MORGAN STANLEY Global Medium Term Notes, Series F Global Units, Series F Global Warrants, Series F
EXHIBIT
1-d
Global
Medium Term Notes, Series F
Global
Units, Series F
Global
Warrants, Series F
December
23, 2008
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies and
Gentlemen:
Xxxxxx
Xxxxxxx, a Delaware corporation (the “Company”) confirms its
agreement with you with respect to the issue and sale from time to time by the
Company of up to $165,452,274,876 (or the equivalent thereof in one or more
currencies other than U.S. dollars) aggregate initial public offering price, as
such amount may be increased from time to time upon due authorization by the
Company, of its Global Medium Term Notes, Series F (the “Notes”), its Global Units,
Series F (the “Units”)
and its Global Warrants, Series F (the “Warrants” and, together with
the Notes, the Units and any other securities that may be offered by
post-effective amendment to the Registration Statement referred to below, the
“Program Securities”),
in each case subject to reduction as a result of (A) the prior sale of the
Company’s Notes, Units and Warrants and (B) the prior or future sale of the
Company’s (i) Global Medium Term Notes, Series G and Series H, primarily outside
of the United States, (ii) Global Units, Series G and Series H, primarily
outside of the United States, and (iii) other debt securities, warrants, common
stock, preferred stock, purchase contracts and units and of capital securities
of certain Xxxxxx Xxxxxxx Capital Trusts.
The Notes
may be issued as senior indebtedness (the “Series F Senior Notes”) or as
subordinated indebtedness (the “Series F Subordinated Notes”)
of the Company. The Series F Senior Notes will be issued, either alone or as
part of a Unit, pursuant to the provisions of a senior indenture dated as of
November 1, 2004, between the Company and The Bank of New York Mellon (as
successor to JPMorgan Chase Bank, N.A., (formerly known as JPMorgan Chase
Bank)), as trustee (the “Senior
Debt Trustee”) (as supplemented by the First Supplemental Senior
Indenture dated as of September 4, 2007, the Second Supplemental Senior
Indenture dated as of January 4, 2008, the Third Supplemental Senior Indenture
dated as of September 10, 2008 and the Fourth Supplemental Senior Indenture
dated as of December 1, 2008, and as may be further supplemented or amended from
time to time, the “Senior
Debt Indenture”).
The Series F Subordinated Notes will be issued pursuant to the provisions of
a subordinated
indenture dated as of October 1, 2004, between the Company and The Bank
of
New York Mellon (as successor to X.X. Xxxxxx Trust Company, National
Association), as trustee (the “Subordinated Debt Trustee”)
(as may be supplemented or amended from time to time, the “Subordinated Debt Indenture”).
The Senior Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an “Indenture” and collectively as
the “Indentures,” and
the Senior Debt Trustee and the Subordinated Debt Trustee are sometimes
hereinafter referred to individually as a “Trustee” and collectively as
the “Trustees.” Purchase
contracts (“Purchase
Contracts”) that require holders to satisfy their obligations thereunder
when such Purchase Contracts are issued are referred to as “Pre-paid Purchase Contracts.” Pre-paid Purchase
Contracts that settle in cash (“Cash-settled Pre-paid Purchase
Contracts”) generally will be issued under an Indenture. Pre-paid
Purchase Contracts that do not settle in cash
(“Physically-settled Pre-paid
Purchase Contracts”) may be issued either under the Senior Debt Indenture
(such Physically-settled Pre-paid Purchase Contracts, together with the
Cash-settled Pre-paid Purchase Contracts, the “Indenture Pre-paid Purchase
Contracts”) or under the
Unit Agreement (as defined below). Purchase Contracts, other than Pre-paid Purchase
Contracts (“Non-Pre-paid
Purchase Contracts”), entered into by the Company and the holders thereof
will be governed by the Unit Agreement.
The Units
will be issued either pursuant to the Unit Agreement dated as of November 1,
2004, among the Company, The Bank of New York Mellon (as successor to JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)), as Unit Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein,
and the holders from time to time of the Units described therein (as may be
amended from time to time, the “Unit Agreement”) or, if the
Units do not include Purchase Contracts (or include only Pre-paid Purchase
Contracts) or otherwise do not involve obligations on the part of the holders of
the Units, pursuant to the Unit Agreement Without Holders’ Obligations dated as
of August 29, 2008, between the Company and The Bank of New York Mellon, as Unit
Agent, as Trustee and Paying Agent under the Indenture referred to therein, and
as Warrant Agent under the Warrant Agreement referred to therein (as may be
amended from time to time, the “Unit Agreement Without Holders’s
Obligations”). Units may include one or more (i) Series F Senior Notes,
(ii) Warrants, (iii) Purchase Contracts, including Pre-paid Purchase Contracts,
requiring the holders thereof to purchase or sell (a) securities issued by the
Company or by an entity affiliated or not affiliated with the Company, a basket
of such securities, an index or indices of such securities or any other
property, (b) currencies, (c) commodities, (d) any other property or (e) any
combination of the foregoing, (iv) debt obligations or other securities of an
entity affiliated or not affiliated with the Company or other property or (v)
any combination thereof. The applicable supplement to the Prospectus referred to
below will specify whether Notes, Warrants, Purchase Contracts and such other
securities or property comprised by a Unit may or may not be separated from any
series of Units.
The
Warrants will be issued pursuant to the Warrant Agreement dated as of November
1, 2004 (as may be amended from time to time, the “Warrant Agreement”) between
the Company and The Bank of New York Mellon (as successor to JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank)), as Warrant Agent. The
Warrants may be issued either alone or as part of a Unit (as described
above).
The Notes,
whether issued alone or as part of a Unit, will have the maturities, interest
rates, redemption provisions, if any, and other terms as set forth in the
Prospectus referred to
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The
Company hereby appoints you as its exclusive agent for the purpose of soliciting
and receiving offers to purchase Program Securities from the Company by others
and, on the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, you agree to use
reasonable efforts to solicit and receive offers to purchase Program Securities
upon terms acceptable to the Company at such times and in such amounts as the
Company shall from time to time specify. In addition, you may also purchase
Program Securities as principal pursuant to the terms of a terms agreement
relating to such sale (in the case of Notes, a “Notes Terms Agreement”, in the
case of Units, a “Units Terms
Agreement” and, in the case of Warrants, a “Warrants Terms Agreement”) in
accordance with the provisions of Section 2(b) hereof.
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement, including a prospectus, relating to the Program Securities. Such
registration statement as amended at the Commencement Date (as hereinafter
defined), including the documents incorporated therein by reference and the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430B of the Securities Act of 1933, as amended
(the “Securities Act”),
is hereinafter referred to as the “Registration Statement.” The
Company proposes to file with the Commission from time to time, pursuant to Rule
424 under the Securities Act, supplements to the prospectus relating to the
Program Securities included in the Registration Statement that will describe
certain terms of the Program Securities. The prospectus covering the Program
Securities in the form first used to confirm each sale of Program Securities (or
in the form first made available to the agent by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter
referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by a prospectus
supplement and/or one or more product supplements and/or pricing supplements
setting forth the terms of the Program Securities, in the form first used to
confirm each sale of Program Securities (or in the form first made available to
the agent by the Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act), is hereinafter referred to as the “Prospectus”. The term “preliminary prospectus” means
any preliminary form of the Prospectus. The term “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act. The term “Time of Sale” in respect of
Program Securities means any time at or prior to the confirmation of any sales
of any such Program Security. The term “Time of Sale Prospectus” means the Basic
Prospectus, each preliminary prospectus and/or Term Sheet, if any, and each free writing
prospectus, if any, that has been prepared by or on behalf of the Company
relating to such Program Securities as of such Time of Sale. The term “broadly available road show” means a “bona fide electronic road
show” as defined in Rule 433(h)(5) under the Securities Act that has
been made available without restriction to any person. As used herein, the terms
“Registration
Statement,” “Basic
Prospectus,” “Prospectus,” “preliminary prospectus” and “Time of Sale Prospectus” shall
include the documents, if any, incorporated
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1.
Representations
and Warranties. The Company represents and warrants to and agrees with
you as of the Commencement Date, as of each date on which you solicit offers to
purchase Program Securities, as of each date on which the Company accepts an
offer to purchase Program Securities (including any purchase by you as principal
pursuant to a Notes Terms Agreement, a Units Terms Agreement or a Warrants Terms
Agreement), as of each date the Company issued and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a)
The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the Commission. If the
Registration Statement is an automatic shelf registration statement as defined
in Rule 405 under the Securities Act, the Company is a well-known seasoned
issuer (as defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement and the
Company has not received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration
statement.
(b)
(i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable, will
not contain any 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, (iii) the Registration Statement does not contain and, as
amended or supplemented, if applicable, will not contain any 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, (iv) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (v) the Time of Sale Prospectus, as then amended or supplemented by
the Company, if applicable, at each Time of Sale of Program Securities in
connection with the offering thereof when the Prospectus is not yet available to
prospective purchasers and at each date on which the Company issues and delivers
Program Securities, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, (vi) each
broadly available
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(c)
The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act or that was prepared by or on behalf of or used or referred to by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Except for any free writing prospectuses and
electronic road shows each furnished to you before first use, the Company has
not prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any free writing prospectus.
(d)
The
Company has been duly incorporated, is validly existing as a corporation 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 described in the
Prospectus and the Time of Sale Prospectus, if applicable, 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
consolidated subsidiaries, taken as a whole.
(e)
Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and the Time of Sale
Prospectus, if applicable,
5
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 consolidated subsidiaries, taken as a whole; all of the issued
shares of capital stock of each consolidated subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f)
Each of
this Agreement and any applicable Written Notes Terms Agreement, Written Units
Terms Agreement or Written Warrants Terms Agreement (each as hereinafter
defined) has been duly authorized, executed and delivered by the
Company.
(g)
Each
Indenture has been duly qualified under the Trust Indenture Act and each of the
Senior Indenture, the Subordinated Indenture, the Unit Agreement, the Unit
Agreement Without Holders’ Obligations and the Warrant Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability.
(h) The forms
of Notes (including the forms of Indenture Pre-paid Purchase Contracts), whether
issued alone or as part of a Unit, have been duly authorized and established in
conformity with the provisions of the relevant Indenture and, when the Notes
(and the Indenture Pre-paid Purchase Contracts) have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes (and the
Indenture Pre-paid Purchase Contracts) will be entitled to the benefits of such
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability.
(i)
The forms
of Units under the Unit Agreement, including the forms of Physically-settled
Pre-paid Purchase Contracts and Non-Pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of the Unit
Agreement. When such Units have been delivered to and duly paid for by the
purchasers thereof and any Physically-settled Pre-paid Purchase Contracts and
Non-Pre-paid Purchase Contracts included in such Units have been executed by the
Company and countersigned by the Unit Agent, such Units (including any such
Physically-settled Pre- paid Purchase Contracts or Non-Pre-paid Purchase
Contracts contained therein) will be entitled to the benefits of the Unit
Agreement and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability.
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(j)
The forms
of Units under the Unit Agreement Without Holders’ Obligations have been duly
authorized and established in conformity with the provisions of the Unit
Agreement Without Holders’ Obligations. When such Units have been delivered to
and duly paid for by the purchasers thereof, such Units will be entitled to the
benefits of the Unit Agreement Without Holders’ Obligations and will be valid
and binding obligations of the Company, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability.
(k)
The forms
of Warrants, whether issued alone or as part of a Unit, have been duly
authorized and established in conformity with the provisions of the Warrant
Agreement. When such Warrants have been executed by the Company and
countersigned by the Warrant Agent and delivered to and duly paid for by the
purchasers thereof, such Warrants will be entitled to the benefits of the
Warrant Agreement and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability.
(l)
The
execution and delivery by the Company of this Agreement, the Notes and Indenture
Pre-paid Purchase Contracts (whether issued alone or as part of a Unit), the
Units (including any Purchase Contracts included therein), the Warrants (whether
issued alone or as part of a Unit), the Indentures, the Unit Agreement, the Unit
Agreement Without Holders’ Obligations, the Warrant Agreement and any applicable
Written Notes Terms Agreement, Written Units Terms Agreement or Written Warrants
Terms Agreement and the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture Pre-paid Purchase Contracts, the Units
(including any Purchase Contracts included therein), the Warrants, the
Indentures, the Unit Agreement, the Unit Agreement Without Holders’ Obligations,
the Warrant Agreement and any applicable Notes Terms Agreement, Written Units
Terms Agreement or Written Warrants Terms Agreement 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
of its subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or any judgment, order or decree of any U.S.
governmental body, agency or court having jurisdiction over the Company or any
of its consolidated subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any U.S. governmental body or agency is
required for the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture Pre- paid Purchase Contracts, the Units
(including any Purchase Contracts included therein), the Warrants, the
Indentures, the Unit Agreement, the Unit Agreement Without Holders’ Obligations,
the Warrant Agreement and any applicable Notes Terms Agreement, Written Units
Terms Agreement or Written Warrants Terms Agreement, 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 Program Securities; provided, however, that no
representation is made as to whether the purchase of the Program Securities
constitutes a “prohibited transaction” under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended.
7
(n) There are
no legal or governmental proceedings pending or threatened to which the Company
or any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is subject (i)
other than proceedings accurately described in all material respects in the
Prospectus and the Time of Sale Prospectus, if applicable, and proceedings that
would not have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under this Agreement, the Indenture or the Program
Securities or to consummate the transactions contemplated by the Prospectus or
(ii) that are required to be described in the Registration Statement or the
Prospectus and are not so described and there are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(o)
The
Company is not, and after giving effect to the offering and sale of the Program
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as, an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
(p)
Each of
the Company and its consolidated subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus and the Time of
Sale Prospectus, if applicable, except to the extent that the failure to obtain
or file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(q)
Xxxxxx
Xxxxxxx & Co. Incorporated is registered as a broker dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the Financial Industry Regulatory Authority,
Inc.
