of an officer of the
Company, dated as of the date hereof, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties of the
Company herein contained are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate, (iii) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted, are pending or, to the
best of such officer's knowledge, are threatened by the Commission.
(d) Comfort Letter of Ernst & Young, LLP. On the date hereof, the
Agents shall have received a letter from Xxxxx & Xxxxx, LLP, dated as of the
date hereof, in form and substance reasonably satisfactory to the Agents, to the
effect set forth in Exhibit C hereto.
(e) Additional Documents. On the date hereof, 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 herein contemplated and related proceedings, or in
order to evidence the accuracy 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 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 may be terminated
by the applicable Agent or 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 as provided in Section 10 hereof and except that Sections 8, 9, 11, 14
and 15 hereof shall survive any such termination and remain in full force and
effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent as
Agent.
Delivery of Notes sold through an Agent as an agent of the Company
shall be made by the Company to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Company
and deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account. Such
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reimbursement shall not exceed a per annum rate greater than the federal funds
effective rate as published in H.15(519) or the prevailing market rates for
similar transactions.
SECTION 7. Additional Covenants of the Company.
The Company further covenants and agrees with each Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company herein contained and contained in any certificate theretofore delivered
to the Agents pursuant hereto 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 such Agent(s) or to the purchaser or its agent, as the case may be, of the
Notes relating to such acceptance or sale, as the case may be, as though made at
and as of each such time (it being 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. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), including an amendment effected by the filing of a
document incorporated by reference into the Registration Statement or Prospectus
other than the filing of a current report on Form 8-K containing only
information responsive to item 5 thereof (and including any exhibits listed
under item 7 thereto relating to information provided pursuant to such item 5
and any such exhibit attached to such report), or (ii) the Company sells Notes
to one or more Agents as principal, the Company shall furnish or cause to be
furnished to the Agent(s), forthwith a certificate 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 satisfactory
to the Agent(s) 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 the filing or effectiveness of such amendment or
supplement, as applicable, or the time of such 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 Section 5(c) hereof, modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate (it being
understood that, in the case of clause (ii) above, any such certificate shall
also include a certification that there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries taken as a whole since the date
of the agreement by such Agent(s) to purchase Notes from the Company as
principal); provided, however, that in the case of an amendment or supplement
referred to in clause (i) above, if the Company shall in good faith determine
that it does not intend to be in the market during the three months after the
date of filing of any such
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amendment or supplement, the Company may deliver to the Agents a notice, which
shall be dated the date of delivery thereof to the Agents, to such effect, in
which event the obligation of the Company pursuant to clause (i) above with
respect to such amendment or supplement shall be deemed suspended until the
earlier of (x) such time as the Company so notifies the Agents that it wishes to
re-enter the market and (y) the next such amendment or supplement of the
Prospectus or Registration Statement (provided that this clause (y) shall not
prevent the Company from continuing to suspend its obligations pursuant to
clause (i) above, in accordance with the procedures provided in this Section
7(b), at the time of such amendment or supplement).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), including an amendment effected by the filing of a
document incorporated by reference into the Registration Statement or Prospectus
other than the filing of a current report on Form 8-K containing only
information responsive to item 5 thereof (and including any exhibits listed
under item 7 thereto relating to information provided pursuant to such item 5
and any such exhibit attached to such report), or (ii) the Company sells Notes
to one or more Agents as principal, the Company shall furnish or cause to be
furnished forthwith to the Agent(s) and to counsel to the Agents the written
opinion of senior in-house counsel to the Company, or other counsel reasonably
satisfactory to the Agent(s), 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 and substance reasonably
satisfactory to the Agent(s), of the same tenor as the opinions referred to in
Section 5(b)(1) hereof (including the form of both Exhibits B-1 and B-2), but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinions
or, in lieu of such opinions, counsel last furnishing each such opinion to the
Agents shall furnish the Agent(s) with a letter substantially to the effect that
the Agent(s) 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 the Company shall so
furnish or cause to be furnished an opinion of Xxxxxxx, Arps, Slate, Xxxxxxx and
Xxxx LLP or other counsel reasonably satisfactory to the Agent(s) each year with
respect to the Company's filing of its Annual Report on Form 10-K, dated the
date of the filing of such report with the Commission, in form and substance
reasonably satisfactory to the Agent(s), of the same tenor as the opinion
referred to in Section 5(b)(1) with respect to Exhibit B-1, 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; provided, further,
that in the case of an amendment or supplement referred to in clause (i) above,
if the Company shall in good faith determine that it does not intend to be in
the market during the three months after the date of filing of any such
amendment or supplement, the Company may deliver to the Agents a notice, which
shall be dated the date of delivery thereof to the Agents, to such effect, in
which event the obligation of the Company pursuant to clause (i) above with
respect to such amendment or supplement shall be deemed suspended until the
earlier of (x) such time as the Company so notifies the Agents that it wishes to
re-enter the market and (y) the next such amendment or supplement of the
Prospectus or Registration Statement (provided that this clause (y) shall not
prevent the Company from
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continuing to suspend its obligations under clause (i) above, in accordance with
the procedures provided in this Section 7(c), at the time of such amendment or
supplement).
(d) Subsequent Delivery of Comfort Letters. 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), including an amendment effected by the filing of a document
incorporated by reference into the Registration Statement or Prospectus other
than (A) the filing of a current report on Form 8-K containing only information
responsive to item 5 thereof (and including any exhibits listed under item 7
thereto relating to information provided pursuant to such item 5 and any such
exhibit attached to such report) or (B) the proxy materials of the Company
(except for proxy materials pursuant to which the Company makes disclosures
pursuant to item 11, 12, 13, 14, 15 or 16 of Schedule 14A), or (ii) the Company
sells Notes to one or more Agents as principal, the Company shall cause Ernst &
Young LLP forthwith to furnish to the Agent(s) 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 Agent(s), of 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;
provided, however, that in the case of an amendment or supplement referred to in
clause (i) above, if the Company shall in good faith determine that it does not
intend to be in the market during the three months after the date of filing of
any such amendment or supplement, the Company may deliver to the Agents a
notice, which shall be dated the date of delivery thereof to the Agents, to such
effect, in which event the obligation of the Company pursuant to clause (i)
above with respect to such amendment or supplement shall be deemed suspended
until the earlier of (x) such time as the Company so notifies the Agents that it
wishes to re-enter the market and (y) the next such amendment or supplement of
the Prospectus or Registration Statement (provided that this clause (y) shall
not prevent the Company from continuing to suspend its obligations under clause
(i) above, in accordance with the procedures provided in this Section 7(d), at
the time of such amendment or supplement).
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an 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 an untrue statement or alleged untrue statement of a
material fact included 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 in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
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(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 any 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, provided
that (subject to Section 8(d) hereof) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, or any 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 subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any 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).
(b) Indemnification of Company, Directors and Officers. 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 or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 8(a)
hereof, as incurred, 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 any Agent expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable 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 shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. The indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
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
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counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties, and that all such fees and expenses
as shall be reasonable shall be reimbursed as they are incurred. In the case of
any such separate firm for the Agents and such control persons of Agents, such
firm shall be designated in writing by the applicable Agent(s). In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 9. Contribution. If the indemnification provided for
in Section 8 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the applicable Agent(s), on the other hand, from
the offering of the Notes that were the subject of the claim for indemnification
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and the applicable Agent(s), on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
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equitable considerations.
The relative benefits received by the Company, on the one
hand, and the applicable Agent(s), on the other hand, in connection with the
offering of the Notes that were the subject of the claim for indemnification
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Company and the total discount or commission received by each applicable
Agent, as the case may be, bears to the aggregate initial offering price of such
Notes.
