1
EXHIBIT 1.1
XXXXX CORNING
$300,000,000
Medium-Term Notes
Distribution Agreement
----------------------
May 1, 1997
Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Chase Securities Inc.,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Credit Suisse First Boston Corporation,
00 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Xxxxxx, Read & Co. Inc.,
000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Xxxxx Corning, a Delaware corporation (the "Company"), proposes to issue
and sell from time to time its Medium-Term Notes (the "Securities") in an
aggregate amount up to $300,000,000 and agrees with each of you (individually,
an "Agent", and collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into
2
a separate agreement (each a "Terms Agreement"), substantially in the form of
Annex I hereto, relating to such sale in accordance with Section 2(b) hereof.
This Distribution Agreement shall not be construed to create either an
obligation on the part of the Company to sell any Securities or an obligation of
any of the Agents to purchase Securities as principal.
The Securities will be issued under an indenture, to be dated as of May 5,
1997 (the "Indenture"), between the Company and The Bank of New York, as Trustee
(the "Trustee"). The Securities shall have the maturity ranges, interest rates,
if any, redemption provisions and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented from time to time. The
Securities will be issued, and the terms and rights thereof established, from
time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent
that:
(a) A registration statement on Form S-3 (File No. 333-24501) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to
such Agent, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
included therein, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, and any other
registration statement that may be filed pursuant to Rule 413 under the
Act solely in connection with the issuance of securities described in
the Initial Registration Statement other than the Securities, no other
document with respect to the Initial Registration Statement or
documents incorporated by reference therein has been filed or
transmitted for filing with the Commission (other than the prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Agents) on or prior to the date hereof; and no stop order suspending
the effectiveness of the Initial Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act,
are hereinafter called a "Preliminary Prospectus"; the Initial
Registration Statement and the various parts thereof, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the time the
Initial Registration Statement or such part thereof became effective
but excluding the statement of eligibility of the Trustee on Form T-1,
each as amended at the time the Initial Registration Statement or such
part thereof became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus (including, if applicable, any
prospectus supplement) relating to the Securities, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, is hereinafter
called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant
2
3
to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus, including any supplement to the Prospectus that sets forth
only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated therein by reference; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance
with Section 4(a) hereof) in relation to Securities to be sold pursuant
to this Agreement, in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act and in accordance with Section
4(a) hereof, including any documents incorporated by reference therein
as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, or any further amendment
or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by any Agent expressly for use in the Prospectus as
amended or supplemented relating to a particular issuance of Securities
3
4
(d) Otherwise than as set forth or contemplated in the Prospectus,
or as advised to you in an officer's certificate delivered to you the
date that this representation is made or deemed to be made, (i) neither
the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss to, or material
interference with, their businesses, taken as a whole, from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree; and (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any material change in the capital stock or
long-term debt of the Company and its subsidiaries on a consolidated
basis (other than (x) increases not in excess of $50,000,000 in
borrowings outstanding under credit facilities and (y) Securities
issued pursuant to this Agreement) or any material adverse change, or
any development which the Company has reasonable cause to believe will
involve a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Securities have been duly authorized (or, in the case of
Securities having maturities greater than five years, will have been
duly authorized as of the time of their issuance), and, when issued and
delivered against payment therefor as provided in this Agreement and
any Terms Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and will be entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit
to the Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act and, at the first Time
of Delivery for any Securities, will constitute a valid and legally
binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any
particular issuance of Securities will conform, in each case in all
material respects, to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of
Securities;
(h) The issue and sale of the Securities, the compliance by the
Company with all of
4
5
the provisions of the Securities, the Indenture, this Agreement and any
Terms Agreement, and the consummation of the transactions herein and
therein contemplated (A) will not, subject to the Company's compliance
with any applicable covenants pertaining to the incurrence of unsecured
indebtedness contained therein, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument (other than any of the foregoing which involves
obligations not exceeding $5,000,000) to which the Company is a party
or by which the Company is bound or to which any of the property or
assets of the Company is subject, and (B) will not result in any
violation of the provisions of the Certificate of Incorporation, as
amended, or the By-laws of the Company; nor will such actions result in
a violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties, the effect of
which violation, individually or in the aggregate, is reasonably likely
to have a material adverse effect on the business, properties,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole; and no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body is required by the Company for the
solicitation of offers to purchase Securities, the issue and sale of
the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any Terms Agreement or the
Indenture, except such as have been, or will have been on or prior to
the Commencement Date (as defined in Section 3 hereof), obtained under
the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the
Company and with purchases of Securities by such Agent as principal, as
the case may be, in each case in the manner contemplated hereby. As of
the date of each acceptance by the Company of an offer for the purchase
of Securities pursuant to this Agreement (including any commitment by
an Agent to purchase Securities as principal not pursuant to a Terms
Agreement), as of the date of each Terms Agreement and as of the date
of each delivery of Securities hereunder by the Company, the Company,
by such acceptance or delivery, as the case may be, shall be deemed to
represent and warrant to the Agents that, both immediately before and
immediately after giving effect to such acceptance or delivery, the
Company shall be in compliance with the requirements of any applicable
covenants pertaining to its incurrence of unsecured indebtedness
contained in the agreements or instruments referred to in clause (A)
above;
(i) Neither the Company nor any of its subsidiaries is in
violation of its organizational documents or in default in the
performance or observance of any obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, the result of which
default, individually or in the aggregate, is reasonably likely to have
a material adverse effect on the business, properties, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole;
(j) The statements set forth in the Prospectus under the captions
"Description of
5
6
Debt Securities" and "Description of the Notes", insofar as they
purport to constitute a summary of the terms of the Securities, and
under the caption "United States Taxation", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate and fair descriptions or summaries in all material
respects;
(k) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject with respect
to which there is a reasonable likelihood of determination which would
individually or in the aggregate have a material adverse effect on the
consolidated financial position of the Company and its subsidiaries;
and, other than as set forth or contemplated in the Prospectus, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to each offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(m) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any securities of the
Company (other than such Securities) that shall have been issued and
sold pursuant to the Registration Statement will not exceed the amount
of securities registered under the Registration Statement and under any
registration statement filed by the Company pursuant to Rule 413 under
the Act solely in connection with the issuance of securities described
in the Registration Statement; and
(n) Xxxxxx Xxxxxxxx LLP, who have audited certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent of
the Company, to use its reasonable efforts to solicit and receive
offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. The Company reserves the right to sell Securities through
one or more additional agents or directly to certain investment banking
firms as underwriters for resale to the public on terms substantially
identical to those set forth herein. The Company shall notify the
Agents at least two business days prior to any such sale of Securities
through additional agents or to other investment banking firms or
underwriters. In addition, the Company reserves the right to sell, and
may solicit and accept offers to purchase, Securities directly on its
own behalf in transactions with persons other than broker-dealers, and,
in the case of any such sale not resulting from a solicitation made by
any Agent, no commission will be payable with respect to such sale.
