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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 9, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WHITMAN CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 13-6167838
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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3501 ALGONQUIN ROAD
ROLLING MEADOWS, ILLINOIS 60008
(847) 818-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
STEVEN R. ANDREWS
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
WHITMAN CORPORATION
3501 ALGONQUIN ROAD
ROLLING MEADOWS, ILLINOIS 60008
(847) 818-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
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RICHARD E. ROBBINS H. KURT VON MOLTKE
SIDLEY & AUSTIN KIRKLAND & ELLIS
BANK ONE PLAZA, 10 SOUTH DEARBORN STREET 200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60603 CHICAGO, ILLINOIS 60601
(312) 853-7000 (312) 861-2000
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Approximate date of commencement of proposed sale to the public: At various
times after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) UNIT(2) PRICE(2) REGISTRATION FEE
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Debt Securities......... $750,000,000 100% $750,000,000 $198,000
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(1) Plus an additional principal amount of Debt Securities issued with an
original issue discount such that the aggregate initial public offering
price of all Debt Securities will not exceed $750,000,000 (the initial
public offering price of any Debt Securities issued for any foreign currency
or currency units shall be the U.S. dollar equivalent thereof).
(2) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED MAY 9, 2000
PROSPECTUS
$750,000,000
WHITMAN CORPORATION
DEBT SECURITIES
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The amount of the debt securities we intend to issue under this prospectus
will not exceed a total of U.S. $750,000,000 or the equivalent amount if
denominated in foreign currencies.
We will provide the specific terms of the particular debt securities issued
under this prospectus in a prospectus supplement for each security. You should
read this prospectus and any supplement carefully before investing.
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THIS PROSPECTUS MAY BE USED TO OFFER AND SELL DEBT SECURITIES ONLY IF
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT FOR THOSE DEBT SECURITIES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THE DEBT SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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, 2000
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TABLE OF CONTENTS
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PAGE
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About this Prospectus....................................... 2
Whitman Corporation......................................... 2
Where You Can Find More Information......................... 3
Ratio of Earnings to Fixed Charges.......................... 4
Use of Proceeds............................................. 4
Description of the Debt Securities.......................... 5
Plan of Distribution........................................ 11
Legal Matters............................................... 11
Experts..................................................... 11
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ABOUT THIS PROSPECTUS
In this prospectus, Whitman Corporation may be referred to as "Whitman",
"our", "we" or "us". This prospectus is part of a registration statement that we
filed with the SEC utilizing a "shelf" registration process. Under this shelf
process, we may sell any combination of the debt securities described in this
prospectus in one or more offerings up to a total dollar amount of $750,000,000.
This prospectus provides you with a general description of the debt securities
we may offer. Each time we sell debt securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should carefully read both this prospectus and
any prospectus supplement together with additional information described under
the heading "Where You Can Find More Information."
We are not making an offer of the debt securities in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of each of those documents.
WHITMAN CORPORATION
GENERAL
We manufacture, package, sell and distribute carbonated and non-carbonated
Pepsi-Cola beverages and a variety of other non-alcoholic beverages in the
United States and Central Europe through our principal operating company, Pepsi
General Bottlers, Inc. ("Pepsi General").
In 1999, we entered into a new business relationship with PepsiCo, Inc.
pursuant to which Pepsi General sold its franchises in Marion, Virginia,
Princeton, West Virginia and the St. Petersburg area of Russia to PepsiCo and
Pepsi General acquired from PepsiCo its domestic franchises in Cleveland, Ohio,
Dayton, Ohio, Indianapolis, Indiana, St. Louis, Missouri and southern Indiana,
and international franchises in Hungary, the Czech Republic, the Republic of
Slovakia and Poland. The new business relationship has resulted in PepsiCo
holding approximately 39 percent of our common stock.
We account for about 17 percent of all Pepsi-Cola products sold in the
United States. We serve a significant portion of a ten state region, primarily
in the Midwest, with a population of approximately 35 million people. In
addition, we serve a population of approximately 65 million people in our
territories in Poland, Hungary, the Czech Republic and the Republic of Slovakia.
We sell a variety of brands that we bottle under licenses from PepsiCo or
PepsiCo joint ventures. These brands include Pepsi-Cola, Diet Pepsi, Mountain
Dew, Lipton Brisk, Lipton Iced Tea, Pepsi Max, Pepsi One, Slice, Mug, Aquafina,
Starbucks Frappucino and Mirinda. We also sell 7Up outside of the United States.
In some territories, we manufacture, package, sell and distribute products under
brands we license from
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companies other than PepsiCo, including Dr. Pepper, 7Up and Hawaiian Punch in
the United States and Schweppes Tonic, Orange, Lemon and Ginger Ale products in
Central Europe.
While we manage all phases of our operations, including pricing of our
products, we exchange production, marketing and distribution information with
PepsiCo benefiting both companies' respective efforts to lower costs, improve
productivity and increase product sales.
The owners of beverage brands either manufacture and sell products
themselves or appoint bottlers to sell, distribute and, in some cases,
manufacture these products under license. Brand owners, such as PepsiCo,
generally own both the beverage trademarks and the secret formulas for the
concentrates, which they also manufacture and sell to their licensed bottlers.
Brand owners also develop new products and packaging for use by their bottlers.
Brand owners develop national marketing, promotion and advertising programs to
support their brands and brand image, and coordinate selling efforts with
respect to national fountain, supermarket and mass merchandising accounts. They
also provide local marketing support to their bottlers.
Bottlers such as us are generally responsible for manufacturing, packaging,
selling and distributing products under the brand names they license from brand
owners in their exclusive territories. For carbonated soft drink products, the
bottler combines soft drink concentrate with sweeteners and carbonated water and
packages this mixture in bottles or cans. Bottlers may also have licenses to
manufacture syrup for sale to fountain accounts. Under these licenses, bottlers
combine soft drink concentrate with sweeteners to manufacture syrup for delivery
to fountain customers. For non-carbonated beverages, the bottler either
manufactures and packages the beverages or purchases the beverages in finished
form and sells them through its distribution system.
The primary distribution channels for the retail sale of carbonated soft
drink products are supermarkets, mass merchandisers, vending machines,
convenience stores, gas stations, fountain channels, such as restaurants or
cafeterias, and other channels, such as small groceries, drug stores and
educational institutions. The largest channel in the United States is
supermarkets, but our fastest growing channels have been mass merchandisers, the
cold drink channel, which includes sales through vending machines, coolers and
fountain equipment and convenience stores and gas stations.
Depending upon the size of the bottler and the particular market, a bottler
delivers products through these channels using either a direct-to-store delivery
system or a warehouse distribution system. In its exclusive territories, each
bottler is responsible for selling products and providing timely service to its
existing customers and identifying and obtaining new customers. Bottlers are
also responsible for local advertising and marketing, as well as the execution
in their territories of national and regional selling programs instituted by
brand owners. The bottling business is capital intensive. Manufacturing
operations require specialized high-speed equipment, and distribution requires
extensive placement of fountain equipment and cold drink vending machines and
coolers, as well as investment in trucks and warehouse facilities.
We previously engaged in the refrigeration systems and equipment business
conducted through Hussmann International, Inc. and in the automotive services
business through Midas, Inc. On January 30, 1998, we distributed to our
shareholders all of the common stock of Hussmann and Midas in tax-free spin-
offs.
Our principal executive offices are located at 3501 Algonquin Road, Rolling
Meadows, Illinois 60008, and our telephone number is (847) 818-5000.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information with
the SEC. You may read and copy any document we file at the SEC's public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the public
reference room. Our SEC filings are also available to the public over the
Internet at the SEC's web site at http://www.sec.gov.
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The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference into this prospectus the following documents which we filed or may
file with the SEC (SEC file number 001-15019):
- Annual Report on Form 10-K for our fiscal year ended January 1, 2000; and
- any future filings that we make under Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 until we or any underwriters sell
all of the debt securities.
You may request a copy of these filings at no cost by writing or calling
our Corporate Communications Department at the following address or telephone
number: Whitman Corporation, 3501 Algonquin Road, Rolling Meadows, Illinois
60008, telephone: (847) 818-5000.
You should only rely on the information incorporated by reference or
provided in this prospectus and any prospectus supplement. We have not
authorized anyone else to provide you with additional or different information.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the periods indicated.
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FISCAL YEARS
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1999(1) 1998(2) 1997(2)(3) 1996(2) 1995(2)
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Ratio of earnings to fixed charges................... 2.0x 4.0x 1.9x 2.7x 2.5x
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"Earnings" consist of income from continuing operations before taxes and
minority interest and fixed charges. "Fixed charges" consist of interest
expense, the preferred stock dividend requirement of a majority owned subsidiary
and an estimated amount of rental expense that is deemed to be representative of
the interest factor.
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1 We recorded special charges of $27.9 million during 1999, as well as a $56.3
million pretax charge to reduce the book value of non-operating real estate.
In addition, we recorded a $13.3 million pretax gain on the sale of operations
in Marion, Virginia, Princeton, West Virginia and the St. Petersburg area of
Russia. Excluding these charges and credits, the ratio of earnings to fixed
charges for 1999 would have been 2.9x.
2 Intercompany interest income from Hussmann and Midas was $1.6 million, $23.1
million, $23.7 million and $21.8 million in 1998, 1997, 1996 and 1995,
respectively. If the fixed charges had been reduced by this intercompany
interest income, the ratio of earnings to fixed charges for 1998, 1997, 1996
and 1995 would have been 4.1x, 2.3x, 3.5x and 3.2x, respectively.
3 We also recorded special charges of $49.3 million during 1997. Excluding these
special charges, the 1997 ratio of earnings to fixed charges would have been
2.6x. Additionally, if the fixed charges for 1997 were adjusted for the
intercompany interest income noted above, the ratio of earnings to fixed
charges would have been 3.3x.
USE OF PROCEEDS
We will use the net proceeds from the sale of the debt securities for
general corporate purposes, including the repayment of existing indebtedness.
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DESCRIPTION OF THE DEBT SECURITIES
We will issue the debt securities under an Indenture dated as of January
15, 1993, as supplemented as of May 20, 1999, between us and Bank One Trust
Company, National Association, as trustee. We have summarized selected
provisions of the Indenture below. The summary set forth below is not complete.
It does not describe certain exceptions and qualifications contained in the
Indenture or the debt securities. If you would like more information on the
provisions of the Indenture, you should review the Indenture, which we have
incorporated by reference as an exhibit to the registration statement relating
to the debt securities.
References to article and section numbers of the Indenture are included in
the summary so that you can easily locate the provisions being summarized.
GENERAL
The debt securities will be unsecured, senior debt and will rank equally
with all of our other unsecured and unsubordinated indebtedness. The Indenture
does not limit the amount of the debt securities that we may issue and permits
us to issue debt securities in one or more series. Each series of debt
securities may have different terms. The terms of any series will be determined
in accordance with a resolution of our board of directors or in a supplement to
the Indenture relating to that series.
A supplement to this prospectus will describe specific terms relating to
the series of debt securities being offered. (Section 2.01) These terms will
include some or all of the following:
- the title of the series of debt securities;
- the total principal amount;
- the interest rate or rates, if any (which may be fixed or variable), and
interest payment dates;
- the date or dates of maturity;
- whether the series can be redeemed by us or the holder;
- whether there will be a sinking fund;
- the portion of the series of debt securities due upon acceleration of
maturity in the event of a default;
- the denominations in which the debt securities will be issuable if other
than denominations of $1,000 if registered and $5,000 if unregistered;
- the form used to evidence ownership of the debt securities;
- whether the debt securities are convertible;
- the manner of payment of principal and interest;
- additional offices or agencies for registration of transfer and exchange
and for payment of the principal, premium, if any, and interest;
- whether the debt securities will be registered or unregistered, and the
circumstances, if any, upon which the debt securities may be exchanged
for debt securities issued in a different form;
- if denominated in a currency other than United States dollars, the
currency or composite currency in which the debt securities are to be
denominated, or in which payments of the principal, premium, if any, and
interest will be made and the circumstances, if any, when the currency of
payment may be changed;
- if we or a holder have the right to elect that the payments of the
principal, premium, if any, or interest are to be made in a currency or
composite currency other than that in which the debt securities are
denominated or stated to be payable, the terms and conditions upon which
that election may be made and how the exchange rate between the currency
or composite currency in which those debt securities
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are denominated or stated to be payable and the currency in which the
debt securities are elected to be paid pursuant to that election will be
determined;
- if the payments of principal, premium, if any, or interest may be
determined with reference to one or more securities issued by us or
another company, any currency or other index, how those amounts shall be
determined;
- whether defeasance and discharge provisions will apply; and
- any other terms consistent with the Indenture.
Each series of debt securities will be a new issue with no established
trading market. There can be no assurance that there will be a liquid trading
market for the debt securities. We may purchase debt securities at any time in
the open market or otherwise. Debt securities we purchase may, in our
discretion, be held, resold, canceled or used to satisfy any sinking fund or
redemption requirements.
Debt securities bearing no interest or interest at a rate which, at the
time of issuance, is below the prevailing market rate will be sold at a
substantial discount below their stated principal amount. Special United States
federal income tax considerations applicable to any of these discounted debt
securities (or to certain other debt securities issued at par which are treated
as having been issued at a discount for United States federal income tax
purposes) will be described in a prospectus supplement.
The debt securities may be denominated in United States dollars, or in any
other currency or currency unit. If any of the debt securities are sold for any
foreign currency or currency unit or if principal, premium, if any, and interest
on any of the debt securities are payable in any foreign currency or currency
unit, the restrictions, elections, tax consequences, specific terms and other
information with respect to that issue of debt securities and that foreign
currency or currency unit will be set forth in the prospectus supplement
relating to those debt securities.
FORM AND EXCHANGE OF THE DEBT SECURITIES
All of the debt securities will be issued in fully registered form without
coupons or in unregistered form with or without coupons. The debt securities may
also be issued in the form of one or more temporary or definitive global
securities. Registered debt securities which are book-entry securities will be
issued as registered global securities. A debt security in global form will be
deposited with, or on behalf of, a depository, which will be named in the
applicable prospectus supplement. A global debt security may not be transferred,
except as a whole, among the depository for that debt security and its nominees
or successors. If any debt securities of a series are issuable as global
securities, the applicable prospectus supplement will describe any circumstances
when beneficial owners of any of those global securities may exchange their
interests for definitive debt securities of that series of like tenor and
principal amount in any authorized form and denomination, the manner of payment
of principal and interest on those global debt securities and the specific terms
of the depository arrangement with respect to those global debt securities.
Unless otherwise indicated in a prospectus supplement, principal, premium,
if any, and interest will be payable, and the debt securities may be registered
for transfer or exchange, at the principal corporate trust office of the trustee
in Chicago, Illinois, provided that at our option, payment of interest on
registered debt securities may be made by check or by wire transfer. (Sections
4.01 and 4.02) No service charge will be made for any exchange or registration
of transfer of the debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge. (Section 2.06)
CERTAIN RESTRICTIONS ON WHITMAN
The restrictions summarized in this section will apply to all debt
securities unless a prospectus supplement indicates otherwise. The following
description is not complete. The full text of these restrictions is included in
the Indenture. Certain terms used in the following description of these
restrictions are defined under the caption "Certain Definitions" at the end of
this section.
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Limitations on Liens. The debt securities will not be secured. If we or one
of our Restricted Subsidiaries incur debt secured by a mortgage, security
interest, lien, pledge or other encumbrance on a Principal Property, or on any
shares of capital stock or indebtedness of any Restricted Subsidiary (whether
that Principal Property, shares of stock or indebtedness are now owned or
hereafter acquired), we are required to secure the then outstanding debt
securities equally and ratably with (or prior to) our secured debt. (Section
4.07)
The Indenture permits us and our Restricted Subsidiaries to create certain
liens without securing the debt securities. (Section 4.05) Among the permitted
liens are:
- liens affecting property of a corporation existing at the time it becomes
a Subsidiary or at the time it is merged into or consolidated with or
purchased by us or a Subsidiary;
- liens existing at the time of acquisition of the affected property or
purchase money liens incurred within 180 days after acquisition of the
property;
- liens to secure the cost of construction of new plants or facilities,
incurred within 180 days of completion of construction;
- liens which secure indebtedness owing by a Restricted Subsidiary to us or
another Restricted Subsidiary;
- liens existing on January 15, 1993;
- liens in connection with the issuance of certain pollution control or
industrial revenue bonds or similar financings;
- certain statutory liens or similar liens arising in the ordinary course
of business;
- certain liens in connection with legal proceedings and government
contracts and certain deposits or liens made to comply with workers'
compensation or similar legislation;
- liens existing on property acquired by us or a Restricted Subsidiary
through the exercise of rights arising out of defaults on receivables
acquired in the ordinary course of business;
- liens for certain judgments and awards;
- liens for certain taxes, assessments, governmental charges or other liens
of a similar nature, which do not materially impair the use of the
property in the operation of our or any of our Restricted Subsidiaries'
business or the value of the property for the purposes of that business;
and
- certain extensions, renewals or replacements of any liens referred to
above.
Limitations on Sale and Lease-Back Transactions. We and our Restricted
Subsidiaries may not sell or transfer any Principal Property with the intention
of entering into a lease of the facility (except for temporary leases of a term,
including renewals, not exceeding five years) unless either:
- we or the Restricted Subsidiary would be entitled (under Section 4.05) to
incur debt secured by a lien on the property to be leased without equally
and ratably securing the debt securities, or
- within 180 days after the effective date of the transaction, we apply to
the voluntary retirement of our funded debt an amount equal to the
greater of (1) the net proceeds of the sale of the property leased in the
transaction or (2) the fair value, in the opinion of our board of
directors, of the leased property at the time of the transaction.
(Section 4.06)
Exempted Indebtedness. Notwithstanding the limitations on liens and sale
and lease-back transactions we described above, we and our Restricted
Subsidiaries may issue, assume, or guarantee indebtedness secured by a lien or
other encumbrance without securing the debt securities, or may enter into sale
and lease-back transactions without retiring funded debt, or enter into a
combination of those transactions, if the sum of the principal amount of all the
indebtedness and the aggregate value of all those sale and lease-back
transactions
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does not at any such time exceed 10% of our consolidated total assets as shown
in the audited consolidated balance sheet contained in our latest annual report
to our shareholders. (Section 4.07)
Merger, Consolidation and Sale of Assets. We may not consolidate or merge
with or into any other corporation, or sell, lease or transfer all or
substantially all of our assets to any other entity, unless:
- we survive the merger or consolidation or the surviving or successor
corporation is a United States corporation which assumes all of our
obligations under the debt securities and under the Indenture, and
- after giving effect to the merger, consolidation, sale, lease or
transfer, no Event of Default (as described below) under the Indenture or
no event which, after notice or lapse of time or both, would become an
Event of Default shall have occurred and be continuing. (Section 11.01)
If we sell or transfer substantially all our assets and the purchaser
assumes our obligations under the Indenture, we will be discharged from all
obligations under the Indenture and the debt securities. (Section 11.02)
Unless otherwise described in a prospectus supplement, there are no
covenants or provisions contained in the Indenture which may protect you in the
event of a highly leveraged transaction involving us. Accordingly, we could in
the future enter into transactions that could increase the amount of debt
outstanding at that time or otherwise affect our capital structure or credit
rating.
