EXHIBIT 1
The Procter & Xxxxxx Company
Debt Securities
Underwriting Agreement
----------------------
[date]
To the Representatives of the
Underwriters named in the
respective Pricing Agreement(s)
hereinafter described.
Dear Sirs/Mesdames:
From time to time The Procter & Xxxxxx Company (the "Company") proposes to
enter into one or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified therein) certain of its debt
securities (the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities"), less the
principal amount of Designated Securities covered by Delayed Delivery Contracts,
if any, as provided in Section 3 hereof and as may be specified in Schedule II
to such Pricing Agreement (with respect to such Pricing Agreement, any
Designated Securities to be covered by Delayed Delivery Contracts being herein
sometimes referred to as "Contract Securities" and the Designated Securities to
be purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) being herein sometimes referred to as "Underwriters'
Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representative (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase any of the Securities. The obligation of
the Company to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the principal amount of such
Designated Securities to be purchased by each Underwriter and whether any of
such Designated Securities shall be covered by Delayed Delivery Contracts (as
defined in Section 3 hereof) and the commission payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery of
such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. The Pricing Agreement also may specify such additional terms and
conditions as the parties thereto may agree. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Registration statements (File Nos. 333-30949 and 333-_____) in respect
of a portion of the Securities have been filed with the Securities and
Exchange Commission (the "Commission") in the forms heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statements, but including all documents
incorporated by reference in the combined prospectus relating to all
the Securities contained in the latest registration statement (File
No. 333-_____), to the Representatives for each of the other
Underwriters and such registration statements in such forms have been
declared effective by the Commission and no stop order suspending the
effectiveness of either such registration statement has been issued
and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in either such
registration statement being hereinafter called a "Preliminary
Prospectus"; the various parts of each such registration statement,
including all exhibits thereto but excluding Form T-1, each such part
as amended at the time such part became effective, being hereinafter
collectively called the "Registration Statement"; provided that if
-------- the Company files a registration statement to register a
portion of the Securities and relies on Rule 462(b) under the Act for
such registration statement to become effective upon filing with the
Commission (the "Rule 462 Registration Statement") then any reference
to "Registration Statement" herein shall be deemed to be both the
Registration Statement referred to above and the Rule 462 Registration
Statement; as each such registration statement may be amended pursuant
to the Act; the combined prospectus relating to the Securities, in the
form in which it has most recently been filed, or mailed for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to the applicable form under the Securities Act of 1933, as amended
(the "Act"), as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated
Securities in the form in which it is first filed with the Commission
pursuant to Rule 424(b) under the Act, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented related
to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and will not, as
of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree which is material to the
Company and its subsidiaries considered as a whole, otherwise than as
set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company or in the consolidated
capitalization of the Company and its consolidated subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its consolidated subsidiaries considered
as a whole, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities and, in
the case of any Contract Securities, pursuant to Delayed Delivery
Contracts with respect to such Contract Securities, such Designated
Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, subject as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles, and entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized and, at the Time of Delivery (as defined in
Section 4 hereof) the Indenture will be duly qualified under the Trust
Indenture Act and will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Securities and the Indenture
will conform to the descriptions thereof in the Prospectus as amended
or supplemented;
(f) In the event any of the Securities are purchased pursuant to Delayed
Delivery Contracts, each of such Delayed Delivery Contracts has been
duly authorized by the Company and, when executed and delivered by the
Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and any
Delayed Delivery Contracts will conform to the description thereof in
the prospectus as amended or supplemented;
(g) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Indenture, each of
the Delayed Delivery Contracts, if any, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its domestic subsidiaries
is a party or by which the Company or any of its domestic subsidiaries
is bound or to which any of the property or assets of the Company or
any of its domestic subsidiaries is subject, nor will such action
result in any violation of the provisions of the Amended Articles of
Incorporation, Regulations or By Laws of the Company or any applicable
statute or any applicable order, rule or regulation known to the
Company of any court or governmental agency or body having
jurisdiction over the Company or any of its domestic subsidiaries or
any of its or their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
other transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture or any Delayed Delivery Contract, except
such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
(h) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is subject other than (i) as
set forth in the Prospectus and (ii) legal or governmental proceedings
which, if determined adversely to the Company or any of its
subsidiaries, would not in the aggregate have a material adverse
effect on the financial position, shareholders' equity or results of
operations of the Company and its subsidiaries considered as a whole;
and no such proceedings are known by the Company to be threatened or
contemplated by governmental authorities or threatened by others.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of the
Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex III attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery, such commission, if any, as may be set
forth in such Pricing Agreement. Delayed Delivery Contracts, if any, are to be
with investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any responsibility