These
6
7
provisions shall not limit Section 4(f) hereof or any similar provision
included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in
the Administrative Procedure. The Company will furnish to the Trustee a
copy of the Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than one business day
in New York City, after receipt of notice from the Company, the Agents
will suspend solicitation of offers to purchase Securities from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed. During such period, the Company shall not
be required to comply with the provisions of Sections 4(h), 4(i), 4(j)
and 4(k). Upon advising the Agents that such solicitation may be
resumed, however, the Company shall simultaneously provide the
documents required to be delivered by Sections 4(h), 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to
purchase the Securities until such documents have been received by the
Agents. In addition, any failure by the Company to comply with its
obligations hereunder, including without limitation its obligations to
deliver the documents required by Sections 4(h), 4(i), 4(j) and 4(k),
if any, shall automatically suspend the Agents' obligations hereunder,
until such time as the Company shall have complied with its obligations
hereunder to the Agents' satisfaction, including without limitation its
obligations to solicit offers to purchase the Securities hereunder as
agent or to purchase Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
7
8
Commission
(percentage of
aggregate
principal amount
of Securities sold)
-------------------
Range of Maturities
-------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
More than 30 years *
* To be determined at the time of issuance.
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree) a Terms Agreement which
will provide for the sale of such Securities to, and the purchase
thereof by, such Agent; a Terms Agreement may also specify certain
provisions relating to
8
9
the reoffering of such Securities by such Agent; the commitment
of any Agent to purchase Securities as principal, whether pursuant to
any Terms Agreement or otherwise, shall be deemed to have been made on
the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set
forth; each Terms Agreement shall specify the principal amount of
Securities to be purchased by any Agent pursuant thereto, the price to
be paid to the Company for such Securities, any provisions relating to
rights of, and default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time and date and
place of delivery of and payment for such Securities; and such Terms
Agreement shall also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to Section 4
hereof. Each Agent proposes to offer Securities purchased by it as
principal for sale at prevailing market prices or prices related
thereto at the time of sale, which may be equal to, greater than or
less than the price at which such Securities are purchased by such
Agent from the Company.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to
the issue and delivery of such Securities and payment therefor shall be
as set forth in the Administrative Procedure. For each such sale of
Securities to an Agent as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay such Agent a commission (or
grant an equivalent discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in
a currency other than U.S. dollars, as agent, directly or indirectly,
not to solicit offers to purchase, and as principal under any Terms
Agreement or otherwise, directly or indirectly, not to offer, sell or
deliver, such Security in, or to residents of, the country issuing such
currency, except as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof on
the Commencement Date (as defined below) shall be delivered to the Agents at the
offices of Xxxxxxxx & Xxxxxxxx, New York, New York, at 11:00 a.m., New York City
time, on the date of this Agreement, which date and time of such delivery may be
postponed by agreement between the Agents and the Company but in no event shall
be later than three business days after the Signing Date (as defined below)
(such time and date being referred to herein as the "Commencement Date"). The
Signing Date shall be no later than the day on or prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any Terms
Agreement is executed.
