PEPSICO, INC.
$4,587,000,000
Debt Securities and Warrants
U.S. DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT, dated as of
_________________, 1995, between PepsiCo, Inc., a corporation
organized under the laws of the State of North Carolina (the
"Company"), and _________________, a corporation organized under
the laws of the State of _________________ (the "Bank").
W I T N E S S E T H:
WHEREAS, the Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3, File No. 33-_____________ (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating
to $4,587,000,000 in aggregate offering price of the Company's
Debt Securities and Warrants (as such terms are defined in the
Prospectus); and
WHEREAS, the Bank has agreed to participate in the offer
and sale of Debt Securities and Warrants (sometimes referred to
collectively as the "Securities") to investors on the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings
ascribed to such terms by the Prospectus; provided, however, that
in the event of a conflict between the Prospectus and any
applicable Supplement regarding the definition of any capitalized
term used herein, the definition set forth in the applicable
Supplement will govern; and provided, further, that the terms
"Registration Statement", "Prospectus", "Pricing Supplement", and
"Prospectus Supplement", as used herein, (a) include, in each
case, the documents (if any) incorporated by reference therein,
and (b) refer, in each case, to such document as supplemented or
otherwise amended from time to time.
SECTION 2. Appointment of Bank as Agent. From the date
hereof and until the expiration or earlier termination of this
Agreement, the Bank will be the agent of the Company with respect
to the distribution and sale of the Securities, and will use
reasonable efforts, consistent with standard industry practice,
to solicit offers for the purchase of the Securities upon the
terms and conditions set forth in the Prospectus and, with
respect to Securities of a given series, in the applicable
Pricing Supplement or Prospectus Supplement (each such supplement
a "Supplement" or an "applicable Supplement"), provided, however,
that the Bank will not be required to solicit offers to purchase
Securities issued pursuant to a Supplement that does not name the
Bank as an agent. All sales of Securities resulting from a
solicitation made or an offer to purchase received by the Bank in
its capacity as agent during the term of this Agreement will be
subject to the provisions of this Section 2 and to all other
provisions of this Agreement not specifically limited to sales of
Securities made to the Bank as underwriter and/or as purchaser
for its own account.
(a) Non-Exclusive Agency. The Bank acknowledges and agrees
that its agency hereunder is non-exclusive and that its
obligations as agent hereunder will continue notwithstanding the
offer or sale of Securities by the Company directly to investors
(including the Bank as purchaser for its own account), to
underwriters (including the Bank as underwriter, as contemplated
by Section 3 below), and/or through other agents, as the Company
may, in its sole discretion, elect. The obligations of the Bank
in its capacity as agent hereunder, and the obligations of each
other person that has been authorized by the Company to act as
its agent in soliciting offers to purchase Securities, shall be
several and not joint.
(b) Solicitation of Offers by Bank as Agent; Rights of
Acceptance and Rejection of Offers. The Bank may reject, and
will not be required to communicate to the Company, any offer to
purchase Securities that it reasonably deems unacceptable. The
Company will have the sole right to accept any offer to purchase
Securities and may reject any such offer in whole or in part.
The Company will in no event approve any solicitation of offers
or accept any offers to purchase Securities the aggregate public
offering price of which, together with the aggregate public
offering price of all Securities previously sold by the Company
(whether through or to any agents or underwriters or otherwise),
would exceed the sum of $4,062,000,000, or, with respect to
Securities of a given series, would exceed the maximum aggregate
public offering price stated in the applicable Supplement.
(c) Commissions. As consideration for the sale of Securities
of a given series that occurs as a result of a solicitation made
or an offer to purchase received by the Bank in its capacity as
agent, the Company will pay the Bank the commission identified in
the applicable Supplement, which commission will be expressed as
a percentage of the aggregate public offering price of such
Securities. Payment of the commission will be made on the
Settlement Date (as defined in Section 11(c) hereof), in U.S.
dollars or such other currency as the Company and the Bank may
agree in writing, by discount from the proceeds of the sale of
such Securities or by such other means as may be agreed to in
writing by the Company and the Bank and set forth in the
applicable Terms Agreement (hereinafter defined). Any provision
of this Agreement to the contrary notwithstanding, the Bank will
not be entitled to payment of any commission with respect to the
sale of a given Security unless (i) the sale of such Security
shall have occurred as a result of a solicitation made or an
offer to purchase received by the Bank in its capacity as agent
hereunder, on the terms and conditions set forth herein and in
the applicable Terms Agreement, (ii) the Bank shall have been
named as an agent in the applicable Supplement, and (iii) such
Security shall have been sold by the Company directly to a
third-party investor without the Bank acquiring legal title
thereto.
(d) Termination or Suspension of Solicitations by Bank as
Agent. The Company may at any time require the Bank to terminate
or temporarily suspend the solicitation of offers to purchase
Securities. Upon receipt of written notice from the Company to
the Bank directing the Bank to terminate or suspend solicitations
of offers to purchase Securities, until (in the case of a
temporary suspension) such time as may be indicated in such
notice or in any subsequent notice from the Company to the Bank,
the Bank will forthwith terminate or suspend such solicitations
(as the case may be). The provisions of this paragraph
notwithstanding, the termination or suspension by the Company of
the Bank's solicitation of offers to purchase Securities will not
(except under the circumstances contemplated in Section 6 or
Section 9(b) hereof) relieve or otherwise affect the Bank's
obligation to purchase any Securities the Bank shall have agreed
to purchase in its capacity as underwriter, or the Company's
obligation to sell any Securities it shall have agreed to sell to
a third-party investor through the Bank in its capacity as agent,
in either case as set forth in an applicable Terms Agreement that
shall have been executed and delivered by both the Company and
the Bank.
(e) Scope of Agency. In soliciting offers to purchase
Securities, the Bank will be acting solely as an agent for the
Company. The Bank will use its best efforts consistent with
standard industry practice to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities
has been solicited by the Bank and accepted by the Company, but
the Bank will not have any liability to the Company in the event
that any such purchase is not consummated for any reason. If the
Company shall default in its obligations to deliver Securities to
a purchaser whose offer it has accepted, the Company will hold
the Bank harmless against any loss, claim, damage, or liability
arising from or as a result of such default and will pay to the
Bank the commission the Bank would have received had such sale
been consummated.
SECTION 3. Purchase and Sale of Securities by Bank as
Underwriter. The Company and the Bank may agree upon one or more
sales of Securities to the Bank as underwriter, for resale to
investors on the terms set forth in the Prospectus and in any
applicable Supplement. All sales of Securities made to the Bank
in its capacity as underwriter during the term of this Agreement
will be subject to the provisions of this Section 3 and to all
other provisions of this Agreement not specifically limited to
sales of Securities through the Bank as agent and/or to the Bank
as purchaser for its own account.
(a) Bank's Obligation to Purchase Securities; Multiple
Underwriters. In the event that the Bank is the sole underwriter
with respect to a particular series of Securities, the Bank will
be obligated to purchase all of the Securities of such series.
In the event that the Bank is one of two or more underwriters
with respect to a particular series of Securities, the applicable
Terms Agreement will specify the aggregate public offering price
of the Securities that each of the Bank and such other
underwriter or underwriters will be obligated to purchase, such
obligations to be several and not joint.
(b) Discounts. All Securities of any series to be sold to
the Bank in its capacity as underwriter will be sold at a
discount from the price at which such Securities are to be sold
to the public. Such discount will be identified in the
applicable Terms Agreement, expressed as a percentage of the
aggregate public offering price of such Securities. Any
provision of this Agreement to the contrary notwithstanding, the
Bank will not be entitled to any discount with respect to the
purchase of a given Security unless (i) the Bank shall have
purchased such Security with a view, at the time of such
purchase, to the immediate resale thereof to a third-party
investor, unless the Company shall have otherwise agreed in the
applicable Terms Agreement, and (ii) the Bank shall have been
named as an underwriter in the applicable Supplement. It is
expressly acknowledged and agreed that the Bank may, in its
capacity as underwriter with respect to any given series of
Securities, sell such Securities to one or more dealers that are
not parties to this Agreement or the applicable Terms Agreement,
and may allow to such dealers a discount from the public offering
price of such Securities, provided that the aggregate of all such
discounts allowed by the Bank to such dealers with respect to
such Securities will not exceed the discount received by the Bank
from the Company with respect to such Securities.
SECTION 4. Terms Agreement; Administrative Procedures. No
agreement for the purchase of Securities by the Bank in its
capacity as underwriter or through the Bank in its capacity as
agent will be deemed to exist until the terms of such agreement
shall have been put in writing, substantially in the form of the
attached Exhibit I, and such writing shall have been signed by
both the Company and the Bank (any such signed writing a "Terms
Agreement"). In the event of a conflict between any provision of
a Terms Agreement with respect to Securities of a given series
and any term of the applicable Supplement, the terms of the
applicable Supplement will govern.
Each of the Company and the Bank agrees that it will perform
its respective administrative obligations with respect to the
offer and sale of Securities as set forth in the Administrative
Procedures attached to this Agreement as Exhibit II. Each Terms
Agreement will incorporate all applicable terms and provisions of
this Agreement and the Administrative Procedures as fully as
though such terms and provisions were expressly stated therein.