Notwithstanding
the foregoing, it is understood and agreed that the representations and
warranties set forth in Section 1(b)(iii), 1(b)(iv), 1(b)(v), 1(b)(vi) and
1(b)(vii), 1(h) (except as to due authorization of the Notes and Indenture
Pre-paid Purchase Contracts), 1(i) (except as to due authorization of the Units,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts), 1(j) (except as to due authorization of the Units), 1(k) (except as
to due authorization of the Warrants) and 1(l), when made as of the Commencement
Date, or as of any date on which you solicit offers to purchase Program
Securities, with respect to any Program Securities the payments of principal or
interest on which, or any other payments with respect to
8
2. Solicitations as Agent; Purchases as
Principal.
(a)
Solicitations as Agent. In
connection with your actions as agent hereunder, you agree to
use reasonable efforts to solicit offers to purchase Program Securities upon the
terms and conditions set forth in the Prospectus as then amended or
supplemented.
The
Company reserves the right, in its sole discretion, to instruct you to suspend
at any time, for any period of time or permanently, the solicitation of offers
to purchase Program Securities. Upon receipt of at least one business day’s
prior notice from the Company, you will forthwith suspend solicitations of
offers to purchase Program Securities from the Company until such time as the
Company has advised you that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c); provided, however, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for (i) in the case of Notes issued alone or as part of a Unit, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes, (ii) in the case of Units, a change in the exercise price,
exercise date or period or expiration of an underlying Warrant or a change in
the settlement date or purchase or sale price of an underlying Purchase
Contract, (iii) in the case of Warrants, a change in the exercise price,
exercise date or period or expiration of a Warrant or (iv) for a change you deem
to be immaterial), you shall not be required to resume soliciting offers to
purchase Program Securities until the Company has delivered such certificates,
opinions and letters as you may request.
The
Company agrees to pay to you, as consideration for the sale of each Program
Security resulting from a solicitation made or an offer to purchase received by
you, a commission in the form of a discount from the purchase price of such
Program Security equal to between .125% and .750% (depending upon, in the case
of Notes, such Note’s maturity, in the case of Units, any underlying Note’s
maturity or the terms of the Units and of the securities comprised by such Units
or, in the case of Warrants, the expiration and terms of the Warrants) of the
principal amount of such Note, in the case of Units, the face amount of such
Unit, or, in the case of Warrants, the purchase price of such Warrant (provided
that the commission for Notes having a maturity of, Units including Notes or
other securities having a maturity of, or Warrants expiring in, 30 years or more
will be negotiated) or such other discount as may be specified in the Prospectus
Supplement relating to such Note, Unit or Warrant.
You shall
communicate to the Company, orally or in writing, each offer to purchase Program
Securities received by you as agent that in your judgment should be
9
(b)
Purchases as Principal.
Each sale of Program Securities to you as principal shall be made in accordance
with the terms of this Agreement. In connection with each such sale, the Company
will enter into a Notes Terms Agreement, Units Terms Agreement or Warrants Terms
Agreement that will provide for the sale of such Program Securities to and the
purchase thereof by you. Each Notes Terms Agreement, Units Terms Agreement or
Warrants Terms Agreement will take the form of either (i) a written agreement
between you and the Company, which may be substantially in the form of Exhibit
A, Exhibit A-1 or Exhibit A-2 (as applicable) hereto (in the case of Notes, a
“Written Notes Terms
Agreement,” in the case of Units, a “Written Units Terms Agreement” and in the case of
Warrants, a “Written Warrants
Terms Agreement”), or (ii) an oral agreement
between you and the Company confirmed in writing by you to the
Company.
Your
commitment to purchase Program Securities as principal pursuant to a Notes Terms
Agreement, Units Terms Agreement or Warrants Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each (i) Notes Terms Agreement shall specify the principal amount of
Notes to be purchased by you pursuant thereto, the maturity date of such Notes,
the price to be paid to the Company for such Notes, the interest rate and
interest rate formula, if any, applicable to such Notes and any other terms of
such Notes, (ii) Units Terms Agreement shall specify (a) the information set
forth in (i) above with respect to any Notes issued as part of a Unit, (b) with
respect to any Warrants issued as part of a Unit, the exercise price, the
exercise date or period, the expiration date and any other terms of such
Warrants and (c) with respect to any Purchase Contracts issued as part of a
Unit, the settlement date, the purchase or sale price or any other terms of such
Purchase Contracts and (iii) Warrants Terms Agreement shall specify the exercise
price, the exercise date or period, the expiration date and any other terms of
such Warrants. Each such Notes Terms Agreement, Units Terms Agreement or
Warrants Terms Agreement may also specify any requirements for officers’
certificates, opinions of counsel and letters from the independent auditors of
the Company pursuant to Section 4 hereof. A Notes Terms Agreement, a Unit Terms
Agreement and a Warrants Terms Agreement may also specify certain provisions
relating to the reoffering of such Notes, Units or Warrants, as the case may be,
by you.
Each Notes
Terms Agreement, each Units Terms Agreement and each Warrants Terms Agreement
shall specify the time and place of delivery of and payment for such Notes,
Units or Warrants, as the case may be. Unless otherwise specified in a Notes
Terms Agreement, a Units Terms Agreement or a Warrants Terms Agreement, the
procedural details relating to the issue
10
and
delivery of Notes, Units or Warrants, as the case may be, purchased by you as
principal and the payment therefor shall be as set forth in the Administrative
Procedures. Each date of delivery of and payment for Program Securities to be
purchased by you as principal pursuant to a Notes Terms Agreement, a Units Terms
Agreement or a Warrants Terms Agreement, as the case may be, is referred to
herein as a “Settlement
Date.”
Unless
otherwise specified in a Notes Terms Agreement, a Units Terms Agreement or a
Warrants Terms Agreement, if you are purchasing Program Securities as principal
you may resell such Program Securities to other dealers. Any such sales may be
at a discount, which shall not exceed the amount set forth in the Time of Sale
Prospectus and Prospectus relating to such Notes, Units or
Warrants.
(c)
Administrative Procedures.
You and the Company agree to perform the respective duties and
obligations specifically provided to be performed in the Global Medium Term
Notes, Series F, Global Units, Series F, Global Warrants, Series F,
Administrative Procedures (attached hereto as Exhibit B) (the “Administrative Procedures”), as amended from
time to time. The Administrative Procedures may be amended only by written
agreement of the Company and you.
(d)
Delivery. The documents
required to be delivered by Section 4 of this Agreement as a
condition precedent to your obligation to begin soliciting offers to purchase
Program Securities as agent of the Company shall be delivered at the office of
Sidley Austin LLP, your
counsel, not later than 4:00 p.m., New York City time, on the date hereof, or at
such other time and/or place as you and the Company may agree upon in writing,
but in no event later than the day prior to the earlier of (i) the date on which
you begin soliciting offers to purchase Program Securities and (ii) the first
date on which the Company accepts any offer by you to purchase Program
Securities as principal. The date of delivery of such documents is referred to
herein as the “Commencement
Date.”
(e)
Free Writing Prospectuses. In
connection with your actions hereunder, you covenant that,
unless you obtain the prior consent of the Company, you will not make any offer
relating to the Program Securities that would constitute an “issuer free writing
prospectus,” as defined in Rule 433(h) under the Securities Act, or that would
otherwise constitute a free writing prospectus required to be filed with the
Commission.
3.
Agreements. The
Company agrees with you that:
(a)
The
Company will furnish to you a copy of each proposed free writing prospectus to
be prepared by or on behalf of, used by, or referred to by the Company relating
to the offering of the Program Securities and the Company will not use or refer
to any proposed free writing prospectus to which you reasonably
object.
(b)
The
Company will not take any action that would result in you or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by you or on your behalf that
you otherwise would not have been required to file thereunder.
11
(d)
Prior to
the termination of the offering of the Program Securities pursuant to this
Agreement or pursuant to any Notes Terms Agreement, Units Terms Agreement or
Warrants Terms Agreement, the Company will not file any Time of Sale Prospectus
or prospectus supplement (including any product supplement or pricing
supplement) relating to the Program Securities or any amendment to the
Registration Statement relating to the Program Securities unless the Company has
previously furnished to you a copy thereof for your review and will not file any
such proposed supplement or amendment to which you reasonably object; provided, however, that the
foregoing requirement shall not apply to any of the Company’s periodic filings
with the Commission required to be filed pursuant to Section 13(a), 13(c),
13(f), 14 or 15(d) of the Exchange Act, copies of which filings the Company will
cause to be delivered to you promptly after being transmitted for filing with
the Commission. Subject to the foregoing sentence, the Company will promptly
cause each supplement to the Basic Prospectus relating to the Program Securities
(including any product supplement or pricing supplement) to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise you (i) of the filing of
any amendment or supplement to the Basic Prospectus, (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or notice of suspension
of qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, you shall not be obligated to
12
solicit
offers to purchase Program Securities so long as you are not reasonably
satisfied with such document.
(e)
If, at any
time when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act) relating to the Program Securities is required
to be delivered under the Securities Act, any event occurs or condition exists
as a result of which the Prospectus, as then amended or supplemented, would
include an untrue statement of a material fact, or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a)
under the Securities Act), as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in your opinion or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified by the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably request. If any
documents, certificates, opinions and letters furnished to you pursuant to
Section 3(i) and Sections 5(a), 5(b) and 5(c) in connection with the preparation
and filing of such amendment or supplement are satisfactory in all respects to
you, upon the filing with the Commission of such amendment or supplement to the
Prospectus or upon the effectiveness of an amendment to the Registration
Statement, you will resume the solicitation of offers to purchase Program
Securities hereunder. Notwithstanding any other provision of this Section 3(e),
until the distribution of any Program Securities you may own as principal has
been completed, if any event described above in this Section 3(e) occurs, the
Company will, at its own expense, forthwith prepare and cause to be filed
promptly with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, satisfactory in all
respects to you, will supply such amended or supplemented Prospectus to you in
such quantities as you may reasonably request and shall furnish to you pursuant
to Section 3(i) below and Sections 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as you may request in connection with the
preparation and filing of such amendment or supplement.
(f)
The
Company will make generally available to its security holders and to you as soon
as practicable earning statements that satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission thereunder
covering a period of at least twelve months beginning, in each case, not later
than the first day of the Company’s fiscal quarter next following the “effective
date” (as defined in Rule 158 under the Securities Act) of the Registration
Statement with respect to each sale of Program Securities.
13
(g)
The Company will furnish in New York City, without charge, (i) to
you, a signed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and (ii) to the extent that you purchase Program
Securities pursuant to a Notes Terms Agreement, Units Terms Agreement or
Warrants Terms Agreement or solicit an offer to purchase Program Securities that
is accepted by the Company, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of such Notes Terms Agreement, Units Terms
Agreement or Warrants Terms Agreement or the acceptance of such offer, as many
copies of the Prospectus, as then amended or supplemented (including the Time of
Sale Prospectus and the Prospectus Supplement relating to the Program Securities
to be purchased pursuant to such Notes Terms Agreement, Units Terms Agreement or
Warrants Terms Agreement or accepted offer), as you may reasonably
request.
(h)
The
Company will endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(i)
During the
term of this Agreement, the Company shall furnish to you such relevant documents
and certificates of officers of the Company relating to the business, operations
and affairs of the Company, the Registration Statement, the Basic Prospectus,
any amendments or supplements thereto, any Time of Sale Prospectus, the
Indentures, the Unit Agreement, the Unit Agreement Without Holders’ Obligations,
the Warrant Agreement, the Notes, the Units, the Warrants, the Purchase
Contracts, this Agreement, the Administrative Procedures, any Notes Terms
Agreement, Units Terms Agreement or Warrants Terms Agreement and the performance
by the Company of its obligations hereunder or thereunder as you may from time
to time reasonably request.
(j)
The
Company shall notify you promptly in writing of any downgrading, or of its
receipt of any notice of any intended or potential downgrading or of any review
for possible change that does not indicate the direction of the possible change,
in the rating accorded the Company or any of the securities of the Company or in
the rating outlook for the Company by any “nationally recognized statistical
rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(k)
Whether or
not any sale of Program Securities is consummated or this Agreement or any Notes
Terms Agreement, Units Terms Agreement or Warrants Terms Agreement is
terminated, the Company will pay or cause to be paid all expenses incident to
the performance of its obligations under this Agreement and any Notes Terms
Agreement, Units Terms Agreement or Warrants Terms Agreement, including: (i) the
fees, disbursements and expenses of the Company’s counsel and the Company’s
accountants, of the Trustees and their counsel, of the Unit Agent and its
counsel, and of the Warrant Agent and its counsel, in connection with the
registration and delivery of the Program Securities under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, the Prospectus, any preliminary prospectus, the Time of
Sale Prospectus, any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company and amendments and supplements to any of the
foregoing, including the filing fees payable to the Commission
14
(l)
If the third anniversary of the initial effective date of the Registration
Statement occurs during an offering of Program Securities before all of the
Program Securities then being offered have been sold by you, prior to the third
anniversary the Company will file a new shelf registration statement and take
any other action necessary
15
to permit
the public offering of the Program Securities to continue without interruption;
references herein to the Registration Statement shall include the new
registration statement declared effective by the Commission or that
automatically becomes effective upon filing with the Commission in accordance
with Rule 462(e) under the Securities Act.