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (other than by means of incorporation of
documents by reference into the Registration Statement or Prospectus or
in connection with any supplement to the Prospectus relating solely to
any securities to be offered thereunder other than the Securities) (A)
prior
9
10
to the Commencement Date which shall be disapproved in good faith by
any Agent promptly after reasonable notice thereof or (B) after the
date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery which
shall be disapproved in good faith by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable
notice thereof; (ii) to prepare, with respect to any Securities to be
sold through or to such Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Securities in a form previously
approved by such Agent and to file such Pricing Supplement pursuant to
Rule 424(b) under the Act not later than the close of business of the
Commission on the fifth business day after the date on which such
Pricing Supplement is first used; (iii) from the time any solicitation
regarding sale of any Securities is begun until all such Securities
have been sold or such solicitation has ceased, to make no amendment or
supplement to the Registration Statement or Prospectus (other than by
means of incorporation of documents by reference into the Registration
Statement or Prospectus or in connection with any supplement to the
Prospectus relating solely to any securities to be offered thereunder
other than the Securities), other than any Pricing Supplement, at any
time prior to having afforded each Agent a reasonable opportunity to
review and comment thereon; (iv) to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act during any period that and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities, and during such same period to advise such
Agent, promptly after the Company receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or has
become effective or any supplement to the Prospectus or amended
Prospectus relating to the Securities has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation
of any proceeding for any such purpose, or of any request by the
Commission for the amendment or supplement of the Registration
Statement or Prospectus (other than any supplement to a Prospectus
relating solely to any securities other than the Securities) or for
additional information; and (v) in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any such Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions in the United States as
such Agent may request and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in
10
11
the form in which it is filed with the Commission pursuant to Rule 424
under the Act, and with copies of the documents incorporated by
reference therein, all in such quantities as such Agent may reasonably
request from time to time; and, if the delivery of a Prospectus is
required at any time in connection with the offering or sale of the
Securities (including Securities purchased from the Company by such
Agent as principal) and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Trust Indenture Act, to notify such Agent and request such Agent, in
its capacity as agent of the Company, to suspend solicitation of offers
to purchase Securities from the Company (and, if so notified, such
Agent shall cease such solicitations as soon as practicable, but in any
event not later than one business day later); and if the Company shall
decide to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing) and to prepare and
cause to be filed with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if during such same period
such Agent continues to own Securities purchased from the Company by
such Agent as principal or such Agent is otherwise required to deliver
a prospectus in respect of transactions in the Securities, the Company
shall promptly prepare and file with the Commission such an amendment
or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such
Agent promptly upon request copies of all reports or other
communications (financial or other) furnished to stockholders, and
deliver to such Agent promptly upon request (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition
of the Company as such Agent may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
11
12
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and
continuing to and including the later of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as
notified to the Company by such Agent and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature more than 9 months
after such Time of Delivery and are substantially similar to the
Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by
the Company of a Terms Agreement with such Agent, shall be deemed to be
an affirmation to such Agent that the representations and warranties of
the Company contained in Section 1 of this Agreement are true and
correct as of the date of such acceptance or of such Terms Agreement,
as the case may be, as though made at and as of such date, and an
undertaking that such representations and warranties will be true and
correct as of the settlement date for the Securities relating to such
acceptance or as of the Time of Delivery relating to such sale, as the
case may be, as though made at and as of such date (except that such
representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as then amended and
supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or by a Prospectus supplement relating
solely to any securities to be offered thereunder other than the
Securities), each time a document filed under the Act or the Exchange
Act is incorporated by reference into the Prospectus, and each time the
Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion
or opinions by Xxxxxxxx & Xxxxxxxx, counsel to the Agents, as a
condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish to such counsel such papers and
information as they may reasonably request to enable them to furnish to
such Agent the opinion or opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by (x) the incorporation
of any document by reference except as provided below, (y) a Pricing
Supplement or (z) a Prospectus supplement relating solely to any
securities to be offered thereunder other than the Securities), each
time a report on Form 10-K or Form 10-Q filed by the Company under the
Exchange Act is incorporated by reference into the Prospectus, each
time a report on Form 8-K filed by the Company under the Exchange Act
is incorporated by reference into the Prospectus and such Agent
requests the delivery of opinions under this Section 4(i) and each time
the Company sells Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of
opinions under this Section 4(i) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish
or cause to be furnished forthwith to such Agent the written opinions
of the General Counsel of the Company, and, in the case of the
incorporation by reference into the Prospectus of such a
12
13
Report on Form 10-K, or otherwise in connection with the events
described above in this Section 4(i) only if the Agent shall request
prior to the applicable date, the written opinion of Debevoise &
Xxxxxxxx, counsel for the Company, or other counsel to the Company
satisfactory to such Agent, each dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as
the case may be, in form satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred to in
Section 6(c) or Section 6(d) hereof, as the case may be, which was last
furnished to such Agent to the same extent as though it were dated the
date of such letter authorizing reliance (except that the statements in
such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date)
or, in lieu of such opinion, an opinion of substantially the same tenor
as the opinion of such counsel referred to in Section 6(c) or Section
6(d) hereof, as the case may be, but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by (x) the incorporation
of any document by reference except as provided below, (y) a Pricing
Supplement or (z) a Prospectus supplement relating solely to any
securities to be offered thereunder other than the Securities), each
time that a report on Form 10-K or Form 10-Q filed by the Company under
the Exchange Act is incorporated by reference into the Prospectus and
each time a report on Form 8-K filed by the Company under the Exchange
Act is incorporated by reference into the Prospectus and such Agent
shall request delivery of a letter of the Company's independent
certified public accountants under this Section 4(j), in any such case
to set forth financial information included in or derived from the
Company's consolidated financial statements or accounting records, and
each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company
shall cause the independent certified public accountants who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
forthwith to furnish such Agent a letter, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such Agent, of
the same tenor as the letter referred to in Section 6(e) hereof but
modified to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such changes
as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company,
to the extent such financial statements and other information are
available as of a date not more than five business days prior to the
date of such letter; provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as
true and correct at such date as though made at and as of such date,
rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section
6(e) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended
13
14
or supplemented (other than by (x) the incorporation of any document by
reference except as provided below, (y) a Pricing Supplement or (z) a
Prospectus supplement relating solely to any securities to be offered
thereunder other than the Securities), each time a report on Form 10-K
or Form 10-Q filed by the Company under the Exchange Act is
incorporated by reference into the Prospectus, each time a report on
Form 8-K filed by the Company under the Exchange Act is incorporated by
reference into the Prospectus and such Agent shall request delivery of
a certificate under this Section 4(k) and each time the Company sells
Securities to such Agent as principal and the applicable Terms
Agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to
such sale, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, to the
effect that the statements contained in the certificates referred to in
Section 6(j) hereof which was last furnished to such Agent are true and
correct at such date as though made at and as of such date (except that
such statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in
lieu of such certificate, certificates of substantially the same tenor
as the certificates referred to in said Section 6(j) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities
from the Company as the result of an offer to purchase solicited by
such Agent the right to refuse to purchase and pay for such Securities
if, on the related settlement date fixed pursuant to the Administrative
Procedure, any condition set forth in Section 6(a), 6(f), 6(g) or 6(h)
hereof shall not have been satisfied (it being understood that the
judgment of such person with respect to the impracticability or
inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section 4(l), for the respective judgments of an Agent
with respect to certain matters referred to in such Sections 6(f) and
6(h), and that such Agent shall have no duty or obligation whatsoever
to exercise the judgment permitted under such Sections 6(f) and 6(h) on
behalf of any such person).