SECTION 5. Delivery of Certain Documents, Certificates, and
Opinions. Prior to or contemporaneously with the execution and
delivery of this Agreement by the Bank (or, in respect of
paragraph (g) below, at such later date or dates as indicated in
such paragraph), the Bank has received or will receive the
following documents:
(a) the opinion of Xxxxxxx Xxxx, Esq., Vice President and
Assistant General Counsel of the Company, or such other counsel
as may be selected by the Company and agreed to by the Bank (Xx.
Xxxx or such other counsel each, successively, the "Company's
Counsel"), dated as of the effective date of the Registration
Statement (the "Effective Date"), substantially in the form of
Annex A hereto,
(b) the opinion of Xxxxxx Xxxxxx & Xxxxxxx, special counsel
to the Bank, or such other counsel as may be selected by the Bank
and agreed to by the Company (Xxxxxx Xxxxxx & Xxxxxxx or such
other counsel each, successively, the "Bank's Counsel"), dated as
of the Effective Date, substantially in the form of Annex B
hereto,
(c) the opinion of Xxxxxxx X. XxXxxxx, Esq., Vice President,
Taxes, of the Company, or such other tax counsel as may be
selected by the Company and agreed to by the Bank (Xx. XxXxxxx or
such other counsel each, successively, the "Tax Counsel"), dated
as of the Effective Date, substantially in the form of Annex C
hereto,
(d) a certificate of the Secretary or the Assistant Secretary
of the Company, dated as of the Effective Date, substantially in
the form of Annex D hereto,
(e) a certificate of the Executive Vice President and Chief
Financial Officer and the Senior Vice President and Treasurer of
the Company, dated as of the Effective Date, substantially in the
form of Annex E hereto, and
(f) an Auditors' Letter (as hereinafter defined) with respect
to the preceding fiscal quarter of the Company, dated as of a
date no later than 14 business days following the date on which
the Company shall have filed its Quarterly Report on Form 10-Q
with respect to such fiscal quarter (or its Annual Report on Form
10-K for the year in which such fiscal quarter occurred, as the
case may be).
(g) At such time as any form of Shelf Warrant Agreement is
filed by the Company as an amendment and/or exhibit to the
Registration Statement, and at such time as any Prospectus
Supplement relating to one or more series of Shelf Warrants is
filed by the Company as a supplement to the Prospectus, the Bank
will receive an opinion of the Company's Counsel, an opinion of
the Bank's Counsel, and an opinion of the Tax Counsel, each dated
as of the date such exhibit is filed or the effective date of
such amendment or supplement, as the case may be, substantially
in the forms attached hereto as Annex A, Annex B, and Annex C,
respectively, modified as appropriate to address such series of
Shelf Warrants and the related Warrant Agreement and Prospectus
Supplement, provided, however, that such opinion of the Company's
Counsel will be limited to the opinions described in paragraphs
(5) and (8) of Annex A hereto, modified as appropriate to address
such Warrant Agreement, and to the opinions described in
paragraphs (6), (7), and (11) of Annex A hereto, modified as
appropriate to address such series of Shelf Warrants and the
applicable Prospectus Supplement. The Bank will also receive a
certificate of the Secretary or an Assistant Secretary of the
Company, dated as of the date such exhibit is filed or the
effective date of such amendment or supplement, as the case may
be, certifying that such series of Shelf Warrants, and the
related Warrant Agreement, Prospectus Supplement, and form of
Warrant Certificate, have been approved by the Board of Directors
of the Company. The receipt by the Bank of such opinions and
certificate will be a condition precedent to the Bank's
obligation to solicit offers for the purchase of such series of
Shelf Warrants, but will not be a condition precedent to the
Bank's continued obligation to solicit offers for the purchase of
any other Securities in its capacity as agent hereunder.
SECTION 6. Certain Conditions Precedent to Bank's
Obligations. The Bank's obligation to solicit offers to purchase
Securities in its capacity as agent, and its obligation to
purchase any Securities in its capacity as underwriter, will in
all cases be subject to the accuracy of the representations and
warranties of the Company set forth in Section 7 hereof or in the
applicable Terms Agreement (as the case may be), to receipt of
the opinions and certificates to be delivered to the Bank
pursuant to the terms of Sections 5 and 9 hereof or the
provisions of the applicable Terms Agreement (as the case may
be), to the accuracy of the statements of the Company's officers
made in each certificate to be furnished as provided herein or in
the applicable Terms Agreement (as the case may be), to the
performance and observance by the Company of all covenants and
agreements contained herein or in the applicable Terms Agreement
(as the case may be) on its part to be performed and observed, in
each case at the time of solicitation by the Bank of offers to
purchase Securities, at the time the Company accepts any offer to
purchase Securities through the Bank in its capacity as agent or
by the Bank in its capacity as underwriter, as the case may be,
and at the time of purchase, and (in each case) to the following
additional conditions precedent, when and as specified:
(a) As of the Settlement Date for any Securities to be
purchased through the Bank in its capacity as agent or by the
Bank in its capacity as underwriter (for purposes of this
paragraph (a), the "Applicable Settlement Date"), and with
respect to the period from the date of the applicable Terms
Agreement to and including the Applicable Settlement Date:
(i) there shall not have occurred (A) any material
adverse change specified in the most recent Auditors' Letter
delivered to the Bank in accordance with the provisions of
paragraph (b) below, or any material adverse change (or
development involving a prospective material adverse change)
in the business, properties, earnings, or financial condition
of the Company and its subsidiaries on a consolidated basis,
(B) any suspension or material limitation of trading in the
Company's capital stock by the Commission or the New York
Stock Exchange, Inc. (the "NYSE"), or (C) any decrease by
Xxxxx'x Investors Services, Inc. or Standard & Poor's
Corporation with respect to the ratings of any of the debt
securities issued or guaranteed by the Company (the events
described in the foregoing clauses A through C the
"Company-Specific Events"), the effect of any of which
Company-Specific Events shall have made it impracticable, in
the reasonable judgment of the Bank, to market such
Securities, such judgment to be based on relevant market
conditions;
(ii) there shall not have occurred (A) any suspension
or material limitation of trading in securities generally on
the NYSE or the establishment of minimum prices on the NYSE,
(B) a declaration of a general moratorium on commercial
banking activities in New York by either Federal or New York
State authorities, or (C) any outbreak or material escalation
of hostilities or other national or international calamity or
crisis (the events described in the foregoing clauses A
through C the "Market Events"), the effect of any of which
Market Events shall have made it impracticable, in the
reasonable judgment of the Bank, to market such Securities,
such judgment to be based on relevant market conditions,
including, without limitation, the impact of such Market
Event on debt securities having substantially similar
characteristics; and
(iii) there shall not have been issued any stop order
suspending the effectiveness of the Registration Statement
nor shall any proceedings for that purpose have been
instituted or threatened.
(b) The Bank will receive, upon execution and delivery of
this Agreement and any applicable Terms Agreement and thereafter
on a quarterly basis throughout the term of this Agreement, a
letter from KPMG Peat Marwick LLP ("KPMG"), or such other
independent certified public accountants as may be selected by
the Company (KPMG or such other independent certified public
accountants each, successively, the "Company's Auditors"),
setting forth certain information with respect to the preceding
fiscal quarter of the Company, provided, that on or prior to the
Settlement Date for the first sale of Securities resulting from a
solicitation made or an offer to purchase received by the Bank in
its capacity as agent, or on or prior to the Settlement Date for
the first sale of Securities made to the Bank in its capacity as
underwriter, (1) the Bank shall have delivered to the Company's
Auditors a letter setting forth certain representations in
substantially the form of Annex F hereto, or (2) the Bank's
Counsel shall have delivered to the Company's Auditors an opinion
in substantially the form of Annex G hereto. Each letter from
the Company's Auditors to the Bank will be dated as of a date no
later than 14 business days following the date on which the
Company shall have filed its Quarterly Report on Form 10-Q with
respect to such fiscal quarter (or its Annual Report on Form 10-K
for the year in which such fiscal quarter occurred, as the case
may be) and will state substantially as follows (each such letter
an "Auditors' Letter"):
(i) they are independent certified public accountants
within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the respective
applicable rules and regulations of the Commission
thereunder;
(ii) in their opinion the most recent audited financial
statements of the Company and the financial statement
schedules of the Company audited by them and included or
incorporated in the Registration Statement and/or the
Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Securities Act
and the Exchange Act and the respective applicable published
rules and regulations thereunder;
(iii) on the basis of: a reading of the financial
statements of the Company and its subsidiaries on a
consolidated basis (which may be unaudited) included or
incorporated by reference in the Registration Statement
and/or the Prospectus; a reading of the minutes of the
meetings of the Board of Directors of the Company held
subsequent to the date of the most recent audited financial
statements of the Company included or incorporated by
reference in the Registration Statement and/or the Prospectus
to a specified date not more than five New York Business Days
prior to the date of the applicable Auditors' Letter; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent financial
statements of the Company included or incorporated by
reference in the Registration Statement and/or the Prospectus
to a specified date not more than five New York Business Days
prior to the date of such Auditors' Letter (which procedures
and inquiries do not constitute an audit made in accordance
with generally accepted auditing standards), nothing came to
their attention which caused them to believe that:
1. the unaudited financial statements, if
any, included or incorporated by reference in the
Registration Statement and/or the Prospectus do not
comply as to form in all material respects with
applicable accounting requirements of the Securities Act
and the Exchange Act and the respective applicable
published rules and regulations thereunder, or are not
in conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited consolidated financial
statements included or incorporated by reference in the
Registration Statement and/or the Prospectus;
2. during the period from the first day
following the date of the last financial statements
(which may be unaudited) of the Company included or
incorporated by reference in the Registration Statement
and/or the Prospectus, to a specified date not more than
five New York Business Days from the date of the
applicable Auditors' Letter, there has been any (i)
decrease in the outstanding capital stock of the Company
or in the consolidated shareholders' equity of the
Company other than a decrease resulting from a normal
dividend distribution or change in the foreign currency
translation adjustment account or (ii) increase in the
consolidated long-term debt of the Company resulting
from the issuance of long-term debt, in any case greater
than 3% as compared with amounts shown in the unaudited
condensed consolidated balance sheet at the end of the
Company's immediately preceding fiscal quarter, except
in each case for decreases or increases, as the case may
be, that the Registration Statement and/or the
Prospectus disclose have occurred or may occur or that
are described in such letter; or during such period
there were any decreases in consolidated net sales or in
consolidated total or per share amounts of income from
continuing operations or of net income, as compared with
the corresponding period in the preceding year, except,
in each case, for decreases that the Registration
Statement and/or the Prospectus disclose have occurred
or may occur or that are described in such letter; or
3. the amounts included in any unaudited
"capsule" financial information derived from the general
accounting records of the Company and included or
incorporated by reference in the Registration Statement
and/or the Prospectus and the amounts used to compute
the ratios set forth in the table of "Ratio of Earnings
to Fixed Charges", if any, included in the Registration
Statement and/or the Prospectus do not agree with the
corresponding amounts in the audited or unaudited
financial statements or schedules prepared by the
Company, as the case may be, from which such amounts
were derived or that the computation of the ratios set
forth in the aforementioned table is not arithmetically
correct;
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
the Company and its subsidiaries) set forth in the
Registration Statement and/or the Prospectus and in Exhibit
12 to the Registration Statement, including certain
information included or incorporated in Items 1, 6, 7 and 11
of the Company's most recent Annual Report on Form 10-K,
incorporated by reference in the Registration Statement
and/or the Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition
and Results of Operations" included or incorporated by
reference in the Company's most recent Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and/or
the Prospectus, agrees with the general accounting records of
the Company and its subsidiaries or schedules prepared by the
Company, excluding any questions of legal interpretation; and
(v) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and/or
the Prospectus, on the basis of a reading of the unaudited
pro forma financial statements, carrying out certain
procedures specified by the Bank, inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the unaudited pro forma
adjustments to the historical amounts in the unaudited pro
forma financial statements, nothing came to their attention
which caused them to believe that the unaudited pro forma
financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the unaudited pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
(c) On each Settlement Date, the Bank shall have received
from the Company such appropriate further information,
certificates, and documents as the Company and the Bank shall
have agreed, as reflected in the applicable Terms Agreement.