The relative fault of the Company, on the one hand, and the
applicable Agent(s), on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the applicable Agent(s) and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent
shall be required to contribute any amount in excess of the amount by which the
price at which the Notes purchased by or through such Agent were sold in
connection with the offering of the Notes that were the subject of the claim for
indemnification exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of any applicable untrue or alleged untrue
statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. In addition, in connection with an offering
of Notes purchased from the Company by two or more Agents as principal, the
respective obligations of such Agents to contribute pursuant to this Section 9
are several, and not joint, in proportion to the aggregate principal amount of
Notes that each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Agent, and
each director of the Company, each officer of the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company.
21
22
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, filing, printing and delivery of the Registration
Statement as originally filed and all amendments thereto and any preliminary
prospectus, the Prospectus and any amendments or supplements thereto;
(b) The preparation, printing and delivery of this Agreement and the
Indenture;
(c) The preparation, issuance and delivery of the Notes, including any
fees and expenses relating to the eligibility and issuance of Notes in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Notes;
(d) The fees and disbursements of the Company's accountants, counsel
and other advisors or agents (including any calculation agent or exchange rate
agent) and of the Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the review, if any,
by the National Association of Securities Dealers, Inc. (the "NASD"); and
(i) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
22
23
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 or any of its
subsidiaries 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 an Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any reason, at any time by either the Company or an Agent,
as to itself, upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries taken as a whole , whether or not arising in
the ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if such Notes are
denominated and/or payable in, or indexed to, one or more foreign or composite
currencies, in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development or event involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the reasonable judgment of such Agent(s), impracticable
to market such Notes or enforce contracts for the sale of such Notes, or (iii)
trading in any securities of the Company has been suspended or materially
limited by the Commission or a national securities exchange, or if trading
generally on the New York Stock Exchange or the American Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) a banking
moratorium has been declared by either Federal or New York authorities or by the
relevant authorities in the country or countries of origin of any foreign or
composite currency in which such Notes are denominated and/or payable, or (v)
the rating assigned by any nationally recognized statistical rating organization
to the Program or any debt securities (including the Notes) of the Company as of
the date of such agreement shall have been lowered or withdrawn since that date
or if any such rating organization shall have publicly announced that it has
under surveillance or review its rating of the Program or any such debt
securities, or (vi) there shall have come to the attention of such Agent(s) any
facts that would cause such Agent(s) to believe that the Prospectus, at the time
it was required to be delivered to a purchaser of such Notes, included 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.
23
24
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Company as principal 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 his agent of such Notes relating thereto has not
occurred, 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, and
(iii) the covenant set forth in Section 4(i) hereof, the provisions of Section
10 hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, and the provisions of Sections 11, 14 and 15 hereof shall remain in
effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, mail,
telex, facsimile or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Compaq Computer Corporation
Attention: General Counsel
00000 XX 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
If to the Agents:
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Facsimile: (000) 000-0000
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XXX-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxx X. XxXxxxxxx
Facsimile: (000) 000-0000
Banc One Capital Markets, Inc.
24
25
8th Floor
Suite IL1-0595
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Investment Grade Securities
Facsimile: (000) 000-0000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Short and Medium Term Products Group
Facsimile: (000) 000-0000
Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Medium Term Note Desk
Facsimile: (000) 000-0000
Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Medium-Term Note Desk
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Manager - Continuously Offered Products
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx, Investment Banking Information Center
Facsimile: (000) 000-0000
25
26
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Xxxxxxxxx: (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. 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, 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 15. GOVERNING LAW; FORUM.
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. ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY AGAINST ANY AGENT IN
CONNECTION WITH OR ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE
STATE OR FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF
MANHATTAN, THE CITY OF NEW YORK.
SECTION 16. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
[Signature Page to Follow]
26
27
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 Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
COMPAQ COMPUTER CORPORATION
By: /s/ Xxx X. Xxxxx
------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Principal
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
28
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
CHASE SECURITIES INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Principal
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
29
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 equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year........................... .125%
From 1 year to less than 18 months.......................... .150
From 18 months to less than 2 years......................... .200
From 2 years to less than 3 years........................... .250
From 3 years to less than 4 years........................... .350
From 4 years to less than 5 years........................... .450
From 5 years to less than 6 years........................... .500
From 6 years to less than 7 years........................... .550
From 7 years to less than 10 years.......................... .600
From 10 years to less than 15 years......................... .625
From 15 years to less than 20 years......................... .700
From 20 years to 30 years................................... .750
Greater than 30 years....................................... *
-----------------------
* As agreed to by the Company and the applicable Agent at the time of sale.
30
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
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:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
A-1
31
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement. Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement. Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
A-2
32
EXHIBIT B-1
FORM OF OPINION
OF
XXXXXXX, ARPS, SLATE, XXXXXXX & XXXX LLP
1. The Distribution Agreement has been duly authorized,
executed and delivered by the Company.
2. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity (regardless of whether
enforcement is sought in equity or at law); and except further as enforcement
may be limited by (i) 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 (ii) governmental authority to limit,
delay or prohibit the making of payments outside the United States.
3. The Securities, when the terms thereof are established and
set forth in a pricing supplement as contemplated by Section 3(c) of the
Distribution Agreement and authorized by the written action of the Treasurer
dated February 14, 2001, setting forth the terms of the Securities pursuant to
Section 2.3 of the Indenture, will be duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
against payment of the consideration therefor in accordance with the terms of
the Distribution Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity (regardless of whether
enforcement is sought in equity or at law); and except further as enforcement
may be limited by (i) 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 (ii) governmental authority to limit,
delay or prohibit the making of payments outside the United States.
4. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Distribution Agreement,
the Indenture and the Securities will not contravene any provision of Applicable
Law (except as the rights to indemnity and contribution under the Distribution
Agreement may be limited by Applicable Law) or the Certificate of Incorporation
or By-laws of the Company.
B-1-1
33
5. No Governmental Approval, which has not been obtained or
taken, is required for the performance by the Company of its obligations under
the Distribution Agreement, the Indenture and the Securities, except such as may
be required by the securities or "blue sky" laws of the various states in
connection with the offer and sale of the Securities.
6. The Indenture [and the Notes, in the forms certified on the
date hereof,] conforms [conform] in all material respects to the statements
relating thereto contained in the Prospectus and is [are] in substantially the
form filed or incorporated by reference, as the case may be, as an exhibit to
the Registration Statement.(1)
7. The statements in the Prospectus under the captions
"Description of Debt Securities", "Forms of Debt Securities", "Description of
the Notes", "Special Provisions Relating to Foreign Currency Notes" and "Certain
United States Federal Income Tax Considerations," in each case insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects the information
called for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein in all material respects.
8. The Registration Statement and the Prospectus, as of their
respective effective or issue dates, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder, except
that we do not express any opinion as to the financial statements, including the
notes and schedules thereto, or any other financial or accounting data included
therein or excluded therefrom or the exhibits to the Registration Statement
including Form T-1, and except as set forth in paragraph 7 hereof, we do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus.
In addition, we have participated in the preparation of the
Registration Statement and Prospectus and, although we are not passing upon and
do not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus, except
as set forth in paragraph 7 hereof, and have made no independent check or
verification thereof, subject to the foregoing and based on such participation,
no facts have come to our attention that have led us to believe that the
Registration Statement, at the time it became effective, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus, as of its date and as of the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that we express no opinion or belief with respect to the financial statements,
including the notes and schedules thereto, or any other financial data included
therein or excluded therefrom or the exhibits to the Registration Statement,
including the Form T-1.
-----------------------------
(1) The bracketed language in paragraph 6 may be omitted solely from the
legal opinion to be delivered on the date of this Agreement.