in respect of the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m., New York City time, on the third business day preceding the Time
of Delivery specified in the applicable Pricing Agreement (or such other time
and date as the Representatives and the Company may agree upon in writing) a
written notice setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor in the funds and in
the manner specified in such Pricing Agreement, all at the place and time and
date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Securities in the amount of any compensation
payable by the Company to the Underwriters in respect of any Delayed Delivery
Contracts as provided in Section 3 hereof and in the Pricing Agreement relating
to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the
Time of Delivery for such Securities which shall reasonably be
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of
a prospectus is required in connection with the offering or sale of
such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or has become effective or any supplement to the Prospectus or any
amended Prospectus has been filed or mailed for filing, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and
sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as amended
or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus
is required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement
the Prospectus or to file an ammendment or supplement in order to
comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement, an earning statement of
the Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule
158); and
(e) During the period beginning on the date of the Pricing Agreement for
such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii)
the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of
the Company which mature more than one year after such Time of
Delivery and which are substantially similar to such Designated
Securities, without the prior written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with the
Indenture and the Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in such Pricing Agreement are, at and as of the Time
of Delivery for such Designated Securities, true and correct, the condition that
the Company shall have performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission
shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to the Representatives such opinion
or opinions, dated the Time of Delivery for such Designated
Securities, with respect to the incorporation of the Company, the
validity of the Indenture, the Designated Securities, the Delayed
Delivery Contracts, if any, the Registration Statement, the Prospectus
as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters. In rendering such opinion or
opinions, such counsel may relay as to all matters governed by Ohio
law upon the opinion referred to in subjection (c) of this Section;
(c) Xxxxx X. Xxxxxxx, Esq., Secretary and Associate General Counsel for
the Company, shall have furnished to the Representatives her written
opinion, dated the Time of Delivery for such Designated Securities, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Ohio, with corporate power and authority to own its properties
and conduct is business as described in the Prospectus as amended
or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) Each domestic subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such subsidiary
have been duly and validly authorized and issued and are fully
paid and non-assessable (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company or its domestic subsidiaries);
(iv) The Company and each of its domestic subsidiaries are duly
authorized and are in good standing to do business in each
jurisdiction in the United States, other than their respective
jurisdictions of incorporation, in which they own or lease
properties, or conduct any business, so as to require such
qualification (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
Company or its domestic subsidiaries);
(v) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of
its domestic subsidiaries is a party or of which any property of
the Company or any of its domestic subsidiaries is the subject,
other than as set forth in the Prospectus and other than legal or
governmental proceedings which, if determined adversely to the
Company and its domestic subsidiaries, would not in the aggregate
have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the
company and its subsidiaries considered as a whole; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(vii) In the event any of the Designated Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized, executed and
delivered by the Company and, assuming such Contract has been
duly executed and delivered by the purchaser named therein,
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and any Delayed Delivery
Contracts conform to the description thereof in the Prospectus as
amended or supplemented;
(viii) The Designated Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company enforceable in accordance with their
terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles, and entitled to the benefits provided by the
Indenture; the Contract Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Indenture and
Delayed Delivery Contracts, if any, will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Designated Securities
and the Indenture conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(ix) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
the Indenture has been duly qualified under the Trust Indenture
Act;
(x) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, each of the Delayed
Delivery Contracts, if any, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of
its domestic subsidiaries is a party or by which the Company or
any of its domestic subsidiaries is bound or to which any of the
property or assets of the Company or any of its domestic
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Amended Articles of
Incorporation, Regulations or By Laws of the Company or any
applicable statute or any applicable order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its domestic
subsidiaries or any of its or their properties; and no consent,
approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required
for the issue and sale of the Designated Securities or the
consummation by the Company of the other transactions
contemplated by this Agreement or such Pricing Agreement or the
Indenture or any of such Delayed Delivery Contracts, except such
as have been obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express
no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and such counsel has no reason to believe
that any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and, in the case of other
documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading;
and
(xii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the
Designated Securities (other than the financial statements and
related schedules therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder; such counsel has no reason to believe
that, as of the effective date of the Registration Statement,
either the Registration Statement or the Prospectus (or, as of