(m)
During the
period beginning on the date of any Notes Terms Agreement, Units Terms Agreement
or Warrants Terms Agreement relating to Notes, Units or Warrants, as the case
may be, and continuing to and including the Settlement Date with respect to such
Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement, the
Company will not, without your prior consent, offer, sell, contract to sell or
otherwise dispose of (i) in the case of Notes, any debt securities of the
Company substantially similar to the Notes set forth in such Notes Terms
Agreement (other than (A) the Notes
that are to be sold pursuant to such Notes Terms Agreement, (B) Notes previously
agreed to be sold by the Company and (C) commercial paper issued in the ordinary
course of business), (ii) in the case of Units, any securities substantially
similar to such Units (other than (A) the Units that are sold pursuant to such
Units Terms Agreement or (B) Units previously agreed to be sold by the Company),
or (iii) in the case of Warrants, any securities substantially similar to such
Warrants (other than (A) the Warrants that are sold pursuant to such Warrants
Terms Agreement or (B) Warrants previously agreed to be sold by the Company) in
each case, except as may otherwise be provided in the applicable Notes Terms
Agreement, Units Terms Agreement or Warrants Terms Agreement.
(n)
Unless
otherwise notified by you, the Company will prepare a final term sheet (a “Term Sheet”) relating to each
offering of the Program Securities, containing only information that describes
the final terms of the Program Securities or the offering, in a form consented
to by you, and will file such Term Sheet within the period required by Rule
433(d)(5)(ii) under the Securities Act following the date the final terms have
been established for the offering of the Program Securities.
4.
Conditions of the Obligations
of the Agent. Your obligation to solicit offers to purchase Program
Securities as agent of the Company, your obligation to purchase Program
Securities as principal pursuant to any Notes Terms Agreement, Units Terms
Agreement or Warrants Terms Agreement and the obligation of any other purchaser
to purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company’s officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to solicit
offers to purchase Program Securities, at the time of such solicitation, and, in
the case of your or any other purchaser’s obligation to purchase Program
Securities, at the time the Company accepts the offer to purchase such Program
Securities and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior
to such solicitation or purchase, as the case may be:
16
(ii) there
shall not have occurred any (A) suspension or material limitation of trading
generally on or by, as the case may be, any of the New York Stock Exchange, the
NYSE Alternext US LLC, The NASDAQ Stock Market LLC, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (B)
suspension of trading of any securities of the Company on any exchange or in any
over the counter market, (C) material disruption in securities settlement,
payment or clearance services in the United States or, in the event of a global
offering, in any relevant foreign jurisdiction, (D) declaration of any
moratorium on commercial banking activities by Federal or New York State
authorities or (E) any outbreak or escalation of hostilities or any change in
financial markets (or, if the relevant Program Securities are denominated in a
currency other than U.S. dollars, any change in currency exchange rates or
controls) or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (E), makes it, in your judgment, impracticable or inadvisable to proceed
with the offer, sale or delivery of the Program Securities on the terms and in
the manner contemplated in the Prospectus or the Time of Sale Prospectus;
and
(iii)
there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the securities of the Company or in the rating
outlook for the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(A) except, in
each case described in paragraph (i), (ii) or (iii) above, as disclosed to you
in writing by the Company prior to such solicitation or, in the case of a
purchase of Program Securities, before the offer to purchase such Program
Securities was made or (B) unless in each case described in (ii) above, the
relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the
Commencement Date and, if called for by any Notes Terms Agreement, Units Terms
Agreement or Warrants Terms Agreement, on the corresponding Settlement Date, you
shall have received:
17
(A)
the
Company has been duly incorporated, is validly existing as a corporation 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 described in the
Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if
applicable, 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 consolidated subsidiaries, taken as a
whole;
(B)
each of
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Xxxxxxx International Holdings
Inc. (each a “Material
Subsidiary”) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, as amended or supplemented,
and the Time of Sale Prospectus, if applicable, 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
consolidated subsidiaries, taken as a whole;
(C)
each of
the Company and its Material Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as amended or
supplemented, and the Time of Sale Prospectus, if applicable, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(D)
each of
this Agreement and any applicable Written Notes Terms Agreement, Written Units
Terms Agreement or Written Warrants Terms Agreement has been duly authorized,
executed and delivered by the Company;
(E)
each
Indenture has been duly qualified under the Trust Indenture Act and each of the
Senior Indenture, the Subordinated Indenture, the Unit Agreement, the Unit
Agreement Without Holders’
18
(F)
the forms
of Notes (including the forms of Indenture Pre- paid Purchase Contracts),
whether issued alone or as part of a Unit, have been duly authorized and
established in conformity with the provisions of the relevant Indenture and, if
the Notes and the Indenture Pre-paid Purchase Contracts had been executed by the
Company and authenticated by the relevant Trustee or its duly appointed agent in
accordance with the provisions of the relevant Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such opinion, such Notes
and the Indenture Pre-paid Purchase Contracts would be entitled to the benefits
of such Indenture and would be valid and binding obligations of the Company,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
concepts of reasonableness and equitable principles of general
applicability;
(G)
the forms
of Units under the Unit Agreement, including the forms of Physically-settled
Pre-paid Purchase Contracts and Non-Pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of the Unit
Agreement. If such Units (including the Physically-settled Pre-paid Purchase
Contracts and the Non-Pre-paid Purchase Contracts) had been delivered to and
duly paid for by the purchasers thereof (and any Purchase Contracts included
therein had been executed by the Company and countersigned by the Unit Agent) on
the date of such opinion, such Units (including the Physically-settled Pre-paid
Purchase Contracts and the Non-Pre-paid Purchase Contracts contained therein)
would be entitled to the benefits of the Unit Agreement, and would be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, concepts of reasonableness and equitable
principles of general applicability;
(H)
the forms
of Units under the Unit Agreement Without Holders’ Obligations have been duly
authorized and established in conformity with the provisions of the Unit
Agreement Without Holders’ Obligations. If such Units had been delivered to and
duly paid for by the purchasers thereof on the date of such opinion, such Units
would be entitled to the benefits of the Unit Agreement Without Holders’
Obligations, and would be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
19
(I)
the forms
of Warrants have been duly authorized and established in conformity with the
provisions of the Warrant Agreement. If such Warrants had been delivered to and
duly paid for by the purchasers thereof (and had been executed by the Company
and countersigned by the Warrant Agent) on the date of such opinion, such
Warrants would be entitled to the benefits of the Warrant Agreement, and would
be valid and binding obligations of the Company, enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally, concepts of reasonableness and
equitable principles of general applicability;
(J)
the
execution and delivery by the Company of the Notes and Indenture Pre-paid
Purchase Contracts (whether issued alone or as part of a Unit), the Units
(including any Purchase Contract included therein), the Warrants (whether issued
alone or as part of a Unit), the Indentures, the Unit Agreement, the Unit
Agreement Without Holders’ Obligations, the Warrant Agreement and any applicable
Written Notes Terms Agreement, Written Units Terms Agreement or Written Warrants
Agreement and the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture Pre-paid Purchase Contracts, the Units
(including any Purchase Contract included therein), the Warrants, the
Indentures, the Unit Agreement, the Unit Agreement Without Holders’ Obligations,
the Warrant Agreement and any applicable Notes Terms Agreement, Units Terms
Agreement or Warrants Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by laws of the Company or,
to the best of such counsel’s knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its consolidated subsidiaries, taken as a whole, or, to the best of
such counsel’s knowledge, any judgment, order or decree of any U.S. governmental
body, agency or court having jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval, authorization or order of
or qualification with any U.S. governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Indenture Pre-paid Purchase Contracts, the Units (including any Purchase
Contracts included therein), the Warrants, the Indentures, the Unit Agreement,
the Unit Agreement Without Holders’ Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement, Units Terms Agreement or Warrants Terms
Agreement, 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 Program
Securities; provided,
however, that no
opinion is expressed on whether the purchase of the Program Securities
constitutes a “prohibited
20
(K)
the
statements relating to legal matters, documents or proceedings included in (1)
the Prospectus, as then amended or supplemented, and the Time of Sale
Prospectus, if applicable, under the captions “Description of Notes” (in the
Prospectus Supplement), “Description of Debt Securities” (in the Basic
Prospectus), “Description of Units” (in the Prospectus Supplement and the Basic
Prospectus), “Plan of Distribution” (in the Prospectus Supplement and the Basic
Prospectus), “Description of Purchase Contracts” (in the Basic Prospectus) and
“Description of Warrants” (in the Prospectus Supplement and the Basic
Prospectus), (2) the Registration Statement, as then amended or supplemented,
under Item 15, (3) “Item 3. Legal Proceedings” of the most recent annual report
on Form 10-K incorporated by reference in the Prospectus and the Time of Sale
Prospectus, if applicable, and (4) “Item 1. Legal Proceedings” of Part II of the
quarterly reports on Form 10-Q, if any, filed since such annual report and
incorporated by reference in the Prospectus and the Time of Sale Prospectus, if
applicable, in each case fairly summarize in all material respects such matters,
documents or proceedings;
(L)
after due
inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the Company or any
of its consolidated subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus, as then amended or supplemented,
and are not so described or of any U.S. federal or state statutes, regulations,
contracts or other documents governed by U.S. federal or state law that are
required to be described in the Registration Statement or the Prospectus, as
then amended or supplemented, or to be filed or incorporated by reference as
exhibits to such Registration Statement that are not described, filed or
incorporated by reference as required;
(M)
the
Company is not, and after giving effect to the offering and sale of the Program
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as, an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended;
and
(N)
(1) in the
opinion of such counsel (A) each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus, as
then amended or supplemented, and the Time of Sale Prospectus, if applicable
(except for the financial statements and financial schedules and other financial
and
21
22
(ii)
The opinion, dated as of such date, of Sidley Austin LLP, your special counsel,
covering the matters in subparagraphs (D), (E), (F), (G), (H), (I) and (K) (with
respect to statements in the Prospectus and the Time of Sale Prospectus, if
applicable, as then amended or supplemented, under the captions “Description of
Notes” (in the Prospectus Supplement), “Description of Debt Securities” (in the
Basic Prospectus), “Description of Units” (in the Prospectus Supplement and the
Basic Prospectus), “Plan of Distribution” (in the Prospectus Supplement and in
the Basic Prospectus), “Description of Purchase Contracts” (in the Basic
Prospectus) and “Description of Warrants” (in the Prospectus Supplement and the
Basic Prospectus)) and clauses 4(b)(i)(N)(2)(B), 4(b)(i)(N)(2)(C) and
4(b)(i)(N)(2)(D) above.
Notwithstanding
the foregoing, the opinions described in Sections 4(b)(i)(F) (except as to due
authorization of the Notes and Indenture Pre-paid Purchase Contracts),
4(b)(i)(G) (except as to due authorization of the Units, Physically-settled
Pre-paid Purchase Contracts and Non-Pre- paid Purchase Contracts), 4(b)(i)(H)
(except as to due authorization of the Units), 4(b)(i)(I) (except as to due
authorization of the Warrants), 4(b)(i)(J), 4(b)(i)(K)(1) and 4(b)(i)(N)(2)(B),
4(b)(i)(N)(2)(C) and 4(b)(i)(N)(2)(D), when contained in an opinion delivered on
the Commencement Date or pursuant to Section 5(b), shall be deemed not to
address the application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission to
Program Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities affiliated or
unaffiliated with the Company, baskets of such securities, equity indices or
other factors.
With
respect to Section 4(b)(i)(N) above, if such opinion is given by counsel who is
also an officer of the Company, such counsel may state that his or her opinions
and beliefs are based upon his or her participation, or the participation of
someone under his or her supervision, in the preparation of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With respect to
Section 4(b)(i)(N) above, Sidley Austin LLP and, if Xxxxx Xxxx &
Xxxxxxxx is giving such opinion, Xxxxx Xxxx & Xxxxxxxx may state that their
opinions and beliefs are based upon their participation in the preparation of
the Registration Statement, the Time of Sale Prospectus, the Prospectus, the
preliminary prospectus supplement, if any, any identified free writing
prospectuses (but not including documents incorporated therein by reference) and
upon review and discussion of the contents of the Registration Statement, the
Time of Sale Prospectus and the Prospectus (including documents incorporated
therein by reference), but are without independent check or verification, except
as specified.
(iii) The
opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx, special counsel to
the Company, to the effect that the statements set forth under the caption
“United States Federal Taxation” in the Basic Prospectus and the Prospectus
Supplement and under the caption “Forms of Securities—Limitations
23
The
opinion of Xxxxx Xxxx & Xxxxxxxx described in Section 4(b)(iii) and in
Section 4(b)(i), if such opinion is given by Xxxxx Xxxx & Xxxxxxxx, shall be
rendered to you at the request of the Company and shall so state
therein.
(c)
On the Commencement Date and, if called for by any Notes Terms Agreement, Units
Terms Agreement or Warrants Terms Agreement, on the corresponding Settlement
Date, you shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an officer of the Company to
the effect set forth in Section 4(a)(iii) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of such date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied on or before such date.
The
officer signing and delivering such certificate may rely upon the best of his
knowledge as to proceedings threatened.
(d)
On the
Commencement Date and, if called for by any Notes Terms Agreement, Units Terms
Agreement or Warrants Terms Agreement, on the corresponding Settlement Date, the
Company’s public accountants shall have furnished to you a letter or letters,
dated as of the Commencement Date or such Settlement Date, as the case may be,
in form and substance satisfactory to you containing statements and information
of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement, the Time of Sale Prospectus and the Prospectus, as then amended or
supplemented; provided
that each letter so furnished shall use a “cut-off date” no more than three
business days prior to the date of such letter.
(e)
On the
Commencement Date and on each Settlement Date, the Company shall have furnished
to you such appropriate further information, certificates and documents as you
may reasonably request.
5.