SECTION 7. Representations and Warranties of the
Company. The Company represents and warrants to the Bank that,
as of the date hereof, as of each date on which the Company and
the Bank execute and deliver a Terms Agreement, as of each date
the Company issues and sells Securities through the Bank in its
capacity as agent or to the Bank in its capacity as underwriter,
and as of each date the Registration Statement or the Prospectus
is amended or supplemented, the following statements are and
shall be true:
(a) (i) The Registration Statement has become effective and
no stop order suspending the effectiveness of the Registration
Statement is in effect nor, to the Company's knowledge, are any
proceedings for such purpose pending before or threatened by the
Commission, (ii) as of the Effective Date, the Company met the
applicable requirements for use of Form S-3 under the Securities
Act with respect to the registration under the Securities Act of
$4,587,000,000 in aggregate public offering price of Debt
Securities and Warrants, and (iii) as of the Effective Date, the
Registration Statement met the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and complied in all
material respects with said Rule.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated or to be incorporated by
reference in the Prospectus complies or will comply, in all
material respects, with the applicable provisions of the Exchange
Act and the rules and regulations of the Commission thereunder,
(ii) the Registration Statement does 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 and the
Prospectus comply, in all material respects, with the Securities
Act and the rules and regulations of the Commission thereunder,
and (iv) the Prospectus does not contain any untrue statement of
a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations and warranties (1) as to
information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the Bank
expressly for use in the Registration Statement or the Prospectus
or any amendment or supplement thereto, or (2) as to that part of
the Registration Statement that constitutes the Statement of
Eligibility and Qualification of the Trustee (the "Form T-1")
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(c) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
North Carolina, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus, and is duly qualified to transact business as a
foreign corporation 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 in good standing would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(d) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed, and
delivered by the Company and (assuming due authorization, valid
execution, and delivery thereof by the Trustee) is a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as such enforceability may
be limited by the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws relating to
creditors' rights generally, by any other federal or state laws,
by rights of acceleration, by general principles of equity, or by
the discretion of any court before which any proceeding therefor
may be brought.
(e) This Agreement has been duly authorized, executed, and
delivered by the Company and (assuming due authorization, valid
execution, and delivery by the Bank) is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability of any
term or provision hereof (including, without limitation, the
Company's indemnity obligations under Section 12 hereof) may be
limited by the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws relating to
creditors' rights generally, by rights of acceleration, by any
other federal or state law. by general principles of equity, or
by the discretion of any court before which any proceeding
therefor may be brought.
(f) The respective forms of Terms Agreement and Debt Warrant
Agreement filed by the Company as exhibits to the Registration
Statement, and the form of any Shelf Warrant Agreement to be
filed by the Company as an exhibit to the Registration Statement,
have been or will be duly authorized by the Company and, assuming
valid execution and delivery by the Company and due
authorization, valid execution, and delivery by each of the other
parties thereto, each such agreement will be a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its respective terms, except as such
enforceability may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws relating to creditors' rights generally, by any
other federal or state laws, by general principles of equity, or
by the discretion of any court before which any proceeding
therefor may be brought.
(g) The Securities have been duly authorized and, when
issued, executed, and authenticated in accordance with the
provisions of the Indenture, or when countersigned by the Warrant
Agent in accordance with the provisions of the applicable Warrant
Agreement, as the case may be, and delivered to and duly paid for
in accordance with the applicable provisions of the Prospectus,
any applicable Supplement, and Section 11(c) hereof, will be
entitled to the benefits of the Indenture or the applicable
Warrant Agreement, as the case may be, and will be valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as such
enforceability may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws relating to creditors' rights generally, by any
other federal or state laws, by rights of acceleration, if
applicable, by general principles of equity, or by the discretion
of any court before which any proceeding therefor may be brought.
(h) The execution and delivery of and performance by the
Company of its obligations under this Agreement, the Securities,
the Indenture, any Warrant Agreement, and any Terms Agreement, as
the case may be, will not contravene any provision of any
applicable law or of the Restated Charter or By-Laws of the
Company, or of any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries taken as a whole, or of any
judgment, order, or decree of any governmental body, agency, or
court having jurisdiction over the Company or any of its
subsidiaries, and no consent, approval, authorization, or order
of or qualification with any governmental body or agency is, to
the Company's knowledge, required for the performance by the
Company of its obligations under this Agreement, the Securities,
the Indenture, or any Warrant Agreement or Terms Agreement,
except such as may be required by Blue Sky laws or other
securities laws of the various states in which the Securities are
offered and sold.
(i) There has not been any material adverse change (or
development involving a prospective material adverse change) in
the business, properties, earnings, or financial condition of the
Company and its subsidiaries on a consolidated basis from that
set forth in the Company's last periodic report filed with the
Commission under the Exchange Act and the rules and regulations
promulgated thereunder.
(j) There are no legal or governmental proceedings pending
or, to the Company's knowledge, threatened, to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject
that is required to be described in the Registration Statement or
the Prospectus and is not so described, or any applicable
statute, regulation, contract, or other document that is required
to be described in the Registration Statement or the Prospectus
that is not so described.
SECTION 8. Authority, Compliance with Laws. As of the
date hereof, as of each date on which the Company and the Bank
execute and deliver a Terms Agreement, as of each date the
Company issues and sells Securities through the Bank in its
capacity as agent or to the Bank in its capacity as underwriter,
and as of each date the Registration Statement or the Prospectus
is amended or supplemented, the following statements are and
shall be true:
(a) Each of this Agreement and any Terms Agreement has been
duly authorized, executed, and delivered by the Bank and
(assuming due authorization, valid execution, and delivery
thereof by the Company) is a valid and binding agreement of the
Bank, enforceable against the Bank in accordance with its
respective terms, except as the enforceability of any such terms
or provisions (including, without limitation, the Bank's agency
obligations under Section 2 hereof and the Bank's indemnification
obligations under Section 12 hereof) may be limited by the laws
of bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, or similar laws relating to creditors' rights
generally, by any other federal or state laws, by general
principles of equity, or by the discretion of any court before
which any proceeding therefor may be brought.
(b) Neither the execution and delivery of this Agreement or
any Terms Agreement by the Bank nor the performance by the Bank
of its obligations hereunder or thereunder is precluded by any
provision of any applicable federal or state law (including,
without limitation, the Blue Sky laws of any jurisdiction, to the
extent that such laws apply to the Bank), or of any term or
provision of the Charter or By-Laws of the Bank, any agreement
or other instrument binding upon the Bank, or any judgment,
order, or decree of any governmental body, agency, or court
having jurisdiction over the Bank, and all consents, approvals,
authorizations, and orders of and qualifications with all
governmental bodies and agencies that are, to the Bank's
knowledge, required for the performance by the Bank of its
obligations under this Agreement or any Terms Agreement have been
obtained, except such as may be required by Blue Sky laws or
other securities laws of the various states in which the
Securities are offered and sold.