(m) Prior to the later of (i) such date (a "Board Authorization
Date") as the Board of Directors of the Company or a committee thereof
has duly authorized the issuance and sale of Securities having
maturities in excess of the authorized maturities in effect immediately
preceding such board action (the "Specified Maturities") and (ii) such
date as the Company has delivered to the Agents the Authorization
Opinions and Certificates (as defined below) relating specifically to
the applicable Board Authorization Date and the authorizations in
respect of Securities made on such Board Authorization Date, not to
issue any Securities in any transaction contemplated hereunder with
maturities greater than the Specified Maturities. The Company will
indemnify and hold harmless each Agent against any losses, claims,
damages or liabilities, joint or several, to which such Agent may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon the issuance hereunder by the Company
prior to the later of the applicable Board Authorization Date and the
date on which the related
14
15
Authorization Opinions and Certificates are delivered of Securities
with maturities of greater than the applicable Specified Maturities,
and will reimburse such Agent for any such losses, claims, damages or
liabilities, and any legal or other expenses reasonably incurred by it
in connection with investigating or defending any such action or claim,
promptly as such losses, claims, damages, liabilities or expenses are
incurred. As used herein, the "Authorization Opinions and Certificates"
with respect to any authorization referred to in the first sentence of
this Section 4(m) shall mean the written opinion of Xxxxxxxx &
Xxxxxxxx, counsel to the Agents, of substantially the same tenor as the
opinion referred to in clause (i) of Section 6(b) insofar as it relates
to the validity of the Securities, the written opinion of Debevoise &
Xxxxxxxx, counsel for the Company, or other counsel for the Company
satisfactory to the Agents, of substantially the same tenor as the
opinion referred to in clause (iii) of Section 6(c), and certificates
of officers of the Company, in such form and executed by such officers
of the Company as shall be satisfactory to such Agent, as to such
matters as such Agent may reasonably request.
(n) Not to issue and sell any Securities hereunder if such
issuance and sale would conflict with or result in a breach or
violation of any applicable covenants of the Company in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument (other than any of the foregoing which involves obligations
not exceeding $5,000,000) to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company is subject, which covenant pertains to the incurrence by the
Company of unsecured indebtedness.
5. The Company covenants and agrees with each Agent that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration of
the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the fees, disbursements and expenses of one counsel for the Agents
in connection with the establishment of the medium-term notes program
contemplated hereby, any opinions to be rendered by such counsel hereunder and
under any Terms Agreement and in connection with the transactions contemplated
hereunder and under any Terms Agreement; (iii) the cost of printing, producing
or reproducing this Agreement, any Terms Agreement, the Indenture, any Blue Sky
and Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including the fees and disbursements of
counsel for the Agents in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (v) any fees charged by
securities rating services for rating the Securities; (vi) any filing fees
incident to, and the fees and disbursements of counsel for the Agents in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vii) the cost of
preparing the Securities; (viii) the fees and expenses of any Trustee and any
agent of any Trustee and any transfer or paying agent of the Company and the
fees and disbursements of counsel for any Trustee or such agent in connection
with the Indenture and the Securities; (ix) any advertising
15
16
expenses connected with the solicitation of offers to purchase and the sale of
Securities so long as such advertising expenses have been approved by the
Company; and (x) all other costs and expenses incident to the performance of the
Company's obligations hereunder which are not otherwise specifically provided
for in this Section. Except as provided in Sections 7 and 8 hereof, each Agent
shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct (i) at and as of the Commencement Date and (ii)
at and as of such Solicitation Time or Time of Delivery, as the case may be
(except that, in the case of this clause (ii), such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus relating to such Securities as amended or supplemented as of such
Solicitation Time, in the case of the solicitation by an Agent, as agent of the
Company, of offers to purchase Securities, or as amended and supplemented as of
the date of the applicable Terms Agreement or other agreement by an Agent to
purchase Securities, in the case of a purchase of Securities by an Agent as
principal), the condition that prior to such Solicitation Time or Time of
Delivery, as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) (i) With respect to any Securities sold at such Solicitation
Time or Time of Delivery, as the case may be, the Prospectus as amended
or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in
accordance with Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company, threatened by the Commission; and (iii) all
requests for additional information on the part of the Commission shall
have been complied with to the reasonable satisfaction of such Agent;
(b) Xxxxxxxx & Xxxxxxxx, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the incorporation of the Company,
the Registration Statement, the Prospectus as amended or supplemented,
the validity of the Securities as well as such other related matters as
such Agent may reasonably request, and (ii) if and to the extent
requested by such Agent prior to the applicable date, with respect to
each applicable date referred to in Section 4(h) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may
be, an opinion or opinions, dated such applicable date, to the effect
that such Agent may rely on the opinion or opinions which were last
furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter
authorizing reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such
16
17
date) or, in any case, in lieu of such an opinion or opinions, an
opinion or opinions of substantially the same tenor as the opinion or
opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date; and in each case such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Debevoise & Xxxxxxxx, counsel for the Company, or other
counsel for the Company satisfactory to such Agent, shall have
furnished to such Agent their written opinions, dated the Commencement
Date and each applicable date referred to in Section 4(i) hereof that
is on or prior to such Solicitation Time or Time of Delivery, as the
case may be, in form and substance satisfactory to such Agent, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power
and authority to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the
Company;
(iii) The Securities have been duly authorized (provided
that prior to the first of any Board Authorization Dates, this
opinion may state that Securities having a maturity of between
nine months and five years from the date of issuance have been
duly authorized, and provided that after any Board
Authorization Date this opinion shall state that Securities
having a maturity of up to the applicable Specified Maturities
have been duly authorized) and, when duly executed,
authenticated, issued and delivered by the Company and, upon
payment therefor by the Agent, will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Indenture conforms
and the Securities will conform, in each case in all material
respects, to the descriptions thereof in the Prospectus as
amended or supplemented;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding instrument of the Company, enforceable against the
Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(v) The statements set forth in the Prospectus as amended