Additional Agreements of the
Company. (a) Each time the Registration Statement or Prospectus
is amended or supplemented (other than by an amendment or supplement providing
solely for (i) in the case of Notes, a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes issued
alone or as part of a Unit, (ii) in the case of Units, (x) a change in the
exercise price, exercise date or period or expiration of an underlying Warrant
or (y) a change in the settlement date or purchase or sale price of an
underlying Purchase Contract, (iii) in the case of Warrants, a change in the
exercise price, exercise date or period or expiration of the Warrant or (iv) a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate
24
(b)
Each time
the Company furnishes a certificate pursuant to Section 5(a) (other than any
amendment or supplement to the Registration Statement or Prospectus caused by
the filing of a Current Report on Form 8-K unless you shall reasonably request
based on disclosure included or omitted from such Report), the Company will
furnish or cause to be furnished forthwith to you a written opinion of counsel
for the Company. Any such opinion shall be dated the date of such amendment or
supplement, as the case may be, shall be in a form satisfactory to you and shall
be of the same tenor as the opinions referred to in Section 4(b), but modified
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of such opinion,
counsel last furnishing such an opinion to you may furnish to you a letter to
the effect that you may rely on such last opinion to the same extent as though
it were dated the date of such letter (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such
letter).
(c)
Each time
the Registration Statement or the Prospectus is amended or supplemented to set
forth amended or supplemental financial information or such amended or
supplemental information is incorporated by reference in the Prospectus, the
Company shall cause its independent auditors forthwith to furnish you with a
letter, dated the date of such amendment or supplement, as the case may be, in
form satisfactory to you, of the same tenor as the letter referred to in Section
4(d), with regard to the amended or supplemental financial information included
or incorporated by reference in the Registration Statement or the Prospectus as
amended or supplemented to the date of such letter; provided that each letter so
furnished shall use a “cut-off date” no more than three business days prior to
the date of such letter.
6.
Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless you and each
person, if any, who controls you within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of your affiliates
within the meaning of Rule 405 under the Securities Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based
25
(b)
You agree,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you expressly
for use in the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any issuer free writing prospectus or the Prospectus or any
amendments or supplements thereto.
(c)
In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either Section 6(a) or 6(b), such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and 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 fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party 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 shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified pursuant to
Section 6(a), and by the Company, in the case of parties indemnified pursuant to
Section 6(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any
26
(d)
To the
extent the indemnification provided for in Section 6(a) or 6(b) is unavailable
to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein in connection with any offering of
Program Securities, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and you on
the other hand from the offering of such Program Securities or (ii) if the
allocation provided by clause 6(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 6(d)(i) above but also the relative fault of the Company
on the one hand and you on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and you on the other hand in connection with the
offering of such Program Securities shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Program
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by you in respect thereof as set
forth in the Prospectus. The relative fault of the Company on the one hand and
of you on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by you and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. Your obligations to contribute pursuant to this Section 6 are several
in proportion to the respective principal amounts of Program Securities you have
purchased in any offering of Program Securities hereunder, and not
joint.
(e)
The
Company and you agree that it would not be just or equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, you shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Program Securities referred to in Section 6(d) above that
were offered and sold to the public through you exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to
27
(f)
The indemnity and contribution provisions contained in this Section 6 and the
representations, warranties and other statements of the Company, its officers
and you contained in or made pursuant to this Agreement or any Notes Terms
Agreement, Units Terms Agreement or Warrants Terms Agreement shall remain
operative and in full force and effect, regardless of (i) any termination of
this Agreement or any such Notes Terms Agreement, Units Terms Agreement or
Warrants Terms Agreement, (ii) any investigation made by or on behalf of you,
any person controlling you or any of your affiliates or by or on behalf of the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Program Securities.
7.
Position of the Agent. In
acting under this Agreement and in connection with the sale of any Program
Securities by the Company (other than Program Securities sold to you pursuant to
a Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement, as
the case may be), you are acting solely as agent of the Company and do not
assume any obligation towards or relationship of agency or trust with any
purchaser of Program Securities. You shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Program Securities has been solicited by you and accepted by the Company, but
you shall not have any liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver Program Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or
liability arising from or as a result of such default and shall, in particular,
pay to you the commission you would have received had such sale been
consummated.
8.
Offering Restrictions. If any
Program Securities are to be offered outside the United States, you will
not offer or sell any such Program Securities in any jurisdiction if such offer
or sale would not be in compliance with any applicable law or regulation or if
any consent, approval or permission is needed for such offer or sale by you or
for or on behalf of the Company unless such consent, approval or permission has
been previously obtained. Subject to the obligations of the Company set forth in
Section 3 of this Agreement, the Company shall have no responsibility for, and
you will obtain, any consent, approval or permission required by you for the
subscription, offer, sale or delivery by you of Program Securities, or the
distribution of any offering materials, under the laws and regulations in force
in any jurisdiction to which you are subject or in or from which you make any
subscription, offer, sale or delivery.
9.
Termination. This Agreement
may be terminated at any time either by the Company or by you upon
the giving of written notice of such termination to the other parties hereto,
but without prejudice to any rights, obligations or liabilities of the other
parties hereto accrued or incurred prior to such termination. The termination of
this Agreement shall not require termination of any Notes Terms Agreement, Units
Terms Agreement or Warrants Terms Agreement, and the termination of any such
Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement shall
not require termination of this Agreement. If this Agreement is
28
10.
Notices. All communications
hereunder will be in writing and effective only on receipt, and, if sent
to you, will be mailed, delivered or telefaxed and confirmed to you at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer (telefax number: 212
761-0781) or, if sent to the Company, will be mailed, delivered or telefaxed and
confirmed to the Company at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Treasurer; Facsimile No.: 000-000-0000.
11.
Successors. This Agreement
and any Notes Terms Agreement, Units Terms Agreement or Warrants
Terms Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes, Units
and Warrants (to the extent expressly provided in Section 4), and no other
person will have any right or obligation hereunder.
12.
Counterparts. This Agreement
may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
13.
Applicable Law. This
Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14.
Headings. The headings of the
sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
29
|
Very
truly yours,
|
|||
|
XXXXXX
XXXXXXX
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
The
foregoing Agreement is hereby
confirmed
and accepted as of the date first
above
written.
|
XXXXXX
XXXXXXX & CO.
INCORPORATED
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
EXHIBIT
A
XXXXXX
XXXXXXX
GLOBAL
MEDIUM-TERM NOTES, SERIES F
NOTES
TERMS AGREEMENT
___________________,
20__
Xxxxxx
Xxxxxxx
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
|
Re:
|
U.S.
Distribution Agreement dated December 23, 2008
|
|
(the “U.S.
Distribution
Agreement”)
|
The
undersigned agrees to purchase your Global Medium-Term Notes, Series F,
[specified designation] (the “Notes”)
having the terms set forth below. The offering of the Notes will be
made pursuant to a Prospectus dated December 23, 2008, as amended by a Prospectus
Supplement dated December 23, 2008 [,] [and] [Pricing Supplement No. [ ]
which we expect to be dated on or about [ ]][,]
[and] [a free writing prospectus which we expect to be dated on or about
[ ]][,] [and] [a Term Sheet which we expect to be dated on or
about [ ]] (collectively, the “Time
of Sale Prospectus”). The Notes are expected to have
the terms set forth below, but the final terms of the Notes will be those set
forth in the Time of Sale Prospectus.
|
All
Notes
|
Fixed
Rate Notes
|
Floating
Rate Notes
|
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
|
Purchase
Price:
|
Applicability
of Modified Payment upon Acceleration:
|
Index
Maturity:
|
|
Price
to Public:
|
If
yes, state issue price:
|
Index
Currency:
|
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
(Plus or Minus):
|
|
Place
of Delivery:
|
Applicability
of Annual Interest Payments:
|
Spread
Multiplier:
|
|
Specified
Currency:
|
Denominated
Currency (if any):
|
Alternate
Rate Event Spread:
|
|
Original
Issue Date:
|
Indexed
Currency or Currencies (if any):
|
Initial
Interest Rate:
|
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Initial
Interest Reset Date:
|
|
Interest
Payment Dates:
|
Exchange
Rate Agent (if any):
|
Interest
Reset Dates:
|
|
Interest
Payment Period:
|
Reference
Dealers:
|
Interest
Reset Period:
|
A-1
|
All
Notes
|
Fixed
Rate Notes
|
Floating
Rate Notes
|
|
Maturity
Date:
|
Face
Amount (if any):
|
Maximum
Interest Rate:
|
|
Optional
Repayment Date(s):
|
Fixed
Amount of each Indexed Currency (if any):
|
Minimum
Interest Rate:
|
|
Optional
Redemption Date(s):
|
Aggregate
Fixed Amount of each Indexed Currency (if any):
|
Calculation
Agent:
|
|
Initial
Redemption Date:
|
Applicability
of Issuer’s Option to Extend Original Maturity Date:
|
Reporting
Service:
|
|
Initial
Redemption Percentage:
|
If
yes, state Final Maturity Date:
|
Variable
Rate Renewable Notes:
|
|
Annual
Redemption Percentage Reduction:
|
Redemption
Dates:
|
|
|
Ranking:
|
Redemption
Percentage:
|
|
|
Minimum
Denominations:
|
Initial
Maturity Date:
|
|
|
Other
Provisions:
|
Final
Maturity Date:
|
|
|
Applicability
of Issuer’s Option to Reset Spread or Spread
Multiplier:
|
The
provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10 through 14 of the
U.S. Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is terminated, the provisions of Sections
3(k), 6, 10, 11 and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The
following information, opinions, certificates, letters and documents referred to
in Section 4 of the U.S. Distribution Agreement will be required:
___________.
|
XXXXXX
XXXXXXX & CO.
|
||
|
INCORPORATED
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
A-2
Accepted:
|
XXXXXX
XXXXXXX
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
X-0
XXXXXXX
X-0
XXXXXX
XXXXXXX
GLOBAL
UNITS, SERIES F
UNITS
TERMS AGREEMENT
___________________,
20__
Xxxxxx
Xxxxxxx
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
|
Re:
|
U.S.
Distribution Agreement dated December 23, 2008
|
|
(the “U.S.
Distribution Agreement”)
|
The
undersigned agrees to purchase your Global Units, Series F, [specified
designation] (the “Units”)
having the terms set forth below. The offering of the Units will be
made pursuant to a Prospectus dated December 23, 2008, as amended by a Prospectus
Supplement dated December 23, 2008 [,] [and] [Pricing Supplement No. [ ]
which we expect to be dated on or about [ ]][,]
[and] [a free writing prospectus which we expect to be dated on or about
[ ]][,] [and] [a Term Sheet which we expect to be dated on or
about [ ]] (collectively, the “Time
of Sale Prospectus”). The Units are expected to have
the terms set forth below, but the final terms of the Units will be those set
forth in the Time of Sale Prospectus.
|
All
Units:
|
Warrants
Issued as Part of a Unit:
|
Purchase
Contracts Issued as Part of a Unit:
|
|
Settlement
Date and Time:
|
Designation
of the Series of Warrants: [Call] [Put] Warrants
|
Designation
of the Series of Purchase Contracts: [Purchase][Sale] Purchase
Contracts
|
|
Number
(Face Amount):
|
Warrant
Property:
|
Aggregate
Number of Purchase Contracts:
|
|
Purchase
Price:
|
Aggregate
Number of Warrants:
|
Purchase
Contract Property:
|
|
Specified
Currency:
|
Date(s)
upon which Warrants may be exercised:
|
Quantity
per Purchase Contract:
|
|
Severability:
|
Currency
in which exercise payments shall be made:
|
[Purchase]
[Sale] Price:
|
|
Other
Terms:
|
Exchange
Rate (or method of calculation:
|
Settlement
Date:
|
A-1-1
|
All
Units:
|
Warrants
Issued as Part of a Unit:
|
Purchase
Contracts Issued as Part of a Unit:
|
|
Expiration
Date:
|
Payment
Location:
|
|
|
Form
of Settlement:
[Call
Price:]1
|
||
|
Method
of Settlement:
|
||
|
[Formula
for determining Cash Settlement Value:]
|
Currency
of Settlement Payment:
|
|
|
[Amount
of Warrant Property Salable per Warrant:]2
|
Contract
Fees, if any:
|
|
|
[Put
Price for such specified amount of Warrant Property per Warrant:]3
|
Corporation
Acceleration:
|
|
|
[Method
of delivery of any Warrant Property to be delivered for sale upon exercise
of Warrants:]3
|
Holders’
Acceleration:
|
|
|
Other
Terms:
|
Redemption
Provisions:
|
|
|
Other
Terms:
|
|
All
Notes Issued as Part of a Unit:
|
Fixed
Rate Notes Issued as Part of a Unit:
|
Floating
Rate Notes Issued as Part of a Unit:
|
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
|
Purchase
Price:
|
Applicability
of Modified Payment upon Acceleration:
|
Index
Maturity:
|
|
Price
to Public:
|
If
yes, state issue price:
|
Index
Currency:
|
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
(Plus or Minus):
|
|
Place
of Delivery:
|
Applicability
of Annual Interest Payments:
|
Spread
Multiplier:
|
|
Specified
Currency:
|
Denominated
Currency (if any):
|
Alternate
Rate Event Spread:
|
|
Original
Issue Date:
|
Indexed
Currency or Currencies (if any):
|
Initial
Interest Rate:
|
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Initial
Interest Reset Date:
|
|
Maturity
Date:
|
Exchange
Rate Agent (if any):
|
Interest
Reset Dates:
|
1
Applicable to Call Warrants
2
Applicable to Put Warrants
3
Applicable to Put Warrants only if such Put Warrants contemplate that the holder
deliver Warrant Property to settle Put Warrants
A-1-2
|
All
Notes Issued as Part of a Unit:
|
Fixed
Rate Notes Issued as Part of a Unit:
|
Floating
Rate Notes Issued as Part of a Unit:
|
|
Interest
Payment Date(s):
|
Reference
Dealers:
|
Interest
Reset Period:
|
|
Interest
Payment Period:
|
Face
Amount (if any):
|
Maximum
Interest Rate:
|
|
Optional
Repayment Date(s):
|
Fixed
Amount of each Indexed Currency (if any):
|
Minimum
Interest Rate:
|
|
Optional
Redemption Date(s):
|
Aggregate
Fixed Amount of each Indexed Currency (if any):
|
Calculation
Agent:
|
|
Initial
Redemption Date:
|
Applicability
of Issuer’s Option to Extend Original Maturity Date:
|
Reporting
Service:
|
|
Initial
Redemption Percentage:
|
If
yes, state Final Maturity Date:
|
Variable
Rate Renewable Notes:
|
|
Annual
Redemption Percentage Reduction:
|
Redemption
Dates:
|
|
|
Ranking:
|
Redemption
Percentage:
|
|
|
Series:
|
Initial
Maturity Date:
|
|
|
Minimum
Denominations:
|
Final
Maturity Date:
|
|
|
Other
Terms, including the identification of any other security or property
included as a component of the Unit:
|
Applicability
of Issuer’s Option to Reset Spread or Spread
Multiplier:
|
The
provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10 through 14 of the
U.S. Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.4
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is terminated, the provisions of Sections
3(k), 6, 10, 11 and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The
following information, opinions, certificates, letters and documents referred to
in Section 4 of the U.S. Distribution Agreement will be required:
___________.
4 In the
case of Physically-settled Pre-paid Purchase Contracts issued under the Unit
Agreement Without Holders’ Obligations, additional representations and
warranties will be added with respect to such Physically-settled Pre-paid
Purchase Contracts and the opinions of counsel delivered pursuant to Sections
4(b)(i) and 4(b)(ii) will cover such additional representations and warranties,
as appropriate.