B-1-2
34
EXHIBIT B-2
FORM OF OPINION OF SENIOR IN-HOUSE COUNSEL
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the state of Delaware, has the corporate
power and authority to own its property, to conduct its business as described in
the Prospectus, and to enter into the Distribution Agreement and consummate the
transactions contemplated by the Prospectus. The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
2. Compaq Financial Services Corporation is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of Delaware, has the corporate power and authority to own its property and to
conduct its business as now conducted and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
3. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Distribution Agreement, the
Indenture and the Securities will not, to the best of my knowledge, (a) result
in the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or any subsidiary of the Company
pursuant to any agreement or instrument binding upon the Company or (b)
contravene any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any such subsidiary. No
Governmental Approval is required for the performance by the Company of its
obligations under the Distribution Agreement, the Indenture and the Securities,
except such as may be required by the securities or "blue sky" laws of the State
of Texas in connection with the offer and sale of the securities. The term
"Governmental Approval" means any notice to, filing or registration with, or
consent, authorization, or approval that is made with or rendered by the State
of Texas or any political subdivision thereof, but excluding any laws, rules or
regulations relating to (i) pollution or protection of the environment, (ii)
zoning, land use, building or construction, (iii) labor, employee rights and
benefits, and occupational safety and health, and (iv) utility regulations,
state and federal securities and "blue sky" laws, and any laws, rules and
regulations of any county, municipality, or similar political subdivision or any
agency or instrumentality thereof.
4. After due inquiry, I do not know of any legal or governmental
proceedings pending or, to my knowledge, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries are subject that are required to be described or
incorporated by reference in the Registration Statement or the
B-2-1
35
Prospectus and are not so described or incorporated by reference or of any
statutes, regulations, contracts or other documents that are required to be
described or incorporated by reference in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
so described or incorporated by reference or filed as required.
5. Each document of the Company filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in the Prospectus (except for financial statements, including the
notes and schedules thereto, or any other financial or accounting data included
therein as to which I render no opinion), complied when so filed as to form in
all material respects with the Exchange Act, and the rules and regulations of
the Commission thereunder.
6. The Company is not an "investment company" under the Investment
Company Act of 1940, as amended.
B-2-2
36
EXHIBIT B-3
FORM OF OPINION
OF
XXXX, GOTSHAL & XXXXXX LLP
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware. The Company has all requisite
corporate power and authority to execute and deliver the Distribution Agreement
and the Indenture. The execution and delivery of the Distribution Agreement and
the Indenture have been duly authorized by all necessary corporate action on the
part of the Company. The Distribution Agreement and the Indenture have been duly
and validly executed and delivered by the Company.
2. The Designated Indenture (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes the legal, valid and
binding obligation of the Company, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity); and except further as enforcement may be limited by (i) requirements
that a claim with respect to any debt securities issued under the Designated
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 (ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States.
3. The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
4. The Securities, when the terms thereof are established and set
forth in a Pricing Supplement as contemplated by Section 3(c) of the
Distribution Agreement and authorized by the Section 2.3 Certificate, will be
duly authorized by all requisite corporate action on the part of the Company,
and, when executed and authenticated in accordance with the terms of the
Designated Indenture and delivered to and paid for in accordance with the terms
of the Distribution Agreement, the Securities will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms and will be entitled to the benefits of the Designated Indenture,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity); and except further as enforcement may be limited by (i) requirements
that a claim with respect to any debt securities issued under the Designated
Indenture that are payable in a foreign or composite currency
B-3-1
37
(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 (ii) governmental authority to limit,
delay or prohibit the making of payments outside the United States.
5. The statements in the Prospectus under the captions "Description
of Debt Securities" and "Description of the Notes," in each case insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the matters
referred to therein in all material respects.
6. The Registration Statement and the Prospectus (except for the
financial statements and the notes thereto and the other financial and
accounting data included in or which should be included in the Registration
Statement or the Prospectus, as to which we express no opinion) comply as to
form in all material respects with the requirements of the Securities Act, and
the rules and regulations thereunder.
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants and counsel for the Company, and at which conferences the contents
of the Registration Statement and the Prospectus and related matters were
discussed, and, although we have not independently verified and are not passing
upon and assume no responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and Prospectus (except to
the extent specified in paragraph no. 5 above), no facts have come to our
attention which lead us to believe that the Registration Statement and the
prospectus included therein, on the effective date thereof, 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 contained therein not
misleading or that the Prospectus, on the date thereof or on the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading (it being understood that we express no view with
respect to (i) the financial statements and related notes, the financial
statement schedules and the other financial and accounting data included or
incorporated by reference in the Registration Statement or Prospectus, (ii) the
exhibits to the Registration Statement, including the Form T-1, and (iii) the
documents filed by the Company with the Commission under the Securities Exchange
Act of 1934, as amended, that are incorporated by reference in the Registration
Statement or the Prospectus).
B-3-2
38
EXHIBIT C
FORM OF ACCOUNTANT'S COMFORT LETTER
PURSUANT TO SECTION 5(d)
We are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations
and:
(i) in our opinion, the audited consolidated financial statements
and the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of the
Company for the [three- month periods ended _________, 19__ and _________,
19__, the three- and six-month periods ended _________, 19__ and
_________, 19__ and the three- and nine-month periods ended _________,
19__ and _________, 19__, included or incorporated by reference in the
Registration Statement and the Prospectus (collectively, the "10-Q
Financials")](1) [, a reading of the unaudited interim consolidated
financial statements of the Company for the _____-month periods ended
_________, 19___ and _________, 19___, included or incorporated by
reference in the Registration Statement and the Prospectus (the
"_____-month financials")](2) [, a reading of the latest available
unaudited interim consolidated financial statements of the Company],(3) a
reading of the minutes of all meetings of the stockholders and directors
of the Company and its subsidiaries and committees thereof since [day
after end of last audited period], inquiries of certain officials of the
Company and its subsidiaries responsible for financial and accounting
matters, a review of interim financial information in accordance with
standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information ("SAS 71"),(4) with respect to the [description of relevant
periods](5)
1 Include the appropriate dates of the 10-Q Financials.
2 Include if non-10-Q Financials are included or incorporated by
reference in the Registration Statement and the Prospectus.
3 Include if the latest available unaudited financial statements are more
recent than the unaudited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus.
4 Note that a review in accordance with SAS 71 is required for an accountant
to give negative assurance on interim financial information. A review in
accordance with SAS 71 will only be performed at the request of the
Company and the accountant's report, if
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and such other inquiries and procedures as may be specified in such
letter, nothing came to our attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by reference
in the Registration Statement and the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act
Regulations applicable to unaudited financial statements
included in Form 10-Q or any material modifications should be
made to the 10-Q Financials included or incorporated by
reference in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting
principles;
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933
Act Regulations applicable to unaudited interim financial
statements included in registration statements or any material
modifications should be made to the _____-month financials
included in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting
principles;](6)
(C) at [_________, 19___ and at](7) a specified date not more
than five
(..continued)
any, related to that review will be addressed only to the Company. Many
companies have a SAS 71 review performed in connection with the
preparation of their 10-Q Financials. See Codification of Statements on
Auditing Standards, AU Section 722 for a description of the procedures
that constitute such a review. The comfort letter itself should recite
that the review was performed and a copy of the report, if any, should be
attached to the comfort letter. Any report issued pursuant to SAS 71 that
is mentioned in the Registration Statement should also be included in the
Registration Statement as an exhibit. If a review in accordance with SAS
71 has not and will not be performed by the accountants, they should be
prepared to perform certain agreed-upon procedures on the interim
financial information and to report their findings thereon in the comfort
letter. See Codification of Statements on Auditing Standards, AU Section
622 for a discussion of reports related to the accountant's performance of
agreed-upon procedures. Any question as to whether a review in accordance
with SAS 71 will be performed by the accountants should be resolved early.
5 The relevant periods include all interim unaudited consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus.
6 Include if unaudited financial statements, not just selected unaudited
data, are included or incorporated by reference in the Registration
Statement and the Prospectus.
7 If the latest available unaudited financial statements are more recent
than the unaudited financial statements included or incorporated by
reference in the Registration Statement
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40
days(8) prior to the date hereof, there was any change in the
___________ of the Company and its subsidiaries, any decrease
in the __________ of the Company and its subsidiaries or any
increase in the __________ of the Company and its
subsidiaries(9), in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus, except in
each case for any changes, decreases or increases that the
Registration Statement and the Prospectus disclose have
occurred or may occur; or
(D) for the period from [_________, 19__ to _________, 19__
and for the period from](10) _________, 19__ to a specified date
not more than five days prior to the date hereof, there was any
decrease in _________, __________ or ___________,(11) in each
case as compared with the comparable period in the preceding
year, except in each case for any decreases that the
Registration Statement and the Prospectus discloses have
occurred or may occur;
(..continued)
and the Prospectus, include and insert the date of the latest available
financial statements of the Company.