or supplemented under the caption "Description of Debt
Securities" and "Description of the Notes", insofar as they
purport to constitute a summary of the terms of the
Securities, and under the caption "United States Taxation",
insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate and fair
descriptions or summaries in all material respects;
17
18
(vi) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required by or on behalf of the
Company for the solicitation of offers by any Agent to
purchase Securities, the issue and sale of the Securities by
or through any Agent or the consummation by the Company of the
other transactions contemplated by this Agreement (other than
direct sales, or solicitations of offers to purchase, by the
Company), any applicable Terms Agreement or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase Securities
from the Company and with purchases of Securities by an Agent
as principal, as the case may be, in each case in the manner
contemplated hereby;
(vii) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of
such opinion (other than the financial statements, notes and
schedules thereto included or incorporated by reference
therein, other financial and statistical information included
or incorporated by reference therein and any other document
incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
(viii) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
Such counsel shall also state that they have conferred with
representatives of the Company, the Company's independent
public accountants, the Agents and others in connection with
the preparation of, and that such counsel have reviewed, the
Registration Statement and the Prospectus as amended and
supplemented (other than the documents incorporated by
reference therein) and any further amendments and supplements
thereto made by the Company prior to the date of such opinion,
and based on the foregoing, although, except with respect to
the information or statements referred to in numbered
paragraph (v) of this Section 6(c) (to the extent set forth in
such paragraph), such counsel are not passing upon and assume
no responsibility for the accuracy and completeness of the
Registration Statement or the Prospectus as amended and
supplemented (or any document incorporated by reference
therein) and any further amendments and supplements thereto
made by the Company prior to the date of such opinion, nothing
has come to the attention of such counsel which caused or
cause such counsel to believe that (A) as of its effective
date, the Registration Statement or any further amendment or
supplement thereto made by the Company prior to the date of
such opinion (other than (x) the financial statements, notes
and schedules thereto included or incorporated by reference
therein, other financial and statistical information included
or incorporated by reference therein and any other document
incorporated by reference therein and (y)
18
19
the sections of the Prospectus captioned "Incorporation of
Certain Documents by Reference", "The Company", "The Issuers",
"Use of Proceeds", "Condensed Consolidated Capitalization" and
"Selected Consolidated Financial Information" and the section
of the Prospectus supplement captioned "The Company" and any
further supplements or amendments to such sections made by the
Company prior to the date of such opinion, as to which, in
each case referred to in the preceding clauses (x) and (y),
such counsel need express no belief) 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) that, as of the date
of such opinion, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the
Company prior to the date of such opinion (other than (x) the
financial statements, notes and schedules thereto included or
incorporated by reference therein, other financial and
statistical information included or incorporated by reference
therein and any other document incorporated by reference
therein and (y) the sections of the Prospectus captioned
"Incorporation of Certain Documents by Reference", "The
Company", "The Issuers", "Use of Proceeds", "Condensed
Consolidated Capitalization" and "Selected Consolidated
Financial Information" and the section of the Prospectus
supplement captioned "The Company" and any further supplements
or amendments to such sections made by the Company prior to
the date of such opinion, as to which, in each case referred
to in the preceding clauses (x) and (y), such counsel need
express no belief) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which
they were made, not misleading.
(d) The General Counsel of the Company shall have furnished to
such Agent his written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in
the Prospectus as amended or supplemented;
(ii) The Company has an authorized equity capitalization
as set forth in the Prospectus as amended or supplemented and
all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued
and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge, and other
than as set forth or contemplated in the Prospectus or, if
applicable, in the Prospectus as amended or supplemented as of
the date of any Terms Agreement or as of the date of any
commitment by any Agent to purchase Securities as principal,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject with respect to which such counsel believes
there is a reasonable likelihood
19
20
of a determination which would individually or in the
aggregate have a material adverse effect on the consolidated
financial position of the Company and the Company's
subsidiaries; and except as set forth or contemplated in the
Prospectus or, if applicable, in the Prospectus as amended or
supplemented as of the date of any Terms Agreement or as of
the date of any commitment by any Agent to purchase Securities
as principal, and to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) The issue and sale of the Securities, the compliance
by the Company with all of the provisions of the Securities,
the Indenture, this Agreement and any applicable Terms
Agreement and the consummation of the transactions herein and
therein contemplated, to such counsel's knowledge, will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument (other than any of the foregoing which
involve obligations not exceeding $5,000,000) known to such
counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of
the Company is subject, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation, as amended, of the Company or the By-laws of
the Company, nor will such action result in any violation of
the provisions of any statute known to such counsel or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its properties, the effect of which
violation, individually or in the aggregate, is reasonably
likely to have a material adverse effect on the business,
properties, financial condition or results of operations of
the Company (provided that in rendering the opinion provided
in this paragraph (iv), such counsel need express no opinion
with respect to (A) in connection with an opinion delivered
pursuant to any Terms Agreement or in connection with any
other sale of Securities to any Agent as principal, whether
the issuance and sale of Securities other than the specified
principal amount of Securities being sold pursuant to such
Terms Agreement or otherwise to such Agent as principal would
be in compliance with any applicable covenants pertaining to
the incurrence of unsecured indebtedness and (B) in all other
cases, whether the issuance and sale of Securities would be in
compliance with any applicable covenants pertaining to the
incurrence of unsecured indebtedness);
(vi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements, notes and schedules thereto included or
incorporated by reference therein and other financial and
statistical information included or incorporated by reference
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; and
20
21
Such counsel shall also state that he or members of the
Company's law department have conferred with representatives
of the Company, the Company's independent public accountants
and others in connection with the preparation of, and that
such counsel or members of the Company's law department under
the supervision of such counsel have reviewed, the documents
incorporated by reference in the Prospectus and the