A-1-3
|
XXXXXX
XXXXXXX & CO.
|
||
|
INCORPORATED
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Accepted:
|
XXXXXX
XXXXXXX
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
X-0-0
XXXXXXX
X-0
XXXXXX
XXXXXXX
XXXXXX
XXXXXXXX, SERIES F
WARRANTS
TERMS AGREEMENT
___________________,
20__
Xxxxxx
Xxxxxxx
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
|
Re:
|
U.S.
Distribution Agreement dated December 23, 2008
|
|
(the “U.S.
Distribution Agreement”)
|
The
undersigned agrees to purchase your Global Warrants, Series F, [specified
designation] (the “Warrants”)
having the terms set forth below. The offering of the Warrants will
be made pursuant to a Prospectus dated December 23, 2008, as amended by a Prospectus
Supplement dated December 23, 2008 [,] [and] [Pricing Supplement No. [ ]
which we expect to be dated on or about [ ]][,]
[and] [a free writing prospectus which we expect to be dated on or about
[ ]][,] [and] [a Term Sheet which we expect to be dated on or
about [ ]] (collectively, the “Time
of Sale Prospectus”). The Warrants are expected to have
the terms set forth below, but the final terms of the Warrants will be those
set forth in the Time of Sale Prospectus.
|
All
Warrants:
|
|
|
Settlement
Date and Time:
|
Designation
of the series of Warrants: [Call] [Put] Warrants
|
|
Number
(Face Amount):
|
Warrant
Property:
|
|
Purchase
Price:
|
Aggregate
Number of Warrants:
|
|
Specified
Currency:
|
Date(s)
upon which Warrants may be exercised:
|
|
Expiration
Date:
|
Currency
in which exercise payments shall be made:
|
|
Form
of Settlement:
[Call
Price:]1
|
Exchange
Rate (or method of calculation:
|
|
[Formula
for determining Cash Settlement Value:]
|
Method
of Settlement:
|
|
[Put
Price for such specified amount of Warrant Property per Warrant:]2
|
[Amount
of Warrant Property Salable per Warrant:]3
|
1 Applicable
to Call Warrants
A-2-1
|
All
Warrants:
|
|
|
Other
Terms:
|
[Method
of delivery of any Warrant Property to be delivered for sale upon exercise
of Warrants:]
|
The
provisions of Sections 1, 2(b) and 2(c), 3 through 6, 8 and 10 through 14 of the
U.S. Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is terminated, the provisions of Sections
3(k), 6, 10, 11 and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The
following information, opinions, certificates, letters and documents referred to
in Section 4 of the U.S. Distribution Agreement will be required:
___________.
2 Applicable
to Put Warrants only if such Put Warrants contemplate that the holder deliver
Warrant Property to settle Put Warrants
3 Applicable
to Put Warrants
A-2-2
|
XXXXXX
XXXXXXX & CO.
|
||
|
INCORPORATED
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Accepted:
|
XXXXXX
XXXXXXX
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
A-2-3
EXHIBIT
B
XXXXXX
XXXXXXX
GLOBAL
MEDIUM-TERM NOTES, SERIES F
GLOBAL
UNITS, SERIES F
GLOBAL
WARRANTS, SERIES F
ADMINISTRATIVE
PROCEDURES
Explained
below are the administrative procedures and specific terms of the offering of
Global Medium Term Notes, Series F (the “Notes”),
Global Units, Series F (the “Units”)
and Global Warrants, Series F (the “Warrants”),
on a continuous basis by Xxxxxx Xxxxxxx (the “Company”)
pursuant to the U.S. Distribution Agreement dated December 23, 2008 (as may be
amended from time to time, the “Distribution
Agreement”) between the Company and Xxxxxx Xxxxxxx & Co. Incorporated
(the “Agent”).
The Notes may be issued as senior indebtedness (the “Senior
Notes”) or subordinated
indebtedness (the “Subordinated
Notes”) of the Company, and as used herein the term “Notes” includes
the Senior Notes and the Subordinated Notes. The Senior Notes will be issued,
either alone or as part of a Unit, pursuant to the provisions of a senior indenture
dated as of November 1, 2004 (as supplemented by the First Supplemental Senior
Indenture dated as of September 4, 2007, the Second Supplemental Senior Indenture
dated as of January 4, 2008, the Third Supplemental Senior Indenture dated as
of September 10, 2008 and the Fourth Supplemental Senior Indenture dated as of
December 1, 2008, and as may be further supplemented or amended from time to
time, the “Senior Debt
Indenture”), between the Company and The Bank of New York Mellon
(as successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank)), as trustee. The Subordinated Notes will be issued pursuant to the provisions
of a subordinated indenture, dated as of October 1, 2004 (as may be supplemented
or amended from time to time, the “Subordinated
Debt Indenture”),
between the Company and The Bank of New York Mellon (as successor to X.X. Xxxxxx
Trust Company, National Association), as trustee. The Senior Debt Indenture and
the Subordinated Debt Indenture are sometimes hereinafter referred to
individually as an “Indenture” and
collectively as the “Indentures.”
Purchase contracts (“Purchase
Contracts”) that require holders to satisfy their obligations thereunder
when such Purchase Contracts are issued are referred to as “Pre-paid
Purchase Contracts.”
Pre-paid Purchase Contracts that settle in cash (“Cash-settled
Pre-paid Purchase Contracts”) generally will be issued under the
Indentures. Pre-paid Purchase Contracts
that do not settle in cash (“Physically-settled
Pre-paid Purchase Contracts”) may be issued either under the Senior
Debt Indenture (such Physically-settled Pre-paid Purchase Contracts, together
with the Cash-settled Pre-paid Purchase Contracts, the “Indenture
Pre-paid Purchase Contracts”)
or under the Unit Agreement (as defined below). Purchase Contracts, other
than Indenture Pre-paid Purchase Contracts, entered into by the Company and the
holders thereof will be governed by the Unit Agreement.
B-1
Unless
otherwise specified in any applicable free writing prospectus, Term Sheet or
Pricing Supplement, the Units will be issued (i) pursuant to the Unit Agreement
dated as of November 1, 2004, among the Company, The Bank of New York Mellon (as
successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)),
as Unit Agent, as Collateral Agent, as Trustee and Paying Agent under the
Indenture referred to therein, and as Warrant Agent under the Warrant Agreement
referred to therein, and the holders from time to time of the Units described
therein (as may be amended from time to time, the “Unit Agreement”), or (ii) if Units
do not include Purchase Contracts (or include only Pre-paid Purchase Contracts) or
otherwise do not involve obligations on the part of the holders of the Units,
pursuant to the Unit Agreement Without Holders’ Obligations dated as of August
29, 2008 between the Company and The Bank of New York Mellon, as Unit Agent, as
Trustee and Paying Agent under the Indenture referred to therein, and as Warrant
Agent under the Warrant Agreement referred to therein (as may be amended from
time to time, the “Unit
Agreement Without
Holders’ Obligations”). Units may include one or more (i) Series F Senior
Notes, (ii) warrants (“Warrants”) entitling the
holders thereof to purchase or sell (a) securities issued by the Company or by
an entity affiliated or not affiliated with the Company, a basket of such
securities, an index or indices of such securities or any other property, (b)
currencies, (c) commodities, (d) any other property or (e) any combination of
the foregoing, (iii) Purchase Contracts, including Pre-paid Purchase Contracts,
requiring the holders thereof to purchase or sell (a) securities issued by the
Company or by an entity affiliated or not affiliated with the Company, a basket
of such securities, an index or indices of such securities or any other
property, (b) currencies, (c) commodities, (d) any other property or (e) any
combination of the foregoing, (iv) debt obligations or other securities of an
entity affiliated or not affiliated with the Company or other property or (v)
any combination thereof. The applicable Term Sheet, if applicable, and Pricing
Supplement will specify whether or not any Notes, Warrants, Purchase Contracts
and such other securities or property comprised by a Unit may or may not be
separated from the Unit. Warrants issued as part of a Unit will be issued
pursuant to the Warrant Agreement dated as of November 1, 2004, between the
Company and The Bank of New York Mellon (as successor to JPMorgan Chase Bank,
N.A. (formerly known as JPMorgan Chase Bank)), as Warrant Agent (as may be
amended from time to time, the “Warrant
Agreement”).
The
Warrants will be issued either separately or as part of a Unit (as described
above) pursuant to the Warrant Agreement.
In the
Distribution Agreement, the Agent has agreed to use reasonable efforts to
solicit purchases of the Notes, the Units and the Warrants, and the
administrative procedures explained below will govern the issuance and
settlement of any Notes, Units or Warrants sold through the Agent, as agent of
the Company. The Agent, as principal, may also purchase Notes, Units and
Warrants for its own account, and the Company and the Agent will enter into a
terms agreement (in the case of Notes, a “Notes Terms Agreement,” in the
case of Units, a “Units
Terms Agreement,”
and in the Warrants, a “Warrants Terms Agreement”), as
contemplated by the Distribution Agreement.
The administrative procedures explained below will govern the issuance and
settlement of any Notes, Units or Warrants purchased by the Agent, as principal,
unless otherwise specified in the applicable Notes Terms Agreement, Units Terms
Agreement or Warrants Terms Agreement.
X-0
Xxx Xxxx
xx Xxx Xxxx Xxxxxx will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for the Senior Notes (and any Indenture Pre-paid Purchase
Contracts), the Unit Agent for the Units and Purchase Contracts (other than
Pre-paid Purchase Contracts issued under the Senior Debt Indenture) and Warrant
Agent for the Warrants, and in each case, will perform the duties specified
herein. The Bank of New York Mellon will be the Registrar, Calculation Agent,
Authenticating Agent and Paying Agent for the Subordinated Notes and in each
case, will perform the duties specified herein.
Each Note,
each Unit and each Warrant will be represented by either (i) in the case of the
Notes, a Global Note, in the case of the Units, a Global Unit and, in the case
of the Warrants, a Global Warrant (each as defined below) delivered to The Bank
of New York Mellon, as agent for The Depository Trust Company (“DTC”), and recorded in the
book entry system maintained by DTC (in the case of a Note, a “Book-Entry Note,” in the case
of a Unit, a “Book-Entry
Unit” and in the case of
a Warrant, a “Book-Entry
Warrant”) or (ii) a certificate delivered to the holder thereof or a
person designated by such holder (in the case of a Note, a “Certificated Note,” in the case of a Unit,
a “Certificated Unit”
and in the case of a Warrant, a “Certificated Warrant”). Each
Note, Warrant or Purchase Contract which may be included in any Unit will be issued in the
corresponding global or certificated form. Except as set forth in the
Indentures, in the case of Notes or Indenture Pre-paid Purchase Contracts, the
Unit Agreement or the Unit Agreement Without Holders’ Obligations, as
applicable, in the case of Units and all other Purchase Contracts, or the
Warrant Agreement, in the case of the Warrants, an owner of a Book Entry Note,
Book-Entry Unit (or of any Note, Warrant or Purchase Contract included in such
Book-Entry Unit) or Book-Entry Warrant, as the case may be, will not be entitled
to receive a Certificated Note (including with respect to a Book-Entry Note
included in a Book-Entry Unit), a Certificated Unit (or certificated Warrants or
Purchase Contracts, as applicable) or a Certificated Warrant, as
applicable.
Book Entry
Notes, Book-Entry Units and Book-Entry Warrants, which may be payable in either
U.S. dollars or other specified currencies, will be issued in accordance with
the administrative procedures set forth in Part I hereof as they may
subsequently be amended as the result of changes in DTC’s operating procedures.
Certificated Notes, Certificated Units and Certificated Warrants will be issued
in accordance with the administrative procedures set forth in Part II
hereof.
Unless
otherwise defined herein, terms defined in the Indentures, the Unit Agreement,
the Unit Agreement Without Holders’ Obligations, the Warrant Agreement, the
Notes, the Units, the Warrants, the Purchase Contracts or any Prospectus
Supplement relating to the Notes, Units and Warrants shall be used herein as
therein defined. The Company will advise the Agent in writing of the employees
of the Company with whom the Agent is to communicate regarding offers to
purchase Notes, Units and Warrants and the related settlement
details.
The
Company will advise the Agent in writing of the employees of the Company with
whom the Agent is to communicate regarding offers to purchase Notes, Units and
Warrants and the related settlement details.
