<PAGE>
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
January 29, 1997
----------------
Date of Report
BAXTER INTERNATIONAL INC.
-------------------------
(Exact name of registrant as specified in its charter)
Delaware
--------
(State of other jurisdiction of incorporation)
1-4448 36-0781620
------------------------ ---------------------------------
(Commission file number) (IRS Employer Identification No.)
One Baxter Parkway, Deerfield, Illinois 60015
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (847) 948-2000
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(Page 1 of 67 pages)
<PAGE>
Item 5. Other Events.
The registrant hereby files amended exhibits and amended undertakings to
Part II of its presently-effective debt securities shelf registration
statement on Form S-3 (SEC File No. 333-19025) (the "registration statement").
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BAXTER INTERNATIONAL INC.
-------------------------
(Registrant)
By: /s/ A. GERARD SIECK
------------------------
A. Gerard Sieck
Secretary
Date: January 29, 1997
3
<PAGE>
PART II
ITEM 16. EXHIBITS
The exhibits to this registration statement are listed in the Exhibit
Index and are incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement; provided, however, that
paragraphs (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, that are
incorporated by reference in this registration statement.
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, as amended, that is incorporated
by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions referred to in Item 15 of the registration statement,
or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification is against public policy
as expressed in the Act and will be governed by the final
adjudication of such issue.
(6) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424 or 497 under the Securities Act
shall be deemed to be part of this registration statement as of
the time it was declared effective.
(7) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement, or amendment thereto, to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Township of West
Deerfield, Illinois, on the 29 day of January, 1997.
BAXTER INTERNATIONAL INC.
By: /s/ Vernon R. Loucks Jr.
------------------------
Vernon R. Loucks Jr.
Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement, or amendment thereto, has been signed below by the
following persons in the capacities indicated on the 29 day of January,
1997.
(i) Principal Executive Officer (iv) A Majority of the Board of Directors
/s/ Vernon R. Loucks Jr.
------------------------
Vernon R. Loucks Jr.
Chairman, Chief Executive Pei-yuan Chia
Officer and a Director John W. Colloton
Susan Crown
Mary Johnston Evans
Frank R. Frame
(ii) Principal Financial Officer: Martha R. Ingram
Harry M. Jansen Kraemer, Jr.
/s/ Harry M. Kraemer, Jr. Arnold J. Levine, Ph.D.
------------------------------- Georges C. St. Laurent, Jr.
Harry M. Jansen Kraemer, Jr. Monroe E. Trout, M.D.
Senior Vice President and Reed V. Tuckson, M.D.
Chief Financial Officer Fred L. Turner
and a Director
(iii) Principal Accounting Officer:
/s/ Brian P. Anderson By: /s/ Vernon R. Loucks Jr.
--------------------- ------------------------
Brian P. Anderson Vernon R. Loucks Jr.
Controller Director and Attorney-in Fact
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER*
- ------- ----------------------- -------
1.1 Form of Underwriting Agreement
4.1** Amended and Restated Indenture, dated as of November 15,
1985, between the Company and First Trust National
Association (formerly Continental Bank, National
Association) as trustee ("Trustee"), filed as Exhibit 4.1
to the Shelf.
4.1A** First Supplemental Indenture, dated as of May 18, 1988,
between the Company and Trustee, filed as Exhibit 4.1A
to the Shelf.
4.1B Form of Supplemental Indenture dated January 29, 1997
between the Company and the Trustee.
4.2** Form of Debenture with optional sinking fund and
redemption provisions, filed as Exhibit 4.2 to the
Company's registration statement on Form S-3
(No. 33-1665) (the "Form S-3").
4.3** Form of Note with optional redemption provisions, filed
as Exhibit 4.3 to the Form S-3.
4.4** Form of Deep Discount Note or Debenture, filed as
Exhibit 4.4 to the Form S-3.
4.5** Form of Zero Coupon Note of Debenture, filed as
Exhibit 4.5 to the Form S-3.
________________________________________________
* Contained only in the manually signed original,
filed with the Securities and Exchange Commission.
** Previously Filed.
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER*
- ------- ----------------------- -------
4.6** Form of Extendible Note, filed as Exhibit 4.6 to
the Form S-3.
4.7** Form of Floating Rate Note, filed as Exhibit 4.7 to
the Form S-3.
4.8** Form of Medium-Term Note, filed as Exhibit 4.9 to
the Form S-3.
5.** Opinion and consent of J. Patrick Fitzsimmons.
12.1** Statements re computation of ratios filed as Exhibit 12
to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (filed 1-4448).
23.1** Consent of Price Waterhouse LLP.
23.2** Awareness Letter of Price Waterhouse LLP.
23.3** Consent of J. Patrick Fitzsimmons
(included in Exhibit 5)
24.** Powers of Attorney.
25. Statement of Eligibility and Qualification of the Trustee
under the Trust Indenture Act of 1939 on Form T-1.
________________________________________________
* Contained only in the manually signed original,
filed with the Securities and Exchange Commission.
** Previously Filed.
<PAGE>
January __, 1997
BAXTER INTERNATIONAL INC.
Debt Securities
UNDERWRITING AGREEMENT
January __, 1997
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
Dear Sirs:
The underwriter or underwriters named in Schedule I hereto (the
"Underwriters"), acting through the firm or firms named in Schedule I-A hereto
as representatives (the "Representatives"), understand that Baxter International
Inc., a Delaware corporation (the "Company"), proposes to issue and sell
$250,000,000 aggregate principal amount of the Company's ___% Notes due 2007
(the "Notes") and $200,000,000 aggregate principal amount of the Company's ___%
Debentures due 2027 (the "Debentures"), each designated in Schedule II hereto
(the Notes and Debentures together, the "Offered Securities"), registered on
Registration Statement No. 333-19025 under the Securities Act of 1933, as
amended. The Offered Securities are to be issued under the indenture designated
in Schedule II hereto (the "Indenture"), between the Company and the trustee
designated in such Schedule II. Subject to the terms and conditions set forth
herein or incorporated by reference herein and referred to below, the Company
hereby agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, the principal
amount of such Offered Securities set forth opposite the name of such
Underwriter in such Schedule I at the Purchase Price to Underwriters set forth
in Schedule II hereto. If the firm or firms named in Schedule I-A hereto
include only the firm or firms named as Underwriters in Schedule I hereto, the
terms "Underwriters" and "Representatives" shall each be deemed to refer to such
firm or firms.
The Underwriters will pay for such Offered Securities upon delivery
thereof at the Closing Location and Closing Time set forth in Schedule II
hereto.
The Offered Securities shall have the terms set forth in Schedule II
hereto.
This Underwriting Agreement consists of the special provisions set
forth herein or in the schedules hereto (the "Special Provisions") and such of
the provisions contained in the document entitled Baxter International Inc.
Underwriting Agreement 1997 Standard Provisions (the "Standard Provisions") as
are herein incorporated by reference. A copy of the Standard Provisions was or
will be filed as an exhibit to or incorporated by reference into the
Registration Statement. Unless otherwise provided in Schedule II hereto, the
Standard Provisions are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Underwriting Agreement to the same extent
<PAGE>
as if such provisions had been set forth in full herein. References herein and
therein to numbered sections of this Underwriting Agreement shall mean the
numbered sections of the Standard Provisions.
Please confirm your agreement by (a) having an authorized officer sign
a copy of this Underwriting Agreement in the space set forth below,
(b) returning the signed copy to us and (c) in addition, having an authorized
officer send us no later than 8:00 P.M., Chicago time, on the date hereof, by
wire, telex, facsimile transmission or other written means, the following
message:
"We have entered into the Underwriting Agreement dated January __,
1997 relating to the Offered Securities referred to therein by signing a copy of
the Underwriting Agreement and returning the same or depositing the same in the
mail to you."
Very truly yours,
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
BANCAMERICA SECURITIES, INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
By: GOLDMAN, SACHS & CO.
_____________________________________
For itself and as Representative of
the other Underwriters named above
ACCEPTED:
BAXTER INTERNATIONAL INC.