Registration Statement and the Prospectus as amended and
supplemented and any further amendments and supplements
thereto made by the Company prior to the date of such opinion,
and based on the foregoing, although such counsel is not
passing upon and assumes no responsibility for the accuracy
and completeness of the documents incorporated by reference in
the Prospectus or the Registration Statement or the Prospectus
as amended and supplemented or any further amendments and
supplements thereto made by the Company prior to the date of
such opinion, nothing has come to the attention of such
counsel which caused or cause such counsel to believe that (A)
any of the documents incorporated by reference in the
Prospectus (other than the financial statements, notes and
schedules thereto included or incorporated by reference
therein and other financial and statistical information
included or incorporated by reference therein, as to which
such counsel need express no belief) contained, when they
became effective or were filed with the Commission, as the
case may be, any untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, or (B) as of the
effective date of the Registration Statement or any further
amendment or supplement thereto made by the Company prior to
the date of such opinion, the documents incorporated by
reference therein (other than the financial statements, notes
and schedules thereto included or incorporated by reference
therein and other financial and statistical information
included or incorporated by reference therein, as to which
such counsel need express no belief) together with the
sections of the Prospectus captioned "Incorporation of Certain
Documents by Reference", "The Company", "The Issuers", "Use of
Proceeds", "Condensed Consolidated Capitalization" and
"Selected Consolidated Financial Information" and the section
of the Prospectus supplement captioned "The Company" and any
further supplements or amendments to such sections made by the
Company prior to the date of such opinion (other than the
financial statements, notes and schedules thereto included or
incorporated by reference therein and other financial and
statistical information included or incorporated by reference
therein, as to which such counsel need express no belief)
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that, as of the date of such opinion, the documents
incorporated by reference in the Prospectus as amended or
supplemented prior to the date of such opinion (other than the
financial statements, notes and schedules thereto included or
incorporated by reference therein and other financial and
statistical information included or incorporated by reference
therein, as to which such counsel express no belief) together
with the sections of the Prospectus captioned "Incorporation
of Certain Documents by Reference", "The Company", "The
Issuers", "Use of Proceeds",
21
22
"Condensed Consolidated Capitalization" and "Selected
Consolidated Financial Information" and the section of the
Prospectus supplement captioned "The Company" and any further
supplements or amendments to such sections made by the Company
prior to the date of such opinion (other than the financial
statements, notes and schedules thereto included or
incorporated by reference therein and other financial and
statistical information included or incorporated by reference
therein, as to which such counsel need express no belief)
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in light of the circumstances in which they were
made, not misleading.
(e) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery and
(ii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries
(other than (x) increases not in excess of $50,000,000 in borrowings
outstanding under credit facilities and (y) Securities issued pursuant
to this Agreement) or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the Securities
to be delivered at the relevant Time of Delivery, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of
such Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of offers to
purchase Securities from the Company or the purchase by such Agent of
Securities from the Company as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
22
23
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
NYSE; (iii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this clause (iv)
in the judgment of such Agent makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase Securities or the
purchase of the Securities from the Company as principal pursuant to
the applicable Terms Agreement or otherwise, as the case may be, on the
terms and in the manner contemplated in the Prospectus;
(i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency or
any Security the principal or interest of which is indexed to such
currency, currencies or composite currency, there shall not have
occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change in
the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or countries
issuing such currency, currencies or composite currency or the
imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency, currencies
or composite currency; and
(j) The Company shall have furnished or caused to be furnished to
such Agent certificates of officers of the Company dated the
Commencement Date and each applicable date referred to in Section 4(k)
hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, as to
the accuracy of the representations and warranties of the Company
herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Commencement
Date or such applicable date, as the case may be, as to the matters set
forth in subsections (a) and (f) of this Section 6, and as to such
other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions
23
24
in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such Agent for
any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating
to the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the
Company by such Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the Securities, or
any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying
24
25
party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that no indemnifying party shall be
liable for any settlement effected without its written consent (which
consent shall not be unreasonably withheld). No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and each Agent on the other from the
offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and each Agent on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale of
Securities (before deducting expenses) received by the Company bear to
the total commissions or discounts received by such Agent in respect
thereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by
the Company on the one hand or by any Agent on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and each Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if all Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations
25
26
referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), an Agent shall not be required
to contribute any amount in excess of the amount by which the total
public offering price at which the Securities purchased by or through
it were sold exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each of
the Agents under this subsection (d) to contribute are several in
proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
(e) The obligations of the Company under this Section 7 and under
Section 4(m) shall be in addition to any liability which the Company
may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Agent within the
meaning of the Act; and the obligations of each Agent under this
Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the Company
and in performing the other obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal, pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties and
other statements by any Agent and the Company set forth in or made pursuant to
this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of offers
to purchase Securities from the Company may be suspended or terminated at any
time by the Company as to
26
27
any Agent or by any Agent as to such Agent upon the giving of written notice of
such suspension or termination to such Agent or the Company, as the case may be.