B-3
PART I:
ADMINISTRATIVE PROCEDURES FOR BOOK ENTRY NOTES, BOOK-ENTRY UNITS AND BOOK-ENTRY
WARRANTS
In
connection with the qualification of the Book Entry Notes, Book-Entry Units and
Book-Entry Warrants for eligibility in the book entry system maintained by DTC,
The Bank of New York Mellon will perform the custodial, document control and
administrative functions described below, in accordance with its respective
obligations under DTC’s Operational Arrangements dated February 20, 2002, as
amended from time to time, including by the Blanket Issuer Letter of
Representations from the Company to DTC, dated as of August 25, 2003, its
obligations under a Medium-Term Note Certificate Agreement between The Bank of
New York Mellon and DTC dated as of April 4, 1989, and its obligations as a
participant in DTC, including DTC’s Same-Day Funds Settlement System (“SDFS”).
|
Issuance:
|
On
any date of settlement (as defined under “Settlement” below) for
one or more Book Entry Notes, one or more Book-Entry Units or one or more
Book-Entry Warrants the Company will issue, in the case of the Notes, a
single global Note in fully registered form without coupons (a “Global Note”)
representing up to U.S. $500,000,000 principal amount of all such Notes
that have the same Original Issue Date, Maturity Date and other terms, in
the case of a Unit, a single global unit in fully registered form (a
“Global Unit”),
representing up to U.S. $500,000,000 face amount of all such Units that
have the same Original Issue Date and that otherwise comprise the same
securities and have the same terms and, in the case of a Warrant, a single
global warrant in fully registered form (a “Global Warrant”),
representing up to U.S. $500,000,000 purchase price of all such Warrants
that have the same Original Issue Date and that otherwise comprise the
same securities and have the same terms. Each Global Note,
whether issued alone or as part of a Unit, will be dated and issued as of
the date of its authentication by The Bank of New York Mellon, each Global
Unit will be dated and issued as of the date of the issuances of the other
securities comprised by such Unit and each Global Warrant, whether issued
alone or as part of a Unit, will be dated and issued as of the date of its
countersignature by The Bank of New York Mellon. Each Global
Note, whether alone or as part of a Unit, will bear an “Interest Accrual Date,”
which will be (i) with respect to an original Global Note (or any portion
thereof), its original issuance date and (ii) with respect to any Global
Note (or any portion thereof) issued subsequently upon exchange of a
Global Note, or in lieu of a destroyed, lost or stolen Global Note, the
most recent Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Note or Notes (or if no such
payment or
|
||||
B-4
| provision has been made, the original issuance date of the predecessor Global Note), regardless of the date of authentication of such subsequently issued Global Note. Book-Entry Notes, Book-Entry Units and Book-Entry Warrants may be payable in either U.S. dollars or other specified currencies. No Global Note, Global Unit or Global Warrant will represent any Certificated Note, Certificated Unit or Certificated Warrant, as the case may be. | |||||
|
Denominations:
|
Book
Entry Notes, Book-Entry Units and Book-Entry Warrants will be issued in
(i) in the case of Book-Entry Notes, principal amounts of U.S. $1,000 or
any amount in excess thereof that is an integral multiple of U.S. $1,000
or, if such Book-Entry Notes are issued in a currency other than U.S.
dollars, principal amounts of such currency in denominations of the
equivalent of U.S. $1,000 (rounded to an integral multiple of 1,000 units
of such currency), unless otherwise indicated in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, (ii) in the case of
Book-Entry Units, denominations of a single unit and any integral multiple
thereof with face amounts of U.S. $1,000 or any amount in excess thereof
that is an integral multiple of U.S. $1,000 or, if such Book-Entry Units
are issued in a currency other than U.S. dollars, face amounts of such
currency in denominations of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such currency), unless otherwise
indicated in any applicable free writing prospectus, Term Sheet and
Pricing Supplement and (iii) in the case of Book-Entry Warrants,
denominations of a single warrant and any integral multiple thereof with
purchase prices of $0.01 or any amount in excess thereof that is an
integral multiple of the purchase price or, if such Book-Entry Warrants
are issued in a currency other than U.S. dollars, purchase prices of such
currency in denominations of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1 unit of such currency), unless otherwise indicated
in any applicable free writing prospectus, Term Sheet and Pricing
Supplement. Global Notes, Global Units and Global Warrants will
be denominated in, in the case of Global Notes, principal amounts not in
excess of U.S.$500,000,000, in the case of Global Units, face amounts not
in excess of U.S. $500,000,000 and in the case of Global Warrants,
purchase prices not in excess of U.S.$500,000,000. If one or
more Book Entry Notes having an aggregate principal amount in excess of
U.S. $500,000,000, one or more Book-Entry
|
||||
B-5
| Units having an aggregate face amount, in excess of $500,000,000 or one or more Book-Entry Warrant having an aggregate purchase price, in excess of $500,000,0000 would, but for the preceding sentence, be represented by a single Global Note, Global Unit or Global Warrant, as the case may be, then one Global Note will be issued to represent each U.S. $500,000,000 principal amount of such Book Entry Note or Notes, one Global Unit will be issued to represent each U.S.$500,000,000 face amount of such Book-Entry Unit or Units, one Global Warrant will be issued to represent each U.S.$500,000,000 purchase price of such Book-Entry Warrant or Warrants and an additional Global Note, Global Unit or Global Warrant, will be issued to represent any remaining principal amount of such Book Entry Note or Notes, face amount of such Book-Entry Unit or Units or purchase price of such Book-Entry Warrant or Warrants. In such a case, each of the Global Notes, Global Units or Global Warrants representing such Book Entry Note or Notes, such Book-Entry Unit or Units or such Book-Entry Warrant or Warrants, as the case may be, shall be assigned the same CUSIP number. | |||||
|
Preparation
of Pricing Supplement:
|
If
any order to purchase a Book-Entry Note, Book-Entry Unit or Book-Entry
Warrant is accepted by or on behalf of the Company, the Company will
prepare a free writing prospectus and/or Term Sheet, if applicable, and a
pricing supplement (a “Pricing Supplement”)
reflecting the terms of such Note, Unit or Warrant. The Company
(i) will arrange to file with the Commission an electronic format
document, in the manner prescribed by the XXXXX Xxxxx Manual, of such Term
Sheet and Pricing Supplement in accordance with, in the case of any free
writing prospectus and/or Term Sheet, Rule 433 under the Securities Act
and, in the case of the Pricing Supplement, the applicable paragraph of
Rule 424(b) under the Securities Act, (ii) will, with respect to each of
the free writing prospectus and/or Term Sheet, if applicable, and the
Pricing Supplement, as soon as possible and in any event not later than
the date on which the applicable document is filed with the Commission,
deliver the number of copies of such document to the Agent as the Agent
shall request and (iii) will, on the Agent’s behalf, promptly file five
copies of such Pricing Supplement with the Financial Industry Regulatory
Authority, Inc. (the “FINRA”) or otherwise
satisfy FINRA’s filing requirements. The Agent will cause the
free writing prospectus and/or Term Sheet, if applicable, and the Pricing
Supplement to be delivered, or
|
||||
B-6
| otherwise made available, to the purchaser of the Note, Unit or Warrant. | |||||
|
In
each instance that a Pricing Supplement is prepared, the Agent will affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated free writing prospectus, Term Sheets, Pricing
Supplements, and the Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
|
|||||
|
Settlement:
|
The
receipt by the Company of immediately available funds in payment for a
Book Entry Note, a Book-Entry Unit or a Book-Entry Warrant and, in the
case of the Note, the authentication and issuance of the Global Note
representing such Note, in the case of the Unit, the completion and
issuance of the Global Unit representing such Unit (and of each security
comprised by such Unit) or in the case of the Warrant, the completion and
countersignature of the Global Warrant representing such Warrant shall
constitute “settlement” with respect
to such Note, Unit or Warrant, as the case may be. All orders
accepted by the Company will be settled on the fifth Business Day pursuant
to the timetable for settlement set forth below unless the Company and the
purchaser agree to settlement on another day, which shall be no earlier
than the next Business Day.
|
||||
|
Settlement
Procedures:
|
Settlement
Procedures with regard to each Book Entry Note, each Book-Entry Unit and
each Book-Entry Warrant sold by the Company to or through the Agent
(unless otherwise specified pursuant to a Notes Terms Agreement a Units
Terms Agreement or a Warrants Terms Agreement), shall be as
follows:
|
||||
|
A.
|
In
the case of a Book-Entry Note (whether issued alone or as part of a Unit),
the Agent will advise the Company by telephone that such Note is a Book
Entry Note and of the following settlement information:
|
||||
|
1.
|
Principal
amount.
|
||||
|
2.
|
Maturity
Date.
|
||||
|
3.
|
In
the case of a Fixed Rate Book Entry Note, the Interest Rate, whether such
Note will pay interest annually or semiannually and whether such Note is
an Amortizing Note, and, if so, the amortization schedule, or, in
|
||||
B-7
| the case of a Floating Rate Book Entry Note, the Initial Interest Rate (if known at such time), Interest Payment Date(s), Interest Payment Period, Calculation Agent, Base Rate, Index Maturity, Index Currency, Interest Reset Period, Initial Interest Reset Date, Interest Reset Dates, Spread or Spread Multiplier (if any), Minimum Interest Rate (if any), Maximum Interest Rate (if any) and the Alternate Rate Event Spread (if any). | |||||
|
4.
|
Redemption
or repayment provisions, if any.
|
||||
|
5.
|
Ranking.
|
||||
|
6.
|
Settlement
date and time (Original Issue Date).
|
||||
|
7.
|
Interest
Accrual Date.
|
||||
|
8.
|
Price.
|
||||
|
9.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
||||
|
10.
|
Specified
Currency.
|
||||
|
11.
|
Whether
the Note is an Original Issue Discount Note (an “OID Note”), and if it is
an OID Note, the applicability of Modified Payment upon Acceleration (and,
if so, the Issue Price).
|
||||
|
12.
|
Whether
the Note is a Renewable Note, and if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the Election Dates and
the Maturity Extension Dates.
|
||||
|
13.
|
Whether
the Company has the option to reset the Spread or Spread Multiplier of the
Note.
|
||||
|
14.
|
Whether
the Note is an Optionally Exchangeable Note, a Mandatorily Exchangeable
Note, or any form of exchangeable Note.
|
||||
|
15.
|
Any
other applicable provisions.
|
||||
|
B.
|
In
the case of a Book-Entry Unit, the Agent will advise the Company by
telephone that such Unit is a Book-Entry Unit, of the information set
forth in Settlement Procedures “A” above with respect to
|
||||
B-8
| any Book-Entry Notes that constitute a part of such Book-Entry Unit and of the following information: | |||||
|
1.
|
Settlement
date and time.
|
||||
|
2.
|
Face
Amount.
|
||||
|
3.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
||||
|
4.
|
Designation
of the Securities comprised by such Units:
|
||||
|
a.
|
Notes
(See Settlement Procedures “A”);
|
||||
|
b.
|
Warrants,
if any;
|
||||
|
c.
|
Purchase
Contracts, if any;
|
||||
|
d.
|
debt
obligations or other securities of an entity affiliated or not affiliated
with the Company, if any; and
|
||||
|
e.
|
other
property, if any.
|
||||
|
5.
|
Whether,
and the terms under which, the Securities comprised by such Unit will be
separately tradeable.
|
||||
|
6.
|
Any
other provisions applicable to the Unit (other than those provisions
applicable to the securities comprised by such Unit).
|
||||
|
7.
|
If
the Book-Entry Unit comprises Book-Entry Warrants:
|
||||
|
a.
|
Designation
of the Series of Warrants: [Call][Put] Warrants;
|
||||
|
b.
|
Warrant
Property;
|
||||
|
c.
|
Aggregate
Number of Warrants;
|
||||
|
d.
|
Price
to Public;
|
||||
|
e.
|
Warrant
Exercise Price;
|
||||
|
f.
|
Dates
upon which Warrants may be exercised;
|
||||
|
g.
|
Expiration
Date;
|
||||
|
h.
|
Form;
|
||||
|
i.
|
Currency
in which exercise payments shall be
made;
|
||||
B-9
|
j.
|
Minimum
number of Warrants exercisable by any holder on any
day;
|
||||
|
k.
|
Maximum
number of Warrants exercisable on any day: [In the aggregate]
[By any beneficial owner];
|
||||
|
l.
|
Formula
for determining Cash Settlement Value;
|
||||
|
m.
|
Exchange
Rate (or method of calculation);
|
||||
|
n.
|
Whether
the Company or the holder is the writer of the Warrant;
and
|
||||
|
o.
|
Any
other applicable provisions.
|
||||
|
8.
|
If
the Book-Entry Unit comprises Book-Entry Purchase
Contracts:
|
||||
|
a.
|
Designation
of the Series of Purchase Contracts: [Purchase][Sale] Purchase
Contracts;
|
||||
|
b.
|
Purchase
Contract Property;
|
||||
|
c.
|
Aggregate
Number of Purchase Contracts;
|
||||
|
d.
|
Price
to Public;
|
||||
|
e.
|
Settlement
Date;
|
||||
|
f.
|
[Purchase/Sale]
Price of Purchase Contract Property;
|
||||
|
g.
|
Form;
and
|
||||
|
h.
|
Any
other applicable provisions.
|
||||
|
C.
|
In
the case of a Book-Entry Warrant (issued alone and not as part of a Unit),
the Agent will advise the Company by telephone that such Warrant is a
Book-Entry Warrant and of the following information:
|
||||
|
1.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
||||
|
2.
|
Settlement
date and time.
|
||||
|
3.
|
Purchase
Price
|
||||
|
4.
|
Designation
of the Series of Warrants: [Call][Put]
Warrants;
|
||||
B-10
|
5.
|
Warrant
Property;
|
|||
|
6.
|
Aggregate
Number of Warrants;
|
|||
|
7.
|
Price
to Public;
|
|||
|
8.
|
Warrant
Exercise Price;
|
|||
|
9.
|
Dates
upon which Warrants may be exercised;
|
|||
|
10.
|
Expiration
Date;
|
|||
|
11.
|
Form;
|
|||
|
|
||||
|
12.
|
Currency
in which exercise payments shall be made;
|
|||
|
13.