By:________________________________
Senior Vice President and
Chief Financial Officer
<PAGE>
SCHEDULE I
PRINCIPAL AMOUNT OF
OFFERED SECURITIES
UNDERWRITER TO BE PURCHASED
- ------------ -------------------
Goldman, Sachs & Co.
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
BancAmerica Securities, Inc.
First Chicago Capital Markets, Inc.
Total ..................................... $
----------------
----------------
I-1
<PAGE>
SCHEDULE I-A
REPRESENTATIVE(S)
Goldman, Sachs & Co.
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
BancAmerica Securities, Inc.
First Chicago Capital Markets, Inc.
<PAGE>
SCHEDULE II
Indenture: Amended and Restated Indenture dated as of November 15, 1985, as
supplemented, between Baxter International Inc. and the Trustee
named below
Trustee: First Trust National Association(successor to Continental Illinois
National Bank and Trust Company of Chicago)
Title of Offered Securities: Tranche 1: [__% Notes due 2007]
Tranche 2: [__% Debentures due 2027]
Aggregate Principal Amount: Tranche 1: $250,000,000
Tranche 2: $200,000,000
Initial Offering Price to Public: Tranche 1: [______]% of the principal amount
of the Notes, plus accrued interest, if any,
from January __, 1997
Tranche 2: [__]% of the principal amount of
the Debentures, plus accrued interest, if
any, from January __, 1997
Purchase Price to Underwriters: Tranche 1: [______]% of the principal amount
of the Notes, plus accrued interest, if any,
from January __, 1997
Tranche 2: [__]% of the principal amount of
the Debentures, plus accrued interest, if
any, from January __, 1997
Maturity: Tranche 1: [__________, 2007]
Tranche 2: [__________, 2027]
Interest Rate: Tranche 1: [__]% per annum
Tranche 2: [__]% per annum
Interest Payment Dates: __________ and __________, commencing __________, 1997
II-1
<PAGE>
Redemption Provisions: The Offered Securities are subject to redemption at the
option of the Company prior to maturity as described in
the Prospectus
Sinking Fund Provisions: The Offered Securities will not be entitled to the
benefit of any sinking fund
Closing Time: February __, 1997 at 9:00 A.M., Chicago time
Closing Location: Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Funds for Payment of Purchase Price: Immediately available funds
Name and Address for Goldman, Sachs & Co.
purposes of Section 11: 85 Broad Street
New York, NY 10004
Other Terms or Conditions: N/A
II-2
<PAGE>
BAXTER INTERNATIONAL INC.
Debt Securities
UNDERWRITING AGREEMENT
1997 STANDARD PROVISIONS
(Incorporated By Reference)
From time to time Baxter International Inc., a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated debt securities to the several underwriters named
therein. The standard provisions set forth herein (the "Standard Provisions")
may be incorporated by reference in any such underwriting agreement. Such
underwriting agreement, which shall consist of the special provisions (the
"Special Provisions") set forth in the part of the Underwriting Agreement to be
executed by the parties thereto (and accompanying schedules) and the Standard
Provisions incorporated therein by reference, is herein called the "Underwriting
Agreement" or this "Agreement." Unless otherwise provided, terms defined in the
Special Provisions are used in the Standard Provisions as so defined. The
Underwriting Agreement shall be in the form of an executed writing (which may be
in counterparts) and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. As used herein, the term
"Execution Date" shall mean the date set forth on the first page of the Special
Provisions.
The Company proposes to issue and sell up to $700,000,000 aggregate
principal amount of its senior, unsecured debt securities (the "Securities") in
one or more offerings on terms determined at or about the time of sale. The
Securities to be sold pursuant to the Underwriting Agreement (the "Offered
Securities") will be issued under an amended and restated indenture dated as of
November 15, 1985, as further supplemented (the "Indenture"), between the
Company and First Trust National Association (formerly Continental
Illinois National Bank and Trust Company of Chicago) (the "Trustee"). Each
issue of Securities may vary as to specific designation, aggregate principal
amount, maturity date, currency of payment, interest rate or rates and timing of
payments thereof, redemption provisions and sinking fund requirements, if any,
and any other variable terms which the Indenture contemplates may be set forth
in the Securities as issued from time to time.
1. The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-19025),
including a prospectus relating to the Securities, which relate to the
offering from time to time in accordance with Rule 415 under the Securities
Act of 1933 (the "1933 Act") of up to $700,000,000 aggregate principal
amount of Securities, and has filed amendments thereto as may have been
required to the Execution Date. Such registration statement, as amended,
has been declared effective by the Commission, and the Indenture has been
qualified under the Trust Indenture Act of 1939 (the "1939 Act"). The term
"Registration Statement" means such registration statement, including all
exhibits
<PAGE>
thereto but excluding Form T-1 (as herein described), as amended to the
Execution Date. The term "Basic Prospectus" means the prospectus included
in such registration statement, as amended to the Execution Date. The term
"Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Offered Securities, in the
definitive form filed or to be filed pursuant to Rule 424 under the 1933
Act; and the term "Preliminary Prospectus" means the Basic Prospectus
together with a preliminary prospectus supplement specifically relating to
the Offered Securities. Any reference herein to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents or portions thereof incorporated by reference therein
pursuant to the applicable form under the 1933 Act; and any reference to
any amendment or supplement to the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents or portions thereof filed after the Execution Date under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and so
incorporated by reference. Notwithstanding the foregoing, any statement
contained in a document incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus which is
modified by a statement contained in the Prospectus or in any other
subsequently filed document which is or is deemed to be incorporated by
reference in the Prospectus shall be deemed to constitute part of the
Registration Statement and the Prospectus only as so modified, and any
statement contained in a document incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus which is
superseded or replaced by a statement contained in the Prospectus or in any
other subsequently filed document which is or is deemed to be incorporated
by reference in the Prospectus shall be deemed not to constitute a part of
the Registration Statement and the Prospectus. The term "Underwriters'
Securities" means the Offered Securities to be purchased by the
Underwriters hereunder. The term "Contract Securities" means the Offered
Securities, if any, to be purchased pursuant to the Delayed Delivery
Contracts referred to herein.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to each of the Underwriters as follows:
(a) At the time the Prospectus is filed or mailed for filing with the
Commission pursuant to Section 3(a), and at the time any further amendments and
supplements to the Prospectus become effective or are filed or mailed for filing
with the Commission, as the case may be, during the time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the Offered
Securities, (i) the Registration Statement and the Prospectus will comply in all
material respects with the applicable requirements of the 1933 Act, the rules
and regulations thereunder (the "Regulations"), the 1934 Act and the 1939 Act,
(ii) the Registration Statement will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) the
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact necessary
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<PAGE>
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing by
any Underwriter expressly for use in the Registration Statement or Prospectus or
to information which shall constitute the Statement of Eligibility and
Qualification under the 1939 Act (Form T-1) of the Trustee under the Indenture.
(b) The accountants who certified the financial statements and
schedules included in the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and its subsidiaries
as required by the 1933 Act and the Regulations.
(c) The financial statements included in the Registration Statement
and the Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of their
operations for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved, except as indicated therein; and
the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (i) there has not been any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings or the ability to
continue to conduct business in the usual and ordinary course of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business and (ii) there has not been any material transaction
entered into by the Company or any of its subsidiaries other than transactions
in the ordinary course of business or transactions which are not material in
relation to the Company and its subsidiaries considered as one enterprise.
(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
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement; and the Company
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would
materially adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as one
enterprise.
(f) Each active consolidated subsidiary of the Company included in
the financial statements included in the Registration Statement and the
Prospectus is a corporation duly organized and existing and in good standing
- 3-
<PAGE>
under the laws of the jurisdiction of its incorporation, with corporate power
and authority to own, lease and operate its properties and conduct its business
as now being conducted and is duly qualified as a foreign corporation to
transact business and is in good standing except as to subsidiaries or
jurisdictions as to which the failure so to qualify would not materially
adversely affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one enterprise; all of
the issued and outstanding capital stock of each such subsidiary has been duly
and validly issued and is fully paid and nonassessable; and all of such stock
owned by the Company, directly or through subsidiaries, is owned free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity.