(c) The Bank has delivered and will deliver a copy of the
Prospectus (as the same may be amended as of the date of such
delivery, together with all applicable Supplements), to each
person who has agreed to purchase Securities as to which the Bank
is named as an agent or underwriter, in each case in accordance
with all applicable federal and state laws. The Bank has not
made and will not make any representation, warranty, or other
statement to any third party in connection with the solicitation,
offer, sale, or distribution of any of the Securities that is or,
at the time it is made, will be in violation of any applicable
federal or state law.
SECTION 9. Agreements. The Company and the Bank agree as
follows:
(a) Prior to the filing by the Company of any amendment to
the Registration Statement or of any Supplement that shall name
the Bank as agent or underwriter, the Company will afford the
Bank or the Bank's Counsel a reasonable opportunity to review and
comment on the same, provided, however, that the foregoing
requirement will not apply to any of the Company's filings with
the Commission required to be filed pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act. Subject to the
foregoing sentence, the Company will promptly cause each
applicable Supplement to be filed with or transmitted for filing
with the Commission in accordance with Rule 424(b) or 424(c)
under the Securities Act or pursuant to such other rule or
regulation of the Commission as then deemed appropriate by the
Company. The Company will promptly advise the Bank of (i) the
filing and effectiveness of any amendment to the Registration
Statement other than by virtue of the Company's filing any report
required to be filed under the Exchange Act and the filing of any
supplement to the Prospectus other than a Pricing Supplement,
(ii) any request by the Commission for any amendment to the
Registration Statement, for any amendment or supplement to the
Prospectus, or for any information from the Company, (iii) 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 (iv) the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use reasonable efforts to
prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as
reasonably possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to any series
of Securities is required to be delivered under the Securities
Act, any event occurs or condition exists as a result of which
the Prospectus would include an 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, or if it is necessary to amend or
supplement the Prospectus in order to comply with the Securities
Act, the Exchange Act, the respective rules and regulations of
the Commission thereunder, or any other applicable law, the
Company will promptly notify the Bank, by telephone or by
facsimile (in either case with written confirmation from the
Company by mail), to cease use and distribution of the Prospectus
(and all then existing supplements thereto) and to suspend all
efforts to solicit offers to purchase Securities in its capacity
as agent or to suspend all efforts to resell the Securities in
its capacity as underwriter or dealer, as the case may be, and
the Bank will promptly comply with the terms of such notice. If
the Company thereafter decides to amend or supplement the
Registration Statement or the Prospectus to correct such
statement or omission or to effect such compliance, it will
promptly advise the Bank of such decision, either by telephone or
telecopier (in either case with confirmation from the Company by
mail) and, at the Company's expense, will promptly prepare and
cause to be filed with the Commission an appropriate amendment or
supplement to the Registration Statement or the Prospectus, as
the case may, and will supply the Bank with one signed copy of
any such amended Registration Statement and as many copies of any
such amended or supplemented Prospectus as the Bank may
reasonably request. If such amendment or supplement is
satisfactory in the reasonable judgment of the Bank to correct
such statement or omission or to effect such compliance, then
upon the effective date of such amendment to the Registration
Statement or the filing with the Commission of such amendment or
supplement to the Prospectus, as the case may be, the Bank may
resume solicitation of offers to purchase such Securities or the
resale of such Securities as the case may be, in accordance with
the terms hereof. Any other provision of this Agreement to the
contrary notwithstanding, if any event or condition contemplated
in the first sentence of this paragraph (b) shall occur before
the Settlement Date for any sale of Securities to be made through
the Bank in its capacity as agent, or before the Bank has
completed distribution of any Securities it may have purchased in
its capacity as underwriter, the Company will forthwith prepare
and cause to be filed with the Commission an amendment or
supplement to the Registration Statement or the Prospectus, as
the case may be, satisfactory in the reasonable judgment of the
Bank to correct such statement or omission or to effect such
compliance, and the Company will supply the Bank with one signed
copy of such amended Registration Statement and as many copies of
such amended or supplemented Prospectus as the Bank may
reasonably request, provided, however, that the expense of
preparing, filing, and supplying copies to the Bank of any such
amendment or supplement will be borne by the Company only for the
nine-month period immediately following the purchase of such
Securities by the Bank and thereafter will be borne by the Bank.
(c) The Company will furnish to the Bank, without charge, one
signed copy of the Registration Statement (including exhibits)
and all amendments thereto that shall become effective, and as
many copies of the Prospectus, any documents incorporated by
reference therein, and any supplements and amendments thereto as
the Bank may reasonably request, in each case within a reasonable
period of time following the date on which this Agreement is
executed and delivered by the Company and the Bank, or the date
on which such document becomes effective, or the date on which
such document is requested by the Bank, as applicable.
(d) The Company will, with such assistance from the Bank as
the Company may reasonably request, endeavor to qualify the
Securities for offer and sale under the Blue Sky laws or other
securities laws of such jurisdictions as the Bank shall
reasonably request and will maintain such qualifications for as
long as required with respect to the offer, sale, and
distribution of the Securities.
(e) From the date of any Terms Agreement providing for the
purchase of Securities by the Bank in its capacity as an
underwriter hereunder to and including the corresponding
Settlement Date, the Company will not, without the Bank's prior
consent (which consent may not be unreasonably withheld), offer,
sell, or contract to sell to, or announce any offering of any
Securities to be distributed by, any underwriter other than the
Bank pursuant to any underwriting agreement or other similar
agreement (including a distribution agreement) between the
Company and one or more third parties. It is expressly
understood and agreed that the foregoing will not prohibit or
restrict any sale of Securities outside the United States or any
sale of Securities by the Company directly to one or more
investors, through the Bank as agent hereunder, or through any
other agent of the Company.
(f) The Company will make generally available to its security
holders earnings statements that satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder.
(g) Each time the Registration Statement or Prospectus is
amended or supplemented by the Company's periodic filings
pursuant to the Exchange Act, or by any means or for any purpose
other than by the filing of a Pricing Supplement or for a change
the Company reasonably deems to be immaterial, the Company will
make available to the Bank, promptly upon request, (i) an
officers' certificate, dated the date of such amendment or
supplement to the Registration Statement or the Prospectus, as
the case may be, in substantially the form of Annex E hereto, and
(ii) a written opinion of the Company's Counsel, dated the date
of such amendment or supplement to the Registration Statement or
the Prospectus, as the case may be, as to the matters addressed
in paragraphs (1), (8), (9), (10) and (11) of Annex A hereto,
provided, however, that in lieu of such opinion, counsel last
furnishing such an opinion to the Bank (including the opinion to
be delivered pursuant to paragraph (a) of Section 5 hereof) may
furnish to the Bank a letter stating that the Bank 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 or the
Prospectus as amended and supplemented as of the date of such
letter).
(h) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental
financial information, or amended or supplemental financial
information is incorporated by reference in the Registration
Statement or the Prospectus, the Company will cause the Company's
Auditors to forthwith furnish the Bank with a letter
substantially in the form of an Auditors' Letter, dated the
effective date of such amendment or supplement, as the case may
be, as to such amended or supplemental financial information;
provided, however, that the foregoing requirement will not apply
to any of the Company's filings with the Commission required to
be filed pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act, and provided, further, that the delivery of such
letter by the Company's Auditors to the Bank will be in addition
to, and not in lieu of, any Auditors' Letter to be delivered to
the Bank pursuant to paragraph 6(b) of this Agreement.
(i) As of the date hereof, as of each date on which the
Company and the Bank execute and deliver a Terms Agreement, as of
each date the Company issues and sells Securities through the
Bank in its capacity as agent or to the Bank in its capacity as
underwriter, and as of each date the Registration Statement or
the Prospectus is amended or supplemented, the Bank has disclosed
and will disclose to the Company the purchase of any Security
made by the Bank as principal, for its own account, and not with
a view to the immediate sale or resale of such Security to a bona
fide third-party investor.
SECTION 10. Fees and Expenses. The Company will pay all
costs, fees, and expenses arising in connection with the sale of
any Securities through the Bank in its capacity as agent or to
the Bank in its capacity as underwriter and in connection with
the performance by the Bank of its related obligations hereunder
and under any Terms Agreement, including the following: (i)
expenses incident to the preparation and filing of the
Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) expenses incident to the issuance and
delivery of such Securities, (iii) the fees and disbursements of
the Company's Counsel, the Tax Counsel, the Company's Auditors,
the Trustee, and the Trustee's counsel, (iv) expenses incident to
the qualification of such Securities under Blue Sky laws and
other applicable state securities laws in accordance with the
provisions of Section 9(d) hereof, including related filing fees
and the reasonable fees and disbursements of the Bank's Counsel
in connection therewith and in connection with the preparation of
any survey of Blue Sky laws (a "Blue Sky Survey"), (v) expenses
incident to the printing and delivery to the Bank, in the
quantities hereinabove stated, of copies of the Registration
Statement and all amendments thereto and of the Prospectus and
all amendments and supplements thereto, (vi) expenses incident to
the printing and delivery to the Bank, in such quantities as the
Bank shall reasonably request, of copies of the Indenture, any
Warrant Agreement, and any Blue Sky Survey, (vii) any fees
charged by rating agencies for the rating of such Securities,
(viii) the fees and expenses, if any, incurred with respect to
any applicable filing with the National Association of Securities
Dealers, and (ix) the reasonable fees and disbursements of the
Bank's Counsel incurred in connection with the offering and sale
of such Securities, including reasonable fees for the issuance of
any opinion to be delivered by the Bank's Counsel hereunder;
provided, however, that the Bank will pay all costs, fees, and
expenses incurred by the Bank in connection with the purchase of
Securities by the Bank for its own account or with respect to the
resale of Securities purchased by the Bank in its capacity as
underwriter hereunder, including all transfer taxes, advertising
expenses, and fees and expenses of the Bank's Counsel incident to
the resale of any such Securities. The immediately preceding
proviso notwithstanding, the Company will, upon demand, reimburse
the Bank for all reasonable out-of-pocket expenses incurred by
the Bank in connection with a purchase by the Bank as underwriter
that is not consummated as a result of a material failure by the
Company to perform its obligations hereunder, including, without
limitation, a default by the Company with respect to any of the
representations or warranties set forth in Section 7 hereof.