8 According to Example A of SAS No. 72, the specified date should be five
calendar days prior to the date of the comfort letter. However, in
unusual circumstances, five business days may be used.
9 The blanks should be filled in with significant balance sheet items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which items
should be included rests with the banker, comfort is routinely requested
for certain balance sheet items, including long-term debt, stockholders'
equity, capital stock and net current assets.
10 If the latest available unaudited financial statements are more recent
than the unaudited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, include and
insert the period from the end of the period of the unaudited financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus to the date of the latest available financial
statements of the Company. Even if this first period is applicable, the
second period should run from the date of the most recent financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, not from the latest available financial
statements of the Company.
11 The blanks should be filled in with significant income statement items,
selected by the banker and tailored to the issuer's industry in general
and operations in particular. While the ultimate decision of which items
should be included rests with the banker, comfort is routinely requested
for certain income statement items, including net sales, total and per
share amounts of income before extraordinary items and of net income.
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[(iii) based upon the procedures set forth in clause (ii) above and a
reading of the Selected Financial Data included or incorporated by
reference in the Registration Statement and the Prospectus [and a reading
of the financial statements from which such data were derived],(12)
nothing came to our attention that caused us to believe that the Selected
Financial Data included or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with the disclosure requirements of Item 301 of Regulation S-K of
the 1933 Act [, that the amounts included in the Selected Financial Data
are not in agreement with the corresponding amounts in the audited
consolidated financial statements for the respective periods or that the
financial statements not included or incorporated by reference in the
Registration Statement and the Prospectus from which certain of such data
were derived are not in conformity with generally accepted accounting
principles;](13)
(iv) we have compared the information included or incorporated by
reference in the Registration Statement and the Prospectus under selected
captions with the disclosure requirements of Regulation S-K of the 1933
Act and on the basis of limited procedures specified herein, nothing came
to our attention that caused us to believe that such information does not
comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation
S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the latest available unaudited financial statements of the
Company that have not been included or incorporated by reference in the
Registration Statement and the Prospectus and a review of such financial
statements in accordance with SAS 71, nothing came to our attention that
caused us to believe that the unaudited amounts for ________ for the [most
recent period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such unaudited
amounts were not determined on a basis substantially consistent with that
of the corresponding
-------------------
12 Include only if there are selected financial data that have been derived
from financial statements not included or incorporated by reference in the
Registration Statement and the Prospectus.
13 In unusual circumstances, the accountants may report on "Selected
Financial Data" as described in SAS No. 42, Reporting on Condensed
Financial Statements and Selected Financial Data, and include in their
report in the Registration Statement and the Prospectus the paragraph
contemplated by SAS No. 42.9. This situation may arise only if the
Selected Financial Data do not include interim period data and the
five-year selected data are derived entirely from financial statements
audited by the auditors whose report is included in the Registration
Statement and the Prospectus. If the guidelines set forth in SAS No. 42
are followed and the accountant's report as included in the Registration
Statement and the Prospectus includes the additional language prescribed
by SAS No. 42.9, the bracketed language may be eliminated.
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amounts in the audited consolidated financial statements;](14)
[(vi) we are unable to and do not express any opinion on the [Pro
Forma Combined Balance Sheet and Statement of Operations] (collectively,
the "Pro Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(B) performed [an audit] [a review in accordance with SAS 71]
of the financial statements to which the pro forma adjustments
were applied;
(C) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about
the basis for their determination of the pro forma adjustments
and whether the Pro Forma Statements comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statements; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statements included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;](15)
(vii) in addition to the procedures referred to in clause (ii) above,
we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information included or incorporated by
-------------------
14 This language should be included when the Registration Statement and the
Prospectus include earnings or other data for a period after the date of
the most recent financial statements included or incorporated by reference
in the Registration Statement and the Prospectus. The blank should be
filled in with a description of the financial statement item(s) included.
15 If an audit or a review in accordance with SAS 71 has not been performed
by the accountants with respect to the underlying historical financial
statements, or if negative assurance on the Company's pro forma financial
statements is not otherwise available, the accountants should be requested
to perform certain other procedures with respect to such pro forma
financial statements. See Example O of SAS No. 72.
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reference in the Registration Statement and the Prospectus, which are
specified herein, and have compared certain of such items with, and have
found such items to be in agreement with, the accounting and financial
records of the Company;(16) and
[(viii) in addition, we [ADD COMFORT ON A FINANCIAL FORECAST THAT IS
INCLUDED OR INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT AND
THE PROSPECTUS](17).
--------------------
(16) This language is intended to encompass all other financial/numerical
information included or incorporated by reference in the Registration
Statement and the Prospectus for which comfort may be given, including
(but not limited to) narrative and other summary financial data appearing
in tabular form (e.g. the capitalization table).
(17) Accountants' services with respect to a financial forecast may take one of
three forms: an examination of the forecast, a compilation of the forecast
or the application of agreed-upon procedures to the forecast. If the
accountant is to perform an examination of the forecast included or
incorporated by reference in the Registration Statement and the
Prospectus, text should state that, in their opinion, the forecasted
financial statements for the [relevant period or periods] included or
incorporated by reference in the Registration Statement and the Prospectus
are presented in conformity with guidelines for presentation of a forecast
established by the AICPA, and that the underlying assumptions provide a
reasonable basis for management's forecast. If the accountant is to
perform a compilation of the forecasted financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus, text should state that they have compiled the forecasted
financial statements for the [relevant period or periods] included or
incorporated by reference in the Registration Statement and the Prospectus
in accordance with the guidelines established by the AICPA. Finally, if
the accountant is to perform agreed-upon procedures on a forecast included
or incorporated by reference in the Registration Statement and the
Prospectus, SAS No. 72 requires that the accountant first prepare a
compilation report with respect to the forecast and attach such report to
the comfort letter, after which the accountant may report on specific
procedures performed and findings obtained.
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EXHIBIT D
DEFINITIONS APPLICABLE TO SECTION 2(a)(ii)
"Consolidated Net Worth" means, at any date, the consolidated stockholders'
equity of the Company and its consolidated subsidiaries (excluding any
Redeemable Preferred Stock of the Company).
"Consolidated Tangible Net Worth" means at any date Consolidated Net Worth less
the amount, if any, in excess of $25,000,000 of consolidated "intangible assets"
(as defined below) included in determining Consolidated Net Worth. For the
purposes of this definition, "intangible assets" means the sum of (i) all
write-ups (other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within twelve months after
the acquisition of such business) subsequent to December 31, 1996 in the book
value of any asset owned by the Company or a subsidiary of the Company and (ii)
all unamortized goodwill, patents trademarks, service marks, trade names,
copyrights, organization or developmental expenses and other intangible items.
"Preferred Stock" means shares of the Company that are entitled to preference or
priority over any other shares of the Company in respect of either payment of
dividends or the distribution of assets upon liquidation.
"Redeemable" means, as applied to any Preferred Stock, any Preferred Stock that
(i) the Company under takes to redeem at a fixed or determinable date or dates
(other than pursuant to the exercise of an option to redeem by the Company, if
the failure to exercise such option would no materially adversely affect the
business, consolidated financial position or consolidated results of operations
of the Company and its subsidiaries taken as a whole), whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not solely
within the control of the Company, or (ii) is redeemable at the option of the
holder of such Preferred Stock.