Certain Definitions. The terms set forth below are defined in the Indenture
as follows:
"Consolidated Net Worth" means the excess of our consolidated assets over
liabilities, plus any shares of stock of any class of a Subsidiary (other than
directors' qualifying shares) that are not owned by us or one of our
Subsidiaries, as determined from time to time in accordance with generally
accepted accounting principles consistently applied. (Section 6.01)
"Government Obligations" with respect to any series of debt securities
means direct noncallable obligations of the government which issued the currency
in which the debt securities of that series are denominated or noncallable
obligations the payment of the principal of and interest on which is fully
guaranteed by the government and which, in either case, are full faith and
credit obligations of the government. (Article One)
"Principal Property" means any manufacturing plant or warehouse owned or
leased by us or one of our Subsidiaries located within the United States, the
gross book value of which exceeds one percent of Consolidated Net Worth, other
than manufacturing plants and warehouses which, in the opinion of our board of
directors, is not of material importance to the business conducted by us and our
Restricted Subsidiaries, taken as a whole. (Article One)
"Restricted Subsidiary" means any of our Subsidiaries which (1) owns or
leases a Principal Property and (2) is incorporated under the laws of any state
in the United States or has substantially all of its property located within the
United States or carries on substantially all of its business within the United
States. (Article One)
"Subsidiary" means any corporation of which we, one or more of our
subsidiaries or we and one or more of our subsidiaries, directly or indirectly
owns or controls at a given time more than 50% of the outstanding capital stock
of that corporation having under ordinary circumstances voting power to elect a
majority of the board of directors of the corporation (whether or not any other
class of securities has or may have voting power by reason of the occurrence of
a contingency). (Article One)
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SATISFACTION AND DISCHARGE OF THE INDENTURE
If provision is made pursuant to the Indenture for the defeasance of a
series of debt securities, we, at our option (unless otherwise provided in a
prospectus supplement), with regard to that series of debt securities:
(1) will be discharged from any and all obligations in respect of the
debt securities of that series (except for certain obligations to register
the transfer or exchange of debt securities of that series, to replace
stolen, lost, destroyed or mutilated debt securities of that series, to
maintain paying agencies and to hold monies for payment in trust); or
(2) may omit to comply with the provisions of the Indenture described
above under the captions "Limitations on Liens," "Limitations on Sale and
Lease-Back Transactions," "Exempted Indebtedness" and "Merger,
Consolidation and Sale of Assets,"
if we deposit with the trustee, in trust, money or Government Obligations which
will provide sufficient funds to pay the principal of (and premium, if any) and
interest on the debt securities of that series on the dates those payments are
due.
To exercise either of the above options, we must deliver to the trustee an
opinion of counsel of recognized national standing to the effect that holders of
the debt securities of that series will not recognize income, gain or loss for
federal income tax purposes as a result of that deposit, satisfaction and
discharge, or defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have been the case
if the deposit, defeasance and discharge had not occurred. (Sections 12.02(a)
and (b)) Even if we successfully exercise the option described above in clause
(2), however, our obligations under the Indenture and the debt securities of
that series (other than the covenants referred to in clause (2) and the Events
of Default (as described below) not related to those covenants) will continue.
(Section 12.01)
If we choose to exercise our option not to comply with the provisions of
the Indenture described above under the captions "Limitations on Liens,"
"Limitations on Sale and Lease-Back Transactions," "Exempted Indebtedness" and
"Merger, Consolidation and Sale of Assets" with respect to any series of debt
securities and the series is declared due and payable because of the occurrence
of an Event of Default other than a default under these provisions of the
Indenture, then the amount of money and Government Obligations on deposit with
the trustee will be sufficient to pay amounts payable on the series of debt
securities on the due date without acceleration but may not be sufficient to pay
amounts due at the time of the acceleration resulting from such Event of
Default. However, we would remain liable for such payments.
EVENTS OF DEFAULT
"Event of Default" means, with respect to any series of debt securities,
any of the following (Section 6.01):
- failure to pay interest that continues for a period of 30 days after
payment is due;
- failure to make any principal or premium payment when due;
- failure to comply with any of our other agreements contained in the
Indenture or in the debt securities for 90 days after the trustee
notifies us of the failure (or the holders of at least 25% of the
outstanding debt securities affected by the failure notify us and the
trustee);
- certain events of bankruptcy, insolvency or reorganization of us; or
- acceleration of any indebtedness for money borrowed by us or any of our
Restricted Subsidiaries in excess of the greater of $30,000,000 in
principal amount or 5% of Consolidated Net Worth.
In general, the trustee is required to give notice of a default with
respect to a series of debt securities to the holders of that series. The
trustee may withhold notice of any default (except a default in the payment of
principal of, and premium, if any, or interest on any debt security or in the
making of any sinking fund payment) if the trustee in good faith determines that
it is in the best interest of the holders of that series to
9
<PAGE> 11
do so. (Section 7.02) An Event of Default for a particular series of debt
securities does not necessarily constitute an Event of Default for other series
of debt securities. Additional Events of Default may be prescribed for the
benefit of holders of certain series of debt securities and will be described in
a prospectus supplement.
If there is a continuing Event of Default with respect to any series of
debt securities, then either the trustee or the holders of at least 25% in
aggregate principal amount of that series may require us to immediately repay
the principal and accrued interest (or, if the debt securities of that series
are original issue discount securities, that portion of the principal amount as
may be specified in the terms of that series) on the affected series. Subject to
certain conditions, the requirement to pay with respect to a series of debt
securities may be annulled, and past defaults waived (except a continuing
default in payment of principal of or premium, if any, or interest on the debt
securities), by the holders of a majority in principal amount of the debt
securities of that series then outstanding. (Section 6.02)
The trustee may refuse to enforce the Indenture or the debt securities
unless it first receives satisfactory security or indemnity. (Sections 7.01 and
7.03) Subject to certain limitations specified in the Indenture, the holders of
a majority in principal amount of the then outstanding debt securities of an
affected series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee under the
Indenture or exercising any trust or power conferred on the trustee with respect
to the debt securities of that series. (Section 6.12)
MODIFICATION OF THE INDENTURE
Under the Indenture, subject to certain exceptions, our rights and
obligations and the rights of the holders of a series of debt securities may be
changed with the consent of the holders of not less than a majority in principal
amount of each series of debt securities then outstanding. However, no change to
the terms of payment of principal or interest, to the premium, if any, payable
upon redemption, to the currency in which any debt security is payable, to the
amount to be paid upon acceleration of maturity or reducing the percentage
required for changes to the Indenture, is effective against any holder without
its consent. (Section 10.02)
REPORTS TO THE TRUSTEE
We are required to provide the trustee with an officers' certificate each
fiscal year stating that we reviewed our activities during the preceding fiscal
year and that, after reasonable investigation and inquiry by the certifying
officers, we are in compliance with the requirements of the Indenture and that
no default exists or identifying the known defaults. (Section 4.08)
REGARDING THE TRUSTEE
We maintain ordinary banking relationships and credit facilities with
various banks, including the trustee, Bank One Trust Company, National
Association. Banc One Capital Markets, Inc., an affiliate of the trustee, has
from time to time acted as a selling agent in the distribution of our debt
securities.
10
<PAGE> 12
PLAN OF DISTRIBUTION
We may sell the debt securities through underwriters, dealers or agents, or
directly to other purchasers. The underwriters may also sell the debt securities
directly to other purchasers or through other dealers, who may receive
compensation from the underwriters in the form of discounts, concessions or
commissions.
If underwriters are used in the sale, the debt securities will be sold to
the underwriters for their own account. The underwriters may resell the debt
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the debt securities will be
subject to certain conditions. Any initial public offering price and any
discounts or concessions allowed or repaid to dealers may be changed from time
to time.
We also may designate dealers, acting as our agents, to offer and sell debt
securities upon certain terms and conditions. We may also sell debt securities
directly to purchasers, without the use of underwriters, dealers or agents.
Underwriters, dealers and agents that participate in the distribution of
the debt securities may be underwriters as defined in the Securities Act of
1933, and any discounts or commissions received by them from us and any profit
on the resale of the offered debt securities may be treated as underwriting
discounts and commissions under the Securities Act. We will identify any
underwriters or agents and describe their compensation from us in a supplement
to this prospectus.
We cannot guarantee that the debt securities will be listed on a national
securities exchange or that, if listed, the listing will continue until the
maturity of the debt securities. Also, certain broker-dealers may make a market
in the debt securities, but they will not be obligated to do so and may
discontinue any market making at any time and without any notice to you.
Further, we cannot assure you that any broker-dealer will make a market in the
debt securities or that any market for the debt securities will be reasonably
liquid or broad. If we know that the debt securities will be listed on an
exchange or that a broker-dealer will make a market in the debt securities, we
will include that information in the prospectus supplement.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act. We also may have agreements to contribute to payments that
the underwriters, dealers or agents may be required to make. Underwriters,
dealers and agents may engage in transactions with, or perform services for, us
or our subsidiaries in the ordinary course of business.
LEGAL MATTERS
Unless otherwise indicated in a prospectus supplement, the validity of the
offered debt securities will be passed upon for us by Sidley & Austin, Chicago,
Illinois, and certain legal matters relating to the offered debt securities will
be passed upon for any underwriters or agents by Kirkland & Ellis, Chicago,
Illinois.
EXPERTS
The consolidated financial statements of Whitman Corporation and
subsidiaries appearing in our Annual Report on Form 10-K for the year ended
January 1, 2000 have been audited by KPMG LLP, independent certified public
accountants, as set forth in their report included therein. These consolidated
financial statements are incorporated by reference into this prospectus in
reliance upon that report given upon the authority of KPMG LLP as experts in
accounting and auditing.
11
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses of issuance and distribution of
the securities being registered, other than underwriting discounts and
commissions. All of the amounts shown are estimated, except the SEC registration
fee.
<TABLE>
<S> <C>
SEC registration fee...................................... $198,000
Legal fees and expenses................................... 50,000
Printing and engraving expenses........................... 35,000
Fees of accountants....................................... 20,000
Blue sky fees and expenses................................ 25,000
Fees of trustees.......................................... 7,000
Rating agency fees........................................ 355,000
Miscellaneous............................................. 10,000
Total........................................... 700,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware permits
indemnification of directors, officers, employees and agents of corporations
under certain conditions and subject to certain limitations. Article V of the
Company's By-Laws provides for indemnification of any director, officer,
employee or agent of the Company, or any person serving in the same capacity in
any other enterprise at the request of the Company, under certain circumstances.
Article NINTH of the Company's Certificate of Incorporation eliminates the
liability of directors of the Company under certain circumstances for breaches
of fiduciary duty to the Company and its shareholders.
Directors and officers of the Company are insured, at the expense of the
Company, against certain liabilities which might arise out of their employment
and which might not be subject to indemnification under the By-Laws.
II-1
<PAGE> 14
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT DESCRIPTION
------- -------------------
<C> <S>
1.1 -- Form of Underwriting Agreement
1.2 -- Form of Distribution Agreement for Debt Securities
4.1 -- Indenture dated as of January 15, 1993 between Whitman
Corporation and Bank One Trust Company, National
Association (f/k/a The First National Bank of Chicago),
as Trustee (incorporated by reference to Exhibit 4(a) to
Whitman Corporation's Annual Report on Form 10-K for the
year ended December 31, 1992 (File No. 1-4710))
4.2 -- First Supplemental Indenture dated as of May 20, 1999
between Whitman Corporation and Bank One Trust Company,
National Association (f/k/a The First National Bank of
Chicago), as Trustee (incorporated by reference to
Exhibit 4 to Whitman Corporation's Quarterly Report on
Form 10-Q for the quarter ended July 3, 1999 (File No.
1-15019))
5 -- Opinion of Sidley & Austin
12 -- Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to Exhibit 12 to
Whitman Corporation's Annual Report on Form 10-K for the
year ended January 1, 2000 (File No. 1-15019))
23.1 -- Consent of KPMG LLP
23.2 -- Consent of Sidley & Austin (included in Exhibit 5 hereto)
24 -- Power of Attorney (included on the signature pages
hereto)
25 -- Statement of Eligibility and Qualification on Form T-1 of
Bank One Trust Company, National Association under the
Indenture pursuant to which the debt securities
registered hereunder are to be issued
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) 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 (the "Act");
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Act if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 (a)(1)(i) and (a)(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 with or
furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the
II-2
<PAGE> 15
Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) 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 the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, 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 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 whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Rolling Meadows, State of
Illinois, on the 4th day of May, 2000.
WHITMAN CORPORATION
By: /s/ MARTIN M. ELLEN
----------------------------------
Martin M. Ellen
Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Steven R. Andrews, and Martin M. Ellen, and each
of them, his or her true and lawful attorney-in-fact and agent with full power
of substitution for him or her and in his or her name, place and stead, in any
and all capacities to sign any and all amendments (including pre-effective and
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, grants unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, and hereby
ratifies and confirms all that said attorneys-in-fact and agents or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 4th day of May, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ BRUCE S. CHELBERG Chairman and Chief Executive Officer
- ----------------------------------------------------- (principal executive officer)
Bruce S. Chelberg
/s/ MARTIN M. ELLEN Senior Vice President and Chief Financial
- ----------------------------------------------------- Officer (principal financial and accounting
Martin M. Ellen officer)
/s/ HERBERT M. BAUM Director
- -----------------------------------------------------
Herbert M. Baum
/s/ RICHARD G. CLINE Director
- -----------------------------------------------------
Richard G. Cline
/s/ PIERRE S. DU PONT Director
- -----------------------------------------------------
Pierre S. du Pont
/s/ ARCHIE R. DYKES Director
- -----------------------------------------------------
Archie R. Dykes
/s/ CHARLES W. GAILLARD Director
- -----------------------------------------------------
Charles W. Gaillard
</TABLE>
II-4
<PAGE> 17
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JAROBIN GILBERT, JR. Director
- -----------------------------------------------------
Jarobin Gilbert, Jr.
/s/ VICTORIA B. JACKSON Director
- -----------------------------------------------------
Victoria B. Jackson
/s/ ROBERT F. SHARPE, JR. Director
- -----------------------------------------------------
Robert F. Sharpe, Jr.
/s/ KARL VON DER HEYDEN Director
- -----------------------------------------------------
Karl von der Heyden
</TABLE>
II-5
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT DESCRIPTION
------- -------------------
<C> <S>
1.1 -- Form of Underwriting Agreement
1.2 -- Form of Distribution Agreement for Debt Securities
4.1 -- Indenture dated as of January 15, 1993 between Whitman
Corporation and Bank One Trust Company, National
Association (f/k/a The First National Bank of Chicago),
as Trustee (incorporated by reference to Exhibit 4(a) to
Whitman Corporation's Annual Report on Form 10-K for the
year ended December 31, 1992 (File No. 1-4710))
4.2 -- First Supplemental Indenture dated as of May 20, 1999
between Whitman Corporation and Bank One Trust Company,
National Association (f/k/a The First National Bank of
Chicago), as Trustee (incorporated by reference to
Exhibit 4 to Whitman Corporation's Quarterly Report on
Form 10-Q for the quarter ended July 3, 1999 (File No.
1-15019))
12 -- Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to Exhibit 12 to
Whitman Corporation's Annual Report on Form 10-K for the
year ended January 1, 2000 (File No. 1-15019))
5 -- Opinion of Sidley & Austin
23.1 -- Consent of KPMG LLP
23.2 -- Consent of Sidley & Austin (included in Exhibit 5 hereto)
24 -- Power of Attorney (included on the signature pages
hereto)
25 -- Statement of Eligibility and Qualification on Form T-1 of
Bank One Trust Company, National Association under the
Indenture pursuant to which the debt securities
registered hereunder are to be issued
</TABLE>
<PAGE> 1
EXHIBIT 1.1
WHITMAN CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
________, 2000
[NAME AND ADDRESS OF UNDERWRITERS]
Ladies and Gentlemen:
1. Introductory. Whitman Corporation, a Delaware corporation
("Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) ("Registered Securities"). The Registered Securities will be issued under
an indenture, dated as of January 15, 1993, as supplemented by the First
Supplemental Indenture dated as of May 20, 1999 (the indenture, as so
supplemented, is hereinafter referred to as the "Indenture"), between the
Company and Bank One Trust Company, National Association, as Trustee, in one or
more series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at the time of
sale. Particular series of the Registered Securities will be sold pursuant to a
Terms Agreement referred to in Section 3, for resale in accordance with terms of
offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities." The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives;" provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives," as used in this Agreement (other than in Sections 2(b), 5(b)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, each Underwriter
that:
(a) A registration statement on Form S-3 (No. 333-_____) (the
"Registration Statement"), including a prospectus contained in the Registration
Statement relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and such registration
statement has become effective. The Registration Statement (as amended) and the
prospectus constituting part of such registration statement (including the
information, if any, deemed
<PAGE> 2
to be part thereof pursuant to Rule 430A(b) under the Securities Act of 1933, as
amended (the "Act")), including all material incorporated therein by reference,
as amended at the time of any Terms Agreement referred to in Section 3, is
hereinafter referred to as the "Registration Statement," and the prospectus
included in such Registration Statement, as supplemented as contemplated by
Section 3 to reflect the terms of the Securities and the terms of offering
thereof, as first filed after the date hereof with the Commission pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") under the Act, including all
material incorporated by reference therein, is hereinafter referred to as the
"Prospectus."
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements of the Act,
the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules and
regulations of the Commission ("Rules and Regulations") and did not include 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.
On the date of each Terms Agreement referred to in Section 3, the Registration
Statement and the Prospectus will conform in all respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations, and neither of
such documents will include 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, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(c) The consolidated historical financial statements, together
with the related notes thereto, set forth or incorporated by reference in the
Prospectus comply as to form in all material respects with the requirements of
Regulation S-X under the Act applicable to registration statements on Form S-3
under the Act. Such historical financial statements fairly present in all
material respects the financial position of the Company at the respective dates
indicated and the results of operations and cash flows of the Company for the
respective periods indicated, in each case in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout such periods. The
other historical financial information and data included in the Prospectus is,
in all material respects, accurately presented and true and correct.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of a
Terms Agreement substantially in the form of Annex I attached hereto ("Terms
Agreement") and a Letter of Acceptance substantially in the form of Annex II
attached hereto at the time the Company determines to sell the Securities. The
Terms Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms which
will be Underwriters, the names of any Representatives, the principal amount to
be purchased by each Underwriter, the purchase price to be paid by the
Underwriters and the terms of the Securities not already specified in the
Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time and
date of delivery and payment (such time and date not later than four full
business days thereafter or
-2-
<PAGE> 3
such other time and date as the Representatives and the Company agree as the
time for payment and delivery, being herein and in the Terms Agreement referred
to as the "Closing Date"), the place of delivery and payment and any details of
the terms of offering that should be reflected in the prospectus supplement
relating to the offering of the Securities. The obligations of the Underwriters
to purchase the Securities will be several and not joint. It is understood that
the Underwriters propose to offer the Securities for sale as set forth in the
Prospectus. The Securities delivered to the Underwriters on the Closing Date
will be in definitive, fully registered form, in such denominations and
registered in such names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex III attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be made only with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount of Securities to be sold pursuant to Delayed
Delivery Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each Underwriter's name in
such Terms Agreement, except to the extent that the Representatives determine
that such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with
the several Underwriters that it will furnish to Kirkland & Ellis, counsel for
the Underwriters, one conformed copy of the Registration Statement, including
all exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Representatives, Rule 424(b)(5)) not later than the second
business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the Prospectus
and will afford the Representatives a reasonable opportunity to comment on any
such proposed amendment or supplement; and the Company will also advise the
Representatives promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best efforts
to prevent
-3-
<PAGE> 4
the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of
the Act, the Company will, as soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of filing with the Commission of the
Company's most recent Annual Report on Form 10-K prior to the date of such Terms
Agreement.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representatives shall reasonably
designate and will continue such qualifications in effect so long as required
for the distribution; 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 so qualified.