|
Minimum
number of Warrants exercisable by any holder on any
day;
|
|||
|
14.
|
Maximum
number of Warrants exercisable on any day: [In the aggregate]
[By any beneficial owner];
|
|||
|
|
||||
| 15. |
Formula
for determining Cash Settlement Value;
|
|||
| 16. |
Exchange
Rate (or method of calculation); and
|
|||
|
17.
|
Any
other applicable provisions.
|
|||
|
D.
|
The
Company will advise The Bank of New York Mellon by telephone or electronic
transmission (confirmed in writing at any time on the same date) of the
information set forth in “Settlement Procedures” “A” “B” and “C” above, as
applicable, such advice to contain a representation as to the aggregate
principal amount of Program Securities permitted to be issued hereunder
after such issuance. The Bank of New York Mellon will then
assign a CUSIP number to the Global Note representing a Note, whether
issued alone or as part of a Unit, and will notify the Company and the
Agent of such CUSIP number(s) by telephone as soon as practicable, except
that for Optionally Exchangeable and Mandatorily Exchangeable Notes the
Agent will obtain a CUSIP number for the Global Note representing such
Note and will notify the Company and The Bank of New York Mellon of such
CUSIP number(s) by telephone as soon as practicable. The Agent will obtain
a CUSIP number for (i) the Global Unit representing a Unit, (ii) the
|
|||
B-11
| Warrant, if any, issued as part of a Unit and (iii) the Purchase Contract, if any, issued as part of a Unit and, in each case will notify the Company and The Bank of New York Mellon of such CUSIP number(s) by telephone as soon as practicable. The Agent will obtain a CUSIP number for the Global Warrant and will notify the Company and The Bank of New York Mellon of such CUSIP number(s) by telephone as soon as practicable. | |||||
|
E.
|
The
Bank of New York Mellon will enter a pending deposit message through DTC’s
Participant Terminal System, providing the following settlement
information to DTC, the Agent and Standard & Poor’s
Corporation:
|
||||
|
1.
|
The
information set forth in “Settlement Procedure” “A” “B” and “C” above, as
applicable.
|
||||
|
2.
|
The
Initial Interest Payment Date for the Notes, whether issued alone or as
part of a Unit, the number of days by which such date succeeds the related
DTC Record Date and, if known, amount of interest payable on such Initial
Interest Payment Date.
|
||||
|
3.
|
The
CUSIP number of the Global Note (whether issued alone or as part of a
Unit), Global Unit, Warrant issued as part of a Unit and Purchase Contract
issued as part of a Unit and Global Warrant, as
applicable.
|
||||
|
4.
|
Whether
the Global Note, Global Unit or Global Warrant will represent any other
Book-Entry Note, Book-Entry Unit or Book-Entry Warrant, as the case may be
(to the extent known at such time).
|
||||
|
5.
|
Whether
any Note, issued alone or as part of a Unit, is an Amortizing Note (by an
appropriate notation in the comments field of DTC’s Participant Terminal
System).
|
||||
|
6.
|
The
number of Participant accounts to be maintained by DTC on behalf of the
Agent and The Bank of New York Mellon.
|
||||
|
F.
|
The
Bank of New York Mellon will, as applicable, authenticate, complete and
deliver the Global Note representing the Note, will complete the Global
|
||||
B-12
| Unit representing the Unit (including, as applicable, by authenticating, completing and delivering any Global Note or Indenture Pre-paid Purchase Contracts, by countersigning and delivering any Warrants and by countersigning, executing and delivering any Purchase Contracts (other than Indenture Pre-paid Purchase Contracts) includable in such Unit) and will countersign and deliver the Global Warrant representing the Warrant. | |||||
|
G.
|
DTC
will credit such Note, Unit or Warrant to The Bank of New York Mellon’s
participant account at DTC.
|
||||
|
H.
|
The
Bank of New York Mellon will enter an SDFS deliver order through DTC’s
Participant Terminal System instructing DTC to (i) debit the Note, Unit or
Warrant, as the case may be, to The Bank of New York Mellon’s participant
account and credit such Note, Unit or Warrant to the Agent’s participant
account and (ii) debit the Agent’s settlement account and credit The Bank
of New York Mellon’s settlement account for an amount equal to the price
of such Note, Unit or Warrant, as the case may be, less the Agent’s
commission, if any. The entry of such a deliver order shall
constitute a representation and warranty by The Bank of New York Mellon to
DTC that (a) the Global Note representing a Book Entry Note has been
issued and authenticated, a Global Unit representing a Book-Entry Unit has
been completed and issued or a Global Warrant representing a Book-Entry
Warrant has been countersigned and delivered and (b) The Bank of New York
Mellon is holding such Global Note, Global Unit or Global Warrant pursuant
to the Medium-Term Note Certificate Agreement between The Bank of New York
Mellon and DTC.
|
||||
|
I.
|
Unless
the Agent is the end purchaser of a Note, Unit or Warrant, the
Agent will enter an SDFS deliver order through DTC’s Participant Terminal
System instructing DTC (i) to debit such Note, Unit or Warrant to the
Agent’s participant account and credit such Note, Unit or Warrant to the
participant accounts of the Participants with respect to such Note, Unit
or Warrant and (ii) to debit the settlement accounts of such Participants
and credit
|
||||
B-13
| the settlement account of the Agent for an amount equal to the price of such Note, Unit or Warrant. | |||||
|
J.
|
Transfers
of funds in accordance with SDFS deliver orders described in Settlement
Procedures “H” and “I” will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
|
||||
|
K.
|
The
Bank of New York Mellon will credit to the account of the Company
maintained at The Bank of New York Mellon, New York, New York, in funds
available for immediate use in the amount transferred to The Bank of New
York Mellon in accordance with “Settlement Procedure”
“H”.
|
||||
|
L.
|
Unless
the Agent is the end purchaser of the Note, Unit or Warrant, the Agent
will confirm the purchase of such Note, Unit or Warrant to the purchaser
either by transmitting to the Participants with respect to such Note, Unit
or Warrant a confirmation order or orders through DTC’s institutional
delivery system or by mailing a written confirmation to such
purchaser.
|
||||
|
M.
|
Monthly,
The Bank of New York Mellon will send to the Company a statement setting
forth the principal amount of Notes outstanding as of that date under the
Indentures or, in the case of Units, the number of Units outstanding as of
that date, under each of the Unit Agreement and the Unit Agreement Without
Holders’ Obligations, the number of Warrants outstanding as of that date
under the Warrant Agreement and setting forth a brief description of any
sales of which the Company has advised The Bank of New York Mellon that
have not yet been settled.
|
||||
|
Settlement
Procedures Timetable:
|
For
sales by the Company of Book-Entry Notes, Book-Entry Units or Book Entry
Warrants to or through the Agent (unless otherwise specified pursuant to a
Notes Terms Agreement, a Units Terms Agreement or Warrants Terms
Agreement) for settlement on the first Business Day after the sale date,
Settlement Procedures “A” through “L” set forth above shall be completed
as soon as possible but not later than the respective times in New York
City set forth below:
|
||||
B-14
|
Settlement
Procedure
|
Time
|
|
|
A
|
11:00
A.M. on the sale date
|
|
|
B
|
11:00
A.M. on the sale date
|
|
|
C
|
11:00
A.M. on the sale date
|
|
|
D
|
12:00
Noon on the sale date
|
|
|
E
|
2:00
P.M. on the sale date
|
|
|
F
|
9:00
A.M. on the settlement date
|
|
|
G
|
10:00
A.M. on the settlement date
|
|
|
H-I
|
2:00
P.M. on the settlement date
|
|
|
J
|
4:45
P.M. on the settlement date
|
|
|
K-L
|
5:00
P.M. on the settlement date
|
|
If a
sale is to be settled more than one Business Day after the sale date,
Settlement Procedures “A”, “B”, “C”, “D” and “E” shall be completed as
soon as practicable but no later than 11:00 A.M., 11:00 A.M., 11:00 A.M.,
12 Noon and 2:00 P.M., respectively, on the first Business Day after the
sale date. If the Initial Interest Rate for a Floating Rate
Book Entry Note, whether issued alone or as part of a Unit, has not been
determined at the time that “Settlement Procedure” “A” is completed,
“Settlement Procedure” “D” and “E” shall be completed as soon as such rate
has been determined but no later than 12 Noon and 2:00 P.M., respectively,
on the first Business Day before the settlement
date. “Settlement Procedure” “J” 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 Book-Entry Note, a Book-Entry Unit or Book-Entry Warrant
is rescheduled or canceled, The Bank of New York Mellon, after receiving
notice from the Company or the Agent, will deliver to DTC, through DTC’s
Participant Terminal System, a cancellation message to such effect by no
later than 2:00 P.M. on the Business Day immediately preceding the
scheduled settlement date.
|
|||||
|
Failure
to Settle:
|
If
The Bank of New York Mellon fails to enter an SDFS deliver order with
respect to a Book Entry Note, a Book-Entry Unit or Book-Entry Warrant
pursuant to “Settlement Procedure” “H”, The Bank of New York Mellon
may
|
||||
B-15
|
deliver
to DTC, through DTC’s Participant Terminal System, as soon as practicable
a withdrawal message instructing DTC to debit such Note, Unit or Warrant
to The Bank of New York Mellon’s participant account, provided that The
Bank of New York Mellon’s participant account contains a principal amount
of the Global Note representing such Note, a face amount of the Global
Unit representing such Unit or a purchase price of the Global Warrant
representing such Warrant that is at least equal to the principal amount,
face amount or purchase price to be debited. If a withdrawal
message is processed with respect to all the Book Entry Notes represented
by a Global Note, all of the Book-Entry Units represented by a Global Unit
or all of the Book-Entry Warrants represented by a Global Warrant, The
Bank of New York Mellon will xxxx such Global Note, Global Unit or Global
Warrant “canceled,” make appropriate entries in The Bank of New York
Mellon’s records and send such canceled Global Note, Global Unit or Global
Warrant to the Company. The CUSIP number assigned to such
Global Note, Global Unit, Warrant included in such Unit, or Purchase
Contract included in such Unit or Global Warrant, shall, in accordance
with the procedures of the CUSIP Service Bureau of Standard & Poor’s
Corporation, be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but not all,
of the Book Entry Notes represented by a Global Note, with respect to one
or more, but not all, of the Book-Entry Units represented by a Global Unit
or with respect to one or more, but not all, of the Book-Entry Warrants
represented by a Global Warrant, The Bank of New York Mellon will exchange
such Global Note, Global Unit or Global Warrant, as the case may be, for
two Global Notes, for two Global Units or for two Global Warrants, as the
case may be, one of which shall represent such Book Entry Note or Notes,
such Book-Entry Unit or Units or such Book-Entry Warrant or Warrants and
shall be canceled immediately after issuance and the other of which shall
represent the remaining Book Entry Notes Book-Entry Units or Book-Entry
Warrants previously represented by the surrendered Global Note, Global
Unit or Global Warrant and shall bear the CUSIP number of the surrendered
Global Note, Global Unit, Warrant included in such Unit, or Purchase
Contract included in such Unit or Global Warrant.
|
|||||
|
If
the purchase price for any Book Entry Note, Book-Entry Unit or Book-Entry
Warrant is not timely paid to the
|
|||||
B-16
|
Participants
with respect to such Note, Unit or Warrant by the beneficial purchaser
thereof (or a person, including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in turn, the Agent may
enter SDFS deliver orders through DTC’s Participant Terminal System
reversing the orders entered pursuant to Settlement Procedures “H” and
“I”, respectively. Thereafter, The Bank of New York Mellon will
deliver the withdrawal message and take the related actions described in
the preceding paragraph.
|
|||||
|
Notwithstanding
the foregoing, upon any failure to settle with respect to a Book Entry
Note, Book-Entry Unit or Book-Entry Warrant, 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 one or more, but not all,
of the Book-Entry Notes, Book-Entry Units or Book-Entry Warrants to have
been represented by a Global Note, a Global Unit or a Global Warrant, as
the case may be, The Bank of New York Mellon will provide, in accordance
with Settlement Procedures “F” and “H”, for the authentication and
issuance of a Global Note representing the Book-Entry Notes to be
represented by such Global Note, for the issuance of a Global Unit
representing the Book-Entry Units to be represented by such Global Unit or
for the issuance of a Global Warrant representing the Book-Entry Warrants
to be represented by such Global Warrant and, in each case, will make
appropriate entries in its records.
|
|||||
|
PART
II:
|
ADMINISTRATIVE
PROCEDURES FOR CERTIFICATED NOTES, CERTIFICATED UNITS AND CERTIFICATED
WARRANTS
|
||||
|
The
Bank of New York Mellon will serve as registrar in connection with the
Certificated Notes, the Certificated Units and the Certificated
Warrants.
|
|||||
|
Issuance:
|
Each
Certificated Note will be dated and issued as of the date of its
authentication by The Bank of New York Mellon, each Certificated Unit will
be deemed to be dated as of the date of the underlying Certificated Note
or, if there is not such underlying Certificated Note, on the date of the
other securities comprised thereby and each Certificated Warrant will be
dated and issued as of the date
|
||||
B-17
|
of
its countersignature by The Bank of New York Mellon. Each
Certificated Note will bear an Original Issue Date, which will be (i) with
respect to an original Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement date) and (ii) with
respect to any Certificated Note (or portion thereof) issued subsequently
upon transfer or exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note, the original issuance date of
the predecessor Certificated Note, regardless of the date of
authentication of such subsequently issued Certificated
Note.