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EXHIBIT E
COMPAQ COMPUTER CORPORATION
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
Medium-Term Notes Due Nine Months or More From Date of Issue (the "Notes")
are to be offered on a continuous basis by Compaq Computer Corporation, a
Delaware corporation (the "Company"), to or through Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Banc of America Securities LLC, Banc One Capital
Markets, Inc., Credit Suisse First Boston Corporation, Xxxxxx Brothers Inc.,
Chase Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Xxxxx
Xxxxxx Inc. (each, an "Agent" and, collectively, the "Agents") pursuant to a
Distribution Agreement, dated February 14, 2001 (the "Distribution Agreement"),
by and among the Company and the Agents. The Distribution Agreement provides
both for the sale of Notes by the Company to one or more of the Agents as
principal for resale to investors and other purchasers and for the sale of Notes
by the Company directly to investors (as may from time to time be agreed to by
the Company and the related Agent or Agents), in which case each such Agent will
act as an agent of the Company in soliciting purchases of Notes.
Unless otherwise agreed by the related Agent or Agents and the Company,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related Agent
or Agents and the Company (which terms shall be agreed upon orally, with written
confirmation prepared by the related Agent or Agents and mailed to the Company).
If agreed upon by any Agent or Agents and the Company, the Agent or Agents,
acting solely as agent or agents for the Company and not as principal, will use
reasonable efforts to solicit offers to purchase the Notes. Only those
provisions in these Administrative Procedures that are applicable to the
particular role to be performed by the related Agent or Agents shall apply to
the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under an Indenture,
dated as of May 2, 2000, as amended, supplemented or modified from time to time
(the "Indenture"), between the Company and The Bank of New York, as trustee
(together with any successor in such capacity, the "Trustee"). The Company has
filed a Registration Statement with the Securities and Exchange Commission
registering debt securities (which includes the Notes) (the "Registration
Statement", which term shall include any additional registration statements
filed in connection with the Notes). The most recent base prospectus deemed part
of the Registration Statement, as supplemented with respect to the Notes, is
herein referred to as "Prospectus". The most recent supplement to the Prospectus
setting forth the purchase price, interest rate or formula, maturity date and
other terms of the Notes (as applicable) is herein referred to as the "Pricing
Supplement".
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The Notes will either be issued (a) in book-entry form and represented by one
or more fully registered Notes without coupons (each, a "Global Note") delivered
to the Trustee, as agent for The Depository Trust Company ("DTC"), and recorded
in the book-entry system maintained by DTC, or (b) in certificated form (each, a
"Certificated Note") delivered to the investor or other purchaser thereof or a
person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued in
accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Company, the Company will promptly prepare a Pricing
Supplement reflecting the terms of such Note.
Information to be included in the Pricing Supplement
shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the
date of the Prospectus to which the Pricing
Supplement relates;
4. the name of the Offering Agent (as
defined below);
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5. whether such Notes are being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company;
6. with respect to Notes sold to the Offering
Agent as principal, whether such Notes will
be resold by the Offering Agent to investors
and other purchasers at (i) a fixed public
offering price of a specified percentage of
their principal amount or (ii) at varying
prices related to prevailing market prices
at the time of resale to be determined by
the Offering Agent;
7. with respect to Notes sold to an investor or
other purchaser through the Offering Agent
acting as agent for the Company, whether
such Notes will be sold at (i) 100% of their
principal amount or (ii) a specified
percentage of their principal amount;
8. the Offering Agent's discount or commission;
9. Net proceeds to the Company;
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10. the Principal Amount, Specified Currency,
Original Issue Date, Stated Maturity Date,
Interest Payment Date(s), Authorized
Denomination, Initial Redemption Date, if
any, Initial Redemption Percentage, if any,
Annual Redemption Percentage Reduction, if
any, Optional Repayment Date(s), if any,
Exchange Rate Agent, if any, Default Rate,
if any, and, in the case of Fixed Rate
Notes, the Interest Rate, and whether such
Fixed Rate Note is an Original Issue
Discount Note (and, if so, the Issue Price),
and, in the case of Floating Rate Notes, the
Interest Category, the Interest Rate Basis
or Bases, the Day Count Convention, Index
Maturity (if applicable), Initial Interest
Rate, if any, Maximum Interest Rate, if any,
Minimum Interest Rate, if any, Initial
Interest Reset Date, Interest Reset Dates,
Spread and/or Spread Multiplier, if any, and
Calculation Agent; and
11. any other additional provisions of the Notes
material to investors or other purchasers of
the Notes not otherwise specified in the
Prospectus.
The Company shall use its reasonable best efforts
to send such Pricing Supplement by email,
facsimile or overnight express (for delivery by
the close of business on the applicable trade
date, but in no event later than 11:00 a.m. New
York City time, on the Business Day following the
applicable trade date) to the Agent which made or
presented the offer to purchase the applicable
Note (in such capacity, the "Offering Agent") and
the Trustee at the following address listed in
Exhibit A.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a copy
of such Pricing Supplement to each investor or
purchaser of the relevant Notes or its agent.
Pursuant to Rule 434 ("Rule 434") of the
Securities Act of 1933, as amended, the Pricing
Supplement may be delivered separately from the
Prospectus. Outdated Pricing Supplements (other
than
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those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute
"settlement". Offers accepted by the Company will
be settled in three Business Days, or at such time
as the purchaser, the applicable Agent and the
Company shall agree, pursuant to the timetable for
settlement set forth in Parts II and III hereof
under "Settlement Procedure Timetable" with
respect to Global Notes and Certificated Notes,
respectively (each such date fixed for settlement
is hereinafter referred to as a "Settlement
Date"). If procedures A and B of the applicable
Settlement Procedures with respect to a particular
offer are not completed on or before the time set
forth under the applicable "Settlement Procedures
Timetable", such offer shall not be settled until
the Business Day following the completion of
settlement procedures A and B or such later date
as the purchaser and the Company shall agree.
The foregoing settlement procedures may be
modified with respect to any purchase of Notes by
an Agent as principal if so agreed by the Company
and such Agent.
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Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any
Notes being sold by the Company, the Company will
promptly advise the Agents by facsimile
transmission and the Agents will forthwith suspend
solicitation of offers to purchase such Notes. The
Agents will telephone the Company with
recommendations as to the changed interest rates
or other variable terms. At such time as the
Company notifies the Agents of the new interest
rates or other variable terms, the Agents may
resume solicitation of offers to purchase such
Notes. Until such time, only "indications of
interest" may be recorded. Immediately after
acceptance by the Company of an offer to purchase
Notes at a new interest rate or new variable term,
the Company, the Offering Agent and the Trustee
shall follow the procedures set forth under the
applicable "Settlement Procedures".
Suspension of
Solicitation:
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of offers to purchase Notes at any
time. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation of
offers to purchase from the Company until such
time as the Company has advised the Agents that
solicitation of offers to purchase may be resumed.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus (other
than to establish or change interest rates or
formulas, maturities, prices or other similar
variable terms with respect to the Notes or an
amendment effected by filing a document which is
incorporated by reference into the Registration
Statement or Prospectus), it will promptly advise
the Agents and will furnish the Agents and their
counsel with copies of the proposed amendment or
supplement. Copies of such amendment or supplement
will be delivered or mailed to the Agents, their
counsel and the Trustee in quantities which such
parties may
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reasonably request at the addresses listed in
Exhibit B.
In the event that at the time the solicitation of
offers to purchase from the Company is suspended
(other than to establish or change interest rates
or formulas, maturities, prices or other similar
variable terms with respect to the Notes) there
shall be any offers to purchase Notes that have
been accepted by the Company which have not been
settled, the Company will promptly advise the
Offering Agent and the Trustee whether such offers
may be settled and whether copies of the
Prospectus as theretofore amended and/or
supplemented as in effect at the time of the
suspension may be delivered in connection with the
settlement of such offers. The Company will have
the sole responsibility for such decision and for
any arrangements which may be made in the event
that the Company determines that such offers may
not be settled or that copies of such Prospectus
may not be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant to
Rule 434 may be delivered separately from the
Prospectus, must accompany or precede the earlier
of (a) the written confirmation of a sale sent to
an investor or other purchaser or its agent and
(b) the delivery of Notes to an investor or other
purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligation or liability to
the Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on
any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with an
adequate supply of all documents incorporated by
reference in the Registration Statement and the
Prospectus Upon request by the Agents.