SECTION 11. Inspection; Place of Delivery; Payment.
(a) Inspection. The Company agrees to have available for
inspection, checking, and packaging by the Bank or its appointed
agent, at the office of the Trustee in Brooklyn, New York, the
Securities to be sold through or to the Bank as agent or
underwriter hereunder, not later than 1:00 P.M. on the New York
Business Day prior to the applicable Settlement Date.
(b) Place of Delivery of Documents, Certificates and
Opinions. The documents, certificates and opinions required to
be delivered to the Bank pursuant to Sections 5 and 6 of this
Agreement will be delivered at the offices of the Bank's Counsel,
or at such other location as may be agreed upon by the Company
and the Bank, not later than 12:00 p.m., New York time, in each
case on the date or dates indicated in the applicable Section, or
at such other time as the Bank and the Company may agree upon in
writing.
(c) Payment. Delivery of Securities sold by or through the
Bank as underwriter or agent will be made to the Bank on the date
that the Company receives payment in full of the aggregate
purchase price therefor, discounted as provided in the applicable
Supplement with respect to Securities purchased by the Bank as
underwriter or (unless otherwise set forth in the applicable
Terms Agreement) discounted as provided in paragraph 2(c) hereof
regarding payment of the commission set forth in the applicable
Supplement with respect to Securities sold through the Bank as
agent (each such date a "Settlement Date"), in the currency
specified in such Securities and in the applicable Supplement, by
wire transfer of immediately available funds to an account
designated in writing by the Company or by such other means as
may be agreed upon by the Company and the Bank and set forth in
the applicable Terms Agreement.
SECTION 12. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold the Bank and
each person, if any, who controls the Bank within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Exchange Act, harmless from and against any and all losses,
claims, damages, or liabilities to which the Bank come subject
under the Securities Act, the Exchange Act, or any other federal
or state law or regulation, at common law or otherwise, insofar
as such losses, claims, damages, or liabilities (and actions in
respect thereof) arise out of, are based upon, or are caused by
any untrue statement or allegedly untrue statement of a material
fact contained in the Registration Statement or the Prospectus or
in any amendment or supplement thereto, or arise out of, are
based upon or are 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, and the
Company agrees to reimburse each such indemnified party for any
reasonable legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the Company
will not be liable to the extent that such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out
of, are based upon, or are caused by any such untrue statement or
omission or allegedly untrue statement or omission included in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished to the
Company by the Bank in writing expressly for use in the
Registration Statement or the Prospectus or any amendment or
supplement thereto, and provided, further, that any amount
payable by the Company to the Bank pursuant to the provisions of
this paragraph shall be offset by the amount of any losses,
claims, damages, and liabilities sustained or incurred by the
Company arising out of or in connection with a violation by the
Bank of the provisions of paragraph (c) of Section 8 hereof
(except to the extent that such violation occurs as a direct
result of a violation by the Company of its obligations under
paragraphs (b) or (c) of Section 9 hereof), as such amounts are
finally determined by a court of competent jurisdiction.
(b) The Bank agrees 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 the Bank, but only with
respect to such losses, claims, damages, and liabilities (and
actions in respect thereof) that arise out of, are based upon, or
are caused by any untrue statement or omission or allegedly
untrue statement or omission included in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished to the Company by the Bank
in writing expressly for use in the Registration Statement or the
Prospectus or any amendment or supplement 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
paragraph (a) or (b) of this Section 12, such person (the
"indemnified party") will 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, will 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 will pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified
party will have the right to retain its own counsel, but the fees
and expenses of such counsel will be borne by the 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 will not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that all
such reasonable fees and expenses will be reimbursed as they are
incurred. Such firm will be designated in writing by the Bank
(in the case of parties indemnified pursuant to the second
preceding paragraph) or by the Company (in the case of parties
indemnified pursuant to the first preceding paragraph), as the
case may be. The indemnifying party will not be liable for any
settlement of any proceeding effected without its written
consent, but if settled with such consent, or if there shall 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. The
immediately preceding sentence notwithstanding, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses
of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it will 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 will, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are
the subject matter of such proceeding. Any provision of this
paragraph (c) to the contrary notwithstanding, no failure by an
indemnified party to notify the indemnifying party as required
hereunder will relieve the indemnifying party from any liability
it may have had to an indemnified party otherwise than under this
Section 12.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 12 is unavailable to an indemnified party or
is insufficient in respect of any losses, claims, damages, or
liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying the indemnified
party thereunder, will 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 the Bank, on the other, from the offering of
Securities as to which the Bank was a named agent or underwriter,
or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one
hand, and the Bank, on the other, 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 the Bank, on the other, in connection with
the offering of Securities as to which the Bank was a named agent
or underwriter will be deemed to be in the same proportion as the
total net proceeds received by the Company from the offering of
such Securities bears to the total discounts and commissions
received by the Bank from the Company in respect thereof. The
relative fault of the Company, on the one hand, and of the Bank,
on the other, will be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied or to be supplied
by the Company or by the Bank and the parties' relative intent,
knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Bank agree that it would not be just
or equitable if contribution pursuant to paragraph (d) above were
determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to therein. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages, and liabilities referred to in paragraph (d) above will
be deemed to include, subject to the limitations set forth above,
any reasonable legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Any other provisions of this
Section 12 to the contrary notwithstanding, (i) the Bank will not
be required to contribute to the Company any amount in excess of
the amount by which the aggregate public offering price of all
Securities as to which the Bank was a named agent or underwriter
exceeds the amount of losses, claims, damages, and liabilities
sustained or incurred by the Bank arising out of, based upon, or
caused by any untrue statement or omission or allegedly untrue
statement or omission included in or omitted from the
Registration Statement or the Prospectus (other than in reliance
upon and in conformity with information furnished to the Company
by the Bank in writing expressly for use in the Registration
Statement or the Prospectus or any amendment or supplement
thereto), (ii) any amount payable by the Company or the Bank, as
the case may be (the "Contributing Party"), pursuant to the
provisions of this paragraph or paragraph (d) of this Section 12
shall be offset by the amount of any losses, claims, damages, and
liabilities sustained or incurred by the other party arising out
of or in connection with a violation (x) by the Bank of the
provisions of paragraph (c) of Section 8 hereof (if the Company
is the Contributing Party) or (y) by the Company of its
obligations under paragraphs (b) or (c) of Section 9 hereof (if
the Bank is the Contributing Party), in each case as such amounts
are finally determined by a court of competent jurisdiction, and
(iii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) The remedies provided for in this Section 12 are not
exclusive and will not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in
equity.
SECTION 13. Termination. This Agreement will
automatically terminate upon the expiration of the offering to
which the Prospectus relates and may be earlier terminated by the
Company or the Bank upon the giving of written notice of such
termination to the other party hereto in accordance with the
provisions of Section 15 hereof, provided, however, that if the
Company and the Bank shall have executed a Terms Agreement for
the purchase of Securities by the Bank in its capacity as
underwriter, this Agreement may not be terminated by the Bank
prior to delivery of and payment for such Securities except upon
the failure of any of the conditions precedent described in
Section 6(a) hereof, and provided, further, that if the Company
and the Bank shall have executed a Terms Agreement for the
purchase of Securities through the Bank as agent, this Agreement
may not be terminated by the Bank prior to delivery of and
payment for such Securities unless and until the Bank shall have
exercised best efforts consistent with standard industry practice
to assist the Company in obtaining performance by each purchaser
whose offer to purchase such Securities is reflected in such
Terms Agreement.
SECTION 14. Representations and Indemnities to Survive.
The respective agreements of the Company and the Bank set forth
in Sections 2(e),4, 9(b), 9(f), 10, 12, and 18 hereof, the
representations and warranties of the Company set forth in
Section 7 hereof, the representations and warranties of the Bank
set forth in Section 8 hereof, and the statements and opinions of
the Company and its officers set forth in the documents to be
delivered by the Company to the Bank as provided in paragraphs
5(a), 5(c), 5(d), 5(e), and 6(c) hereof, will survive delivery of
and payment for any Securities as contemplated hereunder and will
survive termination of this Agreement in accordance with the
provisions of Section 13 above.