(g) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any contract, indenture, mortgage,
loan agreement or lease to which it or any of them is a party or by which it or
any of them or their properties is bound; and the execution and delivery of this
Agreement and the Delayed Delivery Contracts and the Indenture, the incurrence
of the obligations set forth herein and therein and the consummation of the
transactions contemplated herein and therein have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, the charter or by-laws of the Company or any bond, debenture,
note or other evidence of indebtedness or any contract, indenture, mortgage,
loan agreement or lease to which the Company or any of its subsidiaries is a
party or by which it or any of them is bound or any law, administrative
regulation or administrative or court decree.
(h) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, adequate patent rights or licenses or other rights to use
patent rights, inventions, trademarks, service marks, trade names and copyrights
necessary to conduct the business now operated by them, provided that the loss
of any such rights, either alone or in the aggregate, which does not materially
adversely affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one enterprise shall
not be considered a violation of this representation. Neither the Company nor
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any patent, patent rights,
inventions, trade marks, service marks, trade names or copyrights which, either
alone or in the aggregate, might reasonably be expected to materially adversely
affect the conduct of the business, operations, financial condition or income of
the Company and its subsidiaries considered as one enterprise.
(i) Except as set forth in the Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries, which, either singly or in the
aggregate, might reasonably be expected to materially adversely affect the
conduct of the business, operations, financial condition
- 4 -
<PAGE>
or income of the Company and its subsidiaries considered as one enterprise or
the consummation of this Agreement.
Any certificate signed by any officer of the Company and delivered to
any Underwriter or counsel for the Underwriters in connection with an offering
of Offered Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter.
SECTION 2. PURCHASE, SALE AND DELIVERY. The Company is advised by
the Representatives that the Underwriters propose to make a public offering of
their respective portions of the Underwriters' Securities as soon after this
Agreement is entered into as in the Representatives' judgment is advisable. The
terms of the public offering of the Underwriters' Securities are set forth in
the Prospectus.
Payment of the purchase price for, and delivery of, the Underwriters'
Securities shall be made in the funds, at the place or places, on the date and
at the time (unless postponed in accordance with the provisions of Section 10)
specified in Schedule II to the Special Provisions or at such other time or
place as shall be agreed upon by the Representatives and the Company (such time
and date being referred to as the "Closing Time"). Except as otherwise
specified in Schedule II to the Special Provisions, payment shall be made to the
Company by certified or official bank check or checks payable to the order of
the Company against delivery to the Representatives for the respective accounts
of the Underwriters of the Underwriters' Securities to be purchased by them.
Such Underwriters' Securities shall be in such denominations and registered in
such names as the Representatives may request in writing at least two business
days prior to the Closing Time. Such Underwriters' Securities, which may be in
temporary form, will be made available for examination and packaging by the
Representatives in New York City or at such other place as shall be agreed upon
by the Representatives and the Company on or before the first business day prior
to the Closing Time.
If so provided in Schedule II to the Special Provisions, the
Underwriters may solicit offers to purchase Contract Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Annex I hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to the Representatives at Closing Time, for the accounts of
the Underwriters, the fee set forth in Schedule II to the Special Provisions in
respect of the principal amount of Contract Securities. Any Delayed Delivery
Contracts are to be with institutional investors of the types set forth in the
Prospectus. At Closing Time, the Company will enter into Delayed Delivery
Contracts (each for not less than the minimum principal amount of Contract
Securities per Delayed Delivery Contract specified in Schedule II to the Special
Provisions) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Contract Securities in excess of that specified in Schedule II to the
Special Provisions. The Underwriters will not
- 5 -
<PAGE>
have any responsibility for the validity or performance of Delayed Delivery
Contracts.
The Representatives will submit to the Company, at least three
business days prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the principal amount of Contract Securities to be
purchased by each of them, and the Company will advise the Representatives at
least two business days prior to Closing Time of the names of the institutions
with which the making of Delayed Delivery Contracts is approved by the Company
and the principal amount of Contract Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Offered Securities agreed to be purchased by
the respective Underwriters as set forth in Schedule I to the Special Provisions
shall be reduced by the principal amount of Offered Securities covered by
Delayed Delivery Contracts, as to each Underwriter as set forth in a written
notice delivered by the Representatives to the Company; PROVIDED, HOWEVER, that
the total principal amount of Offered Securities to be purchased by all
Underwriters shall be the total amount of Offered Securities set forth in
Schedule I to the Special Provisions, less the principal amount of Offered
Securities covered by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter that:
(a) Immediately following the execution of this Agreement, the
Company will prepare a supplement to the Basic Prospectus setting forth the
principal amount of the Offered Securities and their terms not otherwise
specified in the Indenture, the names of the Underwriters and the principal
amount of Offered Securities which each severally has agreed to purchase, the
names of the Representatives, the price at which the Offered Securities are to
be purchased by the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representatives and the Company
deem appropriate in connection with the offering of the Offered Securities. The
Company will promptly transmit copies of the Prospectus to the Commission for
filing pursuant to Rule 424 of the Regulations and will furnish to the
Underwriters as many copies of the Prospectus as the Representatives shall
reasonably request.
(b) If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it shall be necessary,
in the opinion of either such counsel, at any such time to amend or supplement
the Registration Statement or the Prospectus in order to
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comply with the requirements of the 1933 Act or the Regulations, the Company
will promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements.
(c) The Company will make generally available to its security holders
as soon as practicable an earnings statement (in form complying with the
provisions of Section 11(a) of the 1933 Act, which need not be certified by
independent certified public accountants unless required by the 1933 Act or the
Regulations) covering a twelve-month period beginning not later than the first
day of the Company's fiscal quarter next following the Execution Date.
(d) During the period when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the Company
will give the Representatives notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of filing, and will
not file any such amendment or supplement or other documents in a form in which
the Representatives or counsel for the Underwriters shall reasonably object.
(e) During the period when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the Company
will notify the Representatives immediately, and confirm the notice in writing,
(i) of the effectiveness of any amendment to the Registration Statement, (ii) of
the mailing or the delivery to the Commission for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which is
incorporated in the Prospectus by reference, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement or the
Prospectus, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has previously delivered to Sidley & Austin, counsel
for the Underwriters, signed and conformed copies of the Registration Statement
and of each amendment thereto filed prior to the date of this Agreement
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) and will also deliver to
Sidley & Austin a copy of each amendment to the Registration Statement filed
after the date of this Agreement.
(g) The Company will endeavor, in cooperation with the
Representatives, to qualify the Offered Securities for offering and sale under
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the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate, and, in cooperation with the
Representatives, will maintain such qualifications in effect for as long as may
be required for the distribution of the Offered Securities; PROVIDED, HOWEVER,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not otherwise required to be so qualified. The Company will, upon notice,
file such statements and reports as may be required by the laws of each
jurisdiction in which the Offered Securities have been qualified as above
provided.
(h) The Company, during the period when a prospectus is required to
be delivered under the 1933 Act in connection with the sale of the Offered
Securities, will file promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Between the Execution Date and termination of any price
restrictions on the sale of the Offered Securities or Closing Time, whichever is
later, the Company will not, without the prior consent of the Representatives,
offer or sell, or enter into any agreement to sell, any debt securities of the
Company with a maturity of more than one year, other than such debt securities
which the Company has advised the Representatives in writing prior to the
Execution Date that it intends to sell or agree to sell during such period.
SECTION 4. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase the Underwriters' Securities are subject to the
accuracy of the representations and warranties on the part of the Company herein
contained, to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
by the Company of all of its covenants and other obligations hereunder and to
the following further conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
(ii) the rating assigned by Standard & Poor's Corporation, Moody's Investors
Service, Inc. or Duff and Phelps, Inc. to any debt securities or preferred stock
of the Company as of the Execution Date shall not have been lowered since that
date and (iii) there shall not have come to the attention of the Representatives
any facts that would reasonably cause the Representatives to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of the
Offered Securities, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at such time, not misleading.
(b) At the Closing Time the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time, of
Arthur F. Staubitz, Esq., Senior Vice President and General
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Counsel of the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(B) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement.