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PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC, dated February 14, 2001, and a Medium
Term Note Certificate Agreement, dated August 17, 1989, between the Trustee and
DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Rate, Default Rate, Interest
Payment Dates, redemption and/or repayment terms,
if any, and Stated Maturity Date (collectively,
the "Fixed Rate Terms") will be represented
initially by a single Global Note; and all
Floating Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Category, formula for the
calculation of interest (including the Interest
Rate Basis or Bases, which may be the CD Rate, the
CMT Rate, the Commercial Paper Rate, the Federal
Funds Rate, LIBOR, the Prime Rate or the Treasury
Rate or any other interest rate basis or formula,
and Spread and/or Spread Multiplier, if any), Day
Count Convention, Initial Interest Rate, Default
Rate, Index Maturity (if applicable), Minimum
Interest Rate, if any, Maximum Interest Rate, if
any, redemption and/or repayment terms, if any,
Interest Payment Dates, Initial Interest Reset
Date, Interest Reset Dates and Stated Maturity
Date(collectively, the "Floating Rate Terms") will
be represented initially by a single Global Note.
For other variable terms with respect to the Fixed
Rate Notes and Floating Rate Notes, see the
Prospectus and the applicable Pricing Supplement.
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53
Owners of beneficial interests in Global Notes
will be entitled to physical delivery of
Certificated Notes equal in principal amount to
their respective beneficial interests only upon
certain limited circumstances described in the
Prospectus.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of one
series of CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which have been
reserved for and relating to Global Notes and the
Company has delivered to each of the Trustee and
DTC such list of such CUSIP numbers. The Company
will assign CUSIP numbers to Global Notes as
described below under Settlement Procedure B. DTC
will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Company has assigned
to Global Notes. The Trustee will notify the
Company at any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to Global
Notes, and, if it deems necessary, the Company
will reserve and obtain additional CUSIP numbers
for assignment to Global Notes. Upon obtaining
such additional CUSIP numbers, the Company will
deliver a list of such additional numbers to the
Trustee and DTC. Notes issued in book-entry form
in excess of $400,000,000 (or the equivalent
thereof in one or more foreign or composite
currencies) aggregate principal amount and
otherwise required to be represented by the same
Global Note will instead be represented by two or
more Global Notes which shall all be assigned the
same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global
Note will be registered in the name of Cede & Co.,
as nominee for DTC, on the register maintained by
the Trustee under the Indenture. The beneficial
owner of a Note issued in book-entry form (i.e.,
an owner of a beneficial interest in a Global
Note) (or one or more indirect participants in DTC
designated by such owner) will designate one or
more participants in DTC (with respect to such
Note issued in book-entry form, the
"Participants") to act as
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54
agent for such beneficial owner in connection with
the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such Note issued in
book-entry form in the account of such
Participants. The ownership interest of such
beneficial owner in such Note issued in book-entry
form will be recorded through the records of such
Participants or through the separate records of
such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of beneficial ownership interests in a
Global Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants
in DTC) acting on behalf of beneficial transferors
and transferees of such Global Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more
Global Notes outstanding on such date that
represent Global Notes having the same Fixed Rate
Terms or Floating Rate Terms, as the case may be
(other than Original Issue Dates), and for which
interest has been paid to the same date; (b) a
date, occurring at least 30 days after such
written notice is delivered and at least 30 days
before the next Interest Payment Date for the
related Notes issued in book-entry form, on which
such Global Notes shall be exchanged for a single
replacement Global Note; and (c) a new CUSIP
number, obtained from the Company, to be assigned
to such replacement Global Note. Upon receipt of
such a notice, DTC will send to its Participants
(including the Trustee) a written reorganization
notice to the effect that such exchange will occur
on such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP
Service Bureau written notice setting forth such
exchange date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers
of the Global Notes to be exchanged will no longer
be valid. On the specified exchange date, the
Trustee will exchange such Global Notes for a
single Global Note bearing the
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new CUSIP number and the CUSIP numbers of the
exchanged Notes will, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the
foregoing, if the Global Notes to be exchanged
exceed $400,000,000 (or the equivalent thereof in
one or more foreign or composite currencies) in
aggregate principal amount, one replacement Note
will be authenticated and issued to represent each
$400,000,000 (or the equivalent thereof in one or
more foreign or composite currencies) in aggregate
principal amount of the exchanged Global Notes and
an additional Global Note or Notes will be
authenticated and issued to represent any
remaining principal amount of such Global Notes
(See "Denominations" below).
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes issued in book-entry
form will be issued in denominations of $1,000 and
integral multiples thereof. Global Notes will not
be denominated in excess of $400,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) aggregate principal amount.
If one or more Notes are issued in book-entry form
in excess of $400,000,000 (or the equivalent
thereof in one or more foreign or composite
currencies) aggregate principal amount and would,
but for the preceding sentence, be represented by
a single Global Note, then one Global Note will be
issued to represent each $400,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal
amount of such Notes issued in book-entry form and
an additional Global Note or Notes will be issued
to represent any remaining aggregate principal
amount of such Note or Notes issued in book-entry
form. In such a case, each of the Global Notes
representing Notes issued in book-entry form shall
be assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each
Regular Record Date, the Trustee will deliver to
the Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on
each Global Note on the
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following Interest Payment Date (other than an
Interest Payment Date coinciding with the Maturity
Date) and the total of such amounts. DTC will
confirm the amount payable on each Global Note on
such Interest Payment Date by reference to the
daily bond reports published by Standard & Poor's
Corporation. On such Interest Payment Date, the
Company will pay to the Trustee in immediately
available funds an amount sufficient to pay the
interest then due and owing on the Global Notes,
and upon receipt of such funds from the Company,
the Trustee in turn will pay to DTC such total
amount of interest due on such Global Notes (other
than on the Maturity Date) which is payable in
U.S. dollars, at the times and in the manner set
forth below under "Manner of Payment". The Trustee
shall make payment of that amount of interest due
and owing on any Global Notes that Participants
have elected to receive in foreign or composite
currencies directly to such Participants.
Notice of Interest Rates. Promptly after each
Interest Determination Date or Calculation Date,
as the case may be, for Floating Rate Notes issued
in book-entry form, the Trustee will notify each
of Xxxxx'x Investors Service, Inc. and Standard &
Poor's Corporation of the interest rates
determined as of such Interest Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of
principal, premium, if any, and interest to be
paid on each Global Note maturing or otherwise
becoming due in the following month. The Trustee,
the Company and DTC will confirm the amounts of
such principal, premium, if any, and interest
payments with respect to each such Global Note on
or about the fifth Business Day preceding the
Maturity Date of such Global Note. On the Maturity
Date, the Company will pay to the Trustee in
immediately available funds an amount sufficient
to make the required payments, and upon receipt of
such funds the Trustee in turn will pay to DTC the
principal amount of Global Notes, together with
premium, if any, and interest due on the Maturity
Date, which are
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payable in U.S. dollars, at the times and in the
manner set forth below under "Manner of Payment".
The Trustee shall make payment of the principal,
premium, if any, and interest to be paid on the
Maturity Date of each Global Note that
Participants have elected to receive in foreign or
composite currencies directly to such
Participants. Promptly after (i) payment to DTC of
the principal, premium, if any, and interest due
on the Maturity Date of such Global Note which are
payable in U.S. dollars and (ii) payment of the
principal, premium, if any, and interest due on
the Maturity Date of such Global Note to those
Participants who have elected to receive such
payments in foreign or composite currencies, the
Trustee will cancel such Global Note and deliver
it to the Company with an appropriate debit
advice. On the first Business Day of each month,
the Trustee will deliver to the Company a written
statement indicating the total principal amount of
outstanding Global Notes as of the close of
business on the immediately preceding Business
Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due on
Global Notes on any Interest Payment Date or the
Maturity Date, as the case may be, which is
payable in U.S. dollars shall be paid by the
Company to the Trustee in funds available for use
by the Trustee no later than 10:00 a.m., New York
City time, on such date. The Company will make
such payment on such Global Notes to an account
specified by the Trustee. Upon receipt of such
funds, the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available
for immediate use by DTC, each payment in U.S.
dollars of principal, premium, if any, and
interest due on Global Notes on such date.