SECTION 15. Notices. Except as otherwise specifically
provided herein, all communications hereunder will be in writing
and will be effective one business day after having been
delivered by hand, mailed via Express Mail, deposited with
Federal Express or any nationally recognized commercial courier
service for "next day" delivery, or telecopied and confirmed in
writing (by telecopied facsimile or otherwise) to the respective
addresses or telecopier numbers set forth on the signature page
hereto, or to such other address or telecopier number as either
party may hereafter designate to the other in writing. The
foregoing notwithstanding, copies of any Terms Agreement and of
any certificate or opinion to be delivered by the Company to the
Bank under paragraphs 5(a), 5(c), 5(d), 5(e), 5(f), or 9(g)
hereof will be deemed delivered if executed by all required
signatories and telecopied to the Company and/or the Bank, as the
case may be, with receipt confirmed in writing (by telecopied
facsimile or otherwise). In the event that any Terms Agreement
or any such certificate or opinion is delivered via telecopier as
contemplated in the preceding sentence, the parties will use best
efforts to ensure that "original" copies of such documents will
be distributed promptly thereafter.
SECTION 16. Successors; Non-Transferability. This
Agreement will inure to the benefit of and be binding upon the
parties hereto, their respective successors, and the officers,
directors, and controlling persons referred to in Section 12
hereof. No other person will have any right or obligation
hereunder. Neither party to this Agreement may assign its rights
hereunder without the written consent of the other party.
SECTION 17. Counterparts. This Agreement may be signed
in any number of counterparts, each of which will be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
SECTION 18. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of
law.
SECTION 19. Headings. The headings of the sections of
this Agreement have been inserted for convenience of reference
only and will not affect the construction of any of the terms or
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Distribution Agreement as of the __ day of _________________.
PEPSICO, INC.
By:
Name: _________________
Title: _________________
Notice Information:
PepsiCo, Inc.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone No.:
Facsimile No.:
Attention:
[NAME OF BANK]
By:
Name: _________________
Title: _________________
Notice Information:
[NAME OF BANK]
[ADDRESS]
Telephone No.: _________________
Facsimile No.: _________________
Attention: _________________
ANNEX A
[PEPSICO LETTERHEAD]
_______________, 199
[Name and Address of Bank]
Dear Sirs:
I am Vice President and Assistant General Counsel of
PepsiCo, Inc., a corporation organized under the laws of the
State of North Carolina (the "Company"). I have acted as counsel
for the Company in connection with the registration of
$4,587,000,000 in aggregate offering price of the Company's Debt
Securities and Warrants (collectively, the "Securities") that
may, from time to time, be issued by the Company (i) with respect
to Debt Securities, under the Indenture, dated as of December
14, 1994, between the Company and The Chase Manhattan Bank
(National Association), as Trustee (the "Indenture"), (ii) with
respect to Debt Warrants, under the Debt Warrant Agreement
(hereinafter defined) to be entered into by the Company and The
Chase Manhattan Bank (National Association), as Warrant Agent,
and (iii) with respect to Shelf Warrants, under one or more
warrant agreements to be entered into by the Company and one or
more warrant agents.
You have requested my opinion pursuant to Section 5(a)
of the Distribution Agreement to be executed and delivered by you
and the Company in substantially the form attached hereto as
Exhibit A (the "Distribution Agreement"). In connection with
such opinion, I have examined the Registration Statement on Form
S-3, File No. 33-___________ (the "Registration Statement"),
filed by the Company with the Securities and Exchange Commission
(the "Commission") with respect to the Securities, and have
examined such records, certificates, and other documents,
certified or otherwise authenticated to my satisfaction, have
made such inquiries of officers and employees of the Company, and
have made such other examinations as, in each case, I have deemed
necessary or appropriate. I have assumed the genuineness of all
signatures on all documents examined by me and the conformity to
originals of all copies submitted to me.
Capitalized terms used herein and not otherwise defined
have the meanings ascribed to those terms by the Prospectus filed
as part of the Registration Statement (the "Prospectus").
[Name of Bank]
_____________, 199
Page 2
On the basis of the foregoing and having regard for
such legal considerations as I have deemed relevant, it is my
opinion that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of North Carolina, has the corporate power and
authority to own its properties and to conduct its business as
described in the Prospectus, and is duly qualified to do business
as a foreign corporation in each jurisdiction where 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 would not have a material adverse effect on the
financial condition of the Company and its subsidiaries taken as
a whole.
2. The Distribution Agreement has been duly
authorized and, when executed and delivered by the Company,
assuming due authorization and execution by you, will be a valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as limited by (i)
the laws of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar laws affecting creditors'
rights generally, (ii) any other applicable federal or state law,
including any law limiting rights of indemnity or contribution,
(iii) equitable principles of general applicability, and (iv) the
discretion of any court in which a proceeding for enforceability
may be brought.
3. The Indenture has been duly authorized, executed,
and delivered by the Company and, assuming due authorization and
execution by the Trustee, is qualified under the Trust Indenture
Act of 1939, as amended, and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms, except as limited by (i) the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium, or
similar laws affecting creditors' rights generally, (ii) any
other applicable federal or state law, (iii) rights of
acceleration in accordance with the terms of the Indenture, (iv)
equitable principles of general applicability, and (v) the
discretion of any court in which a proceeding for enforceability
may be brought.
4. The forms of Debt Securities included as Exhibits
4(b) and 4(c) to the Registration Statement were established in
accordance with the provisions of Section 202(iii) of the
Indenture.
5. The form of Debt Warrant Agreement included as
Exhibit 4(e) to the Registration Statement (the "Debt Warrant
Agreement") has been duly authorized and, assuming valid
execution and delivery by the Company and due authorization,
valid execution, and delivery by the Warrant Agent, will be a
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as limited by
(i) the laws of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar laws affecting
creditors' rights generally, (ii) any other applicable federal or
state law, (iii) equitable [Name of Bank]
_____________, 199
Page 3
principles of general applicability, and (iv) the discretion of
any court in which a proceeding for enforceability may be
brought.
6. The form of Debt Warrant Certificate included as
Exhibit 4(f) to the Registration Statement complies with the
provisions of Section 1.02 of the Debt Warrant Agreement.
7. The Debt Securities and Debt Warrants have been
duly authorized and, when issued by the Company and (i)
authenticated by the Trustee in accordance with the applicable
provisions of the Indenture (with respect to Debt Securities) or
(ii) countersigned by the Warrant Agent in accordance with the
applicable provisions of the Debt Warrant Agreement and (iii)
delivered to and duly paid for by the purchasers thereof in
accordance with the applicable provisions of the Prospectus, any
applicable Supplement, and the Distribution Agreement, will be
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except as
limited by (a) the laws of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, or similar
laws affecting creditors' rights generally, (b) any other
applicable federal or state law, (c) rights of acceleration in
accordance with the terms of the Indenture (with respect to Debt
Securities), (d) equitable principles of general applicability,
and (e) the discretion of any court in which a proceeding for
enforceability may be brought.
8. The execution and delivery of and performance by
the Company of its obligations under the Distribution Agreement,
the Indenture, the Debt Warrant Agreement, the Debt Securities,
and the Debt Warrants will not contravene any provision of the
Restated Charter or By-Laws of the Company, or of any agreement
or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries
taken as a whole, or, to my knowledge after due inquiry, of any
judgment, order, or decree of any governmental body, agency, or
court having jurisdiction over the Company or any of its
subsidiaries. No consent, approval, authorization, or order of
or qualification with any governmental body or agency is required
for the performance by the Company of its obligations under the
Distribution Agreement, the Indenture, the Debt Warrant
Agreement, the Debt Securities, or the Debt Warrants, except as
may be required by the Blue Sky laws or other securities laws of
the various states in which the Debt Securities and Warrants may
be offered and sold.
[Name of Bank]
_____________, 199
Page 4
9. To the extent that each of the statements
described below constitutes a summary of the legal matters,
documents, or proceedings referred to therein, such statements
fairly present the information called for with respect thereto
and fairly summarize the matters referred to therein:
(i) statements in the Prospectus under
the captions "Description of Debt Securities",
"Description of Warrants--Debt Warrants", and
"Plan of Distribution";
(ii) statements in the Registration
Statement under the caption "Item
15--Indemnification of Directors and Officers";
(iii) statements in the Company's
annual report on Form 10-K for the fiscal year
ended December 31, 1994 under the caption "Item
3--Legal Proceedings"; and
(iv) statements in Part II of the
Company's quarterly reports on Form 10-Q for the
twelve weeks ended March 25, 1995, the
twelve and twenty-four weeks ended June 17,
1995 and the twelve and thirty-six weeks
ended September 9, 1995, respectively, under the
caption "Item 1--Legal Proceedings".
10. To my knowledge after due inquiry, there is no
legal or governmental proceeding pending or threatened, no
statute or regulation, and no agreement, instrument, or other
document to which, in any case, the Company or any of its
subsidiaries is a party, or by which, in any case, any of the
properties of the Company or its subsidiaries is bound, that is
required to be described in the Registration Statement, the
Prospectus, or any applicable Pricing Supplement or Prospectus
Supplement, or that is required to be filed as an exhibit to the
Registration Statement, that is not so described or filed.
11. Based solely upon my participation in the
preparation of the Registration Statement and the documents
included or incorporated by reference therein, and without
independent check or verification I am (i) of the opinion that
each document incorporated by reference in the Prospectus (except
for financial statements and schedules, as to which I express no
opinion), at the time it was filed with the Commission, complied
as to form and in all material respects with the Securities
Exchange Act of 1934, as amended, and with the rules and
regulations of the Commission thereunder, (ii) of the opinion
that the Registration Statement (except for the financial
statements and schedules included or incorporated by reference
therein and except for that part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification
of the Trustee (the "Form T-1"), as to which I express no
opinion), at the time it became effective, complied as to form
and in all material respects with the Securities Act of 1933, as
amended, and with the rules and regulations of the Commission
thereunder, and (ii) of
[Name of Bank]
_____________, 199
Page 5
the belief that each part of the Registration Statement (except
for financial statements and
schedules included or incorporated by reference therein and
except for that part of the Registration Statement that
constitutes the Form T-1, as to which I express no belief), did
not, at the time the Registration Statement became effective,
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, in light of the circumstances under
which they were made, not misleading.