(C) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction
in which the failure so to qualify would materially adversely
affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries
considered as one enterprise.
(D) Each of Baxter Healthcare Corporation, a Delaware
corporation, and Baxter World Trade Corporation, a Delaware
corporation, all of which are wholly-owned by the Company and
which, together with the Company, owned more than 80% of the
consolidated assets of the Company and its subsidiaries as of
December 31, 1996 and contributed at least 80% of the
consolidated income from continuing operations of the Company and
its subsidiaries for the year ended December 31, 1996 (each such
calculation with respect to Baxter World Trade Corporation having
been done on a consolidated basis with its subsidiaries) 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, lease
and operate its properties and conduct its business as now being
conducted and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the failure so to qualify would materially adversely affect
the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of
each such subsidiary has been duly authorized and validly issued
and is fully paid and non-assessable; and all of such stock owned
by the Company, directly or through subsidiaries, is owned free
and clear of any mortgage, pledge, lien, encumbrance, claim or
equity.
(E) Except as set forth in the Prospectus, there is no
action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or to such
counsel's knowledge threatened against or affecting, the Company
or any of its subsidiaries which, either singly or in the
aggregate, might reasonably be
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expected to materially adversely affect the conduct of the business,
operations, financial condition or income of the Company and its
subsidiaries considered as one enterprise or the consummation of this
Agreement.
(F) This Agreement and the Delayed Delivery Contracts, if
any, have been duly authorized, executed and delivered by the
Company.
(G) The Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the valid
and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles.
(H) The Offered Securities are in the form contemplated by
the Indenture, have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated
as specified in the Indenture and delivered against payment
pursuant to this Agreement or Delayed Delivery Contracts, if any,
will be valid and binding obligations of the Company, enforceable
in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity
principles, and will be entitled to the benefits of the
Indenture.
(I) The descriptions of the Indenture and the Offered
Securities set forth in the Prospectus are accurate and
constitute fair summaries of such documents and instruments.
(J) The Indenture is qualified under the 1939 Act.
(K) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(L) The Registration Statement (other than the financial
statements and other financial data included therein, as to which such
counsel need not express any opinion and other than the documents
incorporated therein by reference) complies as to form in all material
respects with the requirements of the 1933 Act, the 1939 Act and the
Regulations, and although such counsel is not passing upon, and does
not assume responsibility for the accuracy, completeness or fairness
of statements contained in the
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<PAGE>
Registration Statement or Prospectus nor make any representation that
he has independently verified the accuracy, completeness or fairness
of such statements (except as set forth in clause (ix) above) nor
verified the computation or compilation of financial statements and
other financial data, nothing has come to such counsel's attention
that would lead him to believe that the Registration Statement
(including the documents incorporated therein by reference), at the
time it became effective, or if an amendment to the Registration
Statement, an annual report on Form 10-K or any other document filed
by the Company under the 1934 Act and incorporated by reference in the
Registration Statement has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing, 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 the Prospectus (including the documents
incorporated therein by reference), as amended or supplemented at
Closing Time, contains an untrue statement of a material fact or omits
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.
(M) Each document, if any, filed pursuant to the 1934 Act
(other than the financial statements and other financial data
included therein, as to which such counsel need not express any
opinion) and incorporated by reference in the Prospectus complied
when so filed as to form in all material respects with the 1934
Act and the rules and regulations thereunder.
(N) No consent, approval, authorization or order of any
court or governmental authority or agency is required in
connection with the sale of the Offered Securities, except such
as may be required under the 1933 Act, the 1939 Act and state
securities laws; and the execution and delivery of this Agreement
and the Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with or
constitute a breach of, or default under, or result in any
violation of the provisions of, the charter or by-laws of the
Company or, to the best of such counsel's knowledge, any bond,
debenture, note or other evidence of indebtedness, or any
contract, indenture, mortgage, loan agreement or lease to which
the Company or any of its subsidiaries is a party or by which it
or any of them is bound, nor will such action result in any
violation of the provisions of any law, administrative regulation
or administrative or court decree.
(ii) The favorable opinion or opinions, dated as of the
applicable Closing Time, of Sidley & Austin, counsel for the
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Underwriters, with respect to the matters set forth in (A) and (F) to (M),
inclusive, of subsection (b)(i) of this Section.
(c) At the Closing Time there shall not have been, since the
Execution Date or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one enterprise, or
in the earnings or the ability to continue to conduct business in the usual and
ordinary course of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company, dated as of the Closing Time, to the effect that there
has been no such material adverse change and to the effect that the
representations and warranties of the Company contained in Section 1 are true
and correct with the same force and effect as though expressly made at the
Closing Time.
(d) The Representatives shall have received from Price Waterhouse a
letter, dated as of the Closing Time, covering periods up to a date not more
than five business days preceding the date of the letter, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the 1933 Act and the applicable published
rules and regulations thereunder and stating in effect (i) that in their opinion
the consolidated financial statements of the Company and its subsidiaries
examined by them included or incorporated by reference in the Registration
Statement and the Prospectus comply as to form in all material respects with the
accounting requirements of the 1934 Act and the published rules and regulations
thereunder applicable to financial statements included or incorporated in annual
reports on Form 10-K under the 1934 Act; (ii) that, based on limited procedures
not constituting an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited consolidated financial data
of the Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, reading of the minutes of the board
of directors and committees of the board of directors of the Company since
December 31, 1991, as set forth in the minute books through a specified date not
more than five days before the date of such letter and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters, nothing came to their attention that caused them to believe: (A) that
such unaudited consolidated financial data do not comply as to form in all
material respects with the accounting requirements of the 1934 Act and the
published rules and regulations thereunder applicable to unaudited consolidated
financial data or that such unaudited consolidated financial data are not
presented on a basis substantially consistent with that of the consolidated
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus and
covered by their opinion; and (B) that during the period from the date of the
most recent consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus to a specified date not more than five business days prior to
the date of such letter there was any change in the consolidated capital stock
(other than
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changes occurring as a result of the exercise of outstanding stock options,
conversion rights or rights under employee stock purchase plans, grants under
any other employee benefit plans, or conversions of preferred stock or
debentures or in connection with any dividend reinvestment plan of the Company)
or consolidated capitalized lease obligations or consolidated long-term debt
(other than through conversions or scheduled payments or differences due to
conversion of foreign currency-denominated debt into United States dollars) of
the Company or any decreases in consolidated stockholders' equity of the Company
as compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus, or any decrease, as compared with the corresponding period in the
preceding year, in net sales or total operating income, in each case from
continuing operations, and net income of the Company and its subsidiaries on a
consolidated basis, or, at the date of the latest available balance sheet read
by them, any decreases in consolidated net current assets (working capital) as
compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus, except in all instances for changes, increases or decreases
(1) which have been the subject of prior registration statements filed with the
Securities and Exchange Commission, (2) which have been disclosed in writing to
either the Representatives or to Sidley & Austin, counsel for the Underwriters,
prior to the Execution Date or (3) which the Registration Statement and the
Prospectus (including the documents incorporated therein by reference) disclose
have occurred or may occur; and (iii) that certain amounts, percentages and
financial information included or incorporated by reference in the Registration
Statement and the Prospectus which have been specified by the Representatives
and have been obtained or derived from the general accounting records of the
Company and its subsidiaries are in agreement with such accounting records or
computations made therefrom, or in the case of amounts, percentages and
financial information pertaining to periods prior to the year ended December 31,
1985 are in agreement with the audited financial statements or computations made
therefrom with respect to such periods. Such letter shall also cover such other
matters as the Representatives may reasonably request.
(e) Such other closing conditions, if any, as are set forth in the
Special Provisions.
(f) At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Securities as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
If any condition specified in this Agreement shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or
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prior to the Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 5.