Thereafter on such date, DTC will pay, in
accordance with its SDFS operating procedures then
in effect, such amounts in funds available for
immediate use to the respective Participants in
whose names the beneficial interests in such
Global Notes are recorded in the book-entry system
maintained by DTC.
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Neither the Company nor the Trustee shall have any
responsibility or liability for the payment in
U.S. dollars by DTC of the principal of, or
premium, if any, or interest on, the Global Notes.
The Trustee shall make all payments of principal,
premium, if any, and interest on each Global Note
that Participants have elected to receive in
foreign or composite currencies directly to such
Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld from
any interest payment on a Global Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Global
Note.
Settlement
Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by an Agent, as agent of the
Company, or purchased by an Agent, as principal,
will be as follows:
A. The Offering Agent will advise the Company by
telephone, confirmed by facsimile, of the
following settlement information:
1. Principal amount, Authorized Denomination,
and Specified Currency.
2. Exchange Rate Agent, if any.
3. Notes
(a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
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(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
(v) Initial Interest Reset Date or
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii)Maximum and/or Minimum Interest
Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
4. Price to public, if any, of such Note (or
whether such Note is being offered at
varying prices relating to prevailing market
prices at time of resale as determined by
the Offering Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
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9. Repayment provisions, if any.
10. Default Rate, if any.
11. Net proceeds to the Company.
12. The Offering Agent's discount or commission.
13. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
14. Such other information specified with
respect to such Note (whether by Addendum
or otherwise).
B. The Company will assign a CUSIP number to
the Global Note representing such Note and
then advise the Trustee by facsimile
transmission or other electronic
transmission of the above settlement
information received from the Offering
Agent, such CUSIP number and the name of the
Offering Agent. The Company will also advise
the Offering Agent of the CUSIP number
assigned to the Global Note.
C. The Trustee will communicate to DTC and the
Offering Agent through DTC's Participant
Terminal System a pending deposit message
specifying the following settlement
information:
1. The information set forth in the Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of the
Trustee and the Offering Agent.
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3. Identification of the Global Note as a Fixed
Rate Global Note or Floating Rate Global
Note.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds
the related record date for DTC purposes
(or, in the case of Floating Rate Notes
which reset daily or weekly, the date five
calendar days preceding the Interest Payment
Date) and, if then calculable, the amount of
interest payable on such Interest Payment
Date (which amount shall have been confirmed
by the Trustee).
5. CUSIP number of the Global Note representing
such Note.
6. Whether such Global Note represents any
other Notes issued or to be issued in
book-entry form.
DTC will arrange for each pending deposit message
described above to be transmitted to Standard &
Poor's Corporation, which will use the information
in the message to include certain terms of the
related Global Note in the appropriate daily bond
report published by Standard & Poor's Corporation.
D. The Trustee will complete and authenticate
the Global Note representing such Note.
E. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Offering Agent maintained by DTC and (ii) to
debit the settlement account of the Offering
Agent and credit the settlement account of
the Trustee maintained by DTC, in an amount
equal to the price of such Note
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less such Offering Agent's discount or
underwriting commission, as applicable. Any entry
of such a deliver order shall be deemed to
constitute a representation and warranty by the
Trustee to DTC that (i) the Global Note
representing such Note has been issued and
authenticated and (ii) the Trustee is holding such
Global Note pursuant to the Certificate Agreement.
G. In the case of Notes in book-entry form sold
through the Offering Agent, as agent, the
Offering Agent will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC (i) to debit such
Note to the Offering Agent's participant
account and credit such Note to the
participant account of the Participants
maintained by DTC and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Offering Agent maintained by DTC in an
amount equal to the initial public offering
price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures E and F will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
I. Upon receipt, the Trustee will pay the
Company, by wire transfer of immediately
available funds to an account specified by
the Company to the Trustee from time to
time, the amount transferred to the Trustee
in accordance with Settlement Procedure X.
X. The Trustee will send a copy of the Global
Note by first class mail to the Company
together with a statement setting forth the
principal amount of Notes Outstanding as of
the related Settlement Date after giving
effect to such transaction and all other
offers to purchase Notes of which the
Company has advised the Trustee but which
have not yet been settled.
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K. If such Note was sold through the Offering
Agent, as agent, the Offering Agent will
confirm the purchase of such Note to the
investor or other purchaser either by
transmitting to the Participant with respect
to such Note a confirmation order through
DTC's Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the
Company, Settlement Procedures A through K set
forth above shall be completed as soon as possible
following the trade but not later than the
respective times (New York City time) set forth
below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A 11:00 a.m. on the trade date or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C No later than the close of
business on the trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on
Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Note issued in book-entry form
is rescheduled or canceled, the Trustee will
deliver to DTC,
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through DTC's Participant Terminal System, a
cancellation message to such effect by no later
than 5:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver
order with respect to a Note issued in book-entry
form pursuant to Settlement Procedure F, the
Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC
to debit such Note to the participant account of
the Trustee maintained at DTC. DTC will process
the withdrawal message, provided that such
participant account contains a principal amount of
the Global Note representing such Note that is at
least equal to the principal amount to be debited.
If withdrawal messages are processed with respect
to all the Notes represented by a Global Note, the
Trustee will mark such Global Note "canceled",
make appropriate entries in its records and send
certification of destruction of such canceled
Global Note to the Company. The CUSIP number
assigned to such Global Note shall, in accordance
with CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. If withdrawal
messages are processed with respect to a portion
of the Notes represented by a Global Note, the
Trustee will exchange such Global Note for two
Global Notes, one of which shall represent the
Global Notes for which withdrawal messages are
processed and shall be canceled immediately after
issuance and the other of which shall represent
the other Notes previously represented by the
surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note.
In the case of any Note in book-entry form sold
through the Offering Agent, as agent, if the
purchase price for any such Note is not timely
paid to the Participants with respect thereto by
the beneficial investor or other purchaser thereof
(or a person, including an indirect participant in
DTC, acting on behalf of such investor or other
purchaser), such Participants and, in turn, the
related Offering Agent may enter SDFS deliver
orders
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through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures F and G, respectively.
Thereafter, the Trustee will deliver the
withdrawal message and take the related actions
described in the preceding paragraph. If such
failure shall have occurred for any reason other
than default by the applicable Offering Agent to
perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse
such Offering Agent on an equitable basis for its
reasonable loss of the use of funds during the
period when the funds were credited to the account
of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note in book-entry form,
DTC may take any actions in accordance with its
SDFS operating procedures then in effect. In the
event of a failure to settle with respect to a
Note that was to have been represented by a Global
Note also representing other Notes, the Trustee
will provide, in accordance with Settlement
Procedure D, for the authentication and issuance
of a Global Note representing such remaining Notes
and will make appropriate entries in its records.
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PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, the Certificated Notes will be
issued in denominations of $1,000 and integral
multiples thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated
Note, the Trustee upon receipt of immediately
available funds from the Company will pay the
principal of, premium, if any, and interest on,
each Certificated Note on the Maturity Date in
immediately available funds. All interest payments
on a Certificated Note, other than interest due on
the Maturity Date, will be made by check mailed to
the address of the person entitled thereto as such
address shall appear in the Security Register;
provided, however, that Holders of $10,000,000 or
more in aggregate principal amount of Certificated
Notes (whether having identical or different terms
and provisions) shall be entitled to receive such
interest payments by wire transfer of immediately
available funds if appropriate wire transfer
instructions have been received in writing by the
Trustee not less than 15 calendar days prior to
the applicable Interest Payment Date.