The opinions and belief expressed in paragraph 7 above
(except as to due authorization of the Debt Securities and Debt
Warrants), in paragraph 9 above as to the statements in the
Prospectus under the captions "Description of Debt Securities",
"Description of Warrants--Debt Warrants", and "Plan of
Distribution", and in paragraph 11 above do not, in any case,
address any provision of the Commodity Exchange Act, as amended,
or the rules, regulations, or interpretations of the Commodity
Futures Trading Commission, as may be applicable to any Debt
Securities whose principal and/or interest payments will be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices, or other variable factors, or
as may be applicable to any Debt Warrants relating to any such
Debt Securities. None of the opinions and beliefs expressed
herein address, or should in any way be deemed to apply to, Shelf
Warrants or any warrant agreement relating to any one or more
series of Shelf Warrants.
The opinions expressed above do not address, and should
in no way be deemed to address, compliance with any laws other
than the laws of the State of New York, the corporation laws of
the State of North Carolina, and the federal laws of the United
States of America.
This opinion is being furnished to you in accordance
with the provisions of Section 5(a) of the Distribution Agreement
and is solely for the benefit of, and may be relied upon solely
by, you and your counsel. This opinion is not intended for, and
may not be relied upon by, any other person or entity without my
prior written consent.
Very truly yours,
ANNEX B
[FORM OF OPINION OF XXXXXX XXXXXX & XXXXXXX]
, 199
(000) 000-0000
To the Bank Named in the
Attached Distribution Agreement
Gentlemen:
This opinion is being furnished to you (the "Bank")
pursuant to Section 5(b) of the Distribution Agreement dated as
of ___________________, 199_ (the "Distribution Agreement";
capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to such terms in the Distribution
Agreement) between the Bank and PepsiCo, Inc. (the "Company")
relating to the proposed issuance and sale from time to time by
the Company of up to $4,062,000,000 aggregate principal amount of
the Company's debt securities (the "Debt Securities") and
warrants to purchase debt securities (the "Debt Warrants" and,
together with the Debt Securities, the "Securities"), to be
issued under the Indenture dated as of December 14, 1994 (the
"Indenture"), between the Company and The Chase Manhattan Bank
(National Association), as Trustee (the "Trustee") or the Debt
Warrant Agreement to be entered into by the Company and one or
more agents (each a "Warrant Agent") in substantially the form
filed as an exhibit to the Registration Statement (the "Debt
Warrant Agreement"). A registration statement on Form S-3 (File
No. 33-___________) (such registration statement, including all
documents filed as part thereof or incorporated by reference
therein, is herein called the "Registration Statement"),
including a prospectus (such prospectus, including the documents
incorporated therein by reference, is herein called the
"Prospectus"), relating to the Securities was filed by the
Company with the Securities and Exchange Commission (the
"Commission") on _________________, 1995. The Registration
Statement was declared effective by the Commission on
_________________, 1995.
We advise you that in our opinion:
1. each of the Distribution Agreement and the Debt Warrant
Agreement, when duly authorized, executed and delivered by the
Company (assuming the due authorization, valid execution and
delivery thereof by the other parties thereto) will be a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms except as the
enforceability thereof may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally, by any other federal or state laws
or by general principles of equity or the discretion of the court
before which any proceeding therefor may be brought;
2. the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized,
executed and delivered by the Company and (assuming due
authorization, valid execution and delivery thereof by the
Trustee) is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof may be limited by the laws of bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now ore hereafter in effect relating to
creditors' rights generally, by any other federal or state laws,
rights of acceleration, or by general principles of equity or the
discretion of the court before which any proceeding therefor may
be brought;
3. the Securities have been duly authorized and when
issued and delivered by the Company and authenticated by the
Trustee or the Warrant Agent, as the case may be, in accordance
with the provisions of the Indenture or the Debt Warrant
Agreement, as the case may, and duly paid for by the purchasers
thereof, will be entitled to the benefits of the Indenture or the
Debt Warrant Agreement, as the case may be, and will be valid and
binding obligations of the Company, enforceable in accordance
with their respective terms except as the enforceability thereof
may be limited by the laws of bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, by any other federal or state laws, rights of
acceleration, or by general principles of equity or the
discretion of the court before which any proceeding may be
brought;
4. The statements in the Prospectus under the captions
"Description of Debt Securities", "Description of Warrants --
Debt Warrants" and "Plan of Distribution" in each case insofar as
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
5. the Registration Statement has become effective under
the Securities Act of 1933, as amended (the "Act") and no
proceedings for a stop order are pending or, to the best of our
knowledge, threatened;
6. except for financial statements, schedules and other
financial or statistical data and the Statement of Eligibility
and Qualification on Form T-1 of the Trustee, as to which we have
not been requested to, and do not express any opinion, the
Registration Statement and Prospectus comply as to form in all
material respects with the requirements of the Act and all
applicable rules and regulations thereunder.
We have participated in conferences with officers and other
representatives of the Company, counsel for the Company,
representatives of the Company's Accountant and the Bank's
representatives at which the contents of the Registration
Statement and the Prospectus and related matters were discussed
and, although we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of any
of the statements contained in the Registration Statement and the
Prospectus (except to the extent stated in paragraph 4 above), on
the basis of the foregoing, relying as to materiality to a large
extent upon the opinions of officers and other representatives of
the Company, no facts have come to our attention which lead us to
believe that (A) the Registration Statement at the time such
Registration Statement became effective 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 (B) the Prospectus, as of its date,
contained an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (it being understood that we have not been requested
to and do not express any comment on (i) financial statements,
related schedules and other financial and statistical data, or
(ii) the Statement to Eligibility and Qualification on Form T-1
of the Trustee).
The opinion in paragraph (3) above (except as to due
authorization of the Securities), the opinions in paragraph (4)
above as to the statements in the Prospectus under the captions
"Description of Debt Securities" and "Description of Debt
Warrants" and the opinion and belief in paragraph (6) and clause
(B) above do not address any application of the Commodity
Exchange Act, as amended (or amending legislation now pending
before Congress), or the rules, regulations orders or
interpretations of the Commodity Futures Trading Commission to
Securities the payments of principal or interest on which will be
determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. In addition,
for the purpose of the opinions in paragraphs (3) and (4) above,
we have assumed that (a) the Securities will conform both in form
and with the requirements set forth in the Indenture or the Debt
Warrant Agreement, as the case may be, and (b) none of the terms
of the Securities not contained in the forms examined by us will
violate any applicable law or be unenforceable. The opinions in
paragraph (4) above are based solely on our participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (but not including documents
incorporated therein by reference) and are without independent
check or verification except as specified. In connection with
our opinion in paragraph (3) above, we note that, as of the date
of this opinion, a judgment for money in any action based upon an
obligation denominated in a currency other than currency of the
United States, a federal or state court in New York shall render
or enter a judgment or decree in the foreign currency of the
underlying obligation. Such judgment or decree shall be
converted into currency of the United States at the rate of
exchange prevailing on the date of entry of the judgment or
decree.
Very truly yours,
ANNEX C
_________________, 199
[To the Bank Named on the Attached Schedule A]
Dear Sirs:
I am Vice President, Taxes of PepsiCo, Inc., a corporation
organized under the laws of the State of North Carolina (the
"Company"). I have acted as tax counsel for the Company in
connection with the registration of $4,587,000,000 in aggregate
offering price of the Company's Debt Securities and Warrants
(collectively, the "Securities") that may, from time to time, be
issued by the Company.
You have requested my opinion pursuant to Section 5(c) of the
Distribution Agreement to be executed and delivered by you and
the Company in substantially the form attached hereto as Exhibit
A (the "Distribution Agreement"). In connection with such
opinion, I have examined the Registration Statement on Form S-3,
File No. 33-_________________ (the "Registration Statement"),
filed by the Company with the Securities and Exchange Commission
(the "Commission") with respect to the Securities, including the
form of prospectus contained therein (the "Prospectus"). All
capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms by the Prospectus.
On the basis of my review of the Registration Statement, it is my
opinion that if the offering of the Securities is conducted in
the manner described in the Prospectus, and if the terms of any
series of Securities are as contemplated by the Prospectus, then
the statements contained in the section of the Prospectus
entitled "United States Tax Considerations" accurately describe
certain United States federal income tax consequences of
ownership and disposition of the Securities, except with respect
to Debt Warrants and Shelf Warrants, which consequences will be
discussed in the applicable Prospectus Supplement to be filed
hereafter.
I do not purport to be expert in, or to express any opinion
concerning, the laws of any jurisdiction other than the federal
laws of the United States of America.
This opinion is being furnished to you in accordance with the
provisions of Section 5(c) of the Distribution Agreement and is
solely for the benefit of, and may be relied upon solely by, you
and your counsel. This opinion is not intended for, and may not
be relied upon by, any other person or entity without my prior
written consent.