SECTION 5. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(a) the printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and all amendments thereto, and the typing and
duplicating or printing of this Agreement and any agreement among the
Underwriters, (b) the preparation, issuance and delivery of the Offered
Securities to the Underwriters, (c) the fees and disbursements of the Company's
counsel and accountants, (d) the qualification of the Offered Securities under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the reasonable fee and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and Legal Investment Survey, (e) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto, and of any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto, (f) the
printing and delivery to the Underwriters of copies of the Indenture and any
Blue Sky Survey and Legal Investment Survey, (g) the fees of rating agencies and
(h) the fees and expenses, if any, incurred in connection with the listing of
the Offered Securities on the New York Stock Exchange.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 4 or Section 9(i), the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, (A) that the Company will not be
liable in any such case to the extent that any such loss, liability,
claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration
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Statement (or any amendment thereto) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto), or contained in that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the Trustee
under the Indenture; and PROVIDED, FURTHER, (B) that the foregoing
indemnification, to the extent it relates to any actual or alleged untrue
statement or omission made in or from any Preliminary Prospectus but
eliminated or remedied in the Prospectus, shall not inure to the benefit of
any Underwriter or any person who controls such Underwriter from whom the
person asserting such untrue statement or omission purchased Offered
Securities if a copy of the Prospectus (excluding documents incorporated
therein by reference) was not sent or given to such person at or prior to
the written confirmation of the sale of such Offered Securities to such
person if the Company has previously furnished copies thereof to such
Underwriter;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
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<PAGE>
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder; failure of an indemnified party to give such
notice within a reasonable time after the commencement of such action shall
relieve the indemnifying party of all liability on account of this indemnity
agreement, but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of such Underwriters in such proportions
as will reflect the relative benefits from the offering of the Offered
Securities received by the Company on the one hand and by such Underwriters on
the other hand. If 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 Section 6(c), then the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of such Underwriters in such proportions
as are appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages and expenses, as well as any other relevant
equitable considerations. The relative benefits shall be deemed to be such that
the Underwriters shall be responsible for that portion of the aggregate losses,
liabilities, claims, damages and expenses represented by the percentage that the
underwriting discount appearing in the Prospectus bears to the initial public
offering price appearing therein and the Company shall be responsible for the
balance. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 7. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at
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which the Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company. The Underwriters' obligations in this Section 7 to contribute are
several in proportion to their respective underwriting obligations and not
joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Offered Securities to the Underwriters.
SECTION 9. TERMINATION. The Representatives may also terminate this
Agreement, immediately upon notice to the Company, at any time at or prior to
the Closing Time (a) if there has been, since the Execution Date or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise, or in the earnings or the
ability to conduct business in the usual and ordinary course of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (b) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (c) if trading generally on
the New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by said exchange or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by Federal,
Illinois or New York authorities. In the event of any such termination, the
covenant set forth in Section 3(c), the provisions of Section 5, the indemnity
agreement set forth in Section 6, the contribution provisions set forth in
Section 7 and the provisions of Sections 8 and 13 shall remain in effect.
SECTION 10. DEFAULT. If one or more of the Underwriters shall fail
at the Closing Time to purchase the Offered Securities which it or they are
obligated to purchase hereunder (the "Defaulted Securities"), then the
- 17 -
<PAGE>
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, during such 24 hours the Representatives shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
(a) If the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Offered Securities to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters, or
(b) If the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Offered Securities to be purchased
pursuant to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period of not exceeding seven days in
order that any required change in the Registration Statement or Prospectus or in
any other documents or arrangements may be effected.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at the address or
addresses specified in Schedule II to the Special Provisions; notices to the
Company shall be directed to it at One Baxter Parkway, Deerfield, Illinois
60015, Attention: Secretary.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
- 18 -
<PAGE>
No purchaser of Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 13. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Illinois applicable to agreements made and to be performed
therein.
- 19 -
<PAGE>
EXHIBIT 4.1B
SUPPLEMENTAL INDENTURE, dated as of January 29, 1997, between BAXTER
INTERNATIONAL INC., a Delaware corporation (the "Company"), and FIRST TRUST
NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
The Company has previously executed and delivered to the Trustee a
certain amended and restated indenture, dated as of November 15, 1985, as
supplemented by the First Supplemental Indenture, dated as of May 18, 1988
(the "Indenture"), pursuant to which one or more series of unsecured
debentures, notes or other evidences of indebtedness of the Company (the
"Securities") may be issued from time to time. All terms used in this
Supplemental Indenture which are not defined in this Supplemental Indenture
but are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
The Company desires and has requested the Trustee to join with it in the
execution and delivery of this Supplemental Indenture for the purpose of
amending the Indenture to permit the issuance of Securities in the form of a
Global Security or Securities.
Section 9.01(i) of the Indenture provides that the Company and the
Trustee may amend the Indenture without the consent of any Securityholder to
make any change that does not adversely affect the rights of any
Securityholder.
The Company has furnished the Trustee with (i) an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent provided for
in the Indenture to the execution of this Supplemental Indenture have been
complied with, and (ii) a copy of a Board Resolution authorizing the
execution of indentures, including this Supplemental Indenture.
All things necessary to make this Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and
supplement to the Indenture have been done.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
ARTICLE ONE
SECTION 1.1 SECTION 1.01 of the Indenture is hereby supplemented and
amended to add the following definitions in the appropriate alphabetical
order.
"Depositary" means, with respect to Securities issuable or issued in
whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Securities Exchange Act of 1934, as amended, or
any successor thereto, which shall be designated by the Company pursuant to
either Section 2.01
<PAGE>
or 2.10 and, unless otherwise specified by the Company, The Depository Trust
Company.
"Global Security" means, when used with respect to any series of
Securities issued hereunder, a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and (i)
an indenture supplemental hereto, if any, or an Officers' Certificate and
(ii) a written order of the Company signed by two Officers, which shall be
registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Securities of such series or any portion
thereof, in either case having the same terms, including, without limitation,
the same original issue date, date or dates on which principal is due,
interest rate or method of determining interest, and, in the case of original
issue discount Securities, which have the same issue price and accretion
rate. "Global Security" shall include any temporary Global Security and any
permanent Global Security.
"Participant" means a member of, or participant in, a Depositary.
ARTICLE TWO
SECTION 2.1. Unlimited in Amount, Issuable in Series, Form AND DATING.
Section 2.01 of the Indenture is hereby supplemented and amended by deleting
the word "and" after the semi-colon in subparagraph (n), by deleting
subparagraph (o) and by adding the following new subsections after subsection
2.01(n):
"(o) if the Securities of such series shall be issuable in whole or in
part in the form of, or exchangeable for, one or more Global Securities and,
in such case, the terms and conditions, if any, upon which such Global
Security or Global Securities shall be exchangeable by the Company or the
Holder, in whole or in part, for definitive Securities, and the Depositary for
such Global Security or Global Securities; and
(p) any other terms of the Securities of such series (which terms shall
not be inconsistent with the provisions of this Indenture)."
SECTION 2.2. Temporary Securities; Global Securities. Section 2.10 of
the Indenture hereby supplemented and amended by amending the current heading
to read "Temporary Securities, Global Securities" and by inserting as a new
paragraph at the end of such section the following:
2
<PAGE>
"If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued in whole or in part as one
or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with Section 2.02 and a written order of the Company
signed by two Officers Company delivered to the Trustee thereunder,
authenticate and deliver to the Depositary or pursuant to the Depositary's
instruction one or more Global Securities. Each Global Security (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Securities of such series to be represented by such
Global Security or Securities, or such portion thereof as the Company shall
specify in a written order of the Company signed by two Officers, (ii) shall
be registered in the name of the Depositary for such Global Security or
Securities or its nominee, and (iii) shall bear a legend substantially
identical to the following: "Unless this certificate is presented by an
authorized representative of the Depositary to the Issuer or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of the nominee of the Depositary or in such other name
as is requested by an authorized representative of the Depositary (and any
payment is made to the nominee of the Depositary or to such other entity as
is requested by an authorized representative of the Depositary), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, the nominee of
the Depositary, has an interest herein. Unless and until it is exchanged in
whole or in part for individual [Securities] registered in the names of
participants in the Depositary, this certificate may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Notwithstanding any other provision of Section 2.06 or of this Section
2.10, except as otherwise specified as contemplated by Section 2.01 and
except for exchanges of Global Securities as provided in the following
paragraphs, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.06, only to a nominee of the
Depositary for such series or by a nominee of such Depositary for such series
to such Depositary or another nominee of such Depositary or by such
Depositary or any nominee to a successor Depositary for such series selected
or approved by the Company or to a nominee of such successor Depositary.