The Trustee will provide monthly to the Company a
list of the principal, premium, if any, and
interest to be paid on Certificated Notes maturing
in the next succeeding month. The Trustee will be
responsible for withholding taxes on interest paid
as required by applicable law.
Certificated Notes presented to the Trustee on the
Maturity Date for payment will be canceled by the
Trustee. All canceled Certificated Notes held by
the Trustee shall be destroyed, and the Trustee
shall furnish to the Company a certificate with
respect to such destruction.
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Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall be
as follows:
A. The Offering Agent will advise the Company
by telephone of the following Settlement
information with regard to each Certificated
Note:
B. Exact name in which the Certificated Note(s)
is to be registered (the "Registered
Owner").
1. Exact address or addresses of the Registered
Owner for delivery, notices and payments of
principal, premium, if any, and interest.
2. Taxpayer identification number of the
Registered Owner.
3. Principal amount, Authorized Denomination
and Specified Currency.
4. Exchange Rate Agent, if any.
5. Notes
(a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
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(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
(v) Initial Interest Reset Date and
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii)Maximum and/or Minimum Interest
Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
6. Price to public of such Certificated Note
(or whether such Note is being offered at
varying prices relating to prevailing market
prices at time of resale as determined by
the Offering Agent).
7. Trade Date.
8. Settlement Date (Original Issue Date).
9. Stated Maturity Date.
10. Redemption provisions, if any.
11. Repayment provisions, if any.
12. Default Rate, if any.
13. Net proceeds to the Company.
14. The Offering Agent's discount or commission.
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15. Whether such Note is being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
16. Such other information specified with
respect to such Note (whether by Addendum or
otherwise).
C. After receiving such settlement information
from the Offering Agent, the Company will
advise the Trustee of the above settlement
information by facsimile transmission
confirmed by telephone. The Company will
cause the Trustee to issue, authenticate and
deliver the Certificated Note.
D. The Trustee will complete the Certificated
Note in the form approved by the Company and
the Offering Agent, and will make three
copies thereof (herein called "Stub 1",
"Stub 2" and "Stub 3"):
1. Certificated Note with the Offering Agent's
confirmation, if traded on a principal
basis, or the Offering Agent's customer
confirmation, if traded on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
E. With respect to each trade, the Trustee will
deliver the Certificated Note and Stub 2
thereof to the Offering Agent at the
applicable address listed in Exhibit C, and
The Trustee will keep Stub 1. The Offering
Agent will acknowledge receipt of the
Certificated Note through a broker's receipt
and will keep Stub 2. Delivery of the
Certificated Note will be made only against
such acknowledgment of receipt. Upon
determination that the Certificated Note has
been
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authorized, delivered and completed as
aforementioned, the Offering Agent will wire the
net proceeds of the Certificated Note after
deduction of its applicable commission to the
Company pursuant to standard wire instructions
given by the Company.
F. In the case of a Certificated Note sold
through the Offering Agent, as agent, the
Offering Agent will deliver such
Certificated Note (with the confirmation) to
the purchaser against payment in immediately
available funds.
G. The Trustee will send Stub 3 to the Company.
Settlement Procedures
Timetable: For offers to purchase Certificated Notes accepted
by the Company, Settlement Procedures A through F
set forth above shall be completed as soon as
possible following the trade but not later than
the respective times (New York City time) set
forth below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A 11:00 a.m. on the trade date or
within one hour following the
trade
B 12:00 noon on the trade date or
within one hour following the
trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F-G 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or other
purchaser of a Certificated Note from the Company
shall either fail to accept delivery of or make
payment for such Certificated Note on the date
fixed for settlement, the Offering Agent will
forthwith notify the Trustee and the Company by
telephone, confirmed in writing, and return such
Certificated Note to the Trustee.
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The Trustee, upon receipt of such Certificated
Note from the Offering Agent, will immediately
advise the Company and the Company will promptly
arrange to credit the account of the Offering
Agent in an amount of immediately available funds
equal to the amount previously paid to the Company
by such Offering Agent in settlement for such
Certificated Note. Such credits will be made on
the Settlement Date if possible, and in any event
not later than the Business Day following the
Settlement Date; provided that the Company has
received notice on the same day. If such failure
shall have occurred for any reason other than
failure by such Offering Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Company will reimburse such
Offering Agent on an equitable basis for its
reasonable loss of the use of funds during the
period when the funds were credited to the account
of the Company. Immediately upon receipt of the
Certificated Note in respect of which the failure
occurred, the Trustee will cancel and destroy such
Certificated Note, make appropriate entries in its
records to reflect the fact that such Certificated
Note was never issued, and accordingly notify in
writing the Company.
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EXHIBIT A
Addresses for delivery of Pricing Supplement
XXXXXXX XXXXX
Xxxxxxx Xxxxx Production Technologies
00X Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Prospectus Operations/ Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/5/6
Email: xxxxxxxx@xx0.xx.xx.xxx
BANC OF AMERICA
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxx X. XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
BANC ONE
Banc One Capital Markets, Inc.
8th Floor
Suite IL1-0595
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Investment Grade Securities
Facsimile: (000) 000-0000
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73
CREDIT SUISSE FIRST BOSTON
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Short and Medium Term Products Group
Facsimile: (000) 000-0000
XXXXXX BROTHERS
Xxxxxx Brothers
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: MTN Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXX
Xxxxx Securities, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Medium-Term Note Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX XXXXXXX
Xxxxxx Xxxxxxx & Co.
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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XXXXXXX XXXXX XXXXXX
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
For record keeping purposes, one copy of such Pricing Supplement shall also be
mailed or telecopied to:
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
4 World Financial Center, 15th Floor
New York, New York 10080
Attention: MTN Product Management
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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EXHIBIT B
Addresses for delivery of notice of Program Suspension, or Amendments or
Supplements to the Registration Statement or Prospectus
XXXXXXX XXXXX
Xxxxxxx Xxxxx & Co.
4 World Financial Center, 15th Floor
New York, New York 10080
Attention: MTN Product Management
Telephone (000) 000-0000
Facsimile: (212) 449-223
BANC OF AMERICA
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxx X. XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
BANC ONE
Banc One Capital Markets, Inc.
8th Floor
Suite IL1-0595
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Investment Grade Securities
Facsimile: (000) 000-0000
E-31
76
CREDIT SUISSE FIRST BOSTON
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Short and Medium Term Products Group
Facsimile: (000) 000-0000
XXXXXX BROTHERS
Xxxxxx Brothers
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: MTN Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXX
Xxxxx Securities, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Medium-Term Note Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX XXXXXXX
Xxxxxx Xxxxxxx & Co.
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-32
77
XXXXXXX XXXXX XXXXXX
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
For record keeping purposes, one copy of each such amendment or supplement shall
also be mailed or telecopied to:
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-33
78
EXHIBIT C
Addresses for Delivery of Certificated Notes
XXXXXXX XXXXX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxxx Xxxxx Money Markets Clearance,
00 Xxxxx Xxxxxx, 0xx Xxxxx Xxxxx Xxxxx,
XXX Xxx Xxxx Window,
New York, New York 10041,
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANC OF AMERICA
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxx X. XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxx.x.xxxxxxxxx@xxxxxxxxxxxxx.xxx
BANC ONE
Banc One Capital Markets, Inc.
8th Floor
Suite IL1-0595
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Investment Grade Securities
Facsimile: (000) 000-0000
E-34
79
CREDIT SUISSE FIRST BOSTON
Credit Suisse First Boston Corporation
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
XXXXXX BROTHERS
Xxxxxx Brothers
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: MTN Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXX
Xxxxx Securities, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Medium-Term Note Desk
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX XXXXXXX
Bank of New York
Dealer Clearance Department
0 Xxxx Xxxxxx
0xx Xxxxx, Xxxxxx 0X
Xxx Xxxx, XX 00000
Attn: For the Account of Xxxxxx Xxxxxxx & Co. Incorporated
E-35
80
XXXXXXX XXXXX XXXXXX
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-36