Very truly yours,
SECRETARY'S CERTIFICATE
I, Xxxxxx X. Xxxxx, Xx., the duly qualified, elected,
and acting Secretary of PepsiCo, Inc., a company organized
under the laws of the State of North Carolina (the
"Company"), hereby certify as follows:
1. Attached hereto as Exhibit A is a true and complete
copy of the Restated Articles of Incorporation of the
Company, certified as of _________________ by the Secretary
of State of the State of North Carolina. No further
amendments or supplements to the Restated Articles of
Incorporation have been proposed to or approved by the Board
of Directors or shareholders of the Company.
2. Attached hereto as Exhibit B is a true, correct,
and complete copy of the By-Laws of the Company. Such
By-Laws have been in effect at all times since January 22,
1987.
3. Attached hereto as Exhibits C-1 and C-2 are copies
of resolutions adopted by the Board of Directors of the
Company on _______________-_ relating to the issuance of
short-term and long-term debt securities, which resolutions
are in effect as of the date hereof.
4. The documents described below have been duly
authorized, executed (except as otherwise indicated below),
and filed by the Company with the Securities and Exchange
Commission:
(a) the Registration Statement on Form S-3, File No.
33-_________________, filed by the Company on
_________________, 1995 (the "Registration Statement"),
relating to $_________________ in aggregate offering price
of the Company's Debt Securities and Warrants (as such terms
are defined in the Registration Statement), a copy of which
is attached hereto as Exhibit D;
(b) the Indenture, dated as of December 14, 1994,
between the Company and The Chase Manhattan Bank (National
Association), as trustee, which is incorporated by reference
from Exhibit 4(a) to PepsiCo's Registration Statement on
Form S-3 (Registration No. 57181);
(c) the form of Debt Warrant Agreement that may be
entered into by the Company and The Chase Manhattan Bank
(National Association), as warrant agent, a copy of which is
incorporated by reference from Exhibit 4(e) to PepsiCo's
Registration Statement on Form S-3 (Registration No. 33-
57181); and
(d) the form of Distribution Agreement that may be
entered into by the Company and one or more agents and
underwriters in connection with the offer and sale of the
Debt Securities and Warrants, a copy of which is attached as
Exhibit 1 to the Registration Statement.
5. The Debt Securities may be issued from time to
time, in substantially the forms attached hereto as Exhibit
E (with respect to Fixed Rate Debt Securities) and Exhibit F
(with respect to Floating Rate Debt Securities), on such
terms as shall be determined by any two of the following
officers of the Company: (i) the Chairman of the Board and
Chief Executive Officer (the "Chairman"), (ii) the Executive
Vice President and Chief Financial Officer (the "Executive
Vice President"), (iii) the Senior Vice President and
Treasurer (the "Treasurer"), and (iv) such other officer of
the Company as may be designated by the Chairman, the
Executive Vice President, or the Treasurer pursuant to the
Delegation of Authority attached hereto as Exhibit G (any
two of the Chairman, the Executive Vice President, the
Treasurer, and such other officer hereinafter referred to as
the "Authorized Persons"), provided, that such terms will in
no event violate or conflict with the terms and provisions
set forth in the Indenture or the Prospectus or (to the
extent that the terms of an applicable Pricing Supplement
supersede the terms and provisions of the Prospectus) the
applicable Pricing Supplement.
6. The Debt Warrants may be issued from time to time,
alone or together with one or more series of Debt
Securities, in substantially the form attached hereto as
Exhibit H, on such terms as shall be determined by any two
Authorized Persons, provide- that such terms will in no
event violate or conflict with the terms and provisions of
the Debt Warrant Agreement or the Prospectus or (to the
extent that the terms of an applicable Prospectus Supplement
supersede the terms and provisions of the Prospectus) the
applicable Prospectus Supplement.
7. The persons named below are duly qualified,
elected, and acting officers of the Company, have been duly
elected or appointed to the offices set forth opposite their
respective names, have held such offices at all times
relevant to the preparation of the Registration Statement,
and hold such offices as of the date hereof. The signatures
set forth below opposite the names of such persons are the
genuine signatures of such persons.
Xxxxxxx X. Xxxxxx Senior Vice
President and __________________
Treasurer
D. Xxxxx Xxxxxxxx Chairman of the
Board and Chief
Executive _______________
Officer
Xxxxxxx Xxxx Vice President
and Assistant
General Counsel _______________
Xxxxxx X. Xxxxxxx Executive Vice
President and
Chief Financial _______________
Officer
Xxxxxxxx X. Xxxxxx Vice President
and Associate _______________
General Counsel
Xxxxx X. Xxxxx Vice President
and Tax Counsel _______________
Xxxxxxx X. XxXxxxx Vice President,
Taxes _______________
Xxxxxx Xxxxxxxx Vice President,
Corporate
Finance and _______________
Assistant
Treasurer
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the seal of the Company as of the day of
______________, 1995.
________________________
Xxxxxx X. Xxxxx, Xx.
Secretary
I, Xxxxxxx Xxxx, a Vice President of the Company,
hereby certify that Xxxxxx X. Xxxxx, Xx. is the duly
qualified, elected, and acting Senior Vice President,
General Counsel, and Secretary of the Company, has been duly
elected or appointed to such offices, has held such offices
at all times relevant to the preparation of the Registration
Statement, holds such offices as of the date hereof, and
that the signature set forth below is his genuine signature.
Xxxxxx X. Xxxxx, Xx. Senior Vice
President,
General Counsel __________________
and Secretary
IN WITNESS WHEREOF, I have hereunto set my hand as of
the ___ day of ______________, 1995.
________________________
Xxxxxxx Xxxx
Vice President
ANNEX E
OFFICERS' CERTIFICATE
Xxxxxx X. Xxxxxxx, Executive Vice President and Chief
Financial Officer, and Xxxxxxx X. Xxxxxx, Senior Vice President
and Treasurer, of PepsiCo, Inc., a corporation organized under
the laws of the State of North Carolina (the "Company"), each
hereby certifies as follows:
1. I have examined the Company's Registration Statement on
Form S-3, File No. 33-_________________ (the "Registration
Statement"), as filed by the Company with the Securities and
Exchange Commission (the "Commission") on _________________,
including all of the documents filed as exhibits thereto.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms by the prospectus filed as part
of the Registration Statement (such prospectus hereinafter the
"Prospectus").
2. To the best of my knowledge, no proceedings for the
merger, consolidation, liquidation, or dissolution of the Company
or the sale of all or substantially all of its assets are pending
or contemplated.
3. To the best of my knowledge, there has not been any
material adverse change in the financial condition, earnings,
business, or operations of the Company and its subsidiaries,
taken as a whole, from that described in the Registration
Statement.
4. To my knowledge, after due inquiry, I am of the belief
that the Registration Statement (i) contains no untrue statement
of a material fact regarding the Company or any of its
consolidated subsidiaries and (ii) does not omit to state any
material fact necessary to make any such statement, in light of
the circumstances under which it was made, not misleading.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
___ of ______________, 1995.
______________________
Name:
Title:
______________________
Name:
Title:
ANNEX F
[Letterhead of Bank]
Gentlemen:
In connection with the placement of any debt securities or
warrants to purchase debt securities (the "Securities") to be
issued by PepsiCo, Inc., [Name of financial intermediary(ies)],
as principal or agent, will be reviewing certain information
relating to PepsiCo, Inc. that will be included (or incorporated
by reference) in the Registration Statement on Form S-3 (File No.
33-_________________) of PepsiCo, Inc. pursuant to which the
Securities have been registered (the "Registration Statement"),
which may be delivered to investors and utilized by them as a
basis for their investment decision. This review process,
applied to the information relating to PepsiCo, Inc., is
substantially consistent with the due diligence review process
that an underwriter would perform in connection with this
placement of securities. We are knowledgeable with respect to
the due diligence review process that an underwriter would
perform in connection with a placement of securities registered
pursuant to the Securities Act of 1933. We hereby request that
you deliver to us a "comfort" letter in substantially the same
form as the "draft" comfort letter delivered to PepsiCo, Inc. for
the immediately preceding fiscal quarter of PepsiCo, Inc.
concerning the financial statements of PepsiCo, Inc. and certain
statistical and other data included in the Registration
Statement.
Very truly yours,
[Name of financial
intermediary]
ANNEX G
[Letterhead of Xxxxxx Xxxxxx & Xxxxxxx]
Gentlemen:
In connection with the placement of any debt securities or
warrants to purchase debt securities (the "Securities") to be
issued by PepsiCo, Inc., [Name of financial intermediary(ies)],
as principal or agent, will be reviewing certain information
relating to PepsiCo, Inc. that will be included (or incorporated
by reference) in the Registration Statement on Form S-3 (File No.
33-_________________) of PepsiCo, Inc. pursuant to which the
Securities have been registered (the "Registration Statement"),
which may be delivered to investors and utilized by them as a
basis for their investment decision. In our opinion, [Name of
financial intermediary(ies)] has a statutory due diligence
defense under Section 11 of the Securities Act of 1933 (the
"Act"). We are knowledgeable with respect to the due diligence
review process that an underwriter would perform in connection
with a placement of securities registered pursuant to the Act.
We hereby request that you deliver to [Name of financial
intermediary(ies)] a "comfort" letter in substantially the same
form as the "draft" comfort letter delivered to PepsiCo, Inc. for
the immediately preceding fiscal quarter of PepsiCo, Inc.
concerning the financial statements of PepsiCo, Inc. and certain
statistical and other data included in the Registration
Statement.
Very truly yours,
Xxxxxx Xxxxxx & Xxxxxxx