If at any time the Depositary for a series of Global Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the
3
<PAGE>
Depositary for such series shall no longer be registered or in good standing
as a clearing agency under the United States Securities Exchange Act of 1934,
as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such series. If a successor
Depositary for such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, as
the case may be, the Company will execute, and the Trustee will authenticate
and deliver in accordance with a written order of the Company signed by two
Officers, individual Securities of such series in registered form, in
authorized denominations, of like tenor and terms and in an aggregate
principal amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security.
The Company may at any time and in its sole discretion determine that
the Securities of any series or portion thereof issued or issuable in the
form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and
the Trustee, upon receipt of a written order of the Company signed by two
Officers for the authentication and delivery of individual Securities of such
series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series in registered
form, in authorized denominations, of like tenor and terms and in an
aggregate principal amount equal to the principal amount of such Global
Security of such series or portion thereof in exchange for such Global
Security.
If specified by the Company pursuant to Sections 2.01 and 2.02 with
respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor or terms in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (i) to each
Person specified by such Depositary a new Security or Securities of the same
series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest as specified by such
Depositary in the Global Security; and (ii) to such Depositary a new Global
Security of like tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered to
Holders thereof.
4
<PAGE>
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal amount of Global
Security for individual Securities, such Global Security shall be cancelled
by the Trustee or its agent. Except as provided in the preceding paragraphs,
Securities issued in exchange for a Global Security pursuant to this Section
2.10 shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
Participants or otherwise, shall instruct the Trustee or any registrar. The
Trustee or registrar shall deliver at its corporate trust office such
Securities to the Person in whose names such Securities are so registered.
Except as provided above, owners solely of beneficial interests in
Global Securities shall not be entitled to receive physical delivery of
Securities in definitive form and will not be considered the Holders thereof
for any purpose under the Indenture or this Supplemental Indenture.
Participants shall have no rights under the Indenture or this
Supplemental Indenture with respect to any Global Security held on their
behalf by a Depositary, and such Depositary may be treated by the Company,
the Trustee and any registrar as the owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any registrar from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
or impair, as between a Depositary and its Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security, including without limitation the granting of proxies or other
authorization of Participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a
Holder is entitled to give or take under the Indenture.
None of the Company, the Trustee, any paying agent or registrar will
have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests."
5
<PAGE>
ARTICLE THREE
SECTION 3.1. EFFECTIVENESS. This Supplemental Indenture shall take
effect on the date hereof and shall amend the provisions of the Indenture with
respect to each series of Securities issued under the Indenture on or after
the date hereof.
SECTION 3.2. ILLINOIS LAW TO GOVERN. This Supplemental Indenture shall
be deemed to be a contract made under the laws of the State of Illinois, and
for all purposes shall be construed in accordance with the laws of said
State, except as may otherwise be required by mandatory provisions of law.
SECTION 3.3 TRUST INDENTURE ACT TO CONTROL. If and to the extent that
any provision of this Supplemental Indenture limits, qualifies, or conflicts
with another provision included in the Indenture or this Supplemental
Indenture which is required to be included in this Supplemental Indenture by
any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939,
such required provision shall control.
SECTION 3.4 EXECUTION IN COUNTERPARTS. This Supplemental Indenture may
be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the
same instrument.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
BAXTER INTERNATIONAL INC.
By:________________________________
Senior Vice President and
Chief Financial Officer
[SEAL]
ATTEST:
______________________________
(Secretary)
FIRST TRUST NATIONAL ASSOCIATION
By:________________________________
Authorized Officer
[SEAL]
ATTEST:
______________________________
7
<PAGE>
STATE OF ILLINOIS )
)SS.:
COUNTY OF COOK )
I, _______________________________________, a notary public in and for
said county, in the state aforesaid, do hereby certify that Baxter
International Inc., a Delaware corporation, and ___________ and
_______________, of said corporation, personally known to me to be the same
persons whose names are subscribed to the foregoing instrument as
______________ and ________________, respectively, appeared before me this
day in person and acknowledged that they signed and delivered the said
instrument as their own free and voluntary act, and as the free and voluntary
act of said corporation for the uses and purposes therein set forth; and said
________________, did also then and there acknowledge that he, a custodian of
the corporate seal of said corporation, did affix the corporate seal of said
corporation to said instrument as his own free and voluntary act and as the
free and voluntary act of said corporation, for the uses and purposes therein
set forth.
Given under my hand and notarial seal this _____ day of February, 1997.
____________________________
Notary Public
My Commission expires:______
<PAGE>
STATE OF ILLINOIS )
)SS.:
COUNTY OF COOK )
I, ______________________________________, a notary public in and for
said county, in the state aforesaid, do hereby certify that First Trust
National Association, a national banking association, and ______________ and
______________, of said corporation, personally known to me to be the same
persons whose names are subscribed to the foregoing instrument
as_______________ and ________________, respectively, appeared before me this
day in person and acknowledged that they signed and delivered said instrument
as their own free and voluntary act, and as the free and voluntary act of
said corporation, for the uses and purposes therein set forth; and said
________________, did also then and there acknowledge that he, as custodian
of the corporate seal of said corporation, did affix the corporate seal of
said corporation to said instrument as his own free and voluntary act and as,
the free and voluntary act of said corporation, for the uses and purposes
therein set forth.
Given under my hand and notarial seal this _____day of February, 1997.
____________________________
Notary Public
My Commission expires:______
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
------------------------
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
36-4046888
(I.R.S. Employer
Identification No.)
<TABLE>
<S> <C>
400 NORTH MICHIGAN AVENUE, 60611
CHICAGO, ILLINOIS (Zip code)
(Address of principal
executive offices)
</TABLE>
------------------------
G. M. CARROLL
FIRST TRUST NATIONAL ASSOCIATION
400 N. MICHIGAN AVENUE, FLOOR 2S
CHICAGO, ILLINOIS 60611
TELEPHONE (312) 836-6751
(Name, address, and telephone number of agent for service)
------------------------
BAXTER INTERNATIONAL INC.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 36-0781620
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE BAXTER PARKWAY 60015
DEERFIELD, ILLINOIS (Zip code)
(Address of principal
executive offices)
</TABLE>
DEBT SECURITIES
(Title of Indenture Securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the Trustee:
(A) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency, Washington, D.C.
(B) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
Furnish the following information as to each class of voting securities of
the Trustee:
AS OF JANUARY 9, 1997
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
- --------------------------------------------------------------------------------- -----------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
If the Trustee is a Trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(A) Title of the securities outstanding under each such other indenture.
Not applicable by virtue of response to Item 13.
(B) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the act
arises as a result of the Trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
If the Trustee or any of the directors or executive officers of the Trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state and nature of each such connection.
Not applicable by virtue of response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Furnish the following information as to the voting securities of the Trustee
owned beneficially by the obligor and each director, partner and executive
officer of the obligor.
1
<PAGE>
AS OF JANUARY 9, 1997
<TABLE>
<CAPTION>
COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
COL. B COL. C BY AMOUNT
COL. A TITLE OF AMOUNT OWNED GIVEN IN
NAME OF OWNER CLASS BENEFICIALLY COL. C
- ----------------------------------------------------- --------- -------------- -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Furnish the following information as to the voting securities of the Trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter.
AS OF JANUARY 9, 1997
<TABLE>
<CAPTION>
COL. D
PERCENTAGE
OF VOTING
SECURITIES
REPRESENTED
COL. B COL. C BY AMOUNT
COL. A TITLE OF AMOUNT OWNED GIVEN IN
NAME OF OWNER CLASS BENEFICIALLY COL. C
- ----------------------------------------------------- --------- -------------- -----------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
Trustee:
AS OF JANUARY 9, 1997
<TABLE>
<CAPTION>
COL. B COL. C
WHETHER THE AMOUNT OWNED COL. D
SECURITIES BENEFICIALLY OR HELD PERCENT OF
ARE VOTING AS COLLATERAL CLASS
OR SECURITY FOR REPRESENTED BY
COL. A NONVOTING OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS SECURITIES DEFAULT BY TRUSTEE COL. C
- ------------------------------------------- ----------- -------------------- ---------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
If the Trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the Trustee.