In the event of such suspension or termination with respect to any Agent, (x)
this Agreement shall remain in full force and effect with respect to any Agent
as to which such suspension or termination has not occurred, (y) this Agreement
shall remain in full force and effect with respect to the rights and obligations
of any party which have previously accrued or which relate to Securities which
are already issued, agreed to be issued or the subject of a pending offer at the
time of such suspension or termination and (z) in any event, this Agreement
shall remain in full force and effect insofar as the fourth paragraph of Section
2(a), and Sections 4(d), 4(e), 5, 7, 9 and 10 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Xxxxxxx, Xxxxx & Co. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (000) 000-0000,
Attention: Credit Department, and if to Chase Securities Inc. shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Facsimile Transmission No. (000) 000-0000, Attention: Medium Term Note Desk, and
if to Credit Suisse First Boston Corporation shall be sufficient in all respects
when delivered or sent by facsimile transmission or registered mail to 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile Transmission No. (212)
325-8183, Attention: Short and Medium Term Finance, and if to Xxxxxx, Read & Co.
Inc. shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Facsimile Transmission No. (000) 000-0000, Attention: Syndicate Department, and
if to the Company shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to Xxxxx Corning, Xxxxx Corning World
Headquarters, Xxxxxx, Xxxx 00000, Attention: Secretary, (000) 000-0000.
12. This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, each Agent and the Company, and to the extent provided
in Sections 7, 8 and 9 hereof, the officers and directors of the Company and any
person who controls any Agent or the Company, and their respective personal
representatives, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any Terms Agreement. No
purchaser of any of the Securities through or from any Agent hereunder shall be
deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms Agreement.
As used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
27
28
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
Xxxxx Corning
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Treasurer
Accepted in New York, New York,
as of the date hereof:
/s/ Xxxxxxx, Xxxxx & Co.
----------------------------------
(Xxxxxxx, Sachs & Co.)
Chase Securities Inc.
By: /s/ Xxxx Schraudenbrach
----------------------------------
Name: Xxxx Schraudenbrach
Title: Vice President
Credit Suisse First Boston Corporation
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Xxxxxx, Read & Co. Inc.
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
28
29
ANNEX I
XXXXX CORNING
[TITLE OF SECURITY]
TERMS AGREEMENT
, 19
------------------ --
[Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.]
[Chase Securities Inc.,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.]
[Credit Suisse First Boston Corporation,
00 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.]
[Xxxxxx, Read & Co. Inc.,
000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.]
Ladies and Gentlemen:
Xxxxx Corning (the "Company") proposes, subject to the terms and conditions
stated herein and in the Distribution Agreement, dated May 1, 1997 (the
"Distribution Agreement"), between the Company on the one hand and Xxxxxxx,
Xxxxx & Co., Chase Securities Inc., Credit Suisse First Boston Corporation and
Xxxxxx, Read & Co. Inc. (the "Agents") on the other, to issue and sell to
[Xxxxxxx, Sachs & Co.], [Chase Securities Inc.], [Credit Suisse First Boston
Corporation] [and] [Xxxxxx, Read & Co. Inc.] the securities specified in the
Schedule hereto (the "Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the solicitation by
the Agents, as agents of the Company, of offers to purchase Securities is
incorporated herein by reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent
30
as if such provisions had been set forth in full herein. Nothing contained
herein or in the Distribution Agreement shall make any party hereto an agent of
the Company or make such party subject to the provisions therein relating to the
solicitation of offers to purchase Securities from the Company, solely by virtue
of its execution of this Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Terms Agreement, except that each representation and warranty in
Section 1 of the Distribution Agreement which makes reference to the
Registration Statement or the Prospectus shall be deemed to be a representation
and warranty as of the date of the Distribution Agreement in relation to the
Registration Statement or the Prospectus (as each such term is therein defined),
as the case may be, and also a representation and warranty as of the date of
this Terms Agreement in relation to the Registration Statement as amended or the
Prospectus as amended and supplemented.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Xxxxxxx, Sachs & Co.], [Chase Securities Inc.], [Credit
Suisse First Boston Corporation] [and] [Xxxxxx, Read & Co. Inc.], and [Xxxxxxx,
Sachs & Co.], [Chase Securities Inc.], [Credit Suisse First Boston Corporation]
[and] [Xxxxxx, Read & Co. Inc.], severally and not jointly, agree to purchase
from the Company the Purchased Securities, at the time and place, in the
principal amount and at the purchase price set forth in the Schedule hereto.
2
31
If the foregoing is in accordance with your understanding, please sign and
return to us [seven] counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Xxxxx Corning
By:
--------------------------------
Name:
Title:
Accepted:
-------------------------------------
(Xxxxxxx, Xxxxx & Co.)
Chase Securities Inc.
By:
-----------------------------------
Name:
Title:
Credit Suisse First Boston Corporation
By:
------------------------------------
Name:
Title:
Xxxxxx, Read & Co. Inc.
By:
------------------------------------
Name:
Title:
3
32
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes[, SERIES ....]
Aggregate Principal Amount:
[$____________________ or units of other Specified Currency]
[PRICE TO PUBLIC:]
Purchase Price by the Agents
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM _______________ TO _______________] [AND ACCRUED AMORTIZATION, IF
ANY, FROM _________________ TO ________________]
Method of and Specified Funds for Payment of Purchase Price:
By wire transfer to a bank account specified by the Company in
immediately available funds.
Indenture:
Indenture, dated as of May ___, 1997, between the Company and the
Bank of New York, as Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
I-1
33
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO IN
SECTION 4(H).]
[(2) THE OPINIONS OF COUNSEL TO THE COMPANY REFERRED TO IN SECTION
4(I).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(J).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(K).]