|
|||||
|
Preparation
of Pricing Supplement:
|
If
any order to purchase a Certificated Note, a Certificated Unit or a
Certificate Warrant is accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a “Pricing Supplement”)
reflecting the terms of such Note, Unit or Warrant. The Company
(i) will arrange to file with the Commission an electronic format
document, in the manner prescribed by the XXXXX Xxxxx Manual, of such
Pricing Supplement and of any Term Sheet in accordance with, in the case
of the Pricing Supplement, the applicable paragraph of Rule 424(b) under
the Securities Act and, in the case of any Term Sheet, Rule 433 under the
Securities Act, (ii) will, with respect to each of the Term Sheet, if
applicable, and the Pricing Supplement, as soon as possible and in any
event not later than the date on which the applicable document is filed
with the Commission, deliver the number of copies of such document to the
Agent as the Agent shall request and (iii) will, on the Agent’s behalf,
promptly file five copies of such Pricing Supplement with the Financial
Industry Regulatory Authority, Inc. (the “FINRA”) or otherwise
satisfy FINRA’s filing requirements. The Agent will cause the
Term Sheet, if applicable, and the Pricing Supplement to be delivered, or
otherwise made available, to the purchaser of the Note, Unit or
Warrant.
|
||||
|
In
each instance that a Pricing Supplement is prepared, the Agent will affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated free writing prospectuses, Term Sheets, Pricing
Supplements, and the Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
|
|||||
|
Settlement:
|
The
receipt by the Company of immediately available funds in exchange for an
authenticated Certificated Note, a Certificated Unit or a Certificated
Warrant delivered to the
|
||||
B-18
|
Agent
and the Agent’s delivery of such Note, Unit or Warrant against receipt of
immediately available funds shall constitute “settlement” with respect to
such Note, Unit or Warrant. All offers accepted by the Company
will be settled on or before the fifth Business Day next succeeding the
date of acceptance pursuant to the timetable for settlement set forth
below, unless the Company and the purchaser agree to settlement on another
date.
|
|||||
|
Settlement
Procedures:
|
Settlement
Procedures with regard to each Certificated Note, each Certificated Unit
and each Certificated Warrant sold by the Company to or through the Agent
(unless otherwise specified pursuant to a Notes Terms Agreement, a Units
Terms Agreement or a Warrants Terms Agreement) shall be as
follows:
|
||||
|
A.
|
In
the case of Certificated Notes (whether issued alone or as part of a
Unit), the Agent will advise the Company by telephone that such Note is a
Certificated Note and of the following settlement
information:
|
||||
|
1.
|
Name
in which such Note is to be registered (“Registered Note
Owner”).
|
||||
|
2.
|
Address
of the Registered Note Owner and address for payment of principal and
interest.
|
||||
|
3.
|
Taxpayer
identification number of the Registered Note Owner (if
available).
|
||||
|
4.
|
Principal
amount.
|
||||
|
5.
|
Maturity
Date.
|
||||
|
6.
|
In
the case of a Fixed Rate Certificated Note, the Interest Rate, whether
such Note will pay interest annually or semiannually and whether such Note
is an Amortizing Note and, if so, the amortization schedule, or, in the
case of a Floating Rate Certificated Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity, Index Currency, Interest
Reset Period, Initial Interest Reset Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest Rate
|
||||
B-19
| (if any), Maximum Interest Rate (if any) and the Alternate Rate Event Spread (if any). | |||||
|
7.
|
Redemption
or repayment provisions, if any.
|
||||
|
8.
|
Ranking.
|
||||
|
9.
|
Settlement
date and time (Original Issue Date).
|
||||
|
10.
|
Interest
Accrual Date.
|
||||
|
11.
|
Price.
|
||||
|
12.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
||||
|
13.
|
Denominations.
|
||||
|
14.
|
Specified
Currency.
|
||||
|
15.
|
Whether
the Note is an OID Note, and if it is an OID Note, the applicability of
Modified Payment upon Acceleration (and if so, the Issue
Price).
|
||||
|
16.
|
Whether
the Note is a Renewable Note, and if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the Election Dates and the
Maturity Extension Dates.
|
||||
|
17.
|
Whether
the Company has the option to reset the Spread or Spread Multiplier of the
Note.
|
||||
|
18.
|
Whether
the Note is an Optionally Exchangeable Note, a Mandatorily Exchangeable
Note, or any form of exchangeable Note.
|
||||
|
19.
|
Any
other applicable provisions.
|
||||
|
B.
|
In
the case of a Certificated Unit, the Agent will advise the Company by
telephone that such Unit is a Certificated Unit, of the information set
forth in Settlement Procedure “A” above with respect to Certificated Notes
that constitute a part of such Certificated Unit and of the following
information:
|
||||
|
1.
|
Name
in which such Unit is to be registered (“Registered Unit
Owner”).
|
||||
|
2.
|
Address
of the Registered Unit Owner.
|
||||
B-20
|
3.
|
Taxpayer
identification number of the Registered Unit Owner (if
available).
|
||||
|
4.
|
Denominations.
|
||||
|
5.
|
Settlement
date and time.
|
||||
|
6.
|
Face
Amount.
|
||||
|
7.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
||||
|
8.
|
Designation
of the Securities comprised by such Units:
|
||||
|
a.
|
Notes,
if any (See Settlement Procedures “A”);
|
||||
|
b.
|
Warrants,
if any;
|
||||
|
c.
|
Purchase
Contracts, if any;
|
||||
|
d.
|
debt
obligations or other securities of an entity affiliated or not affiliated
with the Company, if any; and
|
||||
|
e.
|
other
property, if any.
|
||||
|
9.
|
Whether,
and the terms under which, the Securities comprised by such Unit will be
separately tradeable.
|
||||
|
10.
|
Any
other provisions applicable to the Unit (other than those provisions
applicable to the securities comprised by such
Unit).
|
||||
|
11.
|
If
the Certificated Unit comprises Certificated Warrants:
|
||||
|
a.
|
Designation
of the Series of Warrants: [Call][Put] Warrants;
|
||||
|
b.
|
Warrant
Property;
|
||||
|
c.
|
Aggregate
Number of Warrants;
|
||||
|
d.
|
Price
to Public;
|
||||
|
e.
|
Warrant
Exercise Price;
|
||||
|
f.
|
Dates
upon which Warrants may be exercised;
|
||||
|
g.
|
Expiration
Date;
|
||||
|
h.
|
Form;
|
||||
|
i.
|
Currency
in which exercise payments shall be
made;
|
||||
B-21
|
j.
|
Minimum
number of Warrants exercisable by any holder on any
day;
|
||||
|
k.
|
Maximum
number of Warrants exercisable on any day: [In the aggregate]
[By any beneficial owner];
|
||||
|
l.
|
Formula
for determining Cash Settlement Value;
|
||||
|
m.
|
Exchange
Rate (or method of calculation);
|
||||
|
n.
|
Whether
the Company or the holder is the writer of the warrant;
and
|
||||
|
o.
|
Any
other applicable provisions.
|
||||
|
|
|
||||
|
12.
|
If the Certificated Unit comprises Certificated Purchase Contracts: | ||||
|
a.
|
Designation
of the Series of Purchase Contracts: [Purchase][Sale] Purchase
Contracts;
|
||||
|
b.
|
Purchase
Contract Property;
|
||||
|
c.
|
Aggregate
Number of Purchase Contracts;
|
||||
|
d.
|
Price
to Public;
|
||||
|
e.
|
Settlement
Date;
|
||||
|
f.
|
[Purchase/Sale]
Price of Purchase Contract Property;
|
||||
|
g.
|
Form;
and
|
||||
|
h.
|
Any
other applicable provisions.
|
||||
|
C.
|
In
the case of a Certificated Warrant (issued alone and not as part of a
Unit), the Agent will advise the Company by telephone that such Warrant is
a Certificated Warrant and of the following
information:
|
||||
|
1.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
||||
|
2.
|
Settlement
date and time.
|
||||
|
3.
|
Purchase
Price
|
||||
B-22
|
4.
|
Designation
of the Series of Warrants: [Call][Put] Warrants;
|
||||
|
5.
|
Warrant
Property;
|
||||
|
6.
|
Aggregate
Number of Warrants;
|
||||
|
7.
|
Price
to Public;
|
||||
|
8.
|
Warrant
Exercise Price;
|
||||
|
9.
|
Dates
upon which Warrants may be exercised;
|
||||
|
10.
|
Expiration
Date;
|
||||
|
11.
|
Form;
|
||||
|
12.
|
Currency
in which exercise payments shall be made;
|
||||
|
13.
|
Minimum
number of Warrants exercisable by any holder on any
day;
|
||||
|
14.
|
Maximum
number of Warrants exercisable on any day: [In the aggregate]
[By any beneficial owner];
|
||||
|
15.
|
Formula
for determining Cash Settlement Value;
|
||||
|
16.
|
Exchange
Rate (or method of calculation); and
|
||||
|
17.
|
Any
other applicable provisions.
|
||||
|
D.
|
The
Company will advise The Bank of New York Mellon by telephone or electronic
transmission (confirmed in writing at any time on the sale date) of the
information set forth in Settlement Procedure “A”, “B” and “C” above, as
applicable, such advice to contain a representation as to the aggregate
principal amount of Program Securities permitted to be issued hereunder
after such issuance.
|
||||
|
E.
|
The
Company will have delivered to The Bank of New York Mellon a pre-printed
four-ply packet for each Note, Unit and Warrant, which packet will contain
the following documents in forms that have been approved by the Company,
the Agent, the Trustee, the Unit Agent and Warrant Agent, as
applicable:
|
||||
|
1.
|
Note,
Unit or Warrant, as the case may be, with customer
confirmation.
|
||||
B-23
|
2.
|
Stub
One - For The Bank of New York Mellon.
|
||||
|
3.
|
Stub
Two - For the Agent.
|
||||
|
4.
|
Stub
Three - For the Company.
|
||||
|
F.
|
The
Bank of New York Mellon will (i) with respect to a Note or Indenture
Pre-paid Purchase Contract, authenticate such Note or Indenture Pre-paid
Purchase Contract and deliver it (with the confirmation) and Stubs One and
Two to the Agent, (ii) with respect to a Unit, complete and deliver the
Unit (including countersigning and delivering the Warrant, if any, and
countersigning, executing and delivering the Purchase Contract (other than
an Indenture Pre-paid Purchase Contract, if any) includable in such Unit)
with the confirmation Stubs One and Two to the Agent or (iii) with respect
to a Warrant, countersign and deliver the Warrant, with the confirmation
Stubs One and Two to the Agent. The Agent will acknowledge
receipt of the Note, the Unit or the Warrant, as the case may be, by
stamping or otherwise marking Stub One and returning it to The Bank of New
York Mellon. Such delivery will be made only against such
acknowledgment of receipt and evidence that instructions have been given
by the Agent for payment to the account of the Company at The Bank of New
York Mellon, New York, New York, or to such other account as the Company
shall have specified to the Agent and The Bank of New York Mellon in funds
available for immediate use, of an amount equal to the price of such Note,
Unit or Warrant less the Agent’s commission, if any. In the
event that the instructions given by the Agent for payment to the account
of the Company are revoked, the Company will as promptly as possible wire
transfer to the account of the Agent an amount of immediately available
funds equal to the amount of such payment made.
|
||||
|
G.
|
Unless
the Agent is the end purchaser of such Note, Unit or Warrant, the Agent
will deliver such Note, Unit or Warrant (with confirmation) to the
customer against payment in immediately payable funds. The
Agent will obtain the acknowledgment of receipt of such Note, Unit or
Warrant by retaining Stub Two.
|
||||
B-24
|
H.
|
The
Bank of New York Mellon will send Stub Three to the Company by first-class
mail. Periodically, The Bank of New York Mellon will also send
to the Company a statement setting forth, in the case of the Notes, the
principal amount of the Notes outstanding as of that date under each
Indenture, in the case of the Units, the number of Units outstanding under
each of the Unit Agreement and the Unit Agreement Without Holders’
Obligations and in the case of Warrants, the number of Warrants
outstanding under the Warrant Agreement and, in each case, setting forth a
brief description of any sales of which the Company has advised The Bank
of New York Mellon that have not yet been settled.
|
||||
|
Settlement
Procedures Timetable:
|
For
sales by the Company of Certificated Notes, of Certificated Units or of
Certificated Warrants to or through the Agent (unless otherwise
specified pursuant to a Notes Terms Agreement, a Units Terms Agreement or
a Warrants Terms Agreement), Settlement Procedures “A” through “H” set
forth above shall be completed on or before the respective times in New
York City set forth
below:
|
||||
|
Settlement
Procedure
|
Time
|
|
|
A
|
2:00
P.M. on day before settlement date
|
|
|
B
|
2:00
P.M. on day before settlement date
|
|
|
C
|
2:00
P.M. on day before settlement date
|
|
|
D
|
3:00
P.M. on day before settlement date
|
|
|
E-F
|
2:15
P.M. on settlement date
|
|
|
G
|
3:00
P.M. on settlement date
|
|
|
H
|
5:00
P.M. on settlement date
|
|
Failure
to Settle:
|
If a
purchaser fails to accept delivery of and make payment for any
Certificated Note, any Certificated Unit or any Certificated Warrant, the
Agent will notify the Company and The Bank of New York Mellon by telephone
and return such Note, Unit or Warrant to The Bank of New York
Mellon. Upon receipt of such notice, the Company will
immediately wire transfer to the account of the Agent an amount equal to
the amount previously credited thereto in respect to such Note, Unit or
Warrant. Such wire transfer will be made on the settlement
date, if possible, and in any
|
B-25
|
event
not later than the Business Day following the settlement
date. If the failure shall have occurred for any reason other
than a default by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then the Company will
reimburse the Agent or The Bank of New York Mellon, as appropriate, on an
equitable basis for its loss of the use of the funds during the period
when they were credited to the account of the
Company. Immediately upon receipt of the Certificated Note, the
Certificated Unit or the Certificated Warrant in respect of which such
failure occurred, The Bank of New York Mellon will xxxx such Note, Unit or
Warrant “canceled,” make appropriate entries in The Bank of New York
Mellon’s records and send such Note, Unit or Warrant, as the case may be,
to the Company.
|
B-26