2
<PAGE>
AS OF JANUARY 9, 1997
<TABLE>
<CAPTION>
COL. C
AMOUNT OWNED COL. D
BENEFICIALLY OR HELD PERCENT OF
AS COLLATERAL CLASS
COL. B SECURITY FOR REPRESENTED BY
COL. A AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
NAME OF ISSUER AND TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
- ----------------------------------------- ----------- -------------------- ---------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
If the Trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the Trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
AS OF JANUARY 9, 1997
<TABLE>
<CAPTION>
COL. C
AMOUNT OWNED COL. D
BENEFICIALLY OR HELD PERCENT OF
AS COLLATERAL CLASS
COL. B SECURITY FOR REPRESENTED BY
COL. A AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
NAME OF ISSUER AND TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
- ----------------------------------------- ----------- -------------------- ---------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11. OWNERSHIP OF HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
If the Trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
Trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
AS OF JANUARY 9, 1997
<TABLE>
<CAPTION>
COL. C
AMOUNT OWNED COL. D
BENEFICIALLY OR HELD PERCENT OF
AS COLLATERAL CLASS
COL. B SECURITY FOR REPRESENTED BY
COL. A AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
NAME OF ISSUER AND TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C
- ----------------------------------------- ----------- -------------------- ---------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Except as noted in the instructions, if the obligor is indebted to the
Trustee, furnish the following information:
AS OF JANUARY 9, 1997
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ------------------------------------------------------------- ------------------- ----------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
There is not nor has there been a default with respect to the securities
under this indenture.
(B) If the Trustee is a Trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
There is not nor has there been a default with respect to the securities
under this indenture. The trustee is not a trustee under another indenture under
which securities are outstanding.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
If any underwriter is an affiliate of the Trustees, describe each such
affiliation.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the act.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of eligibility.
1. A copy of the Articles of Association of First Trust National
Association as now in effect, filed herewith.
2. A copy of the certificate of authority to commence business,
incorporated herein by reference to Exhibit 2 to T-1; Registration No. 33-64175.
3. A copy of the certificate of authority to exercise corporate trust
powers, incorporated herein by reference to Exhibit 3 to T-1; Registration No.
33-64175.
4. A copy of the existing By-Laws of First Trust National Association as
now in effect, incorporated herein by reference to Exhibit 4 to T-1;
Registration No. 33-64175.
5. Not applicable by virtue of response to Item 13.
4
<PAGE>
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6 to T-1;
Registration No. 33-64175.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority,
filed herewith.
8. Not applicable.
9. Not applicable.
5
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, First Trust National Association, A National Banking Association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago, and State of
Illinois, as of the 9th day of January, 1997.
FIRST TRUST NATIONAL ASSOCIATION
By: /s/ G.M. CARROLL
-----------------------------------------
G.M. Carroll
VICE PRESIDENT AND
ASSISTANT SECRETARY
6
<PAGE>
EXHIBIT 1
FIRST TRUST NATIONAL ASSOCIATION
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
For the purpose of organizing an association to perform any lawful
activities of national banks, the undersigned do enter into the following
Amended and Restated Articles of Association:
FIRST. The title of this Association shall be "First Trust National
Association".
SECOND. The main office of this Association shall be in the City of Chicago,
County of Cook and State of Illinois. The business of this Association will be
limited to that of a national trust bank, and to support activities incidental
thereto. This Association will not amend these Articles of Association to expand
the scope of or alter its business beyond that stated in this Article Second
without the prior approval of the Comptroller of the Currency. Prior to the
transfer of any stock of the Association, the Association will seek the prior
approval of the appropriate federal depository institution regulatory agency.
THIRD. The board of directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
this Association with an aggregate par value of not less than $1,000, or common
or preferred stock of First Bank System, Inc. with an aggregate par, fair
market, or equity value of not less than $1,000, as of either (i) the date of
purchase, (ii) the date the person became a director or (iii) the date of that
person's most recent election to the board of directors, whichever is more
recent. Any combination of common or preferred stock of this Association or
First Bank System, Inc. may be used.
Any vacancy in the board of directors may be filled by action of a majority
of the remaining directors between meetings of shareholders. The board of
directors may not increase the number of directors between meetings of
shareholders to a number that (1) exceeds by more than two the number of
directors last elected by shareholders where the number was fifteen or less; and
(2) exceeds by more than four the number of directors last elected by
shareholders where the number was sixteen or more, but in no event shall the
number of directors exceed twenty-five.
Terms of directors, including directors selected to fill vacancies, shall
expire at the next regular meeting of shareholders at which directors are
elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power
or power of final decision in matters concerning the business of this
Association, may be appointed by resolution of a majority of the full board of
directors, or by resolution of shareholders at any annual or special meeting.
Honorary or advisory directors shall not be counted for purposes of determining
the number of directors of this Association or the presence of a quorum in
connection with any board action, and shall not be required to own qualifying
shares.
FOURTH. There shall be an annual meeting of shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the board of directors
may designate, on the day of each year specified therefore in the bylaws, or if
that day falls on a legal holiday in the State in which this Association is
located, on the next following banking day. If no election is held on the day
fixed, or in event of a legal holiday, an election may be held on any subsequent
day within sixty days of the day fixed, to be designated by the board of
directors,
1
<PAGE>
or, if the directors fail to fix the day, by shareholders representing
two-thirds of the shares issued and outstanding. In all cases at least ten-days
advance notice of the meeting shall be given to the shareholders by first class
mail.
A director may resign at any time by delivering written or oral notice to
the board of directors, its chairperson, or to this Association, which
resignation shall be effective when the notice is delivered unless the notice
specifies a later effective date.
A director may be removed by shareholders at a meeting called to remove him
or her, when notice of the meeting stating that the purpose or one of the
purposes is to remove him or her is provided, if there is a failure to fulfill
one of the affirmative requirements for qualification, or for cause; PROVIDED,
HOWEVER, that a director may not be removed if the number of votes sufficient to
elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
10,000 shares of common stock of the par value of one-hundred dollars ($100.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of this Association
shall have any preemptive or preferential right of subscription to any shares of
any class of stock of this Association, whether now or hereafter authorized, or
to any obligations convertible into stock of this Association, issued, or sold,
nor any right of subscription to any thereof other than such, if any, as the
board of directors, in its discretion may from time to time determine and at
such price as the board of directors may from time to time fix.
Unless otherwise specified in these Articles of Association or required by
law, (1) all matters requiring shareholder action, including amendments to the
articles of Association must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise provided in the bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than seventy
days before the meeting.
SIXTH. The board of directors shall appoint one of its members president of
this Association and one of its members chairperson of the board. The board of
directors shall also have the power to appoint one or more vice presidents, a
secretary who shall keep minutes of the directors' and shareholders' meetings
and be responsible for authenticating the records of this Association, and such
other officers and employees as may be required to transact the business of this
Association. A duly appointed officer may appoint one or more officers or
assistant officers if authorized by the board of directors in accordance with
the bylaws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of this
Association.
(2) Delegate the performance of its duties, but not the responsibility
for its duties, to the officers, employees, and agents of this Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions, consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by this Association's management
or committees of the board.
2
<PAGE>
(7) Regulate the manner in which any increase or decrease of the capital
of this Association shall be made; PROVIDED, HOWEVER, that nothing herein
shall restrict the power of shareholders to increase or decrease the capital
of this Association in accordance with law, and nothing shall raise or lower
from two-thirds the percentage required for shareholder approval to increase
or reduce the capital.
(8) Manage and administer the business and affairs of this Association.
(9) Adopt bylaws, not inconsistent with law or these Articles of
Association, for managing the business and regulating the affairs of this
Association.