Other Provisions (including Syndicate Provisions, if applicable):
I-2
34
ANNEX II
XXXXX CORNING
ADMINISTRATIVE PROCEDURE
------------------------
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated May 1, 1997 (the "Distribution Agreement"),
between Xxxxx Corning (the "Company") and Xxxxxxx, Sachs & Co., Chase Securities
Inc., Credit Suisse First Boston Corporation and Xxxxxx, Read & Co. Inc.
(together, the "Agents"), to which this Administrative Procedure is attached as
Annex II. Defined terms used herein and not defined herein shall have the
meanings given such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the Indenture, as applicable.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
-----------------------------------------------------------
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, to be dated
May 5, 1997, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of August 17, 1989 (the "Certificate
II-1
35
Agreement"), and its obligations as a participant in the Depositary, including
the Depositary's Same-Day Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Agent or Purchasing Agent, as the case
may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If the Company accepts an offer to purchase Book-Entry Securities,
it will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will confirm promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency (it being understood that currently the
Depositary accepts deposits of Global Securities denominated
in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
II-2
36
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date;
(12) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security;
(16) Selling Agent or Purchasing Agent; and
(17) Day Count Convention: (i) 30/360; (ii) Actual/360; (iii)
Actual/Actual (and applicable periods).
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's
II-3
37
Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary
on behalf of the Selling Agent or Purchasing Agent, as the
case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (which in the case of Floating Rate
Securities which reset weekly shall be the date five calendar
days immediately preceding the applicable Interest Payment
Date and in the case of all other Book-Entry Securities shall
be the Regular Record Date, as defined in the Security) and,
if calculable at that time, the amount of interest payable on
such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to the
account of the Company maintained at The Bank of New York, New York, New York,
or such other account as the Company may have previously specified to the
Trustee, funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "F".
II-4
38
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the Trade Date (as
defined below), or if the Company and the purchaser agree to settlement on the
Business Day following the date of acceptance of such offer, not later than
noon, New York City time, on such date. The Company will arrange to have the
Pricing Supplement filed with the Commission not later than the close of
business of the Commission on the second Business Day following the date on
which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third Business Day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Company and the
purchaser agree to settlement on another Business Day which shall be no earlier
than the next Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
II-5
39
SETTLEMENT
PROCEDURE Time
----------- -----
A 5:00 p.m. on the Business Day following the Trade Date or 10:00 a.m. on
the Business Day prior to the Settlement Date, whichever is earlier
B 12:00 noon on the second Business Day immediately preceding the Settlement
Date
C 2:00 p.m. on the second Business Day immediately preceding the Settlement
Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
xxxx such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
II-6
40
Other than when the Agent is purchasing as a Purchasing Agent, if the
purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
Nothing herein shall be deemed to require the Trustee to risk or expend its
funds in connection with any payments to the Issuer, the Agents or DTC or any
holder of Securities, it being understood by all parties that payments made by
the Trustee to the Issuer or Agents, or DTC, or any holder of Securities shall
be made only to the extent that funds are provided to the Trustee for such
purpose.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
--------------------------------------------------------------
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such
II-7
41
Agent. Each Agent may, in its discretion reasonably exercised, reject any offer
received by it in whole or in part. Each Agent also may make offers to the
Company to purchase Certificated Securities as a Purchasing Agent. The Company
will have the sole right to accept offers to purchase Certificated Securities
and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will confirm the following details of the
terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date and day count convention ((i)
30/360; (ii) Actual/360; and (iii) Actual/Actual (and
applicable periods));
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following
as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of the
Redemption Commencement Date;
(12) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
II-8
42
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates,
(xii) Calculation Agent,
(xiii) Day Count Convention: (A) 30/360; (B) Actual/360; (C)
Actual/Actual (and applicable periods).
(13) Name, address and taxpayer identification number of the registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day following the Trade
Date, or if the Company and the purchaser agree to settlement on the date of
acceptance of such offer, not later than noon, New York City time, on such date.
The Company will arrange to have the Pricing Supplement filed with the
Commission not later than the close of business of the Commission on the second
Business Day following the date on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the third Business Day after the date of acceptance
of such offer, unless the Company and the purchaser agree to settlement (a) on
another Business Day after the acceptance of such
II-9
43
offer or (b) with respect to an offer accepted by the Company prior to 10:00
a.m., New York City time, on the date of such acceptance.
II-10
44
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information to
the Trustee by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 3:00 p.m., New York City time,
on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided that the
Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and deliver the
Certificated Security to the Company.
II-11
45
Nothing herein shall be deemed to require the Trustee to risk or expend its
own funds in connection with any payment to the Issuer, the Agents or any holder
of Securities, it being understood by all parties that payments made by the
Trustee to the Issuer or the Agents, or any holder of Securities shall be made
only to the extent that funds are provided to the Trustee for such purpose.
II-12
46
ANNEX III
ACCOUNTANTS' LETTER
-------------------
Pursuant to Sections 4(j) and 6(e), as the case may be, of the Distribution
Agreement, the Company's independent certified public accountants shall furnish
letters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been separately furnished to the Agents;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Agents; and on the basis of specified procedures,
including inquiries of officials of the Company who have responsibility
for financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
III-1
47
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro
forma adjustments have
III-2
48
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or consolidated net
assets or stockholders' equity or other items specified by the
Agents, or any increases in any items specified by the Agents,
in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net sales or consolidated
income from operations or the total or per share amounts of
consolidated net income or other items specified by the Agents,
or any increases in any items specified by the Agents, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified
by the Agents, except in each case for increases or decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents
which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Agents or
in documents incorporated by reference in the Prospectus specified by
the Agents, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Distribution Agreement as of the Commencement Date referred to in
Section 6(e) thereof and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) as of the date of the
amendment, supplement, incorporation or the Time of Delivery relating to the
Terms Agreement requiring the delivery of such letter under Section 4(j)
thereof.
III-3