its date, any further amendment or supplement thereto made by the
Company prior to the Time of Delivery) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus (or any such
further amendment or supplement thereto) contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; such counsel does not know of any
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are
not filed or incorporated by reference or described as required;
and the statements in the Prospectus as amended or supplemented
describing the Designated Securities are accurate and fairly
present the information required or purported to be shown;
In rendering such opinion or opinions, such counsel may rely as
to all matters governed by New York law upon the opinions referred to
in subsection (b) of this Section;
(d) At the Time of Delivery for such Designated Securities, Deloitte &
Touche LLP, who have rendered their opinion on the financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have
furnished to the Representatives a letter dated such Time of Delivery,
to the effect set forth in Annex II hereto, and as to such other
matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, and (ii) since the respective
dates as of which information is given the Prospectus as amended or
supplemented there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or in the
consolidated capitalization of the Company and its consolidated
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented,
the effect of which, in any such case described in Clause (i) or (ii),
is in the judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus as amended or
supplemented;
(f) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act and no public
announcement shall have been made by any such organization that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(g) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States, on or after the date of such Pricing
Agreement, of a national emergency or war, if the effect of any such
event specified in this Clause (iii) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Underwriters' Securities on
the terms and in the manner contemplated in the Prospectus as amended
or supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities
certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery,
as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (e) of this Section, and
as to such other matters as the Representatives may reasonably
request.
8. (a) The Company will indemnify and hold harmless such Underwriter
against any losses, claims, damages or liabilities, joint or several,
in which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented or
any other prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented or
any other prospectus relating to the Securities, or any such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented or any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented or
any other prospectus relating to the Securities, or any such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise
than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel of any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities
and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase such Underwriters' Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of
such Underwriters' Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase
such Underwriters' Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the
company that they have so arranged for the purchase of such
Underwriters' Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Underwriters'
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Underwriters' Securities for a
period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents
or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term "Underwriter" as used in this Agreement and
the Pricing Agreement with respect to such Securities shall include
any person substituted under this Section with like effect as if such
person had originally been a part to such Pricing Agreement with
respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate principal amount of such Underwriters' Securities
which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Designated Securities, then the
Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Underwriters' Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate principal amount of Underwriters' Securities
which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Designated Securities, as referred to in
subsection (b) above, or if the company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Underwriters' Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered, or sent by registered mail to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
THE PROCTER & XXXXXX COMPANY
BY:_________________________________
ANNEX I
Pricing Agreement
[date]
[Name of Representatives,]
[Name of any Co-Representative(s),]
As representatives of the several Underwriters
named in Schedule I hereto,
[c/o Representatives,]
[Address of Representatives].
Dear Sirs/Mesdames:
The Procter & Xxxxxx Company (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
[date]. (the "Underwriting Agreement"), to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
in Section 2 of the Underwriting Agreement which makes reference to the
Prospectus shall be deemed to be a representation and warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing Agreement
in relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified in
such Schedule II.
If the foregoing is in accordance with your understanding, please sign
and return to us . . . . counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters may be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
THE PROCTER & XXXXXX COMPANY
By: __________________________
Accepted as of the date hereof:
-------------------------------
(Name of Representative Partnership)
[Name of Representative Corporation]
By: ___________________________
(Title)
---------------------------------
(Name of Co-Representative Partnership)
[Name of Co-Representative Corporation]
By: _____________________________
(Title)
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
[Name of Representatives] [$]
[Name(s) of any Co-Representatives]
[Names of any other Underwriters]
--------
Total [$]
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
[Warrants]
Aggregate Principal Amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued interest
from to [and accrued amortization, if any, from to]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued interest
from to [and accrued amortization, if any, from to]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the
Company in [New York Clearing House] [same day] funds]
[By wire transfer to a bank account specified by the Company in same day funds]
[Other specified method]
Indenture:
Indenture, dated as of September 28, 1992, between the Company and The First
National Bank of Chicago, as Trustee
Time of Delivery:
[Time and date].
Closing Location:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Securities Exchange:
[Securities to be listed on the [New York] Stock Exchange]
Delayed Delivery:
[None] [Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been entered
into. Such commission shall be payable to the order of .]