(10) Amend or repeal bylaws, except to the extent that the articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally to perform all acts that are legal for a board of
directors to perform.
SEVENTH. The board of directors shall have the power to change the location
of the main office to any other place within the limits of the City of Chicago
without the approval of the shareholders, and shall have the power to establish
or change the location of any branch or branches of this Association to any
other location permitted under applicable law, without the approval of the
shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until
terminated according to the laws of the United States.
NINTH. The board of directors of this Association, or any three (3) or more
shareholders owning, in the aggregate, not less than twenty-five percent (25%)
of the stock of this Association, may call a special meeting of shareholders at
any time. Unless otherwise provided by the bylaws or the laws of the United
States, or waived by shareholders, a notice of the time, place, and purpose of
every annual and special meeting of the shareholders shall be given by
first-class mail, postage prepaid, mailed at least ten, and no more than sixty,
days prior to the date of the meeting to each shareholder of record at his/her
address as shown upon the books of this Association. Unless otherwise provided
by these Articles of Association or the bylaws, any action requiring approval of
shareholders must be effected at a duly called annual or special meeting.
TENTH. Any action required to be taken at a meeting of the shareholders or
directors or any action that may be taken at a meeting of the shareholders or
directors may be taken without a meeting if consent in writing, setting forth
the action as taken shall be signed by all the shareholders or directors
entitled to vote with respect to the matter thereof. Such action shall be
effective on the date on which the last signature is placed on the writing, or
such earlier data as is set forth therein.
ELEVENTH. Meetings of the board of directors or shareholders, regular or
special, may be held by means of conference telephone or similar communication
equipment by means of which all persons participating in the meeting can
simultaneously hear each other, and participation in such meeting by such
aforementioned means shall constitute presence in person at such meeting.
TWELFTH. (a) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than any action
by or in the right of the Association) by reason of the fact that he is or was a
director, officer, employee or agent of the Association, or is or was serving at
the request of the Association as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified by the Association, unless similar indemnification is
provided by such other corporation, partnership, joint venture, trust or other
enterprise (any funds
3
<PAGE>
received by any person as a result of the provisions of this Article being
deemed an advance against his receipt of any such other indemnification from any
such other corporation, partnership, joint venture, trust or other enterprise),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interest of the Association, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person seeking indemnification did not act
in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Association, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) Any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
Association to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the Association, or
is or was serving at the request of the Association as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other corporation, partnership, joint venture, trust or other enterprise shall
be indemnified by the Association, unless similar indemnification is provided by
such other corporation, partnership, joint venture, trust or other enterprise
(any funds received by any person as a result of the provisions of this Article
being deemed an advance against his receipt of any such other indemnification
from any such other corporation, partnership, joint venture, trust or other
enterprise), against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Association and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Association
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Association has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b), or in defense
of any claim, issue or matter therein, such person shall be indemnified by the
Association against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
(d) Except as set forth in paragraph (c) of this Article, any
indemnification under paragraphs (a) and (b) of this Article (unless ordered by
the court), shall be made by the Association only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in paragraphs (a) and (b) of this
Article. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the Association in advance of the final disposition
of such action, suit or proceeding upon receipt of any undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Association. Such
expenses (including attorneys' fees) incurred by other
4
<PAGE>
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or seeking advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office.
(g) By action of the Board of Directors, notwithstanding any interest of the
directors in the action, the Association may purchase and maintain insurance, in
such amounts as the Board of Directors deems appropriate, on behalf of any
person who is or was a director, officer, employee or agent of the Association,
or is or was serving at the request of the Association as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Association shall have the power to indemnify him against such liability under
the provisions of this Article.
(h) For purpose of this Article, references to "the Association" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so that any
person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this Article with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Association" shall include any
service as a director, officer, employee or agent of the Association which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Association" as referred to in this
Article.
(j) The indemnification and advancement of expenses hereby provided shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such person.
THIRTEENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law, and in that case by the vote of the
holders of such greater amount. This Association's board of directors may
propose one or more amendments to these Articles of Association for submission
to the shareholders.
IN WITNESS WHEREOF, we have hereunto set our hands as of the 10th day of
December, 1996, effective as of the acceptance thereof by the Comptroller of the
Currency.
5
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
ASSETS
<TABLE>
<CAPTION>
(LESS
RCON C200 THAN)
----------- --------- ----------
DOLLAR AMOUNTS IN
THOUSANDS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1)...................... 0081 75,779 1.a
b. Interest-bearing balances(2)............................................... 0071 0 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-8, column A)................. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-8, column D)............... 1773 3,231 2.b
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold......................................................... 0276 0 3.a
b. Securities purchased under agreements to resell............................ 0277 0 3.b
4. Loans and Lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C).............. 2122 0 4.a
b. LESS: Allowance for loan and lease losses.................................. 3123 0 4.b
c. LESS: Allocated transfer risk reserve...................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowances, and reserve (item 4.a
minus 4.b and 4.c)......................................................... 2125 0 4.d
5. Trading assets................................................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases)...................... 2145 112 6.
7. Other real estate owned (from Schedule RC-M).................................. 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M)................................................................ 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding.................. 2155 0 9.
10. Intangible assets (from Schedule RC-M)........................................ 2143 26,407 10.
11. Other assets (from Schedule RC-F)............................................. 2160 2,692 11.
12. Total assets (sum of items 1 through 11)...................................... 2170 108,221 12.
</TABLE>
- ------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
FIRST TRUST OF ILLINOIS, N.A.*
400 NORTH MICHIGAN AVENUE
CHICAGO, IL 60611
*Please note. As of midnight, December 31, 1996
First Trust of Illinois, N.A., changed its name to First Trust National
Association.
<PAGE>
<TABLE>
<CAPTION>
(LESS
RCON C200 THAN)
----------- --------- ----------
DOLLAR AMOUNTS IN
THOUSANDS
<S> <C> <C> <C>
LIABILITIES
13. Deposits
a. In domestic offices (sum of totals of columns A and C from Schedule
RC-E)...................................................................... 2200 0 13.a
(1) Noninterest-bearing(1)................................................... 6631 0 13.a.1
(2) Interest-bearing......................................................... 6636 0 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs..............
(1) Noninterest-bearing......................................................
(2) Interest-bearing.........................................................
14. Federal funds purchased and securities sold under agreements to repurchase:
a. Federal funds purchased.................................................... 0278 0 14.a
b. Securities sold under agreements to repurchase............................. 0279 0 14.b
15. a. Demand notes issued to the U.S. Treasury.................................. 2840 0 15.a
b. Trading liabilities........................................................ 3548 0 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less.............................. 2332 0 16.a
b. With a remaining maturity of more than one year............................ 2333 0 16.b
17. Mortgage indebtedness and obligations under capitalized leases................ 2910 0 17.
18. Bank's liability on acceptances executed and outstanding...................... 2920 0 18.
19. Subordinated notes and debentures............................................. 3200 0 19.
20. Other liabilities (from Schedule RC-G)........................................ 2930 1,730 20.
21. Total liabilities (sum of items 13 through 20)................................ 2948 1,730 21.
22. Limited-life preferred stock and related surplus.............................. 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................. 3838 0 23.
24. Common stock.................................................................. 3230 1,000 24.
25. Surplus (exclude all surplus related to preferred stock)...................... 3839 106,712 25.
26. a. Undivided profits and capital reserves.................................... 3632 (1,221) 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities..... 8434 0 26.b
27. Cumulative foreign currency translation adjustments...........................
28. Total equity capital (sum of items 23 through 27)............................. 3210 106,491 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of
items 21, 22, and 28)......................................................... 3300 108,221 29.
MEMORANDUM
To be reported only with the March Report of Condition.
Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1995.................... 6724 N/A M.1
</TABLE>
/ / Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
/ / Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
/ / Director's examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
<PAGE>
/ / Director's examination of the bank performed by other external auditors
(may be required by state chartering authority)
/ / Review of the bank's financial statements by external auditors
/ / Compilation of the bank's financial statements by external auditors
/ / Other audit procedures (excluding tax preparation work)
/ / No external audit work
- ------------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