(g) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable after
the end of each fiscal year, a copy of its annual report to stockholders for
such year; and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report on Form 10-K or 10-Q or definitive proxy
statement of the Company filed with the Commission under the Securities Exchange
Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse the
Underwriters for any expenses (including
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<PAGE> 5
fees and disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably designate and the printing
of memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses and any preliminary
prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the
Terms Agreement and ending one business day after the Closing Date, the Company
will not, without the prior consent of the Representatives, offer, sell,
contract to sell or otherwise dispose of any publicly sold (including pursuant
to Rule 144A of the Securities Act) United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of more
than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein on the date hereof and at the time of execution of
the Terms Agreement and on the Closing Date, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(b) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or its subsidiaries which, in the judgment of a majority in interest
of the Underwriters, including any Representatives, is so material and adverse
as to make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities or the Registered Securities as contemplated by the
Registration Statement and the Prospectus; (ii) any downgrading in the rating of
any debt securities of the Company by Standard & Poor's Corporation or Moody's
Investors Service, Inc., or any public announcement that either such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices or trading on
such exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgement of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the
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<PAGE> 6
Securities.
(c) The Underwriters shall have received an opinion, dated the
Closing Date, of Sidley & Austin, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing 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 Prospectus;
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under the
Trust Indenture Act; the Securities have been duly authorized; the
Indenture and the Securities other than any Contract Securities
constitute, and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
Securities other than any Contract Securities conform in all material
respects, and any Contract Securities, when so issued and delivered and
sold, will conform, in all material respects, to the description
thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Securities by the Company,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state securities laws
or Blue Sky laws of various jurisdictions;
(iv) Each document filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (other than the
financial statements and the notes thereto, and the supporting
schedules and other financial or statistical data derived therefrom or
included or incorporated by reference therein, as to which no opinion
need be given) complied when filed as to form in all material respects
with the Exchange Act and the Rules and Regulations thereunder;
(v) The Registration Statement has become effective
under the Act, the Prospectus was duly filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such opinion
on the date specified therein, and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or threatened under
the Act, and (A) the Registration Statement, as of its effective
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<PAGE> 7
date, and the Registration Statement and the Prospectus, as of the date
of the Terms Agreement and the applicable Closing Date, and any
amendment or supplement thereto, as of its date (other than in each
case the financial statements and the notes thereto, and the supporting
schedules and other financial or statistical data derived therefrom or
included or incorporated by reference therein, as to which no opinion
need be expressed), complied or comply, as the case may be, as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; (B) nothing came to such
counsels' attention which causes them to believe that the Registration
Statement, as of its effective date, the Registration Statement or the
Prospectus as of the date of the Terms Agreement and the applicable
Closing Date, or any such amendment or supplement thereto, as of its
date (other than in each case the financial statements and the notes
thereto, and the supporting schedules and other financial or
statistical data derived therefrom or included or incorporated by
reference therein, as to which no belief need be expressed), contained
or contains, as the case may be, an untrue statement of a material fact
or omitted or omits, as the case may be, to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the
Terms Agreement and the applicable Closing Date, and any amendment or
supplement thereto, as of its date (other than in each case the
financial statements and the notes thereto, and the supporting
schedules and other financial or statistical data derived therefrom or
included or incorporated by reference therein, as to which no belief
need be expressed), included or includes, as the case may be, an untrue
statement of a material fact or omitted or omits, as the case may be,
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; and (C) the information in the Prospectus under the
captions "Description of the Notes" and "Description of the Debt
Securities" or a comparable section describing the Securities and the
Indenture is accurate in all material respects; and
(vi) This Agreement and any applicable Terms
Agreement and any Delayed Delivery Contracts have each been duly
authorized, executed and delivered by the Company.
(d) The Underwriters shall have received an opinion, dated the
Closing Date, of Steven R. Andrews, General Counsel of the Company, to the
effect that:
(i) The Company is duly qualified to do business as a
foreign corporation in good standing in all jurisdictions in which it
owns or leases substantial properties or in which the conduct of its
business requires such qualification, except where the failure to so
qualify would not, individually or in the aggregate, have a material
adverse effect on the properties, assets, operations, business or
condition (financial or otherwise) of the Company and its subsidiaries
taken as a whole;
(ii) Each "significant subsidiary" (as defined in
Regulation S-X of the Commission) of the Company has been duly
incorporated and is an existing 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 described
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<PAGE> 8
in the Prospectus;
(iii) Each such significant subsidiary of the Company
is in good standing and is duly qualified to do business as a foreign
corporation in all jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification, except where the failure to be in good standing or so
qualify would not, individually or in the aggregate, have a material
adverse effect on the properties, assets, operations, business or
condition (financial or otherwise) of the Company and its subsidiaries
taken as a whole; 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 capital stock is owned
by the Company, directly or through subsidiaries, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity, except as set
forth in Exhibit 21 of the Company's most recent Annual Report on Form
10-K filed with the Commission;
(iv) The execution, delivery and performance of the
Indenture, this Agreement, the Terms Agreement and Letter of Acceptance
and any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties or any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, and the Company has the power and
authority to authorize, issue and sell the Securities as contemplated
by this Agreement and the Terms Agreement;
(v) To the best of such counsel's knowledge and
information, (A) there are no contracts, indentures, mortgages, loan
agreements, notes, deeds of trust, leases or other instruments required
to be described or referred to in the Registration Statement or to be
filed as exhibits thereto, other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and
(B) no default exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, deed of trust, lease or
other instrument which breach would, individually or in the aggregate,
have a material adverse effect on the properties, assets, operations,
business or condition (financial or otherwise) of the Company and its
subsidiaries taken as a whole; and
(vi) Nothing came to such counsel's attention which
causes him to believe that the Registration Statement, as of its
effective date, the Registration Statement as of the date of the Terms
Agreement and the applicable Closing Date, or any such amendment or
supplement, as of its date, contained or contains an untrue statement
of a material fact or omits 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, as of the date of the
Terms
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<PAGE> 9
Agreement and the applicable Closing Date, and any amendment or
supplement thereto, as of its date, included or includes an untrue
statement of a material fact or omitted 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; the
descriptions in the Registration Statement and Prospectus of statutes,
legal and governmental proceedings and contracts and other documents
constitute an accurate summary of such statutes, proceedings, contracts
and other documents in all material respects; it being understood that
such counsel need express no opinion as to the financial statements and
the notes thereto, or the supporting schedules and other financial or
statistical data derived therefrom contained in the Registration
Statement or the Prospectus or incorporated by reference therein.
(e) The Underwriters shall have received from Kirkland &
Ellis, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Securities, the Registration
Statement, the Prospectus and other related matters as they may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received a certificate, dated
the Closing Date, of the Chairman and Chief Executive Officer or any Vice
President and the principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct, that the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission and that, subsequent to the date of the
most recent financial statements of the Company in or incorporated by reference
in the Prospectus, there has been no material adverse change in the financial
position or results of operation of the Company and its subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(g) The Underwriters shall have received a letter or letters,
dated the Closing Date, of KPMG LLP, confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and
schedules audited by them and included or incorporated by reference in
the Registration Statement and the Prospectus, comply in form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on any unaudited
financial statements included in the Registration Statement;
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<PAGE> 10
(iii) on the basis of the review, if any, referred to
in clause (ii) above, a reading of the latest available interim
financial statements of the Issuer, inquiries of officials of the
Issuer who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited consolidated financial
statements, if any, included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published Rules and Regulations or any material
modification should be made to such unaudited financial
statements for them to be in conformity with generally
accepted accounting principles;
(B) the unaudited summary financial
information, if any, included in the Prospectus does not agree
with the amounts set forth in the unaudited consolidated
financial statements from which it was derived or was not
determined on a basis substantially consistent with that of
the audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus;
(C) at the date of the latest available
balance sheets read by such accountants, there was any change
in the capital stock or any increase in long-term debt,
including current maturities, of the Company and consolidated
subsidiaries and at the date of the latest available balance
sheet read by such accountants, there was any decrease in
total shareholders' equity of the Company and consolidated
subsidiaries, in each case as compared with amounts shown on
the latest balance sheets included or incorporated by
reference in the Prospectus; and at a subsequent specified
date not more than five days prior to the Closing Date, there
was any change greater than three percent in the capital stock
or any increase greater than five percent in long-term debt,
including current maturities, of the Company and consolidated
subsidiaries as compared with amounts shown on the latest
balance sheets included or incorporated by reference in the
Prospectus; and
(D) for the period from the date of the
latest income statements included or incorporated by reference
in the Prospectus to the closing date of the latest available
income statements read by such accountants there were any
decreases, as compared with the corresponding period of the
preceding year, in consolidated sales and revenues, operating
income or net income of the Company and consolidated
subsidiaries; and for the period from the closing date of the
latest available income statement read by such accountants to
a subsequent specified date not more than five days prior to
the Closing Date, there were any decreases, as compared with
the corresponding period in the preceding year, in
consolidated sales and revenues, operating income or net
income of the Company and consolidated subsidiaries;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases
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<PAGE> 11
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(iv) in addition to the procedures specified in clause
(ii) above, they have carried out certain other limited procedures of a
nature customarily the subject of independent auditors' comfort letters
with respect to (A) specified dollar amounts (or percentages derived
from such dollar amounts) and (B) other financial information of a
nature customarily the subject of independent auditors' comfort
letters, which is contained in the Prospectus, including without
limitation the ratios of earnings to fixed charges, and have found such
dollar amounts, percentages and other financial information to be in
agreement with the relevant accounting and financial records specified
in such letter, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
The Company will furnish the Representatives with such additional copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution.
--------------------------------
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expense
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
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<PAGE> 12
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above 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,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
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<PAGE> 13
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7 Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except as
provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
8 Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its
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<PAGE> 14
officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person and will survive delivery of and payment for the
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Securities by the Underwriters under the Terms
Agreement is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4 and the respective
obligations of the Company and the Underwriters pursuant to Section 6 shall
remain in effect. If the purchase of the Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(b), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Securities.
9 Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Whitman Corporation, 3501
Algonquin Road, Rolling Meadows, Illinois 60008, Attention: Secretary.
10 Successors. This Agreement will inure to the benefit of and
be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11 Applicable Law. This Agreement and the Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
* * * *
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<PAGE> 15
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
WHITMAN CORPORATION
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[NAME OF UNDERWRITERS]
By:
- ---------------------------------------
Name:
Title:
[NAME OF UNDERWRITERS]
By:
- ---------------------------------------
Name:
Title:
[NAME OF UNDERWRITERS]
By:
- ---------------------------------------
Name:
Title:
<PAGE> 16
ANNEX I
WHITMAN CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
_____________, 200_
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
Attention:
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto ("Underwriters") and for their respective accounts, we offer to purchase,
on and subject to the terms and conditions of the Underwriting Agreement dated,
200_ between Whitman Corporation and the Underwriters ("Underwriting
Agreement"), the following securities ("Securities") on the following terms:
Title: [ %] [FLOATING RATE]--Notes,--Debentures--Bonds--Due
Principal Amount: $
Interest: [ % PER ANNUM, FROM, 200_, PAYABLE SEMIANNUALLY ON AND,
COMMENCING 200_, TO HOLDERS OF RECORD ON THE PRECEDING __________ OR ________,
AS THE CASE MAY BE.] [ZERO COUPON.]
Maturity: , .
Optional Redemption:
Sinking Fund:
Delayed Delivery Contracts: [NONE.] [DELIVERY DATE(S) SHALL BE 200_.
UNDERWRITERS' FEE IS % OF THE PRINCIPAL AMOUNT OF THE CONTRACT SECURITIES.]
Purchase Price: % of principal amount, plus accrued interest
[, IF ANY,] from 200_.
<PAGE> 17
Expected Reoffering Price: % of principal amount, subject to change
by the undersigned.
Closing: A.M. on , 200_, at ______ in Federal (same day) funds.
Representative[S]: [NAME AND ADDRESS OF UNDERWRITER(S)]
The respective principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
It is understood that we may, with your consent, amend this offer to
add additional Underwriters and reduce the aggregate principal amount to be
purchased by the Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional Underwriters.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
<PAGE> 18
Please signify your acceptance of the foregoing by return wire not
later than 3:00 P.M. today.
Very truly yours,
[NAME AND SIGNATURE BLOCK
FOR UNDERWRITER(S)]
I-3
<PAGE> 19
SCHEDULE A
Principal
Underwriter Amount
----------- -----------
[UNDERWRITER(S)]............................................. $
-----------
Total............................................... $
===========
I-4
<PAGE> 20
ANNEX II
To: [UNDERWRITERS]
[INSERT NAME(S) OF REPRESENTATIVES OF UNDERWRITERS
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITER[S],
C/O]
We accept the offer contained in your letter, dated
____________, 200_, relating to $____ million principal amount of our [INSERT
TITLE OF SECURITIES]. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement dated , 200_ between the undersigned and you
("Underwriting Agreement") are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements of the undersigned and
its subsidiaries in the Prospectus (as defined in the Underwriting Agreement),
there has been no material adverse change in the financial position or results
of operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
WHITMAN CORPORATION
By:
-------------------------------
Its:
-------------------------------
II-1
<PAGE> 21
ANNEX III
___________, 200_
DELAYED DELIVERY CONTRACT
Whitman Corporation
c/o
Gentlemen:
The undersigned hereby agrees to purchase from Whitman
Corporation, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, as of the date hereof, for delivery on ___________, 200_
("Delivery Date").
$
---------------
principal amount of the Company's _______________ securities ("Securities"),
offered by the Company's Prospectus dated __________, 200_, and a Prospectus
Supplement dated ___________, 200_ relating thereto, receipt of copies of which
is hereby acknowledged, at ___% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
Payment for the Securities that the undersigned has agreed to
purchase for delivery on the Delivery Date shall be made to the Company or its
order by certified or official bank check in Federal (same day) funds at the
office of ______________ at 10:00 A.M. on the Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned for delivery on
such Delivery Date in definitive fully registered form and in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on the Delivery Date shall be
subject only to the conditions that (1) investment in the Securities shall not
at the Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall have
sold to the Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the
III-1
<PAGE> 22
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first--come, first--served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
---------------------------------
[NAME OF PURCHASER]
By:
------------------------------
---------------------------------
[TITLE OF SIGNATORY]
---------------------------------
---------------------------------
[ADDRESS OF PURCHASER]
Accepted, as of the above date.
WHITMAN CORPORATION
By:
----------------------------
III-2
<PAGE> 1
EXHIBIT 1.2
$
-----------
WHITMAN CORPORATION
Medium-Term Notes, Series C
DISTRIBUTION AGREEMENT
__________, 2000
[NAME AND ADDRESS OF DISTRIBUTOR(S)]
Ladies and Gentlemen:
1. Introduction. Whitman Corporation, a Delaware corporation
(the "Issuer"), confirms its agreement with each of you (individually, a
"Distributor" and collectively, the "Distributors") with respect to the issue
and sale from time to time by the Issuer of its medium-term notes registered
under the registration statement referred to in Section 2(a) (any such
medium-term notes being hereinafter referred to as the "Securities," which
expression shall, if the context so admits, include any permanent global
Security). Securities may be sold pursuant to Section 3 of this Agreement in an
aggregate amount not to exceed the amount of Registered Securities (as defined
in Section 2(a) hereof) registered pursuant to such registration statement
reduced by the aggregate amount of any other Registered Securities sold
otherwise than pursuant to Section 3 of this Agreement. The Securities will be
issued under an indenture, dated as of January 15, 1993, as supplemented by the
First Supplemental Indenture dated as of May 20, 1999 (the indenture, as so
supplemented, is hereinafter referred to as the "Indenture"), between the Issuer
and Bank One Trust Company, National Association, as trustee (the "Trustee").
The Securities shall have the terms described in the
Prospectus referred to in Section 2(a) as it may be amended or supplemented from
time to time, including any supplement to the Prospectus that sets forth only
the terms of a particular issue of the Securities (a "Pricing Supplement").
Securities will be issued, and the terms thereof established, from time to time
by the Issuer in accordance with the Indenture and the Procedures (as defined in
Section 3(d) hereof).
2. Representations and Warranties of the Issuer. The Issuer
represents and warrants to, and agrees with, each Distributor as follows:
<PAGE> 2
a. A registration statement on Form S-3 (No. 333-_____), (the
"Registration Statement"), including a prospectus, relating to debt
securities of the Issuer, including the Securities ("Registered
Securities"), has been filed with the Securities and Exchange
Commission ("Commission") and such Registration Statement has become
effective under the Securities Act of 1933 ("Act"). The Registration
Statement, as amended as of the date hereof, is hereinafter referred to
as the "Registration Statement," and the prospectus included in such
Registration Statement, as supplemented as of the Closing Date to
reflect the terms of the offering of the Securities, including all
material incorporated by reference therein, is hereinafter referred to
as the "Prospectus." Any reference in this Agreement to amending or
supplementing the Prospectus shall be deemed to include the filing of
materials incorporated by reference in the Prospectus after the Closing
Date and any reference in this Agreement to any amendment or supplement
to the Prospectus shall be deemed to include any such materials
incorporated by reference in the Prospectus after the Closing Date.
b. On the effective date of the Registration Statement
relating to the Registered Securities, such Registration Statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939 ("Trust Indenture Act") and the rules and
regulations of the Commission ("Rules and Regulations") and did not
include 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 as of the date hereof and on the
Closing Date, the Registration Statement and the Prospectus, and at
each of the times of acceptance and of delivery referred to in Section
6(a) hereof and at each of the times of amendment or supplementing
referred to in Section 6(b) hereof (the Closing Date and each such time
being herein sometimes referred to as a "Representation Date"), the
Registration Statement and the Prospectus as then amended or
supplemented will conform in all respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and neither
of such documents will include any untrue statement of a material fact
or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, except that
the foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the Issuer
by any Distributor specifically for use therein.
c. The consolidated historical financial statements, together
with the related notes thereto, set forth or incorporated by reference
in the Prospectus comply as to form in all material respects with the
requirements of Regulation S-X under the Act applicable to registration
statements on Form S-3 under the Act. Such historical financial
statements fairly present in all material respects the financial
position of the Company at the respective dates indicated and the
results of operations and cash flows of the Company for the respective
periods indicated, in each case in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout such
periods. The other historical financial information and data included
in the Prospectus is, in all material respects, accurately presented
and true and correct.
-2-
<PAGE> 3
3. Appointment as Distributors; Agreement of Distributors;
-------------------------------------------------------
Solicitations.
- --------------
a. Subject to the terms and conditions stated herein, the
Issuer hereby appoints each of the Distributors as an agent of the
Issuer for the purpose of soliciting or receiving offers to purchase
the Securities from the Issuer by others. Subject to the reservation by
the Issuer of the right to designate and select additional agents to
become a party to (and additional Distributors under) this Agreement,
so long as this Agreement shall remain in effect with respect to any
Distributor, the Issuer shall not, without the consent of any such
Distributor, solicit or accept offers to purchase Securities otherwise
than through one of the Distributors; provided, however, that, subject
to all of the terms and conditions of this Agreement, the foregoing
shall not be construed to prevent the Issuer from selling at any time
any Registered Securities in a firm commitment underwriting pursuant to
an underwriting agreement that does not provide for a continuous
offering of such Registered Securities; and provided, further, that the
Issuer reserves the right from time to time (i) to sell Securities
directly to an investor, and (ii) to accept a specific offer to
purchase Securities solicited by, and made by the Issuer to or through,
a dealer or other qualified person other than the Distributors (each an
"Other Dealer"), without obtaining the prior consent of any of the
Distributors, provided that (x) the Issuer shall give each of the
Distributors notice of its decision to accept such an offer to purchase
Securities promptly after such acceptance, (y) any Other Dealer shall
agree to be bound by and subject to the terms and conditions of this
Agreement binding on the Distributors (including the commission
schedule set forth on Exhibit B), and (z) so long as this Agreement
remains in effect, the Issuer shall not appoint any other agent or
dealer (other than by adding them as a party to this Agreement) for the
purpose of soliciting or receiving offers to purchase Securities on a
continuous basis.
b. On the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set
forth, each Distributor agrees, as an agent of the Issuer, to use
reasonable efforts when requested by the Issuer to solicit offers to
purchase the Securities upon the terms and conditions set forth in the
Prospectus, as from time to time amended or supplemented. No
Distributor shall have any obligation to purchase Securities from the
Company; however, one or more Distributors (each, a "Presenting
Distributor") may act as agent or purchase such Securities from the
Issuer as principal for resale. The Distributors may use dealer groups
and may reallow concessions in the sale of any Securities and, unless
otherwise specified in an applicable Pricing Supplement, such
concessions will not be in excess of the discount to be received by
such Distributor from the Issuer. Upon acceptance by the Issuer of an
offer to purchase Securities, the Presenting Distributor shall complete
either (i) its standard form of confirmation, or (ii) a Terms Agreement
substantially in the form of Exhibit A hereto (a "Terms Agreement") and
shall transmit the completed confirmation or Terms Agreement, as the
case may be, to the Issuer by hand or by facsimile or other similar
means of telecommunication. Unless the Issuer promptly notifies the
Presenting Distributor in writing that the Issuer does not agree to the
terms set forth in such confirmation or Terms Agreement, such
confirmation or Terms Agreement, as the case may be, shall constitute
an agreement between the Presenting Distributor and the Issuer for the
sale and purchase of such Securities upon the terms set forth therein
and in this Agreement
-3-
<PAGE> 4
(whether or not such confirmation or Terms Agreement, as the case may
be, shall have been executed by the Issuer or the Presenting
Distributor) and if such confirmation or Terms Agreement contemplates
that the Securities described therein shall be purchased by the
Presenting Distributor as principal, then, the provisions in this
Agreement relating to a Terms Agreement shall apply to such sale and
purchase of such Securities.
Upon receipt of notice from the Issuer as contemplated by
Section 4(c) hereof, each Distributor shall suspend its solicitation of
offers to purchase Securities until such time as the Issuer shall have
furnished it with an amendment or supplement to the Registration
Statement or the Prospectus, as the case may be, contemplated by
Section 4(c) and shall have advised such Distributor that such
solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Securities commencing at
any time for any period of time or permanently. Upon receipt of at
least one Business Day's prior notice from the Issuer, the Distributors
will forthwith suspend the solicitation of offers to purchase
Securities from the Issuer until such time as the Issuer has advised
the Distributors that such solicitation may be resumed. For the purpose
of the foregoing sentence, "Business Day" shall mean any day that is
not a Saturday or Sunday, and that in The City of New York is not a day
on which banking institutions generally are authorized or obligated by
law or executive order to close.
The Distributors are authorized to solicit offers to purchase
Securities as described in the Prospectus, as amended or supplemented,
and only in a minimum aggregate amount of $100,000 (or the equivalent
thereof in one or more currencies or currency units other than U.S.
dollars). Each Distributor shall communicate to the Issuer, orally or
in writing, each reasonable offer to purchase Securities received by it
as agent. The Issuer shall have the sole right to accept offers to
purchase the Securities and may reject any such offer, in whole or in
part. If the Issuer accepts or rejects an offer, in whole or in part,
the Issuer will promptly notify the Presenting Distributor. Each
Distributor shall have the right, in its discretion reasonably
exercised, without notice to the Issuer, to reject any offer to
purchase Securities received by it, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained
herein. All Securities sold through a Distributor as agent will be sold
at 100% of their principal amount unless otherwise specified in a
Pricing Supplement.
No Security which the Issuer has agreed to sell pursuant to
this Agreement shall be deemed to have been purchased and paid for, or
sold by the Issuer, until such Security shall have been delivered to
the purchaser thereof against payment by such purchaser.
No Distributor shall have any responsibility for maintaining
records with respect to the aggregate principal amount of Securities
sold, or otherwise monitoring the availability of Securities for sale
under the Registration Statement.
c. At the time of delivery of, and payment for, any Securities
sold by the Issuer as a result of a solicitation made by, or offer to
purchase received by, a Distributor, acting on
-4-
<PAGE> 5
an agency basis, the Issuer agrees to pay such Distributor a
commission in accordance with the schedule set forth in Exhibit B
hereto. The Issuer agrees that each Distributor that purchases
Securities as principal for resale shall receive such compensation, in
the form of a discount or otherwise, as shall be indicated in the
applicable confirmation or Terms Agreement, as the case may be, or, if
no compensation is indicated therein, a commission in accordance with
Exhibit B hereto.
d. Administrative procedures respecting the sale of Securities
(the "Procedures") shall be agreed upon from time to time by the
Distributors and the Issuer. The initial Procedures, which are set
forth in Exhibit C hereto, shall remain in effect until changed by
agreement among the Issuer and the Distributors. Each Distributor and
the Issuer agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Issuer will furnish to the Trustee a copy of the
Procedures as from time to time in effect.
e. The documents required to be delivered by Section 5 hereof
shall be delivered at the office of Kirkland & Ellis, 200 East Randolph
Drive, Chicago, Illinois 60601, not later than 10:00 A.M., New York
City time, on ___________, 2000, or at such later time as may be
mutually agreed by the Issuer and the Distributors, which in no event
shall be later than the time at which the Distributors commence
solicitation of offers to purchase Securities hereunder, such time and
date being herein called the "Closing Date."
f. If the Issuer and a Presenting Distributor agree to provide
for sales of Securities pursuant to delayed delivery contracts, the
Issuer will authorize the Distributors to solicit offers to purchase
Securities pursuant to delayed delivery contracts substantially in the
form of Exhibit D attached hereto ("Delayed Delivery Contracts") with
such changes therein as the Issuer and the Presenting Distributor may
authorize or approve. Delayed Delivery Contracts are to be made only
with institutional investors, including, without limitation, commercial
and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the date of
the execution of a Delayed Delivery Contract, the Issuer and the
Presenting Distributor shall agree upon the date of payment of
compensation to the Distributor in the amount set forth in the
applicable confirmation or Terms Agreement, as the case may be, or if
no compensation is indicated therein, a commission in accordance with
Exhibit B hereto, in respect of the principal amount of Securities to
be sold pursuant to Delayed Delivery Contracts. The Distributors will
not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts.
4. Certain Agreements of the Issuer. The Issuer has furnished
to Kirkland & Ellis, counsel for the Distributors, one conformed copy of the
Registration Statement, including all exhibits, in the form in which it became
effective and agrees to furnish all amendments thereto and that, in connection
with each offering of Securities:
-5-
<PAGE> 6
a. The Issuer will prepare a Pricing Supplement with respect
to any Securities to be offered and sold to or through one or more
Distributors pursuant to this Agreement and, after approval of such
Pricing Supplement by such Distributor or Distributors, will file such
Pricing Supplement with the Commission pursuant to and in accordance
with Rule 424(b) under the Act.
b. The Issuer will advise each Distributor promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Distributors a reasonable opportunity to
comment on any such proposed amendment or supplement (other than any
periodic report of the Issuer filed pursuant to Section 13 or Section
14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any Pricing Supplement that relates to Securities not
purchased through or by such Distributor); and the Issuer will also
advise each Distributor of the filing and effectiveness of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting,
if issued.
c. If, at any time when (i) a prospectus relating to the
Securities is required to be delivered under the Act and (ii) no
suspension of solicitation of offers to purchase Securities pursuant to
Section 3(b) or this Section 4(c) shall be in effect (any such time
referred to in clause (ii) or any time when either any Distributor
shall have purchased any Securities as principal as indicated in the
applicable confirmation or Terms Agreement and holds such Securities
with the intention of reselling them or the Issuer has accepted an
offer to purchase Securities but the related settlement has not
occurred being referred to herein as a "Marketing Time"), any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statement
therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or if it is
necessary at any such time to amend the Prospectus to comply with the
Act, the Issuer will promptly notify each Distributor to suspend
solicitation of offers to purchase the Securities; and if the Issuer
shall decide to amend or supplement the Registration Statement or the
Prospectus, it will promptly advise each Distributor by telephone (with
confirmation in writing) and, subject to the provisions of subsection
(b) of this Section, will prepare and file with the Commission an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Notwithstanding the
foregoing, if, during a Marketing Time any such event occurs or it
becomes necessary to amend the Prospectus to comply with the Act, the
Issuer, subject to the provisions of subsection (b) of this Section,
will prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Distributors consent to, nor
their delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
-6-
<PAGE> 7
d. The Issuer will timely file all documents required to be
filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act. In addition, during any Marketing Time, on or as
soon as practicable after the date on which the Issuer issues a press
release concerning earnings or concerning any other event which is
required to be described, or which the Issuer proposes to describe, in
a document filed pursuant to the Exchange Act, the Issuer will furnish
the press release to each Distributor and, subject to the provisions of
subsections (b) and (c) of this Section, will cause the Prospectus to
be amended or supplemented to reflect the information contained in such
press release. The Issuer also will furnish each Distributor during any
Marketing Time, with copies of all other press releases. The Issuer
will immediately notify each Distributor of any downgrading in the
rating of any debt securities of the Issuer or any proposal to
downgrade the rating of any debt securities of the Issuer by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Issuer (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading of such rating), as soon as the Issuer learns of
such downgrading, proposal to downgrade or public announcement.
e. In order to comply with the provisions of Section 11(a) of
the Act, the Issuer will, as soon as practicable, but not later than 16
months after the date of each acceptance by the Issuer of an offer to
purchase Securities hereunder, make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
acceptance and (iii) the date of the Issuer's most recent Annual Report
on Form 10-K filed with the Commission prior to the date of such
acceptance.
f. The Issuer will furnish to each Distributor copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents
(including any Pricing Supplement), in each case as soon as available
and in such quantities as are reasonably requested.
g. The Issuer will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Distributors designate and will continue such qualifications in effect
so long as required for the distribution; 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 so qualified.
h. During the period of five years after the date of the last
issuance of Securities pursuant to this Agreement, the Issuer will
furnish to the Distributors, (i) as soon as available after the end of
each fiscal year, a copy of its annual report to stockholders for such
year, (ii) as soon as available, a copy of each report on Form 10-K or
10-Q or definitive proxy statement of the Issuer filed with the
Commission under the Exchange Act or mailed to
-7-
<PAGE> 8
stockholders, and (iii) from time to time, such other information
concerning the Issuer as the Distributors may reasonably request.
i. The Issuer will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
each Distributor for all reasonable expenses (including reasonable
disbursements of counsel and fees of counsel not to exceed $12,000)
incurred by it in connection with qualification of the Securities for
sale under the laws of such jurisdictions as such Distributor may
designate and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Securities,
for any filing fee of the National Association of Securities Dealers,
Inc. relating to the Securities, for reasonable expenses incurred by
each Distributor in distributing the Prospectus and all supplements
thereto (including any Pricing Supplement), any preliminary
prospectuses and any preliminary prospectus supplements to such
Distributor, for reasonable costs incurred by each Distributor in any
customary advertising of any offering of Securities and for each
Distributor's reasonable expenses (including the reasonable fees and
disbursements of counsel to the Distributors) incurred in connection
with the establishment or maintenance of the program contemplated by
this Agreement or otherwise in connection with the activities of the
Distributors under this Agreement.
j. If required pursuant to a Terms Agreement, for a period
beginning at the time of execution of a Terms Agreement and ending on
the date of delivery of the Securities covered thereby, the Issuer will
not, without the prior consent of the Distributors party to such Terms
Agreement, offer, sell, contract to sell or otherwise dispose of any
United States dollar-denominated debt securities issued or guaranteed
by the Issuer and having a maturity of more than one year from the date
of issue, other than borrowings under the Issuer's revolving credit
facility or unless otherwise specified in such Terms Agreement,
pursuant to a transaction exempt from registration under the Act.
5. Conditions of Obligations. The obligations of each
Distributor, as agent of the Issuer, under this Agreement at any time to solicit
offers to purchase the Securities and to purchase Securities from the Issuer as
principal is subject to the accuracy, on the date hereof, on each Representation
Date and on the date of each such solicitation, of the representations and
warranties of the Issuer herein, to the accuracy, on each such date, of the
statements of the Issuer's officers made pursuant to the provisions hereof, to
the performance, on or prior to each such date, by the Issuer of its obligations
hereunder, and to each of the following additional conditions precedent:
a. The Prospectus, as amended or supplemented as of any
Representation Date or date of such solicitation, as the case may be,
shall have been filed with the Commission in accordance with the Rules
and Regulations and no stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Issuer or any Distributor, shall be contemplated
by the Commission.
-8-
<PAGE> 9
b. Neither the Registration Statement nor the Prospectus, as
amended or supplemented as of any Representation Date or date of such
solicitation, as the case may be, shall contain any untrue statement of
fact which, in the reasonable opinion of any Distributor, is material
or omits to state a fact which, in the reasonable opinion of any
Distributor, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
c. There shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Issuer or its
subsidiaries which, in the judgment of such Distributor, is so material
and adverse as to make it impracticable or inadvisable to proceed with
the solicitations of offers to purchase or the delivery of the
Securities, (ii) any downgrading in the rating of any debt securities
of the Issuer by Standard & Poor's Corporation or Moody's Investors
Service, Inc., or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of
the Issuer (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Issuer on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
intentional calamity or emergency if, in the judgment of such
Distributor, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with solicitations of offers to purchase, or sales of, Securities.
d. With respect to any Security denominated in a currency
other than the U.S. dollar, more than one currency or a composite
currency or any Security, the principal or interest of which is indexed
to such currency, currencies or composite currency, there shall not
have occurred a suspension or material limitation in foreign exchange
trading in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change in
the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or countries
issuing such currency, currencies or composite currency or the
imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency, currencies
or composite currency.
e. At the Closing Date and, if specified in a Terms Agreement,
if any, at the time of delivery of the Securities described in such
Terms Agreement, the Distributors or the Distributor purchasing such
Securities (the "Purchasing Distributor"), as the case may be, shall
have received an opinion, dated the Closing Date, or such date of
delivery, as the case may be, of Sidley & Austin, counsel for the
Company, to the effect that:
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<PAGE> 10
(i) The Issuer has been duly incorporated and is an
existing 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 Prospectus;
(ii) The Securities have been duly authorized by the
Issuer and, when the terms thereof have been established in
accordance with the Indenture and when the Securities have
been duly executed, authenticated, issued and delivered in
accordance with the Indenture, this Agreement and any
applicable Terms Agreement against payment of the agreed upon
consideration therefor, will constitute valid and legally
binding obligations of the Issuer enforceable against the
Issuer in accordance with their respective terms, subject to
(a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights, (b) to general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law), (c) any requirement that a
claim with respect to any Security denominated in other than
U.S. dollars (or a judgment denominated in other than U.S.
dollars in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined
in accordance with applicable law and (d) governmental
authority to limit, delay or prohibit the making of payments
outside of the United States or in a foreign currency or
currency unit, it being understood that such counsel may (A)
assume that at the time of the issuance, sale and delivery of
each Security the authorization of such series will not have
been modified or rescinded and there will not have occurred
any change in law affecting the validity, legally binding
character or enforceability of such Security and (B) assume
that neither the issuance, sale and delivery of any Security,
nor any of the terms of such Security, nor compliance by the
Issuer with such terms, will violate any applicable law, any
agreement or instrument then binding upon the Issuer or any
restriction imposed by any court or governmental body having
jurisdiction over the Issuer;
(iii) The Securities conform in all material respects
to the description thereof contained in the Prospectus;
(iv) The Indenture has been duly authorized, executed
and delivered by the Issuer, has been duly qualified under the
Trust Indenture Act and, assuming the due authorization,
execution and delivery by the Trustee, the Indenture
constitutes a valid and legally binding obligation of the
Issuer, enforceable against the Issuer in accordance with its
terms, subject to (a) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting the enforcement
of creditors' rights, (b) to general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law), (c) any requirement that a
claim with respect to any Security denominated in other than
U.S. dollars (or a judgment denominated in other than U.S.
dollars in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing
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<PAGE> 11
on a date determined in accordance with applicable law and (d)
governmental authority to limit, delay or prohibit the making
of payments outside of the United States or in a foreign
currency or currency unit;
(v) Each document filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (other than
the financial statements and the notes thereto and the
supporting schedules and other financial or statistical data
derived therefrom or included or incorporated by reference
therein, as to which no opinion need be given) complied when
filed as to form in all material respects with the Exchange
Act and the Rules and Regulations thereunder;
(vi) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement (including, if applicable, the
provisions of any Terms Agreement) in connection with the
issuance or sale of the Securities by the Issuer, except such
as have been obtained and made under the Act (other than the
filing of the applicable Pricing Supplement) and the Trust
Indenture Act and such as may be required under state
securities or Blue Sky laws of various jurisdictions;
(vii) The Registration Statement has become effective
under the Act, the Prospectus was duly filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein, and,
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or threatened under the
Act, and (A) the Registration Statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the Closing
Date and the date of any applicable Terms Agreement, and any
amendment or supplement thereto, as of its date, complied and
comply as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules
and Regulations; (B) nothing came to such counsels' attention
that causes them to believe that the Registration Statement,
as of its effective date, or the Registration Statement, as of
the date hereof, the Closing Date and the date of any
applicable Terms Agreement, or any such amendment or
supplement, as of its date, contained any untrue statement of
a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the
Closing Date and the date of any applicable Terms Agreement,
or any such amendment or supplement, as of its date, includes
or included any untrue statement of a material fact or omits
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and (C) the information in the Prospectus under the
captions "Description of the Notes" and "Description of the
Debt Securities" or a comparable section describing the
Securities and the Indenture is accurate in all material
respects; it being understood that such counsel need express
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<PAGE> 12
no opinion or belief as to the financial statements and the
notes thereto and the supporting schedules and other financial
or statistical data derived therefrom contained in the
Registration Statement or the Prospectus or incorporated by
reference therein; and
(viii) This Agreement and any applicable Terms
Agreement have each been duly authorized, executed and
delivered by the Issuer;
provided, however, that, in the case of each such opinion delivered
pursuant to a Terms Agreement, (x) the statements made in clause (ii)
shall state that the terms of the Securities have been duly established
in accordance with the Indenture, (y) the statements contained in such
opinion relating to the Registration Statement or the Prospectus shall
relate to the Registration Statement or the Prospectus, as the case may
be, as amended or supplemented as of the date of the Issuer's
acceptance of the offer to purchase such Securities and as of the time
of delivery of such Securities; and (z) such opinion shall relate to
the Securities being delivered on the date of such opinion and not to
other Securities as well.
f. At the Closing Date and, if specified in a Terms Agreement,
if any, at the time of delivery of the Securities described in such
Terms Agreement, the Distributors or the Purchasing Distributor, as the
case may be, shall have received an opinion, dated the Closing Date or
the date of delivery, as the case may be, of Steven R. Andrews, General
Counsel of the Issuer, to the effect that:
(i) The Issuer is duly qualified to do business as a
foreign corporation in good standing in all jurisdictions in
which it owns or leases substantial properties or in which the
conduct of its business requires such qualification, except
where the failure to so qualify would not, individually or in
the aggregate, have a material adverse effect on the
properties, assets, operations, business or condition
(financial or otherwise) of the Issuer and its subsidiaries,
taken as a whole;
(ii) Each "significant subsidiary" (as defined in
Regulation S-X of the Commission) of the Issuer has been duly
incorporated and is an existing 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 described in the
Prospectus;
(iii) Each such significant subsidiary of the Company
is in good standing and is duly qualified to do business as a
foreign corporation in all jurisdictions in which it owns or
leases substantial properties or in which the conduct of its
business requires such qualification, except where the failure
to be in good standing or so qualify would not, individually
or in the aggregate, have a material adverse effect on the
properties, assets, operations, business or condition
(financial or otherwise) of the Issuer and its subsidiaries,
taken as a whole; 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 capital stock is owned by the Issuer, directly or
through
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<PAGE> 13
subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity, except as set forth in Exhibit
21 to the Issuer's most recent Annual Report on Form 10-K
filed with the Commission;
(iv) The execution, delivery and performance of the
Indenture, this Agreement (including any provisions of any
applicable Terms Agreement) and the issuance and sale of the
Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Issuer or any subsidiary of the Issuer or any of their
properties or any agreement or instrument to which the Issuer
or any such subsidiary is a party or by which the Issuer or
any such subsidiary is bound or to which any of the properties
of the Issuer or any such subsidiary is subject; nor will such
action result in any violation of the provisions of the
charter or by-laws of the Issuer or any such subsidiary; the
Issuer has the power and authority to authorize, issue and
sell the Securities as contemplated by this Agreement
(including the provisions of any applicable Terms Agreement);
(v) To the best of such counsel's knowledge and
information, (A) there are no contracts, indentures,
mortgages, loan agreements, notes, deeds of trust, leases or
other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto,
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and (B) no
default exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, deed of
trust, lease or other instrument which breach would,
individually or in the aggregate, have a material adverse
effect on the properties, assets, operations, business or
condition (financial or otherwise) of the Issuer and its
subsidiaries taken as a whole; and
(vi) Nothing came to such counsel's attention which
causes him to believe that the Registration Statement, as of
its effective date, or the Registration Statement, as of the
date hereof, the Closing Date or the date of any applicable
Terms Agreement, or any such amendment or supplement, as of
its date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the Closing Date and
the date of any applicable Terms Agreement, or any such
amendment or supplement, as of its date, includes or included
any untrue statement of a material fact or omits or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings and contracts and
other documents constitute an accurate summary of such
statutes, proceedings, contracts and other documents in all
material respects; it being understood that such counsel need
express no opinion or belief as to the
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<PAGE> 14
financial statements and the notes thereto or the supporting
schedules and other financial or statistical data derived
therefrom contained in the Registration Statement or the
Prospectus or incorporated by reference therein;
provided, however, that, in the case of each such opinion delivered
pursuant to a Terms Agreement, (x) the statements contained in such
opinion relating to the Registration Statement or the Prospectus shall
relate to the Registration Statement or the Prospectus, as the case may
be, as amended or supplemented as of the date of the Issuer's
acceptance of the offer to purchase such Securities and as of the time
of delivery of such Securities; and (y) such opinion shall relate to
the Securities being delivered on the date of such opinion and not to
other Securities as well.
g. At the Closing Date and, if specified in a Terms Agreement,
if any, at the time of delivery of the Securities described in such
Terms Agreement, the Distributors or the Purchasing Distributor, as the
case may be, shall have received a certificate on behalf of the Issuer,
dated the Closing Date or such date of delivery, as the case may be, of
the Chairman and Chief Executive Officer or any Vice President and the
principal financial or accounting officer of the Issuer in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that (i) the representations and warranties
of the Issuer in this Agreement are true and correct, (ii) the Issuer
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date or such date of delivery, as the case may be, (iii) no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purposes have
been instituted or are contemplated by the Commission, and (iv)
subsequent to the date of the most recent financial statements in or
incorporated by reference in the Prospectus, there has been no material
adverse change in the financial position or results of operations of
the Issuer and its subsidiaries, taken as a whole, except as set forth
in or contemplated by the Prospectus or as described in such
certificate. In the case of each such certificate delivered pursuant to
a Terms Agreement, the statements contained in such certificate
relating to the Registration Statement or the Prospectus shall relate
to the Registration Statement or the Prospectus, as the case may be, as
amended or supplemented as of the date of the Issuer's acceptance of
the offer to purchase such Securities and as of the time of delivery of
such Securities.
h. At the Closing Date and, if specified in a Terms Agreement,
if any, at the time of delivery of the Securities described in such
Terms Agreement, the Distributors or the Purchasing Distributor, as the
case may be, shall have received a letter, dated the Closing Date or
such date of delivery, as the case may be, of KPMG LLP, confirming that
they are independent public accountants within the meaning of the Act
and applicable published Rules and Regulations thereunder and stating
in effect that:
(i) in their opinion, the financial statements and
schedules audited by them and included or incorporated by
reference in the Registration Statement and the Prospectus,
comply in form in all material respects with the applicable
accounting
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<PAGE> 15
requirements of the Act and the Exchange Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review, if any, referred to
in clause (ii) above, a reading of the latest available
interim financial statements of the Issuer, inquiries of
officials of the Issuer who have responsibility for financial
and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited consolidated financial
statements, if any, included or incorporated by
reference in the Registration Statement and the
Prospectus do not comply as to form in all material
respects with applicable accounting requirements of
the Act and the Exchange Act and the related
published Rules and Regulations or any material
modification should be made to such unaudited
financial statements for them to be in conformity
with generally accepted accounting principles;
(B) the unaudited summary financial
information, if any, included in the Prospectus does
not agree with the amounts set forth in the unaudited
consolidated financial statements from which it was
derived or was not determined on a basis
substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Registration Statement and the
Prospectus;
(C) at the date of the latest available
balance sheet read by such accountants, there was any
change in the capital stock or any increase in
long-term debt, including current maturities, of the
Issuer and consolidated subsidiaries and at the date
of the latest available balance sheet read by such
accountants, there was any decrease in total
shareholders' equity, in each case as compared with
amounts shown on the latest balance sheet included or
incorporated by reference in the Prospectus and at a
subsequent specified date not more than five days
prior to the Closing Date, there was any change
greater than three percent in the capital stock or
any increase greater than five percent in long-term
debt, including current maturities, of the Issuer and
consolidated subsidiaries as compared with amounts
shown on the latest balance sheet included or
incorporated by reference in the Prospectus; and
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<PAGE> 16
(D) for the period from the date of the
latest income statement included or incorporated by
reference in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the preceding year,
in consolidated sales and revenues, operating income
or net income; and for the period from the closing
date of the latest available income statement read by
such accountants to a subsequent specified date not
more than five days prior to the Closing Date, there
were any decreases, as compared with the
corresponding period in the preceding year, in
consolidated sales and revenues, operating income or
net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) in addition to the procedures specified in (ii)
above, they have carried out certain other limited procedures
of a nature customarily the subject of independent auditors'
comfort letters with respect to (A) specified dollar amounts
(or percentages derived from such dollar amounts) and (B)
other financial information of a nature customarily the
subject of independent auditors' comfort letters, which is
contained in the Prospectus, including without limitation the
ratios of earnings to fixed charges, and have found such
dollar amounts, percentages and other financial information to
be in agreement with the relevant accounting and financial
records specified in such letter, except as otherwise
specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
In the case of each such letter delivered pursuant to a Terms
Agreement, the statements contained in such letter relating to the
Registration Statement or the Prospectus shall relate to the
Registration Statement or the Prospectus, as the case may be, as
amended or supplemented as of the date of the Issuer's acceptance of
the offer to purchase such securities and as of the time of delivery of
such Securities.
i. At the Closing Date and, if specified in a Terms Agreement,
if any, at the time of delivery of the Securities described in such
Terms Agreement, the Distributors or the Purchasing Distributor, as the
case may be, shall have received from Kirkland & Ellis, counsel for the
Distributors, such opinion or opinions, dated the Closing Date or such
date of delivery, as the case may be, with respect to the validity of
the Securities, the Registration Statement, the Prospectus and other
related matters as they may require, and the Issuer shall have
furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
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<PAGE> 17
The Issuer will furnish the Distributors with such conformed
copies of such opinions, certificates, letters and documents as they reasonably
request.
6. Additional Covenants of the Issuer. The Issuer agrees that:
-----------------------------------------------------------
a. Each acceptance by the Issuer of an offer for the purchase
of Securities shall be deemed to be an affirmation that its
representations and warranties contained in this Agreement are true and
correct at the time of such acceptance and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Securities as though made at and as of
each such time, it being understood that such representations and
warranties shall relate to the Registration Statement and the
Prospectus as amended or supplemented at each such time. Each such
acceptance by the Issuer of an offer to purchase Securities shall be
deemed to constitute an additional representation, warranty and
agreement by the Issuer that, as of the date of delivery of such
Securities to the purchaser thereof, after giving effect to the
issuance of such Securities, of any other Securities to be issued on or
prior to such delivery date and of any other Registered Securities to
be issued and sold by the Issuer on or prior to such delivery date, the
aggregate amount of Registered Securities (including any Securities)
which have been issued and sold by the Issuer will not exceed the
amount of Registered Securities registered pursuant to the Registration
Statement.
b. Each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement)
(the date of any such amendment or supplement being referred to herein
as a "Representation Date"), the Issuer shall (in the case of a Current
Report on Form 8-K, upon the reasonable request of the Distributors),
(A) concurrently with such amendment or supplement, if such amendment
or supplement shall occur during a Marketing Time, or (B) immediately
upon the commencement of the next Marketing Time if such amendment or
supplement shall not occur during a Marketing Time, furnish the
Distributors with a certificate on behalf of the Issuer, dated the date
of delivery thereof, of the Chairman and Chief Executive Officer or any
Vice President and the principal financial or accounting officer of the
Issuer, in form satisfactory to the Distributors, to the effect that
the statements contained in the certificate covering the matters set
forth in Section 5(g) hereof which was last furnished to the
Distributors pursuant to this Section 6(b) are true and correct at the
time of such amendment or supplement, as though made at and as of such
time or, in lieu of such certificate, a certificate of the same tenor
as the certificate referred to in Section 5(g); provided, however, that
any certificate furnished under this Section 6(b) shall relate to the
Registration Statement and the Prospectus as amended or supplemented at
the time of delivery of such certificate and, in the case of the
matters set forth in clause (iii) of Section 5(g), to the time of
delivery of such certificate.
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<PAGE> 18
c. At each Representation Date referred to in Section 6(b),
the Issuer shall, (A) concurrently if such Representation
Date shall occur during a Marketing Time, or (B) immediately
upon the commencement of the next Marketing Time if such
Representation Date shall not occur during a Marketing Time,
furnish the Distributors with a written opinion, dated the
date of such Representation Date, of Steven R. Andrews,
General Counsel of the Issuer (or at the option of the
Issuer, the opinion of Sidley & Austin), in form
satisfactory to the Distributors, covering the matters set
forth in Sections 5(e) and 5(f) hereof; provided, however,
that to the extent appropriate such opinion may reconfirm
matters set forth in a prior opinion delivered at the
Closing Date or under this Section 6(c); provided further,
however, that any opinion furnished under this Section 6(c)
shall relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation
Date and shall state that the Securities sold in the
relevant Applicable Period (as defined below) have been duly
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Issuer
enforceable in accordance with their terms, subject only to
the exceptions set forth in clause (ii) of Section 5(e)
hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
general equity principles, and conform to the description
thereof contained in the Prospectus as amended or
supplemented at the relevant date or dates for the delivery
of such Securities to the purchaser or purchasers thereof.
For the purpose of this Section 6(c), "Applicable Period"
shall mean with respect to any opinion delivered on a
Representation Date the period commencing on the date as of
which the most recent prior opinion delivered at the Closing
Date or under this Section 6(c) speaks and ending on such
Representation Date.
d. At each Representation Date referred to in Section 6(b) on
which the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, the Issuer
shall cause KPMG LLP, (A) concurrently if such Representation Date
shall occur during a Marketing Time, or (B) immediately upon the
commencement of the next Marketing Time if such Representation Date
shall not occur during a Marketing Time, to furnish the Distributors
with a letter, addressed jointly to the Issuer and the Distributors and
dated the date of such Representation Date, in form and substance
satisfactory to the Distributors, to the effect set forth in Section
5(h) hereof; provided, however, that to the extent appropriate such
letter may reconfirm matters set forth in a prior letter delivered at
the Closing Date or pursuant to this Section 6(d); provided further,
however, that any letter furnished under this Section 6(d) shall relate
to the Registration Statement and the Prospectus as amended or
supplemented at such Representation Date, with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Issuer.
e. The Issuer agrees that any obligation of a person who has
agreed to purchase Securities to make payment for and take delivery of
such Securities shall be subject to (i) the accuracy, on the related
settlement date fixed pursuant to the Procedures, of the Issuer's
representation and warranty deemed to be made to the Distributors
pursuant to the last sentence of subsection (a) of this Section 6, and
(ii) the satisfaction, on such settlement date,
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<PAGE> 19
of each of the conditions set forth in Sections 5(a), (b), (c) and
(d), it being understood that under no circumstance shall any
Distributor have any duty or obligation to exercise the judgment
permitted under Section 5(b) or (c) on behalf of any such person.
7. Indemnification and Contribution.
--------------------------------
a. The Issuer will indemnify and hold harmless each
Distributor against any losses, claims, damages or liabilities, joint
or several, to which such Distributor may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Distributor for any legal or other expenses
reasonably incurred by such Distributor in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Issuer will not be liable to such Distributor in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any of such documents in reliance
upon and in conformity with written information furnished to the
Issuer by such Distributor specifically for use therein, unless such
loss, claim damage or liability arises out of the offer or sale of
Securities occurring after the Distributor has notified the Issuer in
writing that such information should no longer be used therein.
b. Each Distributor will indemnify and hold harmless the
Issuer against any losses, claims, damages or liabilities to which the
Issuer may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or
any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformit with
written information furnished to the Issuer by such Distributor
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Issuer in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, unless such loss, claim, damage
or liability arises out of the offer or sale of Securities occurring
after the Distributor has notified the Issuer in writing that such
information should no longer be used therein.
c. Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof
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<PAGE> 20
is to be made against the indemnifying party under subsection (a) or
(b) above, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonably
costs of investigation.
d. If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuer on the one hand
and any Distributor on the other from the offering pursuant to this
Agreement of the Securities which are the subject of the action or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuer on the one hand and any Distributor on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Issuer on the one hand and any Distributor on the other shall be
deemed to be in the same proportions as the total net proceeds from the
offering pursuant to this Agreement of the Securities which are the
subject of the action (before deducting expenses) received by the
Issuer bear to the total discounts and commissions received by such
Distributor from the offering of such Securities pursuant to this
Agreement. 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 Issuer or such Distributor
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Distributor shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities which are the subject of the action and which were
distributed to the public through it pursuant to this Agreement or upon
resale of Securities purchased by it from the Issuer exceeds the amount
of any damages which such Distributor has otherwise been required to
pay by reason of such untrue or alleged untrue
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<PAGE> 21
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each
Distributor in this subsection (d) to contribute are several, in the
same proportion which the amount of the Securities which are the
subject of the action and which were distributed to the public through
such Distributor pursuant to this Agreement bears to the total amount
of such Securities distributed to the public through all of the
Distributors pursuant to this Agreement, and not joint.
e. The obligations of the Issuer under this Section 7 shall be
in addition to any liability which the Issuer may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls each Distributor within the meaning of the Act; and
the obligations of each Distributor under this Section 7 shall be in
addition to any liability which each Distributor may otherwise have and
shall extend, upon the same terms and conditions, to each director of
the Issuer, to each officer of the Issuer who has signed the
Registration Statement and to each person, if any, who controls the
Issuer within the meaning of the Act.
8. Status of Each Distributor. In soliciting offers to
purchase the Securities from the Issuer pursuant to this Agreement and in
assuming its other obligations hereunder (other than any obligation to purchase
Securities pursuant to Section 3 hereof), each Distributor is acting
individually and not jointly and is acting solely as agent for the Issuer and
not as principal. In connection with the placement of any Securities by a
Distributor, acting as agent, (a) each Distributor will make reasonable efforts
to assist the Issuer in obtaining performance by each purchaser whose offer to
purchase Securities from the Issuer has been solicited by such Distributor and
accepted by the Issuer, but such Distributor shall have no liability to the
Issuer in the event any such purchase is not consummated for any reason; and (b)
if the Issuer shall default on its obligations to deliver Securities to a
purchaser whose offer it has accepted, the Issuer (i) shall hold the
Distributors harmless against any loss, claim or damage arising from or as a
result of such default by the Issuer, and (ii) in particular, shall pay to the
Distributors any commission to which they would be entitled in connection with
such sale.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of the Distributors set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Distributor, the Issuer or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 10 or for any other reason or if for any reason
the sale of Securities described in a confirmation or Terms Agreement referred
to in Section 3 by the Issuer to a Distributor is not consummated, the Issuer
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4(i) and the obligations of the Issuer under Sections 4(e)
and 4(h) and the respective obligations of the Issuer and the Distributors
pursuant to Section 7 shall remain in effect. In addition, if any such
termination of this Agreement shall occur during a Marketing Time, the
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<PAGE> 22
obligations of the Issuer under the second sentence of Section 4(c), under
Sections 4(b), 4(d), 4(f), 4(g) and 4(j) and, in the case of a termination
occurring as described in (ii) above, under Sections 3(c), 6(a) and 6(e) and
under the last sentence of Section 8, shall also remain in effect.
10. Termination. This Agreement may be terminated for any
reason at any time by the Issuer as to any Distributor or by such Distributor
insofar as this Agreement relates to such Distributor, upon the giving of one
day's written notice of such termination to the other parties hereto; provided,
however, that this Agreement may not be terminated with respect to a Distributor
by the giving of such notice following receipt by the Issuer of a confirmation
or Terms Agreement referred to in Section 3 relating to the purchase of
Securities by such Distributor and prior to delivery of the Securities described
in such confirmation or Terms Agreement, unless the sale and purchase of
Securities contemplated thereby is rejected by the Issuer in accordance with
Section 3. Any settlement with respect to Securities placed by a Distributor on
an agency basis occurring after termination of this Agreement shall be made in
accordance with the Procedures and each Distributor agrees, if requested by the
Issuer, to take the steps therein provided to be taken by such Distributor in
connection with such settlement.
11. Sales of Securities Denominated in a Currency other than
U.S. Dollars or of Indexed Securities. If at any time the Issuer and any of the
Distributors shall determine to issue and sell Securities denominated in a
currency other than U.S. dollars, which other currency may include a currency
unit, or with respect to which an index is used to determine the amounts of
payments of principal and any premium and interest, the Issuer and any such
Distributor may execute and deliver a supplement to this Agreement for the
purpose of making any appropriate additions to and modifications of the terms of
this Agreement (and the Procedures) applicable to such Securities and the offer
and sale thereof. The Distributors are authorized to solicit offers to purchase
Securities with respect to which an index is used to determine the amounts of
payments of principal and any premium and interest, and the Issuer shall agree
to any sales of such Securities (whether offered on an agency or principal
basis), only in a minimum aggregate amount of $2,500,000. The Issuer will not
issue Securities denominated in Yen otherwise than in compliance with applicable
Japanese laws, regulations and policies. In particular, the Issuer or its
designated agent shall submit such reports or information as may be required
from time to time by applicable law, regulations and guidelines promulgated by
Japanese governmental and regulatory authorities in the case of the issue and
purchase of the Securities and the Issuer shall ensure that each such Security
shall have a minimum denomination of "1,000,000 and a minimum maturity of one
year or such other minimum denomination and maturity as may be allowed from time
to time by Japanese governmental and regulatory authorities.
12. Notices. Except as otherwise provided herein, 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 [NAME AND ADDRESS OF DISTRIBUTOR(S)]; and notices
to the Issuer shall be directed to it at Whitman Corporation, 3501 Algonquin
Road, Rolling Meadows, Illinois 60008, Attention: Secretary; or in the case of
any party hereto, to such other address or person as such party shall specify to
each other party by a notice
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<PAGE> 23
given in accordance with the provisions of this Section 12. Any such notice
shall take effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors, the
officers and directors and controlling persons referred to in Section 7 and, to
the extent provided in Section 6(e), any person who has agreed to purchase
Securities from the issuer, and no other person will have any right or
obligation hereunder.
14. Governing Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such executed counterparts shall
together constitute one and the same Agreement.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
WHITMAN CORPORATION
By:
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[NAME AND SIGNATURE BLOCK OF EACH DISTRIBUTOR]
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<PAGE> 24
EXHIBIT A
WHITMAN CORPORATION
("COMPANY")
MEDIUM-TERM NOTES, SERIES C
DUE FROM NINE MONTHS TO 30 YEARS FROM DATE OF ISSUE
TERMS AGREEMENT
, 2000
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
Attention:
Dear Sirs:
We offer to purchase, on and subject to the terms and
conditions of the Distribution Agreement filed as an exhibit to the Company's
Registration Statement on Form S-3 (No. 333-_______) ("Distribution Agreement"),
the following Notes ("Notes") on the following terms:
Title:
Currency or Currency Units:
Stated Maturity:
Principal Amount:
Public Offering Price: [___%, SUBJECT TO CHANGE BY THE
UNDERSIGNED - THE AGENT PROPOSES
TO REOFFER THE ABOVE NOTES FROM
TIME TO TIME AT MARKET PRICES
PREVAILING AT THE TIME OF SALE,
AT PRICES RELATED TO SUCH
PREVAILING MARKET PRICES OR AT
NEGOTIATED PRICES]
Original Issue Discount Security: Yes ____ No ____
A-1
<PAGE> 25
Purchase Price (to be paid in immediately available funds):
____%[, PLUS ACCRUED INTEREST, IF ANY, FROM THE TRADE DATE TO
THE SETTLEMENT DATE]
Underwriting Discount or Commission (%):
Proceeds to Company (If different from Public Offering Price)
(%):
In the case of Fixed Rate Notes, the Interest Rate and the
Interest Payment Date or Dates and corresponding Regular
Record Date or Dates:
In the case of Floating Rate Notes, the Interest Rate Formula,
Initial Interest Rate, the Index Maturity, the Spread and/or
Spread Multiplier (if any), the maximum or minimum Interest
Rate Limitations (if any), the Interest Reset Dates, the
Interest Determination Dates, the Calculation Agent, the
Calculation Dates, the Interest Payment Dates and the Record
Dates, in each case to the extent applicable:
Optional Redemption (option of the Company):
Redemption Date(s):
Redemption Prices(s)(%):
Notice Period:
Optional Redemption (option of the Holder):
Redemption Date(s):
Redemption Price(s)(%):
Notice Period:
Sinking Fund:
Trade Date:
Settlement Date (Issue Date):
Delayed Delivery Contracts:
Standoff Agreement: Yes ___ No ___
A-2
<PAGE> 26
Private Offering Exception: Yes ___ No ___
* * * * *
Details for Settlement
(Additional Purchase Information - to be completed by
Distributor, if desired, to the extent available):
Exact name in which the Note or Notes are to be registered
("registered owner"):
Exact address of registered owner and, if different, the
address for delivery of notices and payment of principal and
any premium and interest:
Taxpayer identification number of registered owner:
Principal amount of each Note in authorized denominations to
be delivered to registered owner:
Exchange rate applicable to purchase Foreign Currency Notes to
be paid for in U.S.
dollars:
* * * * *
Our agreement to purchase the Notes hereunder is subject to
the conditions set forth in the Distribution Agreement, [ - INCLUDING - OTHER
THAN -] the conditions set forth in paragraphs (d), (e), (f), (g), (h) and (i)
of Section 5 thereof [-, AND [SPECIFY ADDITIONAL CONDITIONS, IF ANY] -]. If for
any reason the purchase by the undersigned of the Notes is not consummated other
than because of a default by the undersigned or a failure to satisfy a condition
set forth in clause (iii), (iv) or (v) of Section 5(c) of the Distribution
Agreement, the Issuer shall reimburse the undersigned for all out-of-pocket
expenses reasonably incurred by the undersigned in connection with the offering
of the Notes and not otherwise required to be reimbursed pursuant to Section 4
of the Distribution Agreement.
[INSERT ANY ADDITIONAL AGREEMENTS, CONDITIONS, ETC.]
A-3
<PAGE> 27
Unless the undersigned has received notification from the
Company within one Business Day (as defined in the Distribution Agreement) prior
to the scheduled date of delivery of the Notes after receipt of such notice in
accordance with Section 12 of the Distribution Agreement, that the Company does
not agree to the terms set forth herein, this Terms Agreement shall constitute
an agreement between the Company and the undersigned for the sale and purchase
of the Notes upon the terms set forth herein and in the Distribution Agreement.
Very truly yours,
[NAME AND SIGNATURE BLOCK
OF EACH DISTRIBUTOR]
Accepted and agreed to as of the date set forth above.
WHITMAN CORPORATION
[BY: __________________________]
[INSERT TITLE]
A-4
<PAGE> 28
EXHIBIT B
The Issuer agrees to pay each Distributor a commission equal
to the following percentage of the principal amount of Securities sold to
purchasers solicited by such Distributor:
COMMISSION RATE
(AS A PERCENTAGE OF
TERM PRINCIPAL AMOUNT)
---- -----------------
9 months to less than 12 months
12 months to less than 18 months
18 months to less than 24 months
24 months to less than 30 months
30 months to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 7 years
7 years to less than 10 years
10 years to less than 20 years
20 years to less than 30 years
B-1
<PAGE> 29
EXHIBIT C
ADMINISTRATIVE PROCEDURES
-------------------------
The Medium-Term Notes due from nine months to 30 years from
their issue date (the "Notes"), are to be offered on a continuing basis by
Whitman Corporation (the "Issuer"). [NAME OF DISTRIBUTOR(S)] (individually, a
"Distributor" and collectively, the "Distributors"), have each agreed to use
reasonable efforts to solicit offers to purchase the Notes. The Distributors
may, but will not be obligated to, purchase Notes for their own account. The
Notes are being sold pursuant to a Distribution Agreement, dated _________, 2000
(the "Distribution Agreement"), among the Issuer and the Distributors, and will
be issued pursuant to an indenture, dated as of January 15, 1993, as
supplemented by the First Supplemental Indenture dated as of May 20, 1999 (the
Indenture as so supplemented, is herewith referred to as the "Indenture"),
between the Issuer and Bank One Trust Company, National Association, as trustee
(the "Trustee"). The Notes will rank equally and ratably with all other
unsecured and unsubordinated indebtedness of the Issuer and will have been
registered under the Securities Act of 1933 (the "Act"). For a description of
the terms of the Notes and the offering and sale thereof, see the sections
entitled "Description of Notes", "Special Provisions Relating to Foreign
Currency Notes", "Plan of Distribution of Notes" and "Glossary" in the
Prospectus Supplement relating to the Notes, dated __________, 2000, attached
hereto and hereinafter referred to as the "Prospectus Supplement", and the
sections entitled "Description of Securities", and "Plan of Distribution" in the
Prospectus relating to the Notes, dated ______________, 2000, attached hereto
and hereinafter referred to as the "Prospectus." Defined terms used herein but
not defined herein shall have the meanings assigned to them in the Distribution
Agreement, the Prospectus or the Prospectus Supplement.
The Notes will be represented either by Global Notes delivered
to The Depository Trust Company ("DTC") or its nominee and recorded in the
book-entry system maintained by DTC or such nominee ("Book-Entry Notes") or by
certificates delivered to the Holders thereof or Persons designated by such
Holders ("Certificated Notes"). Notes for which interest is calculated on the
basis of a fixed interest rate are referred to herein as "Fixed Rate Notes."
Notes for which interest is calculated at a rate or rates determined by
reference to an interest rate formula are referred to herein as "Floating Rate
Notes."
Notes which are issued at a price lower than the principal
amount thereof and which provide that upon redemption or acceleration of the
Maturity thereof an amount less than the principal thereof shall become due and
payable are referred to herein as "Original Issue Discount Notes." For special
provisions relating to Original Issue Discount Notes and other Notes issued at a
discount for tax purposes, see the section entitled "United States Holders --
Original Issue Discount" in the Prospectus.
Unless otherwise indicated in the applicable Pricing
Supplement, the Notes will be denominated in U.S. dollars and payments of
principal of and any premium and interest on the Notes will be made in U.S.
dollars in the manner indicated in the Prospectus and the Prospectus Supplement.
C-1
<PAGE> 30
Notes denominated in one or more currencies or currency units other than U.S.
dollars are referred to herein as "Foreign Currency Notes." For special
provisions relating to Foreign Currency Notes, see the sections entitled
"Special Provisions Relating to Foreign Currency Notes" in the Prospectus
Supplement. Specific information concerning the foreign currency or currency
unit in which a particular Foreign Currency Note is denominated, including
historical exchange rates and a description of the currency and any exchange
controls, shall (if requested by any Distributor or if required by applicable
law) be contained in a Pricing Supplement to the Prospectus Supplement
reflecting the terms of such Note.
Notes which provide that amounts payable by the Issuer in
respect of principal of or any premium or interest on the Notes shall be
determined by reference to the value, rate or price of one or more specified
indices, are referred to herein as "Indexed Notes." Specific information
pertaining to the method for determining the principal amounts payable, a
historical comparison of the value, rate or price of the specified index,
indices and the face amount of the Indexed Note and certain additional tax
considerations will be described in the applicable Pricing Supplement.
Administrative procedures and specific terms of the offering
are explained below. Part I indicates procedures applicable to all Notes; Part
II indicates specific procedures for Certificated Notes; and Part III indicates
specific procedures for Book-Entry Notes. Administrative and record-keeping
responsibilities will be handled for the Issuer by its Treasury Department. The
Issuer will advise the Distributors in writing of those persons handling
administrative responsibilities with whom the Distributors are to communicate
regarding offers to purchase Notes and the details of their delivery.
PART I: PROCEDURES APPLICABLE TO ALL NOTES
ISSUE DATE
Each Note will be dated the date of its authentication. Each
Note will also bear an original issue date (the "Issue Date") which, with
respect to any such Notes (or portion thereof), shall mean the date of its
original issuance and shall be specified therein. The Issue Date will remain the
same for all Notes subsequently issued upon transfer, exchange or substitution
of a Note, regardless of their dates of authentication.
PRICE TO PUBLIC
Except as otherwise specified in a Pricing Supplement, each
Note will be issued at 100% of principal
amount.
MATURITIES; MINIMUM PURCHASE
C-2
<PAGE> 31
Each Note will mature on a date, selected by the purchaser and
agreed to by the Issuer, which will be at least nine months but not more than 30
years after its Issue Date. The minimum aggregate amount of Notes which may be
offered to any purchaser will be $100,000.
INTEREST PAYMENTS
Interest on each interest-bearing Note will be calculated and
paid in the manner described in such Note and in the Prospectus Supplement and
the applicable Pricing Supplement. Unless otherwise set forth therein, interest
on Fixed Rate Notes (including interest for partial periods) will be calculated
on the basis of a 360-day year of twelve 30-day months and will not accrue on
the 31st day of any month. Interest on Floating Rate Notes, except as otherwise
set forth therein, will be calculated on the basis of actual days elapsed and a
year of 360 days, except that in the case of a Floating Rate Note for which the
Base Rate is the Treasury Rate, interest will be calculated on the basis of the
actual number of days in the year.
On the fifth Business Day immediately preceding each Interest
Payment Date, the Trustee will furnish the Issuer with the total amount of
interest payments (whether in U.S. dollars or other currencies or currency
units) to be made on such Interest Payment Date. The Trustee will provide
monthly, to the Issuer's Treasury Department, a list of the principal and any
premium and interest to be paid on Notes maturing in the next succeeding month.
The Trustee will assume responsibility for withholding taxes on interest paid as
required by law.
REDEMPTION/REPAYMENT
If indicated in the applicable Pricing Supplement, the Notes
of a particular tenor will be subject to redemption in whole or in part (subject
to applicable minimum denominations), at the option of the Issuer on and after
an initial redemption date as set forth in the applicable Pricing Supplement and
in the applicable Note. The redemption price will be set forth in the applicable
Pricing Supplement and in the applicable Note.
If indicated in the applicable Pricing Supplement, the Notes
of a particular tenor will be subject to repayment at the option of the Holders
thereof in accordance with the terms of the Notes on a repayment date as set
forth in the applicable Pricing Supplement and in the applicable Note. The
repayment date or dates and repayment price will be set forth in the applicable
Pricing Supplement and in the applicable Note.
PROCEDURES FOR ESTABLISHING THE TERMS OF THE NOTES
The Issuer and the Distributors will discuss from time to time
the rates to be borne by the Notes that may be sold as a result of the
solicitation of offers by the Distributors. Once any Distributor has recorded
any indication of interest in Notes upon certain terms, and communicated with
the Issuer, if the Issuer plans to accept an offer to purchase Notes upon such
terms, it will prepare a Pricing Supplement to the Prospectus, as then amended
or supplemented, reflecting the
C-3
<PAGE> 32
terms of such Notes and, after approval from the Distributors, will arrange to
have a copy of the Pricing Supplement filed with, or transmitted by a means
reasonably calculated to result in filing with, the Securities and Exchange
Commission (the "Commission") pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Act").* The Issuer will supply at least 10 copies of the
Prospectus, as then amended or supplemented, and bearing such Pricing
Supplement, to the Distributor who presented the offer (the "Presenting
Distributor"). No settlements with respect to Notes upon such terms may occur
prior to such transmitting or filing and the Distributors will not, prior to
such transmitting or filing, mail confirmations to customers who have offered to
purchase Notes upon such terms. After such transmitting or filing, sales,
mailing of confirmations and settlements may occur with respect to Notes upon
such terms, subject to the provisions of "Delivery of Prospectus" below.
If the Issuer decides to post rates and a decision has been
reached to change interest rates, the Issuer will promptly notify each
Distributor. Each Distributor will forthwith suspend solicitation of purchases.
At that time, the Distributors will recommend and the Issuer will establish
rates to be so "posted." Following establishment of posted rates and prior to
the transmitting or filing described in the preceding paragraph, the
Distributors may only record indications of interest in purchasing Notes at the
posted rates. Once any Distributor has recorded any indication of interest in
Notes at the posted rates and communicated with the Issuer, if the Issuer plans
to accept an offer at the posted rate, it will prepare a Pricing Supplement
reflecting such posted rates and, after approval from the Distributors, will
arrange to have a copy of the Pricing Supplement filed with, or transmitted by
means reasonably calculated to result in filing with, the Commission and will
supply at least 10 copies of the Prospectus, as then amended or supplemented,
and bearing such Pricing Supplement, to the Presenting Distributor. No
settlements at the posted rates may occur prior to such transmitting or filing
and the Distributors will not, prior to such transmitting or filing, mail
confirmations to customers who have offered to purchase Notes at the posted
rates. After such transmitting or filing, sales, mailing of confirmations and
settlements may resume, subject to the provisions of "Delivery of Prospectus"
below.
Outdated Pricing Supplements, and copies of the Prospectus to
which they are attached (other than those retained for files), will be
destroyed.
- ------------------
* If clause (b)(3) of Rule 424 is applicable, such filing shall be made
no later than the fifth business day following the earlier of the date
of determination of the settlement information described below or the
date such Pricing Supplement is first used. If clause (b)(2) or (b)(5)
of Rule 424 is applicable, such filing shall be made no later than the
second business day following the earlier of the date of determination
of the settlement information or the date such Pricing Supplement is
first used.
C-4
<PAGE> 33
SUSPENSION OF SOLICITATION: AMENDMENT OR SUPPLEMENT
As provided in the Distribution Agreement, the Issuer may
instruct the Distributors to suspend solicitation of offers to purchase at any
time, and upon receipt of at least one Business Day's prior notice from the
Issuer, the Distributors will each forthwith suspend solicitation until such
time as the Issuer has advised them that solicitation of offers to purchase may
be resumed.
If the Distributors receive the notice from the Issuer
contemplated by Section 3(b) or 4(b) of the Distribution Agreement, they will
promptly suspend solicitation and will only resume solicitation as provided in
the Distribution Agreement. If the Issuer is required, pursuant to Section 4(b)
of the Distribution Agreement, to prepare an amendment or supplement, it will
promptly furnish each Distributor with the proposed amendment or supplement; if
the Issuer decides to amend or supplement the Registration Statement or the
Prospectus relating to the Notes, it will promptly advise each Distributor and
will furnish each Distributor with the proposed amendment or supplement in
accordance with the terms of the Distribution Agreement. The Issuer will file
such amendment or supplement with the Commission, provide the Distributors with
copies of any such amendment or supplement, confirm to the Distributors that
such amendment or supplement has been filed with the Commission and advise the
Distributors that solicitation may be resumed.
Any such suspension shall not affect the Issuer's obligations
under the Distribution Agreement; and in the event that at the time the Issuer
suspends solicitation of offers to purchase there shall be any offers already
accepted by the Issuer outstanding for settlement, the Issuer will have the sole
responsibility for fulfilling such obligations. The Issuer will in addition
promptly advise the Distributors and the Trustee if such offers are not to be
settled and if copies of the Prospectus as in effect at the time of the
suspension may not be delivered in connection with the settlement of such
offers.
ACCEPTANCE OF OFFERS
Each Distributor will promptly advise the Issuer, at its
option orally or in writing, of each reasonable offer to purchase Notes received
by it, other than those rejected by such Distributor. Each Distributor may, in
its discretion reasonably exercised, without notice to the Issuer, reject any
offer received by it, in whole or in part. The Issuer will have the sole right
to accept offers to purchase Notes and may reject any such offer, in whole or in
part. If the Issuer accepts or rejects an offer, in whole or in part, the Issuer
will promptly so notify the Presenting Distributor.
CONFIRMATION
For each accepted offer, the Presenting Distributor will issue
a confirmation to the purchaser, with a separate confirmation to the Issuer's
Treasury Department, setting forth the Purchase Information (as defined under
Part II below with respect to Certificated Notes and Part III below with respect
to Book-Entry Notes) and delivery and payment instructions; provided, however,
that, in the case of the confirmation issued to the purchaser, no confirmation
shall be delivered to the purchaser prior to the delivery of the Prospectus
referred to below.
C-5
<PAGE> 34
DETERMINATION OF SETTLEMENT DATE
The receipt of immediately available funds by the Issuer in
payment for a Note and (i) in the case of Certificated Notes, the authentication
and issuance of such Note and (ii) in the case of Book-Entry Notes, entry by the
Presenting Distributor of an SDFS delivery order through DTC's Participant
Terminal System to credit such Note to the account of a Participant purchasing,
or acting for the purchase of, such Note, shall, with respect to such Note,
constitute "settlement." All offers accepted by the Issuer will be settled on
the third Business Day next succeeding the date of acceptance unless otherwise
agreed by the purchaser and the Issuer. The settlement date shall be specified
upon receipt of an offer to purchase. Prior to 11:00 a.m., New York City time,
on the settlement date, the Issuer will instruct the Trustee to authenticate and
deliver the Notes no later than 2:15 p.m., New York City time, on that date.
DELIVERY OF PROSPECTUS
A copy of the Prospectus as most recently amended or
supplemented on the date of delivery thereof (except as provided below) must be
delivered to a purchaser prior to or together with the earlier of the delivery
of (i) the written confirmation provided for above, and (ii) any Note purchased
by such purchaser. (For this purpose, entry of an SDFS delivery order through
DTC's Participant Terminal System to credit a Note to the account of a
Participant purchasing, or acting for the purchaser of, a Note shall be deemed
to constitute delivery of such Note.) Subject to the foregoing, it is
anticipated that delivery of the Prospectus, confirmation and Notes to the
purchaser will be made simultaneously at settlement. The Issuer shall ensure
that the Presenting Distributor receives copies of the Prospectus and each
amendment or supplement thereto (including appropriate Pricing Supplements) in
such quantities and within such time limits as will enable the Presenting
Distributor to deliver such confirmation or Note to a purchaser as contemplated
by these procedures and in compliance with the first sentence of this paragraph.
If, since the date of acceptance of a purchaser's offer, the Prospectus shall
have been supplemented solely to reflect any sale of Notes on terms different
from those agreed to between the Issuer and such purchaser or a change in posted
rates not applicable to such purchaser, such purchaser shall not receive the
Prospectus as supplemented by such new supplement, but shall receive the
Prospectus as supplemented to reflect the terms of the Notes being purchased by
such purchaser and otherwise as most recently amended or supplemented on the
date of delivery of the Prospectus.
The Issuer shall have delivered a completed Pricing
Supplement, via next day mail or telecopy to arrive no later than 11:00 a.m. on
the Business Day preceding the settlement date for the applicable Note, to the
Presenting Agent at the following locations:
[NAME AND ADDRESS OF EACH DISTRIBUTOR]
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AUTHENTICITY OF SIGNATURES
The Issuer will cause the Trustee to furnish the Distributors
from time to time with the specimen signatures of each of the Trustee's
officers, employees or agents who have been authorized by the Trustee to
authenticate Notes, but no Distributor will have any obligation or liability to
the Issuer or the Trustee in respect of the authenticity of the signature of any
officer, employee or agent of the Issuer or the Trustee on any Note or the
Global Note (as defined in Part III).
ADVERTISING EXPENSES
The Issuer will determine with the Distributors the amount of
advertising that may be appropriate in offering the Notes. Advertising expenses
will be paid by the Issuer.
MARKET DAY
"Market Day" means (a) with respect to any Note, any day that
is not a Saturday or Sunday and that, in Chicago and The City of New York, is
not a day on which banking institutions generally are authorized or obligated by
law or executive order to close, and (b) with respect to LIBOR Notes only, any
such day on which dealings in deposits in U.S. dollars are transacted in the
London interbank market, and (c) with respect to Foreign Currency Notes only,
any such day that is not a Saturday or Sunday and that, in the capital city of
the country of the Specified Currency or, with respect to Foreign Currency Notes
denominated in Euros, Brussels, is not a day on which banking institutions
generally are authorized or obligated by law or executive order to close.
TRUSTEE NOT TO RISK FUNDS
Nothing herein shall be deemed to require the Trustee to risk
or expend its own funds in connection with any payment made to the Issuer, the
Distributors, DTC or any Holder of a Note, it being understood by all parties
that payments made by the Trustee to the Issuer, the Distributors, DTC or any
Holder of a Note shall be made only to the extent that funds are provided to the
Trustee for such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
FORM AND DENOMINATIONS
The Certificated Notes shall be issued only in fully
registered form in denominations of $100,000 and integral multiples of $1,000 in
excess thereof, or, in the case of Foreign Currency Notes, in such minimum
denomination, not less than the equivalent of $100,000, and such great
denomination or denominations in excess thereof, as shall be set forth in the
applicable Pricing Supplement.
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TRANSFERS AND EXCHANGES
A Certificated Note may be presented for transfer or exchange
at the principal corporate trust office of the Trustee in The City of New York.
Certificated Notes will be exchangeable for other Certificated Notes of any
authorized denominations and of like tenor and in a like aggregate principal
amount, upon surrender of the Certificated Notes to be exchanged at the
corporate trust office of the Trustee. Certificated Notes will not be
exchangeable for Book-Entry Notes.
PAYMENT AT MATURITY
Upon presentation of each Certificated Note at Maturity, the
Trustee (or a duly authorized Paying Agent) will pay the principal amount
thereof, together with any premium and accrued interest due at Maturity. Such
payment will be made in immediately available funds, provided that the
Certificated Note is presented in time for the Paying Agent to make payment in
such funds in accordance with its normal procedures. The Issuer will provide the
Trustee (and any Paying Agent) with funds available for immediate use for such
purpose. Certificated Notes presented at Maturity will be canceled by the
Trustee as provided in the Indenture. For special provisions relating to Foreign
Currency Notes, see the section entitled "Special Provisions Relating to Foreign
Currency Notes" in the Prospectus Supplement.
DETAILS FOR SETTLEMENT
For each offer for Certificated Notes accepted by the Issuer,
the Presenting Distributor shall communicate to the Issuer's Treasury Department
prior to 3:00 p.m., New York City time, on the Business Day preceding the
settlement date, by telephone, telex, facsimile transmission or other acceptable
means, the following information (the "Purchase Information"):
1. Exact name in which the Note or Notes are to be registered
("registered owner").
2. Exact address of registered owner and, if different, the
address for delivery, notices and payment of principal and
any premium and interest.
3. Taxpayer identification number of registered owner.
4. Principal amount of each Note in authorized denominations to
be delivered to
registered owner.
5. Stated Maturity of each Note.
6. In the case of Fixed Rate Notes, the interest rate of each
Note; in the case of Floating Rate Notes, the interest rate
formula, the Spread or
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Spread Multiplier (if any), the maximum or minimum interest
rate limitation (if any), the Calculation Agent, the
Calculation Dates, the Initial Interest Rate, the Interest
Payment Dates, the Record Dates, the Index Maturity, the
Interest Determination Dates and the Interest Reset Dates,
in each case, to the extent applicable with respect to each
Note.
7. Redemption and/or repayment provisions, if any, of each Note.
8. Trade date of each Note.
9. Settlement date (Issue Date) of each Note.
10. Presenting Distributor's commission (to be paid in the
form of a discount from the proceeds remitted to the Issuer
upon settlement).
11. Price.
12. Currency or currency unit in which each Note is to be
denominated and exchange rate applicable to purchase Foreign
Currency Notes to be paid for in U.S. dollars.
13. Any additional applicable terms of each Note.
The Issue Date of, and the settlement date for, Certificated
Notes will be the same. Before accepting any offer to purchase Certificated
Notes to be settled in less than three Business Days, the Issuer shall verify
that the Trustee will have adequate time to prepare and authenticate the Notes.
Immediately after receiving the details for each offer for
Certified Notes from the Presenting Distributor, the Issuer will, after
recording the details and any necessary calculations, communicate the Purchase
Information by telephone, telex, facsimile transmission or other acceptable
means, to the Trustee. Each such instruction given by the Issuer to the Trustee
shall constitute a continuing representation and warranty by the Issuer to the
Trustee and the Distributors that (i) the issuance and delivery of such Notes
have been duly and validly authorized by the Issuer and (ii) such Notes, when
completed, authenticated and delivered, shall constitute the valid and legally
binding obligation of the Issuer. The Trustee will assign to and enter on each
Note a transaction number.
The Issuer will deliver to the Trustee a pre-printed four-ply
packet for such Certificated Note, which packet will contain the following
documents in forms that have been approved by the Issuer, the Distributors and
the Trustee:
1. Certificated Note with customer confirmation.
2. Stub One - For the Trustee.
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3. Stub Two - For the Presenting Distributor.
4. Stub Three - For the Issuer.
The Trustee will complete such Certificated Note and will
authenticate such Certificated Note and deliver it (with the confirmation) and
Stubs One and Two to such Distributor, and such Distributor will acknowledge
receipt of the Note by stamping or otherwise marking Stub One and returning it
to the Trustee. The Trustee will send Stub Three to the Issuer by first-class
mail. The Trustee shall deliver such Notes to the Presenting Distributor at the
following addresses:
[NAME AND ADDRESS OF EACH DISTRIBUTOR]
SETTLEMENT: NOTE DELIVERIES AND CASH PAYMENT
The Issuer will deliver to the Trustee at the commencement of
the program and from time to time thereafter a supply of duly executed
Certificated Notes with pre-printed control numbers adequate to implement the
program. Upon the receipt of appropriate documentation and instructions from the
Issuer in accordance with the applicable Officers' Certificate and verification
thereof, the Trustee will cause the Certificated Notes to be completed and
authenticated and hold the Certificated Notes for delivery against payment.
The Trustee will deliver the Certificated Notes, in accordance
with instructions from the Issuer, to the Presenting Distributor. If the
Distributor is placing such Certificated Notes as agent, such delivery will be
made for the benefit of the purchaser only against receipt and the Presenting
Distributor will acknowledge receipt of the Notes through a broker's receipt.
Delivery of the Certificated Notes by the Trustee will be made only against such
acknowledgment of receipt from the Presenting Distributor. Upon the Presenting
Distributor's determination that such Note has been authenticated, delivered and
completed as aforesaid, the Presenting Distributor will make, or cause to be
made, payment to the Issuer at such account of the Issuer as it may specify in
writing, in immediately available funds, of an amount equal to the principal
amount of such Notes, less the applicable commission. If the Presenting
Distributor in any instance advances its own funds, the Issuer shall not use any
of the proceeds of such sale to acquire securities.
If the Distributor is placing such Certificated Notes as
agent, the Presenting Distributor, as the Issuer's agent, will deliver the Notes
(with the written confirmation provided for above) to the purchaser thereof
against payment therefor by such purchaser in immediately available funds.
Delivery of any confirmation or Note to a purchaser thereof by
a Distributor, acting as agent or principal, will be made in compliance with
"Delivery of Prospectus" in Part I above.
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FAILS (DISTRIBUTOR ACTING AS AGENT)
In the event that a purchaser shall fail to accept delivery of
and make payment for a Certificated Notes on the settlement date, the Presenting
Distributor will notify the Trustee and the Issuer, by telephone, confirmed in
writing. If such Certificated Note has been delivered to the Presenting
Distributor, as the Issuer's agent, the Presenting Distributor shall return such
Note to the Trustee. If funds have been advanced for the purchase of such Note,
the Trustee will, immediately upon receipt of such Note, debit the account of
the Issuer for the amount so advanced and the Trustee shall refund the payment
previously made by the Presenting Distributor in immediately available funds.
Such payments will be made on the settlement date, if possible, and in any event
not later than the Business Day following the settlement date. If the fail shall
have occurred for any reason other than the failure of the Presenting
Distributor to provide the Purchase Information to the Issuer or to provide a
confirmation to the purchaser, the Issuer will reimburse the Presenting
Distributor on an equitable basis for its loss of the use of funds during the
period when the funds were credited to the account of the Issuer.
Immediately upon receipt of the Certificated Note in respect
of which the fail occurred, the Trustee will make appropriate entries in its
records to reflect the fact that the Note was never issued and the Note will be
canceled and disposed of as provided in the Indenture.
PART III: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its obligations under a Letter of Representations (the
"Letter") from the Issuer and the Trustee to DTC dated as of __________, 2000,
and a Medium-Term Note Certificate Agreement between the Trustee and DTC dated
as of May 26, 1989, as amended, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
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FORM, DENOMINATIONS AND REGISTRATION
All Book-Entry Notes of the same tenor and having the same
issue Date, will be represented initially by a single Note (a "Global Note") in
fully registered form without coupons. Book-Entry Notes will represent Notes
denominated in U.S. dollars. Global Notes will be issued in denominations of
$100,000 and integral multiples of $1,000 in excess thereof. Each Global Note
will be registered in the name of Cede & Co., as nominee for DTC, on the
Security Register maintained under the Indenture. The beneficial owner of a
Book-Entry Note (or one or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with respect to such
Note, the "Participants") to act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such Participants, a credit
balance with respect to such Note in the account of such Participants. The
ownership interest of such beneficial owner in such Note will be recorded
through the records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
CUSIP NUMBERS
The Issuer has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service Bureau") for the reservation
of a series of CUSIP numbers (including tranche numbers), such series consisting
of approximately 900 CUSIP numbers and relating to Global Notes representing
Book-Entry Notes. The Issuer has obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers and has delivered it to the Trustee
and DTC. The Trustee will assign CUSIP numbers serially to Global Notes as
described below under "Details for Settlement". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that the Trustee has assigned
to Global Notes. The Trustee will notify the Issuer at the time when fewer than
100 of the reserved CUSIP numbers remain unassigned to the Global Notes; and the
Issuer will reserve an additional 900 CUSIP numbers for assignment to Global
Notes representing Book-Entry Notes. Upon obtaining such additional CUSIP
numbers, the Issuer shall deliver a list of such additional CUSIP numbers to the
Trustee and DTC.
TRANSFERS AND EXCHANGES FOR THE PURPOSE OF CONSOLIDATION
Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and, in certain cases, one or
more indirect participants in DTC) acting on behalf of beneficial transferors
and transferees of such Note.
The Trustee may upon notice to the Issuer deliver to DTC and
the CUSIP Service Bureau at any time a written notice (a copy of which shall be
attached to the Global Note resulting from such exchange) specifying (i) the
CUSIP numbers of two or more outstanding Global Notes that represent Book-Entry
Notes of the same tenor and having the same Issue Date, and for which interest
(if any) has been paid to the same date, (ii) a date occurring at least thirty
days after such written notice is delivered and at least thirty days before the
next Interest Payment Date (if any) for such Notes, on which such Global Notes
shall be exchanged for a single replacement Global Note and (iii) a new CUSIP
number to be assigned to such replacement Global Note. Upon receipt of such a
notice, DTC will send to its Participants (including the Trustee) a written
reorganization notice to the
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effect that such exchange will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the specified exchange date, the Trustee
will exchange such Global Notes for a single Global Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged Global Notes will, in accordance
with the CUSIP Service Bureau procedures, be canceled and not immediately
reassigned.
NOTICE OF INTEREST PAYMENT DATES AND REGULAR RECORD DATES
To the extent then known, on the first Business Day of March,
June, September, and December of each year, the Trustee will deliver to the
Issuer and DTC a written list of Record Dates and Interest Payment Dates that
will occur with respect to Floating Rate Book-Entry Notes during the six-month
period beginning on such first Business Day.
PAYMENTS OF PRINCIPAL AND INTEREST
(a) Payments of Interest Only. Promptly after each Record
Date, the Trustee will deliver to the Issuer and DTC a written notice specifying
by CUSIP number the amount of interest to be paid on each Global Note on the
following Interest Payment Date (other than an Interest Payment Date coinciding
with Maturity) and the total of such amounts. The Issuer will confirm with the
Trustee the amount payable on each Global Note on such Interest Payment Date.
DTC will confirm the amount payable on each Global Note on such Interest Payment
Date by reference to the daily or weekly bond reports published by Standard &
Poor's Corporation. The Issuer will pay to the Trustee the total amount of
interest due on such Interest Payment Date (other than at Maturity), and the
Trustee will pay such amount to DTC at the times and in the manner set forth
below under "Manner of Payment".
(b) Payments at Stated Maturity. On or about the first
Business day of each month, the Trustee will deliver to the Issuer and DTC a
written list of principal and interest to be paid on each Global Note maturing
in the following month. The Issuer, the Trustee and DTC will confirm the amounts
of such principal and interest payments with respect to each such Global Note on
or about the fifth Business Day preceding the Stated Maturity of such Global
Note. The Issuer will pay to the Trustee, as the paying agent, the principal
amount of such Global Note, together with interest due at such Stated Maturity.
Upon surrender of a Global Note, the Trustee will pay such amounts to DTC at the
times and in the manner set forth below under "Manner of Payment". If any Stated
Maturity of a Global Note representing Book-Entry Notes is not a Business Day,
the payment due on such day shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the period from and after such
Stated Maturity. Promptly after payment to DTC of the principal and any interest
due at the Stated Maturity of such Global Note, the Trustee will cancel such
Global Note and return such Global Note to the Issuer in accordance with the
terms of the Indenture.
(c) Payment upon Redemption. The Trustee will comply with the
terms of the Letter with regard to redemptions or repayments of the Book-Entry
Notes. In the case of Book-
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Entry Notes stated by their terms to be redeemable prior to Stated Maturity, at
least 60 calendar days before the date fixed for redemption (the "Redemption
Date"), the Issuer shall notify the Trustee of the Issuer's election to redeem
such Book-Entry Notes in whole or in part and the principal amount of such
Book-Entry Notes to be so redeemed. At least 30 calendar days but not more than
60 calendar days prior to the Redemption Date, the Trustee shall notify DTC of
the Issuer's election to redeem such Book-Entry Notes. The Trustee shall notify
the Issuer and DTC of the CUSIP numbers of the particular Book-Entry Notes to be
redeemed either in whole or in part. The Issuer, the Trustee and DTC will
confirm the amounts of such principal and any premium and interest payable with
respect to each such Book-Entry Note on or about the fifth Business Day
preceding the Redemption Date of such Book-Entry Note. The Issuer will pay the
Trustee, in accordance with the terms of the Indenture, the amount necessary to
redeem each such Book-Entry Note or the applicable portion of each such
Book-Entry Note. The Trustee will pay such amount to DTC at the times and in the
manner set forth herein. Promptly after payment to DTC of the amount due on the
Redemption Date for such Book-Entry Note, the Trustee shall cancel any such
Book-Entry Note redeemed in whole and shall deliver it to the Issuer with an
appropriate debit advice. If a Global Note is to be redeemed in part, the
Trustee will cancel such Global Note and issue a Global Note which shall
represent the remaining portion of such Global Note and shall bear the CUSIP
number of the canceled Global Note.
(d) Manner of Payment. The total amount of any principal and
interest due on Global Notes on any Interest Payment Date or at Maturity shall
be paid by the Issuer to the Trustee in immediately available funds on such
date. The Issuer will make such payment on such Global Notes by wire transfer to
the Trustee no later than 9:30 a.m., New York City time, on such date. The
Issuer will confirm instructions regarding payment in writing to the Trustee.
Prior to 10:00 a.m., New York City time, on each date of Maturity of a
Book-Entry Note or as soon as possible thereafter, the Trustee will pay by
separate wire transfer (using Fedwire message entry instructions in a form
previously specified by DTC) to an account at the Federal Reserve Bank of New
York previously specified by DTC in funds available for immediate use by DTC,
each payment of principal (together with interest thereon) due at Maturity on
Book-Entry Notes. On each Interest Payment Date, interest payment shall be made
to DTC in same day funds in accordance with existing arrangements between the
Trustee and DTC. Thereafter, on each such date, DTC will pay, in accordance with
its SDFS operating procedures then in effect, such amounts in funds available
for immediate use to the respective Participants in whose names the Book-Entry
Notes represented by such Global Notes are recorded in the book-entry system
maintained by DTC. NEITHER THE ISSUER NOR THE TRUSTEE SHALL HAVE ANY DIRECT
RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY DTC TO SUCH PARTICIPANTS OF THE
PRINCIPAL OF AND ANY PREMIUM AND INTEREST ON THE BOOK-ENTRY NOTES.
(e) Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a Book-Entry Note
will be determined and withheld by the Participant, indirect participant in DTC
or other person responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
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DETAILS FOR SETTLEMENT
For each offer for Book-Entry Notes accepted by the Issuer,
the Presenting Distributor shall communicate to the Issuer's Treasury Department
prior to 11:00 a.m., New York City time, on the first Business Day after the
sale date (or on the sale date if such sale is to be settled within one Business
Day), by telephone, telex, facsimile transmission or other acceptable means, the
following information (the "Purchase Information"):
1. Exact name in which the Notes are to be registered
("registered owner").
2. Exact address of registered owner and, if different,
the address for delivery, notices and payment of
principal and any premium and interest.
3. Taxpayer identification number of registered owner.
4. Principal amount of the Notes.
5. Stated Maturity of the Notes.
6. In the case of Fixed Rate Notes, the interest rate of
the Notes; in the case of Floating Rate Notes, the
Interest rate formula, the Spread and/or Spread
Multiplier (if any), the maximum or minimum Interest
rate limitation (if any), the Calculation Agent, the
Calculation Dates, the Initial Interest Rate, the
Interest Payment Dates, the Record Dates, the Index
Maturity, the Interest Determination Dates and the
Interest Reset Dates, in each case, to the extent
applicable with respect to the Notes.
7. Redemption and/or repayment provisions, if any, of
the Notes.
8. Trade date of the Notes.
9. Settlement date (Issue Date) of the Notes.
10. Presenting Distributor's commission (to be paid in
the form of a discount from the proceeds remitted to
the Issuer upon settlement).
11. Price.
12. Currency or currency unit in which the Notes are to
be denominated and exchange rate applicable to
purchase Foreign Currency Notes payable in U.S.
dollars.
13. Any additional applicable terms of the Notes.
The Issue Date of, and the settlement date for, Book-Entry
Notes will be the same. Before accepting any offer to purchase Book-Entry Notes
to be settled in less than three Business Days, the Issuer shall verify that the
Trustee will have adequate time to prepare and authenticate the Global Notes.
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If the initial interest rate for a Floating Rate Book-Entry
Note has not been determined at the time that the foregoing procedure is
completed, the procedures described in the following two paragraphs shall be
completed as soon as such rate has been determined but no later than 12:00 Noon
and 2:00 p.m., as the case may be, on the Business Day before the settlement
date.
Immediately after receiving the details for each offer for
Book-Entry Notes from the Presenting Distributor and in any event no later than
12:00 Noon on the first Business Day after the sale date (or on the sale date if
such sale is to be settled within one Business Day), the Issuer will, after
recording the details and any necessary calculations, communicate the Purchase
Information by telephone, telex, facsimile transmission or other acceptable
means, to the Trustee. Each such instruction given by the Issuer to the Trustee
shall constitute a continuing representation and warranty by the Issuer to the
Trustee and the Distributors that (i) the issuance and delivery of such Note
have been duly and validly authorized by the Issuer and (ii) such Note, when
duly issued, shall constitute the valid and legally binding obligation of the
Issuer.
Immediately after receiving the Purchase Information from the
Issuer and in any event no later than 2:00 P.M. on the first Business Day after
the sale date (or on the sale date if such sale is to be settled within one
Business Day), the Trustee will assign a CUSIP number to the Global Note
representing such Book-Entry Note and will telephone the Issuer and advise the
Issuer of such CUSIP number and, as soon thereafter as practicable, the Issuer
shall notify the Presenting Distributor of such CUSIP number.
Transmission of information to S&P. Standard & Poor's
Corporation will use the information received in the pending deposit message to
include the amount of any interest payable and certain other information
regarding the related Global Note in the appropriate daily or weekly bond report
published by Standard & Poor's Corporation.
SETTLEMENT: GLOBAL NOTE DELIVERY AND CASH PAYMENT
The Issuer will deliver to the Trustee at the commencement of
the program and from time to time thereafter a supply of duly executed Global
Notes with preprinted control numbers adequate to implement the program. Upon
the receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Officers' Certificate and verification thereof,
the Trustee will cause the Global Note to be completed and authenticated and
hold the Global Note for delivery against payment.
Prior to 2:00 P.M. on the Settlement Date, the Trustee will
enter instructions through DTC's Participant Terminal System, using the function
MT II, and DTC will credit such Note to the Trustee's participant account at DTC
and thereafter will (i) debit such Note to the Trustee's participant account and
credit such Note to the Presenting Distributor's participant account and (ii)
debit the Presenting Distributor's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Note less such
Distributor's commission (in accordance with SDFS operating procedures in effect
on the Settlement Date).
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Simultaneously with the giving of such instructions by the
Trustee, the Presenting Distributor will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit such Note to such
Distributor's participant account and credit such Note to the Participant
accounts of the Participants with respect to such Note and (ii) to debit the
settlement accounts of such Participants and credit the settlement account of
such Distributor for an amount equal to the price of such Note (in accordance
with SDFS operating procedures in effect on the settlement date).
Transfers of funds are subject to extension in accordance with
any extension of Fedwire closing deadlines and in the other events specified in
the SDFS operating procedures in effect on the settlement date.
The Trustee, upon confirming receipt of such funds, will wire
transfer the amount transferred to the Trustee, in funds available for immediate
use, for the account of the Issuer, to account no. _________ at Bank of America
Illinois, Chicago, Illinois (ABA No. 071000039).
FAILS
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Issuer shall notify the Trustee, and upon receipt of such notice,
the Trustee will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 p.m., New York City
time, on the Business Day immediately preceding the scheduled settlement date.
If the Trustee has not entered an SDFS deliver order with
respect to a Book-Entry Note, then upon written request (which may be evidenced
by telecopy transmission) of the Issuer, the Trustee shall deliver to DTC,
through DTC's Participant Terminal System, as soon as practicable, but no later
than 2:00 p.m. on any Business Day, a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account. DTC will process the
withdrawal message, provided that the Trustee's participant account contains a
principal amount of the Global Note representing such Note that is at least
equal to the principal amount to be debited. If withdrawal messages are
processed with respect to all the Book-Entry Notes represented by a Global Note,
the Trustee will mark such Global Note "cancelled," make appropriate entries in
the Trustee's records and send such cancelled Global Note to the Issuer. The
CUSIP number assigned to such Global Note shall, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately reassigned. If
withdrawal messages are processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Note, the Trustee will exchange
such Global Note for two Global Notes, one of which shall represent such
Book-Entry Note or Notes and shall be cancelled immediately after issuance and
the other of which shall represent the remaining Book-Entry Notes previously
represented by the surrendered Global Note and shall bear the CUSIP number of
the surrendered Global Note.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the beneficial purchaser
thereof (or a person, including an indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in turn, the Presenting Distributor
may enter an SDFS deliver order through DTC's Participant Terminal System
debiting
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such Note to such Distributor's participant account and crediting such Note
(free) to the participant account of the Trustee and shall notify the Trustee
and the Issuer thereof. Thereafter, the Trustee, (i) will immediately notify the
Issuer, once the Trustee has confirmed that such Note has been credited to its
participant account, and the Issuer shall immediately transfer by Fedwire (in
immediately available funds) to the Presenting Distributor an amount equal to
the price of such Note which was previously sent by wire transfer to the account
of the Issuer maintained at Bank of America Illinois, Chicago, Illinois, and
(ii) the Trustee will deliver the withdrawal message and take the related
actions described in the preceding paragraph. Such debits and credits will be
made on the settlement date, if possible, and in any event not later than 5:00
p.m. on the following Business Day. If the fail shall have occurred for any
reason other than failure of the Presenting Distributor to provide the Purchase
Information to the Issuer or to provide a confirmation to the purchaser, the
Issuer will reimburse the Presenting Distributor on an equitable basis for its
loss of the use of funds during the period when the funds were credited to the
account of the Issuer.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Note, the Trustee will provide for the authentication
and issuance of a Global Note representing the other Book-Entry Notes to have
been represented by such Global Note and will make appropriate entries in its
records.
C-18
<PAGE> 47
EXHIBIT D
__________, 2000
DELAYED DELIVERY CONTRACT
Whitman Corporation
c/o [NAME AND ADDRESS OF EACH DISTRIBUTOR]
Gentlemen:
The undersigned hereby agrees to purchase from Whitman
Corporation, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, as of the date hereof, for delivery on __________, 200_
("Delivery Date"),
$
------------------
principal amount of the Company's ______________ securities ("Securities"),
offered by the Company's Prospectus dated __________, 2000 and a Prospectus
Supplement dated __________, 200_ relating thereto, receipt of copies of which
is hereby acknowledged, at __% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
Payment for the Securities that the undersigned has agreed to
purchase for delivery on the Delivery Date shall be made to the Company in
immediately available funds at the office of _______________________ at 10:00
A.M. on the Delivery Date upon delivery to the undersigned of the Securities to
be purchased by the undersigned for delivery on such Delivery Date in definitive
fully registered form and in such denominations and registered in such names as
the undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on the Delivery Date shall be
subject only to the condition[S] that (1) investment in the Securities shall not
at the Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject [AND (2) THE COMPANY SHALL
HAVE SOLD TO THE UNDERWRITERS THE TOTAL PRINCIPAL AMOUNT OF THE SECURITIES LESS
THE PRINCIPAL AMOUNT THEREOF COVERED BY THIS AND OTHER SIMILAR CONTRACTS]. The
undersigned represents that
D-1
<PAGE> 48
its investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
governs such investment.
[PROMPTLY AFTER COMPLETION OF THE SALE TO THE UNDERWRITERS THE
COMPANY WILL MAIL OR DELIVER TO THE UNDERSIGNED AT ITS ADDRESS SET FORTH BELOW
NOTICE TO SUCH EFFECT, ACCOMPANIED BY A COPY OF THE OPINION OF COUNSEL FOR THE
COMPANY DELIVERED TO THE UNDERWRITERS IN CONNECTION THEREWITH.]
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
D-2
<PAGE> 49
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
-----------------------------------
(Name of Purchaser)
By:
-------------------------------
-----------------------------------
(Title of Signatory)
-----------------------------------
-----------------------------------
(Address of Purchaser)
Accepted, as of the above date.
WHITMAN CORPORATION
By:
-----------------------------
D-3
<PAGE> 1
EXHIBIT 5
[SIDLEY & AUSTIN LETTERHEAD]
May 9, 2000
Board of Directors
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
Re: Whitman Corporation
$750,000,000 Principal Amount of Debt Securities
Ladies and Gentlemen:
We are counsel to Whitman Corporation, a Delaware corporation (the
"Company"), and have represented the Company with respect to the Registration
Statement on Form S-3 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act"), relating to the offer and sale of up to
$750,000,000 aggregate offering price of the Company's debt securities (the
"Debt Securities"). Unless otherwise specified in the applicable prospectus
supplement, the Debt Securities will be issued under an Indenture (the
"Indenture") dated as of January 15, 1993 between the Company and Bank One Trust
Company, National Association, as trustee (the "Trustee"), as supplemented by
the First Supplemental Indenture dated as of May 20, 1999 between the Company
and the Trustee.
In rendering this opinion letter, we have examined and relied upon
copies of the Indenture and the Registration Statement. We have also examined
originals, or copies of originals, of such agreements, documents, certificates
and statements of government officials and other instruments, and have examined
such questions of law and have satisfied ourselves as to such matters of fact,
as we have considered relevant and necessary as a basis for this opinion letter.
We have assumed the authenticity of all documents submitted to us as originals,
the genuineness of all signatures, the legal capacity of all natural persons and
the conformity with the original documents of any copies thereof submitted to us
for examination.
<PAGE> 2
Board of Directors
Whitman Corporation
May 9, 2000
Page 2
Based on the foregoing, and subject to the qualifications and
limitations hereinafter set forth, we are of the opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Delaware.
2. The Company has the corporate power and authority to execute
and deliver the Indenture and has the corporate power and authority to
authorize and sell the Debt Securities.
3. Each series of Debt Securities will be legally issued and
binding obligations of the Company (except to the extent
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by the effect of
general principles of equity, regardless of whether enforceability is
considered in a proceeding in equity or at law) when (i) the
Registration Statement, as finally amended (including any necessary
post-effective amendments), shall have become effective under the
Securities Act and any necessary supplemental indenture to the
Indenture shall have been qualified under the Trust Indenture Act of
1939, as amended, and duly executed and delivered by the Company and
the Trustee; (ii) a prospectus supplement with respect to such series
of Debt Securities shall have been filed with the SEC pursuant to Rule
424 under the Securities Act; (iii) the Company shall have taken
appropriate corporate action authorizing the issuance and sale of such
series of Debt Securities as contemplated by the resolutions
heretofore adopted by the Board of Directors of the Company and the
Indenture; and (iv) such series of Debt Securities shall have been
duly executed and authenticated as provided in the Indenture and shall
have been delivered to purchasers thereof against payment of the
agreed consideration therefor.
For the purposes of this opinion letter, we have assumed that there
will be no change in the laws currently applicable to the Company and that such
laws will be the only laws applicable to the Company.
We do not find it necessary for the purposes of this opinion letter to
cover, and accordingly we express no opinion as to, the application of the
securities or "Blue Sky" laws of the various states to the sale of the Debt
Securities.
This opinion letter is limited to the Delaware General Corporation Law
and the Securities Act.
We hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement and to all references to our firm in the Registration
Statement or the Prospectus included therein.
Very truly yours,
SIDLEY & AUSTIN
2
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
Whitman Corporation:
We consent to the incorporation by reference in the registration statement (No.
333-____) on Form S-3 of Whitman Corporation of our report dated February 1,
2000, relating to the consolidated balance sheets of Whitman Corporation and
subsidiaries as of the end of fiscal years 1999 and 1998, and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the fiscal years 1999, 1998, and 1997, which report appears in the fiscal
1999 annual report on Form 10-K of Whitman Corporation and to the reference to
our firm under the heading "Experts" in the prospectus.
(signed) KPMG LLP
Chicago, Illinois
May 4, 2000
<PAGE> 1
Exhibit 25
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) __
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: STEVEN M. WAGNER, DIRECTOR, (312) 407-1819
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
WHITMAN CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-6167838
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
3501 ALGONQUIN ROAD
ROLLING MEADOWS, IL 60008
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
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 Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
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 the
trustee now in effect.*
2. A copy of the certificate of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE> 3
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.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, 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, on the 21st day of April,
2000.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
TRUSTEE
BY /S/ STEVEN M. WAGNER
---------------------
STEVEN M. WAGNER
DIRECTOR
* EXHIBITS 1, 2, 3, AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM
S-4 OF U S WEST COMMUNICATIONS, INC., FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON MARCH 24, 2000 (REGISTRATION NO. 333-32124).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 21, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between Whitman Corporation
and Bank One Trust Company, National Association, as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY: /S/STEVEN M. WAGNER
----------------------
STEVEN M. WAGNER
DIRECTOR
<PAGE> 5
EXHIBIT 7
<TABLE>
<S><C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ---------
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1) 0081 123,692 1.a
b. Interest-bearing balances(2)........................................... 0071 17,687 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)........... 1773 5,860 2.b
3. Federal funds sold and securities purchased under agreements to resell ... 1350 364,813 3.
4. Loans and lease financing receivables: RCON
a. Loans and leases, net of unearned income (from Schedule ----
RC-C)..................................................................... 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses.............................. 3123 10 4.b
c. LESS: Allocated transfer risk reserve.................................. 3128 0 4.c
RCON
d. Loans and leases, net of unearned income, allowance, and ----
reserve (item 4.a minus 4.b and 4.c).................................. 2125 58,010 4.d
5. Trading assets (from Schedule RD-D)....................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ................. 2145 22,547 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 27,151 10.
11. Other assets (from Schedule RC-F)......................................... 2160 141,759 11.
12. Total assets (sum of items 1 through 11).................................. 2170 761,519 12.
</TABLE>
- -----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
<TABLE>
<S><C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 East Broad Street Vendor ID: D Cert #: 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits: RCON
a. In domestic offices (sum of totals of columns A and C ----
from Schedule RC-E, part 1)............................................ 2200 589,846 13.a
(1) Noninterest-bearing(1)............................................. 6631 517,140 13.a1
(2) Interest-bearing................................................... 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II).....................................
(1) Noninterest bearing................................................
(2) Interest-bearing...................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)............................. RCFD 3548 0 15.b
RCON
16. Other borrowed money: ----
a. With original maturity of one year or less............................. 2332 0 16.a
b. With original maturity of more than one year. ........................ A547 0 16.b
c. With original maturity of more than three years....................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 0 18.
19. Subordinated notes and debentures......................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G).................................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20)............................ 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............................. 3838 0 23.
24. Common stock.............................................................. 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) ................. 3839 45,157 25.
26. a. Undivided profits and capital reserves................................. 3632 62,458 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities............................................................ 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges..................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments ......................
28. Total equity capital (sum of items 23 through 27) ........................ 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)..................................... 3300 761,519 29.
Memorandum
To be reported only with the March Report of Condition.
1. 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 Number
auditors as of any date during 1996 .........................................................RCFD 6724 ....... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5. = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6. = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7. = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8. = No external audit work
accordance with generally accepted auditing standards by a
certified public accounting firm (may be required by state
chartering authority)
</TABLE>
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