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount of $ or an
integral multiple thereof, ]
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %, and if]
redeemed during the 12-month period beginning ,
Redemption
Year Price
---- ----------
----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the election of the
Company, at a redemption price equal to the principal amount thereof, plus
accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire $ principal amount of Designated Securities on in each of the years
through at 100% of their principal amount plus accrued interest] [, together
with [cumulative] [non-cumulative] redemptions at the option of the Company to
retire an additional $ principal amount of Designated Securities in the years
through at 100% of their principal amount plus accrued interest.]
[If Securities are Extendible Debt Securities, insert-
Extendible Provisions:
Securities are repayable on , [insert date and years], at the option of the
holder, at their principal amount with accrued interest. Initial annual interest
rate will be %, and thereafter annual interest rate will be adjusted on
, and to a rate not less than % of the effective annual interest rate on
U.S. Treasury obligations with -year maturities as of the [insert date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate Debt Securities, insert-
Floating Rate Provisions:
Initial annual interest rate will be % through [and thereafter will be adjusted
[monthly] [on each , , and ] [to an annual rate of % above the average rate for
-year [month] [securities] [certificates of deposit] by and [insert names of
banks].] [and the annual interest rate [thereafter] [from through ] will be the
interest yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills plus % of Interest Differential (the excess, if any,
of (i) then current weekly average per annum secondary market yield for -month
certificates of deposit over (ii) then current interest yield equivalent of the
weekly average per annum market discount rate of -month Treasury bills); [from
and thereafter the rate will be the then current yield equivalent plus % of
Interest Differential].]
Defeasance:
[The provisions of Sections 403 and 1006 of the Indenture relating to
defeasance shall apply to the Designated Securities.]
[Other Terms]*:
------
* A description of particular tax, accounting or other unusual features of the
Securities should be set forth, or referenced to an attached and accompanying
description, if necessary, to the issuer's understanding of the transaction
contemplated. Such a description might appropriately be in the form in which
such features will be described in the Prospectus Supplement for the offering.
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte & Touche
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited by them and included or incorporated
by reference in the Registration Statement or the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related published rules and
regulations thereunder;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for five such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included
or incorporated by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act as it applies to Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated shareholders' equity or
other items specified by the Representatives, or any increases in any items
specified by the representatives of the Underwriters (the "Representatives"), in
each case as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; or
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the date specified by
the Representatives there were any decreases in consolidated net sales or
earnings from operations before income taxes or the total or per share amounts
of consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(v) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
ANNEX III
Delayed Delivery Contract
[date]
THE PROCTER & XXXXXX COMPANY, c/o [Name and address of appropriate
Representatives].
Attention:
Dear Sirs/Mesdames:
The undersigned hereby agrees to purchase from The Procter & Xxxxxx
Company (hereinafter called the "Company"), and the Company agrees to sell to
the undersigned,
[$]
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated .
[date], as amended or supplemented, receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof [, plus
accrued interest from the date from which interest accrues as set forth below,]
[and accrued amortization, if any, from [. . . . . . . . . ] [the date from
which interest accrues as set forth below]] and on the further terms and
conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the
Company on [date] (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from [date].
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts set
forth below:
Principal Date from Which
Delivery Date Amount Interest Accrues
----------------------------- ------------ ----------------------------
[date] [$] [date]
[date] [$] [date]
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed
to purchase on [the] [each] Delivery Date shall be made to [the Company or its
order by certified or official bank check in [New York Clearing House] [same
day] funds at the office of . . . . . . . . . , . . . . . . . . . , . . . . .
. . . . , or by wire transfer of same day funds to a bank account specified by
the Company] [or specify other means], on [the] [such] Delivery Date upon
delivery to the undersigned of the Designated Securities then to be purchased by
the undersigned in definitive fully registered form and in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communications addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [the] [each] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[The undersigned understands that underwriters (the "Underwriters")
are also purchasing Designated Securities from the Company, but that the
obligations of the undersigned hereunder are not contingent on such purchases.
Promptly after completion of the sale to the Underwriters the Company will mail
or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.]
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
----------------------
(Name of Purchaser)
By ____________________
(Signature)
------------------------
(Name and Title)
------------------------
(Address)
Accepted, [date]
THE PROCTER & XXXXXX COMPANY
By _________________________
Title: