<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 23, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
R. R. DONNELLEY & SONS COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 36-1004130
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
77 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601
(312) 326-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
DEBORAH M. REGAN
VICE PRESIDENT AND SECRETARY
R. R. DONNELLEY & SONS COMPANY
77 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601
(312) 326-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
DENNIS V. OSIMITZ
SIDLEY & AUSTIN
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60603
(312) 853-7000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time 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]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Debt Securities.................. $500,000,000(2) 100% $500,000,000 $172,414
</TABLE>
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(1) Estimated solely for the purpose of determining the registration fee.
(2) Or, in the case of debt securities issued at an original discount, such
greater principal amount as shall result in an aggregate offering price of
the amount set forth above or, in the case of debt securities denominated
in a currency other than U.S. dollars or in a composite currency, such U.S.
dollar amount as shall result from converting the aggregate public offering
price of such debt securities into U.S. dollars at the spot exchange rate
in effect on the date such debt securities are initially offered to the
public.
----------------
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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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION DATED FEBRUARY 23, 1995
PROSPECTUS
LOGO
LOGO
DEBT SECURITIES
-----------
R. R. Donnelley & Sons Company (the "Company") may offer from time to time up
to $500,000,000 (or its equivalent, based on the applicable exchange rate at
the time of sale, in such foreign currencies or composite currencies, as shall
be designated by the Company) aggregate principal amount of its unsecured debt
securities (the "Debt Securities"), consisting of debentures, notes and/or
other unsecured evidences of indebtedness. The Debt Securities may be offered
as separate series in amounts, at prices and on terms to be determined at the
time of sale. The accompanying Prospectus Supplement (the "Prospectus
Supplement") sets forth with regard to the Debt Securities in respect of which
this Prospectus is being delivered (the "Offered Debt Securities") the title,
aggregate principal or initial offering amount, currency or currencies in which
the principal (and premium, if any) and any interest are payable,
denominations, maturity, rate (which may be fixed or variable) and time of
payment of any interest, any terms for redemption at the option of the Company
or the holder, any terms for sinking fund payments, any listing on a securities
exchange and the initial public offering price and other terms in connection
with the offering and sale of the Offered Debt Securities.
The Company may sell Debt Securities to or through underwriters or dealers,
and also may sell Debt Securities directly to other purchasers or through
agents. See "Plan of Distribution." The Prospectus Supplement sets forth the
names of any underwriters or agents involved in the sale of the Offered Debt
Securities and any applicable commissions or discounts.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAP-
PROVED BY THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PRO-
SPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1995
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND,
WITH RESPECT TO PARTICULAR OFFERED DEBT SECURITIES, THE PROSPECTUS SUPPLEMENT
RELATING THERETO, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY AGENT,
UNDERWRITER OR DEALER. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT
CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY OR THEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THEREOF OR THAT THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN
OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy and information statements and
other information filed by the Company can be inspected and copied at the
public reference facilities maintained by the Commission at 450 5th Street,
N.W., Washington, D.C. 20549, and at the following Regional Offices of the
Commission: 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and
Seven World Trade Center, New York, New York 10048. Copies of such material can
be obtained at prescribed rates from the Public Reference Branch of the
Commission, 450 5th Street, N.W., Washington, D.C. 20549. Such reports, proxy
and information statements and other information concerning the Company can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, the Chicago Stock Exchange, 440 South LaSalle
Street, Chicago, Illinois 60605, and the Pacific Stock Exchange, 301 Pine
Street, San Francisco, California 94104, on which the Company's Common Stock is
listed.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed with the Commission by the Company
under the Exchange Act are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the year ended December 31,
1993;
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, June 30 and September 30, 1994, respectively; and
(c) the Company's Current Reports on Form 8-K dated January 5, 1994 and
February 21, 1995, respectively.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company will provide without charge to each person to whom a copy of this
Prospectus has been delivered, on the written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may be
incorporated in this Prospectus by reference, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference
therein. Written requests or requests by telephone for such copies should be
directed to Deborah M. Regan, Vice President and Secretary, R. R. Donnelley &
Sons Company, 77 West Wacker Drive, Chicago, Illinois 60601 (telephone number
312-326-8000).
2
<PAGE>
THE COMPANY
R. R. Donnelley & Sons Company, incorporated in the state of Delaware in 1956
as the successor to a business founded in 1864, is a major participant in the
information industry, providing a broad range of services in print and digital
media. The Company believes it is the largest supplier of commercial print and
print-related services in the United States. It is a major supplier in the
United Kingdom and also provides services in Latin America, continental Europe
and Asia. Services provided to customers include presswork and binding,
including on-demand customized publications; conventional and digital pre-press
operations, including desktop publishing and filmless color imaging, necessary
to create a printing image; software replication, translation and localization;
list, list enhancement, data base management and mail production services;
design and related creative services; cartographic services; electronic
communication networks for simultaneous worldwide product releases; digital
services to publishers; and the planning for and fulfillment of truck, rail,
mail and air distribution for products of the Company and its customers, as
well as third parties.
The Company's executive offices are located at 77 West Wacker Drive, Chicago,
Illinois 60601, and its telephone number is 312-326-8000.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement, the net proceeds to
be received by the Company from the sale of the Debt Securities will be used
for general corporate purposes, which may include the repayment of
indebtedness, working capital, capital expenditures, acquisitions and the
repurchase of shares of the Company's common stock. Pending use for these
purposes, the Company may invest proceeds from the sale of the Debt Securities
in short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES(1)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------------------------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
5.7 4.9(2) 7.3 5.7 11.5
</TABLE>
- --------
(1) For the purposes of calculating the ratio of earnings to fixed charges,
earnings consist of earnings before income taxes and fixed charges to the
extent that such charges are included in the determination of earnings.
Fixed charges consist of interest (whether expensed or capitalized) and
one-third of minimum rental payments under operating leases (estimated by
management to be the interest factor of such rentals).
(2) 1993 results include a $90 million restructuring charge recorded in the
first quarter of 1993 and related primarily to the shutdown of the
Company's Chicago manufacturing facility following a customer's decision to
discontinue its catalog operations. The ratio of earnings to fixed charges
for 1993 would have been 6.2, exclusive of such charge.
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement
and the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating
to such Debt Securities.
The Offered Debt Securities are to be issued under an Indenture, dated as of
November 1, 1990, as supplemented from time to time (the "Indenture"), between
the Company and Citibank, N.A., as Trustee (the "Trustee"), a copy of which is
an exhibit to the Registration Statement of which this Prospectus is a part.
The following summaries of certain provisions of the Debt Securities and the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by express reference to, all the provisions of the Indenture,
including the definitions therein of certain terms. Certain terms defined in
the Indenture are capitalized herein. Particular section numbers refer to
sections in the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the Company and will
rank on a parity with all other unsecured and unsubordinated indebtedness of
the Company.
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued thereunder from time to time in one or more series (Section 301).
Reference is made to the Prospectus Supplement relating to the Offered Debt
Securities for, among other things, the following terms thereof: (1) the title
of the Offered Debt Securities; (2) any limit on the aggregate principal amount
of the Offered Debt Securities; (3) the date or dates on which the Offered Debt
Securities will mature; (4) the rate or rates (which may be fixed or variable)
per annum at which the Offered Debt Securities will bear interest, if any, and
the date from which such interest will accrue; (5) the dates on which such
interest will be payable and the Regular Record Dates for such Interest Payment
Dates; (6) the dates, if any, on which and the price or prices at which the
Offered Debt Securities may, pursuant to any mandatory or optional sinking fund
provisions, be redeemed by the Company and other detailed terms and provisions
of such sinking funds; (7) the date, if any, after which and the price or
prices at which the Offered Debt Securities may, pursuant to any optional
redemption provisions, be redeemed at the option of the Company or of the
Holder thereof and other detailed terms and provisions of such optional
redemption; and (8) the currency or composite currencies in which the Offered
Debt Securities are denominated and in which principal of, premium, if any, and
any interest on the Offered Debt Securities will or may be payable (Section
301). For a description of the terms of the Offered Debt Securities, reference
must be made to both the Prospectus Supplement relating thereto and to the
description of Debt Securities set forth herein.
Unless otherwise indicated in the Prospectus Supplement relating thereto, the
principal of, and any premium or interest on, the Offered Debt Securities will
be payable, and the Offered Debt Securities will be exchangeable and transfers
thereof will be registerable, at the Corporate Trust Office of the Trustee,
provided that, at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as it appears in the
Security Register (Sections 202, 301, 305 and 1002).
Unless otherwise indicated in the Prospectus Supplement relating thereto, the
Offered Debt Securities will be issued in United States dollars in fully
registered form, without coupons, in denominations of $1,000 or any integral
multiple thereof (Section 302). No service charge will be made for any transfer
or exchange of the Offered Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith (Section 305).
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount from the principal
amount thereof. Special federal income tax, accounting and other considerations
applicable to any such Original Issue Discount Securities will be described in
the
4
<PAGE>
Prospectus Supplement relating thereto. "Original Issue Discount Security"
means any security which provides for an amount less than the principal amount
thereof to be due and payable upon the declaration of acceleration of the
Maturity thereof upon the occurrence of an Event of Default and during the
continuation thereof (Section 101).
Unless otherwise indicated in the Prospectus Supplement relating thereto, the
Indenture does not afford holders of Debt Securities of any series protection
against the Company incurring unsecured indebtedness or (except as described in
"Description of Debt Securities--Restrictive Covenants") engaging in corporate
transactions or reorganizations which could result in the Company's involvement
in a highly leveraged transaction.
RESTRICTIVE COVENANTS
Restrictions Upon Secured Debt
The Company covenants that it will not, and will not permit any Restricted
Subsidiary to, create, incur, issue, assume or guarantee any indebtedness for
borrowed money (hereafter called "indebtedness") secured by a mortgage,
security interest, pledge or lien (hereafter called "mortgage") of or upon any
Principal Property or on any shares of capital stock or indebtedness of any
Restricted Subsidiary, whether owned at the date of the Indenture or thereafter
acquired, without effectively providing that the Debt Securities (together
with, if the Company shall so determine, any other indebtedness created,
incurred, issued, assumed or guaranteed by the Company or any Restricted
Subsidiary and then existing or thereafter created) shall be secured by such
mortgage equally and ratably with (or, at the option of the Company, prior to)
such indebtedness. The foregoing restrictions, however, shall not apply to any
indebtedness secured by any one or more of the following: (a) mortgages of or
upon any property acquired, constructed or improved by, or of or upon any
shares of capital stock or indebtedness acquired by, the Company or any
Restricted Subsidiary after the date of the Indenture to secure indebtedness
incurred for the purpose of financing or refinancing all or any part of the
purchase price of any property, shares of capital stock or indebtedness or of
the cost of any construction or improvements on such property, which
indebtedness is incurred prior to or within 180 days after such acquisition,
completion of such construction or the commencement of the commercial operation
of such property, as the case may be; (b) mortgages of or upon any property,
shares of capital stock or indebtedness existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary; (c) mortgages of or upon
property of a corporation existing at the time such corporation is merged with
or into or consolidated with the Company or any Restricted Subsidiary or
existing at the time of a sale or transfer of the properties of a corporation
as an entirety or substantially as an entirety to the Company or any Restricted
Subsidiary; (d) mortgages of or upon any property of, or shares of capital
stock or indebtedness of, a corporation existing at the time such corporation
becomes a Restricted Subsidiary; (e) mortgages to secure indebtedness of any
Restricted Subsidiary to the Company or to another Restricted Subsidiary; (f)
mortgages in favor of governmental bodies to secure partial, progress, advance
or other payments pursuant to any contract or statute or to secure indebtedness
incurred or guaranteed to finance or refinance all or any part of the purchase
price of the property, shares of capital stock or indebtedness subject to, or
the cost of constructing or improving the property subject to, such mortgages;
and (g) extensions, renewals or replacements of any mortgage existing on the
date of the Indenture or any mortgage referred to in the foregoing clauses (a)
through (f), inclusive (Section 1006).
Notwithstanding the restrictions outlined above, the Company or any
Restricted Subsidiary may, without equally and ratably securing the Debt
Securities, issue, assume or guarantee indebtedness secured by a mortgage not
excepted under clauses (a) through (g) above, if the aggregate amount of such
indebtedness, together with all other indebtedness of, or indebtedness
guaranteed by, the Company and its Restricted
5
<PAGE>
Subsidiaries existing at such time and secured by mortgages not so excepted and
the Attributable Debt in respect of Sale and Lease-Back Transactions existing
at such time (other than Sale and Lease-Back Transactions in respect of which
an amount not less than the greater of (x) the net proceeds of the sale of such
property or (y) the fair market value (as determined by the Board of Directors)
of such property has been applied, within 180 days after the effective date of
the arrangement, to either the prepayment or retirement (other than any
mandatory prepayment or retirement) of long-term indebtedness or to the
acquisition, construction or improvement of a manufacturing plant or facility
which is, or upon completion will be, a Principal Property and Sale and Lease-
Back Transactions in which the property involved would have been permitted to
be mortgaged under clause (a) or (f) above), does not at the time exceed 10% of
Consolidated Net Tangible Assets (Section 1006).
Restrictions Upon Sale and Lease-Back Transactions
Sale and Lease-Back Transactions by the Company or any Restricted Subsidiary
of any Principal Property are prohibited unless (i) the Company or such
Restricted Subsidiary would (at the time of entering into such arrangement) be
entitled pursuant to clause (a) or (f) under the subsection Restrictions Upon
Secured Debt above, without equally and ratably securing the Debt Securities,
to incur indebtedness secured by a mortgage on the property to be leased, or
(ii) the Company or such Restricted Subsidiary would (at the time of entering
into such arrangement) be entitled, without equally and ratably securing the
Debt Securities, to incur indebtedness secured by a mortgage on such property
in an amount at least equal to the Attributable Debt in respect of the Sale and
Lease-Back Transaction, or (iii) the Company shall apply, within 180 days of
the effective date of the arrangement, an amount not less than the greater of
(x) the net proceeds of the sale of such property or (y) the fair market value
(as determined by the Board of Directors of the Company) of such property to
either the prepayment or retirement (other than any mandatory prepayment or
retirement) of long-term indebtedness of the Company or any Restricted
Subsidiary or to the acquisition, construction or improvement of a
manufacturing plant or manufacturing facility which is, or upon such
acquisition, construction or improvement will be, a Principal Property (Section
1007).
Certain Definitions
The term "Attributable Debt" in respect of a Sale and Lease-Back Transaction
means the present value (discounted at the rate of interest implicit in the
lease involved in such Sale and Lease-Back Transaction, as determined in good
faith by the Company) of the obligation of the lessee thereunder for rental
payments (excluding, however, any amounts required to be paid by such lessee,
whether or not designated as rent or additional rent, on account of maintenance
and repairs, insurance, taxes, assessments, water rates or similar charges or
any amounts required to be paid by such lessee thereunder contingent upon the
amount of sales, maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges) during the remaining term of such lease (including
any period for which such lease has been extended or may, at the option of the
lessor, be extended) (Section 101).
The term "Consolidated Net Tangible Assets" means, as of any particular time,
the total amount of assets (less applicable reserves) after deducting therefrom
(a) all current liabilities (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is being computed
and excluding current maturities of long-term indebtedness), and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangible assets, all as shown in the audited
consolidated balance sheet of the Company and subsidiaries contained in the
Company's then most recent annual report to stockholders, except that assets
shall include an amount equal to the Attributable Debt in respect of any Sale
and Lease-Back Transaction not capitalized on such balance sheet (Section 101).
The term "Principal Property" means any manufacturing plant or manufacturing
facility located within the United States of America, having a gross book value
in excess of 1% of Consolidated Net Tangible Assets
6
<PAGE>
at the time of determination thereof and owned by the Company or any Restricted
Subsidiary, in each case other than (1) any such plant or facility which, in
the opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries taken as a whole, or (2) any portion of such a plant or facility
similarly found not to be of material importance to the use or operation
thereof (Section 101).
The term "Restricted Subsidiary" means any Subsidiary (a) substantially all
of the property of which is located, or substantially all of the business of
which is carried on, within the United States of America (other than its
territories or possessions and other than Puerto Rico) and (b) which owns a
Principal Property; provided, however, that any Subsidiary which is principally
engaged in financing operations outside the United States of America or which
is principally engaged in leasing or in financing installment receivables shall
not be a Restricted Subsidiary (Section 101).
The term "Sale and Lease-Back Transaction" means any arrangement with any
Person providing for the leasing by the Company or any Restricted Subsidiary of
any Principal Property, whether owned at the date of the Indenture or
thereafter acquired (except for temporary leases for a term, including any
renewal thereof, of not more than three years and except for leases between the
Company and any Restricted Subsidiary, between any Restricted Subsidiary and
the Company or between Restricted Subsidiaries), which property has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
Person with the intention of taking back a lease of such property (Section
101).
The term "Subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is at the time owned, directly or indirectly, by the
Company and/or one or more of its other Subsidiaries (Section 101).
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to Debt
Securities of any series: (a) default in the payment of any interest on any
Debt Security of that series when due, continued for 30 days; (b) default in
the payment of the principal of or premium, if any, on any Debt Security of
that series at Maturity; (c) default in the deposit of any sinking fund payment
in respect of any Debt Security of that series when due; (d) default in the
performance, or breach, of any other covenant or warranty of the Company in the
Indenture (other than a covenant or warranty included in the Indenture solely
for the benefit of series of Debt Securities other than that series), continued
for 90 days after written notice as provided in the Indenture; (e) certain
events of bankruptcy, insolvency or reorganization relating to the Company; and
(f) any other Event of Default provided with respect to Debt Securities of that
series (Section 501).
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding shall occur and be continuing, either the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Debt Securities of that series to be due and payable immediately.
However, at any time after a declaration of acceleration with respect to Debt
Securities of any series has been made, and before a judgment or decree based
on such acceleration has been obtained, the Holders of a majority in principal
amount of Outstanding Debt Securities of that series may, subject to certain
conditions, rescind and annul such acceleration if all Events of Default, other
than the nonpayment of accelerated principal, with respect to Debt Securities
of that series have been cured or waived as provided in the Indenture (Section
502). For information as to waiver of defaults, see "Modification and Waiver."
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
7
<PAGE>
The Indenture provides that, subject to the duties of the Trustee to act with
the required standard of care if an Event of Default shall occur and be
continuing, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity (Sections 601 and 603). Subject to such provisions for
security or indemnification of the Trustee and certain other conditions, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Debt Securities
of that series (Section 512).
No Holder of any Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
a continuing Event of Default with respect to Debt Securities of that series
and unless also the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series shall have made written request, and
offered reasonable security or indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in principal amount of the Outstanding Debt Securities of that
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days after the Trustee's receipt of such
notice (Section 507). However, the Holder of any Debt Security will have an
absolute right to receive payment of the principal of (and premium, if any) and
any interest on such Debt Security on or after the due dates expressed in such
Debt Security and to institute suit for the enforcement of any such payment
(Section 508).
The Indenture requires the Company to furnish to the Trustee annually a
statement as to the absence of certain defaults under the Indenture (Section
1008). The Indenture provides that the Trustee may withhold notice to the
Holders of Debt Securities of any series of any default (except defaults in
payment of principal or any premium or interest or in sinking fund payments)
with respect to Debt Securities of that series if it determines the withholding
of such notice is in the interest of the Holders of Debt Securities of that
series (Section 602).
MODIFICATION AND WAIVER
Modification and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of each series affected
thereby; provided, however, that no such modification or amendment may, without
the consent of the Holder of each Outstanding Debt Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Debt Security; (b) reduce the principal amount
of, or the rate of interest on, or any premium payable upon the redemption of,
any Debt Security; (c) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the Maturity thereof; (d) change
the place or currency of payment of principal of, or premium, if any, or
interest on, any Debt Security; (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security after the
Stated Maturity; or (f) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of the Holders of which
is required for modification or amendment of the Indenture, for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults (Section 902).
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain restrictive covenants of the Indenture
(Section 1009). The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all Debt Securities of that series waive any past default under the Indenture
with respect to that series, except a default in the payment of the principal
of or premium, if any, or any interest on any Debt Security of that series or
in respect of a provision which under the Indenture cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security of
that series affected (Section 513).
8
<PAGE>
DEFEASANCE
Defeasance and Discharge
If the Debt Securities of any series so provide, the Company will be
discharged (hereinafter, "defeasance") from any and all obligations in respect
of 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 or mutilated Debt Securities of that series, to maintain paying agencies,
to compensate and indemnify the Trustee and to furnish the Trustee (if the
Trustee is not the registrar) with the names and addresses of the holders of
Debt Securities of that series) upon the irrevocable deposit with the Trustee,
in trust, of money and/or securities of the government which issued the
currency in which the Debt Securities of that series are payable or securities
issued by government agencies backed by the full faith and credit of such
government which, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of (and premium, if any) and the interest on
the Debt Securities of that series on the Stated Maturity of such payments in
accordance with the terms of the Debt Securities of that series (Section 1302).
Such a defeasance may be effected only if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel (who may be an employee of or
counsel for the Company) stating that the Company has received from the
Internal Revenue Service a private letter ruling, or that the Internal Revenue
Service has published a revenue ruling pertaining to a comparable form of
transaction, or that since the date of the Indenture there has been a change in
the applicable federal income tax law, in either case 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 such defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times, as would have been the case if such defeasance had not occurred
(Section 1304). In addition, the Company may also obtain a discharge of the
Indenture with respect to all Debt Securities issued under the Indenture by
depositing with the Trustee, in trust, money sufficient to pay at Stated
Maturity or upon redemption all of such Debt Securities, provided that such
Debt Securities are by their terms to become due and payable within one year or
are to be called for redemption within one year (Section 401).
Defeasance of Certain Covenants and Certain Events of Default
If the Debt Securities of any series so provide, the Company may omit to
comply (hereinafter, "covenant defeasance") with the restrictive covenants
described under Restrictive Covenants--Restrictions Upon Secured Debt and --
Restrictions Upon Sale and Lease-Back Transactions and Consolidation, Merger
and Sale of Assets and such other covenants as may be included in the
Prospectus Supplement for such series, and no Event of Default shall arise with
respect to Debt Securities of such series by reason of any failure to comply
therewith, upon the irrevocable deposit with the Trustee, in trust, of money
and/or securities of the government which issued the currency in which the Debt
Securities of that series are payable or securities issued by government
agencies backed by the full faith and credit of such government which, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide money in an amount sufficient to pay the principal of
(and premium, if any) and the interest on the Debt Securities of that series on
the Stated Maturity of such payments in accordance with the terms of the Debt
Securities of that series (Sections 1303 and 1304). The obligations of the
Company under the Debt Securities of that series other than with respect to the
covenants referred to above and all Events of Default other than with respect
to such covenants shall remain in full force and effect. Such a covenant
defeasance may be effected only if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel (who may be an employee of or
counsel for the Company) to the effect that the Holders of the Debt Securities
of that series will not recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times, as
would have been the case if such covenant defeasance had not occurred (Section
1304).
Covenant Defeasance and Certain Other Events of Default
In the event the Company exercises its option to effect a covenant defeasance
with respect to the Debt Securities of any series as described above and the
Debt Securities of that series are thereafter declared due
9
<PAGE>
and payable because of the occurrence of any Event of Default other than the
Event of Default caused by failing to comply with the covenants which are
defeased, the amount of money and securities on deposit with the Trustee would
be sufficient to pay amounts due on the Debt Securities of that series at the
time of their Stated Maturity but may not be sufficient to pay amounts due on
the Debt Securities of that series at the time of the acceleration resulting
from such Event of Default. However, the Company would remain liable for such
payments.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Nothing in the Indenture or in any of the Debt Securities shall prevent any
consolidation of the Company with or merger of the Company into any other
corporation or shall prevent any lease, sale or transfer of all or
substantially all of the property and assets of the Company to any other
Person; provided, however, and the Company covenants and agrees, that any such
consolidation, merger, lease, sale or transfer shall be upon the condition that
(i) the due and punctual payment of the principal of, and premium, if any, and
interest on, all the Debt Securities according to their tenor, and the due and
punctual performance and observance of all the terms, covenants and conditions
of the Indenture to be kept or performed by the Company, shall, by an indenture
supplemental to the Indenture, executed and delivered to the Trustee, be
assumed by the corporation formed by such consolidation or into which the
Company shall have merged, or the Person which shall have acquired by lease,
sale or transfer all or substantially all of the property and assets of the
Company, (ii) after giving effect to such transaction, no Event of Default, and
no event which after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing and (iii) the corporation formed
by such consolidation or into which the Company shall have merged or the Person
which shall have acquired by sale or transfer, or which leases, all or
substantially all of the property or assets of the Company shall be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia. (Section 801).
If, upon any such consolidation or merger, or upon any such lease, sale or
transfer, any Principal Property of the Company or of any Restricted Subsidiary
or any shares of capital stock or indebtedness of any Restricted Subsidiary,
owned immediately prior thereto, would thereupon become subject to any
mortgage, security interest, pledge or lien securing any indebtedness for
borrowed money of, or guaranteed by, such other corporation or Person (other
than any mortgage, security interest, pledge or lien permitted as described
under "Restrictive Covenants--Restrictions Upon Secured Debt" above), the
Company, prior to such consolidation, merger, lease, sale or transfer, will by
indenture supplemental to the Indenture secure the due and punctual payment of
the principal of, and premium, if any, and interest on the Debt Securities
(together with, if the Company shall so determine, any other indebtedness of,
or guaranteed by, the Company or any Restricted Subsidiary and then existing or
thereafter created) equally and ratably with (or, at the option of the Company,
prior to) the indebtedness secured by such mortgage, security interest, pledge
or lien (Section 802).
REGARDING THE TRUSTEE
Citibank, N.A., the Trustee under the Indenture, is also trustee with respect
to several series of debt securities issued pursuant to the Indenture. The
Company maintains banking relationships in the ordinary course of business with
Citibank, N.A. and several of its affiliates. Citibank, N.A., through certain
of such affiliates, has committed to lend funds to the Company from time to
time under various credit agreements among the Company and the banks which are
parties thereto.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters or dealers,
and also may sell Debt Securities directly to one or more other purchasers or
through agents. The Prospectus Supplement sets forth the names of any
underwriters or agents involved in the sale of the Offered Debt Securities and
any applicable commissions or discounts.
Underwriters, dealers or agents may offer and sell the Debt Securities at a
fixed price or prices, which may be changed, or 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. In connection with the sale of the Debt
Securities,
10
<PAGE>
underwriters or agents may be deemed to have received compensation from the
Company in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of the Debt Securities for whom they may
act as agent. Underwriters or agents may sell the Debt Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters or commissions from the
purchasers for whom they may act as agent.
The Debt Securities, when first issued, will have no established trading
market. Any underwriters or agents to or through whom Debt Securities are sold
by the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any Debt Securities.
Any underwriters, dealers or agents participating in the distribution of the
Debt Securities may be deemed to be underwriters and any discounts and
commissions received by them and any profit realized by them on resale of the
Debt Securities may be deemed to be underwriting discounts and commissions
under the Securities Act of 1933, as amended (the "Act"). Underwriters, dealers
or agents may be entitled, under agreements entered into with the Company, to
indemnification against or contribution toward certain civil liabilities,
including liabilities under the Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or agents to solicit offers by certain institutions to purchase
Debt Securities from the Company pursuant to contracts providing for payment
and delivery on a future date. Institutions with which such contracts may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but
in all cases such institutions must be approved by the Company. The obligations
of any purchaser under any such contract will be subject to the condition that
the purchase of the Offered Debt Securities shall not at the time of delivery
be prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other persons will not have any
responsibility in respect of the validity or performance of such contracts.
LEGAL OPINIONS
Certain legal matters in connection with the Debt Securities offered hereby
will be passed upon for the Company by Deborah M. Regan, Vice President and
Secretary of the Company, and Sidley & Austin, Chicago, Illinois. As of
December 31, 1994, Ms. Regan beneficially owned 704 shares of the Company's
common stock and held options to acquire 6,100 shares of such common stock. Mr.
H. Blair White, of counsel to Sidley & Austin, is a director of the Company.
EXPERTS
The (i) consolidated financial statements and schedules of the Company
included in its Annual Report on Form 10-K for the year ended December 31, 1993
and (ii) consolidated financial statements and notes to financial statements of
the Company for the year ended December 31, 1994 included in its Current Report
on Form 8-K dated February 21, 1995 and incorporated by reference in this
Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP (formerly Arthur Andersen & Co.), independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are estimated to be:
<TABLE>
<S> <C>
S.E.C. Registration Fee......................................... $172,414
Trustee's Charges............................................... 33,000*
Engraving....................................................... 5,000*
Accounting Fees................................................. 15,000*
Rating Agency Fees.............................................. 80,000*
Blue Sky and Legal Fees and Expenses............................ 80,000*
Miscellaneous................................................... 14,586*
--------
$400,000
========
</TABLE>
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 of the Delaware General Corporation Law
which provides for indemnification of directors and officers in certain
circumstances.
Article Twelfth of the Company's Certificate of Incorporation, which
Certificate was filed as an exhibit to the Company's Form 10-Q for the quarter
ended March 31, 1993, is incorporated herein by reference.
The Company has purchased liability insurance covering its directors and
officers to provide protection in certain circumstances where the Company
cannot indemnify a director or officer, in addition to protection to the
Company in certain circumstances where a director or officer may be indemnified
by the Company under the provisions of Delaware law.
The proposed forms of Underwriting Agreement and Agency Agreement, filed as
Exhibits 1.1 and 1.2, respectively, to this Registration Statement, provide for
indemnification of directors and officers of the Company by the underwriters or
agents, as the case may be, against certain liabilities.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1 --Form of Underwriting Agreement.
1.2 --Form of Agency Agreement.
4.1 --Indenture dated as of November 1, 1990 between the Company and
Citibank, N.A., as Trustee, filed as an Exhibit with Form SE on
May 3, 1990 and incorporated by reference herein.
4.2 --Form of Debt Securities (included in 4.1 at pages 14-22).
4.3 --Form of Fixed Rate Note.
4.4 --Form of Floating Rate Note.
5 --Opinion of Deborah M. Regan as to the validity of the Debt
Securities.
12 --Computation of Ratio of Earnings to Fixed Charges, filed as an
Exhibit with Current Report on Form 8-K dated February 21, 1995
and incorporated by reference.
23.1 --Consent of Arthur Andersen LLP.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
23.2 --The consent of Deborah M. Regan is contained in her opinion
filed as Exhibit 5 to this Registration Statement.
24 --Powers of Attorney.
25 --Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of Citibank, N.A.
</TABLE>
ITEM 17. UNDERTAKINGS.
The Company hereby undertakes (1) to file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that paragraphs (1)(i) and (1)(ii)
do not apply if this Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement; (2) that, for the
purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; (3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering; (4) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; (5) that, for purposes of determining any liability
under the Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon Rule
430A and contained in a form of prospectus filed by the Company pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared effective;
and (6) that, for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described under Item 15 above or otherwise,
the Company 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 Company
of expenses incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or proceeding) is
asserted against the Company by such director, officer or controlling person in
connection with the securities being registered, the Company 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-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS CAUSED THIS REGISTRATION STATEMENT
TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN
THE CITY OF CHICAGO AND THE STATE OF ILLINOIS ON THE 23RD DAY OF FEBRUARY,
1995.
R. R. DONNELLEY & SONS COMPANY
/s/ Frank R. Jarc
By __________________________________
Frank R. Jarc,
Executive Vice President and Chief
Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW ON THE 23RD DAY OF FEBRUARY, 1995 BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE AND TITLE
SIGNATURE AND TITLE *
-------------------------------------
* Richard M. Morrow,
- ------------------------------------- Director
John R. Walter,
Chairman of the Board, Chief *
Executive Officer and Director -------------------------------------
(Principal Executive Officer) M. Bernard Puckett,
Director
/s/ Frank R. Jarc
- ------------------------------------- *
Frank R. Jarc, -------------------------------------
Executive Vice President and John M. Richman,
Chief Financial Officer Director
(Principal Financial Officer)
*
* -------------------------------------
- ------------------------------------- William D. Sanders,
William L. White, Director
Vice President and Controller
(Principal Accounting Officer) *
-------------------------------------
* Jerre L. Stead,
- ------------------------------------- Director
Martha Layne Collins,
Director *
-------------------------------------
* Bide L. Thomas,
- ------------------------------------- Director
James R. Donnelley,
Director *
-------------------------------------
* H. Blair White,
- ------------------------------------- Director
Charles C. Haffner III,
Director *
-------------------------------------
* Stephen M. Wolf,
- ------------------------------------- Director
Thomas S. Johnson,
Director
/s/ Deborah M. Regan
*By _________________________________
Deborah M. Regan,
Attorney-in-Fact
II-3
<PAGE>
DRAFT: FEBRUARY 22, 1995
EXHIBIT 1.1
-----------
===============================================================================
R. R. DONNELLEY & SONS COMPANY
Debt Securities
______________________
UNDERWRITING AGREEMENT
______________________
Dated ____________, 19__
===============================================================================
<PAGE>
R. R. DONNELLEY & SONS COMPANY
UNDERWRITING AGREEMENT
----------------------
[Date]
[NAMES AND ADDRESSES OF REPRESENTATIVES]
Ladies and Gentlemen:
From time to time R. R. Donnelley & Sons Company, a Delaware
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
underwriters named in Schedule I to the applicable Pricing Agreement (with
respect to each such Pricing Agreement, the "Underwriters") certain of the
Company's debt securities (the "Securities") specified in Schedule II to such
Pricing Agreement (with respect to each such Pricing Agreement, the "Designated
Securities"), less the principal amount of Designated Securities covered by
Delayed Delivery Contracts, if any, as provided in Section 3 hereof and as may
be specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, any Designated Securities to be covered by Delayed Delivery
Contracts being herein sometimes referred to as "Contract Securities" and the
Designated Securities to be purchased by the Underwriters (after giving effect
to the deduction, if any, for Contract Securities) being herein sometimes
referred to as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture, as it may be supplemented from time to time
(the "Indenture"), identified in such Pricing Agreement.
1. Introduction. Particular sales of Designated Securities may be
made from time to time to the Underwriters of such Securities, for whom the
firms designated as representatives of the Underwriters of such securities in
the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as
<PAGE>
their representative. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase any of the Securities. The obligation of
the Company to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the principal amount of such
Designated Securities to be purchased by each Underwriter, whether any of such
Designated Securities shall be covered by Delayed Delivery Contracts (as defined
in Section 3 hereof) and the commission payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts) and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. Each Pricing Agreement
shall be deemed to be an agreement by the Company and the Underwriters to be
bound by the terms of this Agreement. The obligations of the Underwriters under
this Agreement and each Pricing Agreement shall be several and not joint.
2. Representations and Warranties. The Company represents and
warrants to, and agrees with, each of the Underwriters that:
(a) The Company meets all of the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 33-_____) in
the form heretofore delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus included therein, to the
Representatives for each of the other Underwriters and such registration
statement in such form has been declared effective by the Commission and no
stop order suspending the effectiveness of such registration statement has
been issued and no
-2-
<PAGE>
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement being hereinafter called a "Preliminary Prospectus"; the various
parts of such registration statement, including all exhibits thereto but
excluding Form T-1, each as amended at the time such part became effective,
being hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission, on or
prior to the date of this Agreement (excluding any preliminary prospectus
supplement), being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), but prior
to or as of the date of such amendment or supplement, and incorporated by
reference; any reference to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to exclude any statement
deemed not to be incorporated by reference therein under Rule 412 of the
Act; and any reference to the Prospectus as amended or supplemented shall
be deemed to refer to the Prospectus as amended or supplemented in relation
to the applicable Designated Securities (excluding any preliminary
prospectus supplement) in the form in which it is first filed, or
transmitted for filing, with the Commission pursuant to Rule 424 under the
Act, including any documents incorporated by reference therein as of the
date of such filing or transmission);
(b) The documents incorporated by reference in the Prospectus, at the
time they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained, in the case of
a registration statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
-3-
<PAGE>
misleading, and, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, in each case after excluding any statement
in any such document which does not constitute part of the Registration
Statement or the Prospectus pursuant to Rule 412 under the Act, and any
further documents so filed and incorporated by reference in the Prospectus,
when they become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain, in the case of a
registration statement which becomes effective under the Act, an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and, in the case of other documents which are filed under the
Act or the Exchange Act, an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated
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Securities through the Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Designated Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with
its business which is material to the Company and its subsidiaries
considered as one enterprise from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock (other than issuances of
common stock pursuant to existing employee benefit or stock option plans,
repurchases by the Company of its common stock in the ordinary course of
business or conversions of outstanding convertible securities) or long-term
debt (other than changes as a result of maturities, sinking fund payments,
amortization of debt discount or currency fluctuations) of the Company or
any of its subsidiaries or any material adverse change, or any development
which will result in a material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as one
enterprise, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority under such laws to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction where the
character of the business conducted by it or the location of the property
owned by it makes such qualification necessary, except where the failure to
be so qualified would not have a material adverse effect on the Company and
its subsidiaries considered as one enterprise. Each subsidiary of the
Company that is a significant subsidiary within the meaning of Rule 1-02 of
Regulation S-X under the Act and such other subsidiaries of the Company
designated in the list previously furnished to the Representatives by an
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<PAGE>
officer of the Company for the purposes of this Agreement (collectively,
the "Subsidiaries") is a corporation duly incorporated and validly existing
in good standing under the laws of the state or jurisdiction of its
incorporation or formation, and each has corporate power and authority
under such laws to own, lease and operate its properties and to conduct its
business, and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction where the character
of the business conducted by it or the location of the property owned by it
makes such qualification necessary, except where the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries considered as one enterprise. The Company, directly or
indirectly, owns all of the issued and outstanding voting securities of
each of the Subsidiaries, in each case free and clear of any liens,
encumbrances and claims;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized and, when Designated
Securities are issued, authenticated and delivered against payment of the
agreed upon consideration therefor pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities and, in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts (as
defined in Section 3 hereof) with respect to such Contract Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which is
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and, at the Time of
Delivery (as defined in Section 3(b)(i) hereof) the Indenture will be duly
qualified under the Trust Indenture Act and when executed and delivered by
the Company and the Trustee, will constitute a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity; and the
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<PAGE>
Securities and the Indenture will conform to the description thereof
contained in the Prospectus;
(h) In the event that any of the Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and, when executed and
delivered by the Company and the purchaser named therein, will constitute a
valid and legally binding agreement of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity; and any Delayed
Delivery Contracts will conform to the description thereof in the
Prospectus;
(i) The issue and sale by the Company of the Designated Securities
and the compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, this Agreement and any Pricing Agreement with respect to
the Designated Securities, and the consummation of the transactions herein
and therein contemplated, will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Company or any of its subsidiaries under,
any agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject (except for conflicts, breaches, defaults, liens,
charges and encumbrances which would not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries
considered as one enterprise), nor will such action result in any violation
of the provisions of the Certificate or Articles of Incorporation, as
amended, or the By-Laws of the Company or any of its subsidiaries or any
statute, order, rule or regulation applicable to the Company or any of its
subsidiaries of any court or of any Federal, state or other regulatory
authority or other governmental body having jurisdiction over the Company
or any of its subsidiaries; no authorization, approval, consent,
registration, qualification or order of or with any court or any such
regulatory authority or other governmental agency or body is required for
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<PAGE>
issue and sale of the Designated Securities by the Company or the
consummation by the Company of the other transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture or any Delayed Delivery
Contracts, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
(j) Except as set forth in the Prospectus, there are no actions,
suits or proceedings before or by any court or governmental agency or body,
domestic or foreign, pending or, to the knowledge of the Company,
threatened against or, to the knowledge of the Company, affecting the
Company or any of its subsidiaries which are, individually or in the
aggregate, reasonably expected to result in any material adverse change in
the general affairs, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise, or which is reasonably expected to materially and adversely
affect the consummation by the Company of this Agreement or the issuance
and sale by the Company of any of the Designated Securities; and there are
no contracts or exhibits required by the Act or by the rules and
regulations of the Commission thereunder to be filed with the Registration
Statement or required to be described or incorporated by reference in the
Registration Statement or the Prospectus which are not filed, incorporated
by reference or described as required;
(k) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company.
(l) Arthur Andersen LLP, who are reporting upon the audited financial
statements and schedules included or incorporated by reference in the
Registration Statement, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder;
(m) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly in all material
respects the financial position of the Company and its
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<PAGE>
subsidiaries as of the dates indicated and the consolidated results of the
operations and cash flows of the Company and its subsidiaries for the
periods specified. Such financial statements (except as disclosed in the
notes thereto or otherwise stated therein) have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the entire period involved. The financial statement schedules,
if any, included in the Registration Statement present fairly in all
material respects the information required to be stated therein. The
selected financial data included in the Prospectus present fairly in all
material respects the information shown therein and have been compiled on a
basis consistent with that of the audited consolidated financial statements
included or incorporated by reference in the Registration Statement. The
pro forma financial statements and other pro forma financial information,
if any, included or incorporated by reference in the Registration Statement
present fairly in all material respects the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, have been properly compiled on
the pro forma bases described therein, and, in the opinion of the Company,
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein;
(n) Neither the Company nor any of the Subsidiaries is in violation
of its charter or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any of the Subsidiaries is subject, other than
defaults (considered in the aggregate) which do not have, or which would
not reasonably be expected to result in, a material adverse effect on the
general affairs, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as one
enterprise;
(o) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business
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<PAGE>
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit, with such
exceptions as would not, singly or in the aggregate, materially and
adversely affect the general affairs, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
considered as one enterprise; and
(p) The Company has complied and will comply with the provisions of
Florida H.B. 1771 codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations promulgated thereunder related to
issuers doing business in Cuba.
3. Purchase and Sale. (a)(i) Upon the execution of the Pricing
Agreement applicable to any Designated Securities and authorization by the
Representatives of the release of such Designated Securities that are
Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
(ii) The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex II attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery (as defined in subsection
(b)(i) below), such commission as may be set forth in such Pricing Agreement.
Delayed Delivery Contracts, if any, are to be with institutional investors of
the types described in the Prospectus and subject to other conditions therein
set forth. The Underwriters will not have any responsibility in respect of the
validity or performance of any Delayed Delivery Contracts.
(iii) The principal amount of Contract Securities to be deducted from
the principal amount of Designated Securities to be purchased by each
Underwriter as set forth in Schedule I to the Pricing Agreement applicable to
such Designated Securities shall be, in each case, the principal amount of
Contract Securities which the Company has been advised by the Representatives
have been attributed to such Underwriter, provided that, if the Company has not
been so advised, the amount of Contract Securities to be so deducted shall be,
in each case,
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<PAGE>
that proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine to the nearest $1,000 principal amount). The
total principal amount of Underwriters' Securities to be purchased by all the
Underwriters pursuant to such Pricing Agreement shall be the total principal
amount of Designated Securities set forth in Schedule I to such Pricing
Agreement less the principal amount of the Contract Securities. The Company
will deliver to the Representatives not later than 3:30 p.m. New York time, on
the third business day preceding the Time of Delivery specified in the
applicable Pricing Agreement (or such other time and date as the Representatives
and the Company may agree upon in writing) a written notice setting forth the
principal amount of Contract Securities.
(b)(i) Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, or in the form of a global certificate representing all such
Underwriters' Securities, if the related Pricing Agreement so provides, and in
such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
(ii) Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters a check payable to the order of the party
designated in the Pricing Agreement relating to such Securities in the amount of
any compensation payable by the Company to the underwriters in respect of any
Delayed Delivery Contracts as provided in Section 3(a) hereof and in the Pricing
Agreement relating to such Securities.
4. Certain Covenants of the Company. The Company covenants and
agrees with each Underwriter as follows:
(a) To file with the Commission pursuant to Rule 424 of the Act the
Prospectus as amended or supplemented substantially in the form furnished to the
Representatives prior
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<PAGE>
to the execution of the Pricing Agreement and to make no further amendment or
any supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such Securities
and prior to the Time of Delivery for such Securities without furnishing to the
Representatives a copy of such amendment or supplement a reasonable time before
the filing thereof and obtaining the consent of the Representatives to such
filing, which consent may not be unreasonably withheld or delayed; to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and to furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of such Securities, and during such same period to advise the
Representatives, promptly after the Company receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any amendment or supplement to the Prospectus or any amended
Prospectus has been filed or transmitted for filing, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information, and in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or file a general
consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time in
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<PAGE>
connection with the offering or sale of such Securities, and if at such time any
event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter, and to any dealer in
securities, as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance.
(d) To make generally available to its security holders, as soon as
practicable, but in any event not later than eighteen months after the date of
the Pricing Agreement for such Designated Securities, an earnings statement of
the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158;
(e) During the period beginning from the date of the Pricing
Agreement for any Designated Securities and continuing to and including the
earlier of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) the Time
of Delivery for such Designated Securities, not to offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company (other than such
Designated Securities) which mature more than one year after such Time of
Delivery and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives; and
(f) If and to the extent specified in Schedule II of the Pricing
Agreement, to use its best efforts to cause any Designated Securities to be duly
authorized for listing on the New York Stock Exchange or any other exchange and
to be registered under the Exchange Act subject to notice of official issuance
and a notice of satisfactory distribution of the Designated Securities.
5. Payment of Expenses. (a) The Company will pay and bear all costs
and expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation,
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<PAGE>
printing and filing of the Registration Statement (including financial
statements and exhibits), as originally filed and as amended, the Preliminary
Prospectus, any preliminary prospectus supplement, the Prospectus and the
Prospectus as amended or supplemented (and any amendments or supplements to the
foregoing documents), and the cost of furnishing copies thereof to the
Underwriters, (ii) the preparation, printing and distribution of this Agreement,
any Pricing Agreements, the Indenture, the Designated Securities, any Delayed
Delivery Contracts, the Blue Sky Survey and the Legal Investment Survey, if any,
(iii) the delivery of the Designated Securities to the Underwriters, (iv) the
fees and disbursements of the Company's counsel and accountants, (v) the fees
and disbursements of counsel for the Underwriters in connection with the Blue
Sky Survey and the Legal Investment Survey, if any, (vi) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities, (vii) any fees charged
by rating agencies for rating the Designated Securities, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Designated Securities and (ix)
the expenses, if any, of listing the Designated Securities on the New York Stock
Exchange or any other exchange. It is understood, however, that, except as
provided in this Section, Section 7, Section 8 and Section 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.
(b) If this Agreement or any Pricing Agreement is terminated by the
Representatives in accordance with the provisions of Section 6 or 10(a)(i) the
Company will reimburse the Underwriters for all their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the date of execution
of the Pricing Agreement and the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding
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<PAGE>
for that purpose shall have been initiated or threatened by the Commission, and
all requests for additional information on the part of the Commission shall have
been complied with to the reasonable satisfaction of the Representatives;
(b) [Name], counsel for the Underwriters, shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to the incorporation of the Company, the
validity of the Indenture, the Designated Securities, the Delayed Delivery
Contracts, if any, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters. In giving
such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of Illinois and the federal law of
the United States and the corporate law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials;
(c) Deborah M. Regan, Vice President and Secretary of the Company,
shall have furnished to the Representatives her written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) Each of the Subsidiaries is a corporation duly incorporated and
validly existing in good standing under the laws of the state or
jurisdiction of its incorporation or formation, and each of the
Subsidiaries has full corporate power and authority under such laws to own,
lease and operate its properties and to conduct its business as described
in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) The Company, directly or indirectly, owns all of the issued and
outstanding voting securities of each of the Subsidiaries, in each case
free and clear
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of any liens, encumbrances and claims of which such counsel has knowledge;
(iv) The Company and each of the Subsidiaries is a corporation duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the character of the business
conducted by it or the location of the property owned by it makes such
qualification necessary except where the failure to be so qualified would
not have a material adverse effect on the Company and its subsidiaries
considered as one enterprise;
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no actions, suits or proceedings before
or by any court or governmental agency or body, domestic or foreign,
pending or threatened against or affecting the Company or any of its
subsidiaries which are, individually or in the aggregate, reasonably
expected to result in any material adverse change in the general affairs,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as one enterprise, or which are
reasonably expected to materially and adversely affect the consummation of
this Agreement or the issuance and sale by the Company of the Designated
Securities; and to the best of such counsel's knowledge, there are no
contracts or exhibits required by the Act or by the rules and regulations
of the Commission thereunder to be filed with the Registration Statement or
required to be described or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented which are not filed,
incorporated by reference or described as required;
(vi) The issue and sale by the Company of the Designated Securities
and the compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, this Agreement and the Pricing Agreement with respect to
the Designated Securities and the consummation of the transactions herein
and therein contemplated will not, to the best knowledge of such counsel,
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of any
of the subsidiaries of the Company under, any agreement or instrument to
which any of the subsidiaries of the Company is a party or by which any
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of the subsidiaries of the Company may be bound or to which any of the
property or assets of any of the subsidiaries of the Company is subject
(except for conflicts, breaches, defaults, liens, charges and encumbrances
which would not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries considered as one enterprise);
nor will such action result in any violation of the provisions of the
Certificate or Articles of Incorporation, as amended, or the By-Laws of any
of the subsidiaries of the Company or, to the best of such counsel's
knowledge, any statute or order, rule or regulation applicable to any of
the subsidiaries of the Company of any court or of any Federal, state or
other regulatory authority or other governmental body having jurisdiction
over any of the subsidiaries of the Company;
(vii) Nothing has come to the attention of such counsel to cause such
counsel to believe that the Registration statement or any amendment thereof
at the time it became effective contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus as amended or supplemented at the time it was filed or
transmitted for filing pursuant to Rule 424 under the Act contained, or as
amended or supplemented at the Time of Delivery contains, 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 light of the
circumstances under which they were made, not misleading;
(viii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules and other financial or statistical data included therein, as to
which such counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder,
and nothing has come to the attention of such counsel to cause such counsel
to believe that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or
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necessary to make the statements therein not misleading and, in the case of
other documents which were filed under the Act or Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading, in each case after excluding any statement
in any such document which does not constitute part of the Registration
Statement or the Prospectus as amended or supplemented pursuant to Rule 412
under the Act;
and to such further effect with respect to other legal matters relating to this
Agreement and the sale of the Designated Securities hereunder as counsel for the
Underwriters may reasonably request;
(d) Sidley & Austin, counsel for the Company, shall have furnished to
the Representatives their written opinion dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware and the
Company has full corporate power and authority under such laws to own,
lease and operate its properties and to conduct its business as described
in the Prospectus as amended or supplemented;
(ii) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(iii) In the event that any of the Designated Securities are to be
purchased pursuant to Delayed Delivered Contracts, each of such Delayed
Delivery Contracts that has been executed by the Company has been duly
authorized, executed and delivered by the Company and, assuming such
contracts have been duly executed and delivered by the institutional
purchaser named therein, constitutes a valid and legally binding obligation
of the Company enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity; and any Delayed Delivery Contracts conform in all
material
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<PAGE>
respects to the description thereof in the Prospectus as amended or
supplemented;
(iv) The Designated Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated, issued and
delivered and, upon receipt by the Company of the agreed upon consideration
therefor, will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization and other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity; and the Contract Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Indenture and Delayed
Delivery Contracts, if any, will, upon receipt by the Company of the agreed
upon consideration therefor, constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization and other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity;
(v) The Indenture has been duly authorized, executed and delivered by
the Company, is substantially in the form filed as an Exhibit to the
Registration Statement, and constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity; and the Indenture has been duly qualified under the
Trust Indenture Act;
(vi) The issue and sale by the Company of the Designated Securities
and the compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, this Agreement and the Pricing Agreement with respect to
the Designated Securities and the consummation of the transactions herein
and therein contemplated will not, to the best knowledge of such counsel,
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any
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lien, charge or encumbrance upon any of the property or assets of the
Company under any agreement or instrument to which the Company is a party
or by which the Company may be bound or to which any of the property or
assets of the Company is subject (except for conflicts, breaches, defaults,
liens, charges and encumbrances which would not, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries considered as one enterprise); nor will such action result in
any violation of the provisions of the Certificate or Articles of
Incorporation, as amended, or the By-Laws of the Company or, to the best of
such counsel's knowledge, any statute, order, rule or regulation applicable
to the Company of any court or of any Federal, state or other regulatory
authority or other governmental body having jurisdiction over the Company;
and no authorization approval, consent, registration, qualification or
order of or with any such court or any such regulatory authority or other
governmental agency or body is required for the issue and sale of the
Designated Securities by the Company or the consummation by the Company of
the other transactions contemplated by this Agreement or such Pricing
Agreement or the Indenture or any of such Delayed Delivery Contracts,
except such as have been obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(vii) The Registration Statement has become and is now effective
under the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or threatened by
the Commission;
(viii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery for the Designated Securities (other
than the financial statements and related schedules and other financial and
statistical data therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the Act
and the Trust Indenture Act and the rules and regulations thereunder; the
Designated Securities and the Indenture conform in all material respects to
the descriptions thereof
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contained in the Prospectus as amended and supplemented and the information
in the Prospectus and the Prospectus as amended or supplemented under the
caption "Description of Debt Securities" or a comparable caption describing
the Designated Securities, to the extent that it constitutes matters of law
or legal conclusions, has been reviewed by such counsel and is correct in
all material respects; nothing has come to the attention of such counsel to
cause such counsel to believe that the Registration Statement or any
amendment thereof at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as amended or supplemented at the time it
was filed or transmitted for filing pursuant to Rule 424 under the Act
contained, or as amended or supplemented at the Time of Delivery contains,
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 light
of the circumstances under which they were made, not misleading;
(ix) Any discussion of the federal income tax consequences relating
to the purchase and holding of any Designated Securities which are original
issue discount securities as set forth under the applicable caption in the
Prospectus as amended or supplemented relating to any such Designated
Securities, to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects;
and to such further effect with respect to other legal matters relating to this
Agreement and the sale of the Designated Securities hereunder as counsel for the
Underwriters may reasonably request. Such counsel may also state, that insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials, which certificates, if any, shall be
delivered to the Representatives;
(e) At the Time of Delivery, the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein in accordance with the Act and
the rules and regulations of the Commission thereunder and in all material
respects shall conform to the requirements of the Act and the Trust Indenture
Act and the rules and regulations of the
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Commission thereunder, and neither the Registration Statement nor the
Prospectus, as they may then be amended or supplemented, shall contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries considered as one enterprise, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(g) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities, the
Representatives and the Company shall have received signed letters from each of
the public accounting firms referred to in Annex III hereto dated the date of
the Pricing Agreement for such Designated Securities and the Time of Delivery of
such Designated Securities to the effect set forth in Annex III hereto, and with
respect to such letter dated such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in form and substance reasonably
satisfactory to the Representatives;
(h) Between the date of the Pricing Agreement relating to the
Designated Securities and the Time of Delivery, (i) no downgrading shall have
occurred in the rating accorded to any of the Company's debt securities by
Moody's Investor Service, Inc., Standard & Poor's Corporation or Duff and
Phelps, Inc. and (ii) no such organization shall have publicly announced that it
proposes to withdraw or has under surveillance or review its rating of any of
the Company's debt securities;
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<PAGE>
(i) All proceedings taken at or prior to the Time of Delivery in
connection with the authorization, issue and sale of the Designated Securities
shall be reasonably satisfactory in form and substance to the Representatives
and to counsel for the Underwriters, and such counsel shall have been furnished
with all such documents, certificates and opinions as they may reasonably
request for the purpose of enabling them to pass upon the matters referred to in
subsection (b) of this Section 6 and in order to evidence the accuracy of any of
the representations, warranties or statements, the performance of any covenants
of the Company, or the compliance with any of the conditions, herein contained;
and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate of the Chairman of the Board, the President or a Vice President, and
the Secretary or an Assistant Secretary of the Company dated as of the Time of
Delivery and satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (f) of this Section 6, and as to such
other matters as the Representatives may reasonably request, such certificate to
be based upon knowledge or belief as to proceedings initiated or threatened
referred to in subsection (a) and as to the matters set forth in subsection (f).
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Representatives on notice to the Company at
any time at or prior to the Time of Delivery, and such termination shall be
without liability of any party to any other party, except as provided in Section
5. Notwithstanding any such termination, the provisions of Sections 7, 8 and 9
shall remain in effect.
7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter (including specifically each person who may be
substituted for an Underwriter as provided in Section 11 hereof) and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of material fact contained in the Registration Statement
(or any amendment thereto) and all documents incorporated therein by
reference, or the omission or
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alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading, or arising out
of an untrue statement or alleged untrue statement of a material fact
included in any Preliminary Prospectus, any preliminary prospectus
supplement, any Prospectus or any Prospectus as amended or supplemented (or
any amendment or supplement to any of the foregoing documents) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by the Representatives
(except to the extent otherwise expressly provided in Section 7(c))),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or any Preliminary Prospectus, any preliminary prospectus
supplement, any Prospectus, any Prospectus as amended or supplemented (or any
amendment or supplement to any of the foregoing documents) and provided,
further, that the foregoing indemnity with respect to any untrue statement or
alleged untrue statement contained in or any omission or alleged omission from
any Preliminary Prospectus or any preliminary prospectus supplement shall not
inure to the
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benefit of any Underwriter from whom the person asserting any such loss,
liability, claim, damage or expense purchased any of the Designated Securities
that are the subject thereof if such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) (in each case
exclusive of the documents from which information is incorporated by reference)
at or prior to the written confirmation of the sale of such Designated
Securities to such Person and the untrue statement or alleged untrue statement
contained in or the omission or alleged omission from such Preliminary
Prospectus or preliminary prospectus supplement was corrected in the Prospectus
(or the Prospectus as amended or supplemented) unless the failure to send or
give a copy of the Prospectus (or the Prospectus as amended or supplemented) to
such person results from the Company's failure to comply with its obligations
under Section 4(c) hereof.
(b) Each Underwriter (including specifically each person who may be
substituted for an Underwriter as provided in Section 11 hereof) severally, but
not jointly, agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act, from and against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
Preliminary Prospectus, preliminary prospectus supplement, Prospectus or
Prospectus as amended or supplemented (or any amendment or supplement to any of
the foregoing documents), in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus, preliminary prospectus
supplement, Prospectus, Prospectus as amended or supplemented (or any amendment
or supplement to any of the foregoing documents).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have under this
Section 7 except to the extent it has been prejudiced in any material respect by
such failure or from any liability it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the
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defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, which approval shall not be unreasonably
withheld, provided that, if such indemnified party or parties reasonably
determine that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party or parties,
then such indemnifying party or parties shall not be entitled to assume such
defense. If the indemnifying party or parties are not entitled to assume the
defense of such action as a result of the proviso to the preceding sentence,
counsel for the indemnifying party or parties shall be entitled to conduct the
defense of such indemnifying party or parties and counsel for the indemnified
party or parties shall be entitled to conduct the defense of such indemnified
party or parties. If an indemnifying party assumes the defense of such action,
the indemnifying parties shall not be liable for any fees and expenses for
counsel for the indemnified parties incurred thereafter in connection with such
action. In no event shall the indemnifying party or parties be liable for the
fees and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
8. Contribution. If the indemnification provided for in Section 7 is
unavailable or insufficient to hold harmless an indemnified party thereunder,
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) of Section 7, (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 Designated
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 that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Designated Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus as amended or
supplemented. 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
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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 Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8 were to be determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to in the first sentence of this
Section 8. 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 Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigation, preparing to defend or
defending against any action or claim which is the subject of this Section 8.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section 8
to contribute are several in proportion to their respective underwriting
obligations and not joint. Each party entitled to contribution agrees that upon
the service of a summons or other initial legal process upon it in any action
instituted against it in respect to which contribution may be sought, it shall
promptly give written notice of such service to the party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
of any such service shall not relieve the party from whom contribution may be
sought for any obligation it may have hereunder or otherwise except to the
extent it has been prejudiced in any material respect by such failure or from
any liability it may have otherwise than on account of this contribution
agreement.
9. Representations, Warranties And Agreements to Survive Delivery.
The respective representations, warranties, indemnities, agreements and other
statements of the Company or its officers set forth in or made pursuant to this
Agreement and the Pricing Agreement and the indemnity and contribution
agreements of the Underwriters contained in Section 7(b) and Section 8 hereof
will remain operative and in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Company, or any officer or director or controlling person of the Company,
or any
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Underwriter or any controlling person of any Underwriter and will survive
delivery of and payment for the Designated Securities.
10. Termination of Pricing Agreement. (a) The Representatives may
terminate the Pricing Agreement with respect to Designated Securities, by notice
to the Company, (i) if there shall have been such a material adverse change in
general economic, political, or financial conditions, or if the effect of
international conditions on the financial markets in the United States shall be
such, as to make it, in the Representatives' judgment, impracticable to market
the Designated Securities or enforce contracts for the sale of the Designated
Securities or (ii) if trading in any securities of the Company has been
suspended by the Commission or the National Association of Securities Dealers,
Inc., or if trading generally on the New York Stock Exchange or in the over-the-
counter market has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
such exchange or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority or (iii) if a
banking moratorium has been declared by either federal or New York authorities.
(b) If any Pricing Agreement with respect to Designated securities is
terminated pursuant to this Section 10, such termination shall be without
liability of any party to any other party, except to the extent provided in
Section 5 hereof. Notwithstanding any such termination, the provisions of
Sections 7, 8 and 9 shall remain in effect.
11. Default. (a) If any Underwriter shall default in its obligations
to purchase the Underwriters' Securities which it has agreed to purchase under
the Pricing Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed periods, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus
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as amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed ten percent (10%) of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Underwriters' securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds ten percent (10%) of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 5 hereof and the indemnity and
contribution agreements in Section 7 and Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(d) If any Pricing Agreement shall be terminated pursuant to
subsection(c) of this Section 11, the Company shall not then be under any
liability to any Underwriter with respect to Designated Securities covered by
such Pricing Agreement except
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as provided in Section 5, Section 7 and Section 8 hereof; but, if for any other
reason the Underwriters' Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 5, Section 7 and Section 8 hereof.
12. Notices. All statements, requests, notices, agreements or other
communications hereunder shall be in writing or by telegram if promptly
confirmed in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail to the address of the
Representatives as set forth in the Pricing Agreement; and if to the Company
shall be sufficient in all respects if delivered or sent by registered mail to
the address of the Company set forth in the Registration Statement, Attention:
Secretary.
13. Parties. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Sections 7, 8 and 9 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Representation of Underwriters. In all dealings hereunder, the
Representatives of the Underwriter of Designated Securities shall act on behalf
of each such Underwriter, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
15. Information Furnished by Underwriters. The statements set forth
in the last paragraph on the cover page of the Prospectus as amended or
supplemented and under the caption "Underwriting" or "Plan of Distribution" in
any Prospectus as amended or supplemented, except for the statements made under
either such caption in the Prospectus as amended or supplemented relating to
sales or dispositions by the Company, constitute the
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<PAGE>
written information furnished by or on behalf of any Underwriter referred to in
subsections (b) and (c) of Section 2 hereof and in subsections (a) and (b) of
Section 7 hereof.
16. Time of Essence. Time shall be of the essence of each Pricing
Agreement.
17. Governing Law. This Agreement and each Pricing Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
18. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto or thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
R. R. DONNELLEY & SONS COMPANY
By: ____________________________
Title:
Accepted as of the date
first above written:
[Name of Representative]
By: ______________________________
Title:
-31-
<PAGE>
Annex I
Pricing Agreement
-----------------
________, 19__
[Name of Representative]
As Representative of the several Underwriters
named in Schedule I hereto
[Address of Representative]
Dear Sirs:
R. R. DONNELLEY & SONS COMPANY (the "Company") proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
, 19 (the "Underwriting Agreement"), between the Company on the one hand and
[Name of Representative] on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities") [less the
principal amount of Designated Securities covered by delayed delivery contracts
("Delayed Delivery Contracts") as provided below (such Designated Securities
covered by Delayed Delivery Contracts being hereinafter referred to collectively
as "Contract Securities")]. Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Pricing Agreement to the same extent as if such
provision has been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Pricing Agreement, except that each representation and warranty
with respect to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation and warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the
<PAGE>
Designated Securities, in the form heretofore delivered to you is now proposed
to be filed, or in the case of a supplement mailed for filing, with the
Commission.
[None of the Designated Securities are to be purchased from the
Company pursuant to Delayed Delivery Contracts.]
[The Company hereby authorizes the Underwriters to solicit offers to
purchase Designated Securities from the Company pursuant to Delayed Delivery
Contracts, substantially in the form of Schedule III attached hereto but with
such changes therein as you and the Company may authorize or approve. The
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to you, for the accounts of the Underwriters, at
the Time of Delivery, a commission of___ % of the principal amount of Designated
Securities for which Delayed Delivery Contracts have been made. Delayed
Delivery Contracts are to be with institutional investors of the types mentioned
in the final paragraph under the caption "Plan of Distribution" in the
Prospectus and subject to other conditions therein set forth. The Company will
enter into a Delayed Delivery Contract in each case arranged by the Underwriters
where the Company has advised you of its approval of the proposed sale of
Contract Securities to the purchaser thereunder; provided, however, that the
minimum principal amounts of Designated Securities covered by any Delayed
Delivery Contract with any purchaser or any Delayed Delivery Contract with
affiliated purchasers shall be $__________ and the aggregate principal amounts
of Designated Securities covered by Delayed Delivery Contracts shall not exceed
$___________ unless the Company shall otherwise agree in writing. However, if
the aggregate principal amount of Designated Securities requested for delayed
delivery is less than $_________________, the Company will have the right to
reject all requests. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts.]
[The amount of Contract Securities to be deducted from the principal
amount of Designated Securities to be purchased by each Underwriter as set forth
in Schedule I hereto shall be, in each case, the amount of Contract Securities
which the Company has been advised by you have been attributed to such
Underwriter, provided that if the Company has not been so advised, the amount of
Contract Securities to be so deducted shall be, in each case, that proportion of
Contract Securities which the principal amount of Designated Securities to be
purchased by such Underwriter under this Agreement bears to the total principal
amount of the Designated Securities (rounded as you may determine to the nearest
$1,000 principal amount). The total principal amount of Designated Securities
to be purchased by all the Underwriters shall be $__________ less the principal
amount of the Designated Securities covered by Delayed Delivery Contracts. The
Company
-2-
<PAGE>
will deliver to you not later than 3:30 p.m., New York time, on the business day
preceding the Time of Delivery (or such other time and date as you and the
Company may agree upon in writing) a written notice setting forth the principal
amount of Designated Securities covered by Delayed Delivery Contracts.]
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at a purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto,
less such Underwriter's portion of Contract Securities determined as provided in
the preceding paragraph.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts, hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
on the one hand and the Company on the other. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement Among Underwriters,
the form of which shall be supplied to the Company for examination, upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
R. R. DONNELLEY & SONS COMPANY
By: ______________________________
Title: ___________________________
Accepted as of the date hereof:
By: [Name of Representative]
By:___________________________
Title:________________________
On behalf of each of the Underwriters
-3-
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
- ----------- ----------
<S> <C>
[Names of Underwriters] ............................
----------
Total................................................ $
==========
</TABLE>
<PAGE>
SCHEDULE II
Designated Securities
Title of Designated Securities:
[ %] [Floating Rate] [Extendable] [Sinking Fund] [Zero Coupon] [Notes]
[Debentures], due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus
accrued interest, if any, from to the Time of Delivery
[and accrued amortization, if any from to the Time of
Delivery].
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus
accrued interest, if any, from to the Time of Delivery
[and accrued amortization, if any from to the Time of
Delivery].
Specified funds for payment of purchase price or delayed delivery commission:
[New York Clearing House] [same day] funds
Indenture:
Indenture, dated as of , 19 between the Company and
, as Trustee.
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[Months and dates]
Redemption Provisions:
[No provisions for redemption]
<PAGE>
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of $ or an integral multiple thereof,
[on or after , at the following redemption prices
(expressed as percentages of the principal amount). If [redeemed on or
before , and if] redeemed during the 12-month period beginning
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling in or after ,
at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of redemption.]
[other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restrictions on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire $ principal amount of Designated Securities on
in each of the years through at 100%
of their principal amount plus accrued interest] [, together with
[cumulative] [non-cumulative] redemptions at the option of the Company to
retire an additional $ principal amount of Designated
Securities in the years through at 100% of their
principal amount plus accrued interest].
-2-
<PAGE>
[If Designated Securities are extendable debt Securities, insert
Extendable provisions:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with accrued
interest. Initial annual interest rate will be % and thereafter
annual interest rate will be adjusted on , and
to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year maturities as of
the [insert date 15 days prior to maturity date] prior to such [insert
maturity date].]
[If Designated Securities are Floating Rate Debt Securities, insert-
Floating rate provisions:
[Insert applicable terms]
MISCELLANEOUS
Time of Delivery:
[Time and date], 19
Closing Location:
Delayed Delivery:
[None] [Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the other of
]
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
________________
A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in
-3-
<PAGE>
the form in which such features will be described in the Prospectus
Supplement for the offering.
-4-
<PAGE>
Annex II
DELAYED DELIVERY CONTRACT
-------------------------
R. R. DONNELLEY & SONS COMPANY
[Name and address of Representative(s)]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from R. R. Donnelley & Sons
Company (hereinafter called the "Company"), and the Company agrees to sell to
the undersigned: $ principal amount of the Company's [Title of
Designated Securities] (hereinafter called the "Designated Securities"), offered
by the Prospectus of the Company dated , 19 as amended or
supplemented, receipt of a copy of which is hereby acknowledged at a purchase
price of % of the principal amount thereof, plus accrued interest from the
date from which interest accrues as set forth below, and on the further terms
and conditions set forth in this contract.
[The undersigned will purchase the Designated Securities from the Company
on , 19 (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from , 19 .]
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts set
forth below:
<TABLE>
<CAPTION>
Principal Date from Which
Delivery Date Amount Interest Accrues
- --------------- --------- ----------------
<S> <C> <C>
, 19 $ , 19
, 19 $ , 19
</TABLE>
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Debt Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in [ Clearing House] [same day]
funds, at the offices of , , or by wire
transfer in similar funds to a bank account specified by the Company on [the]
[such] Delivery Date (or in such other funds and/or at such other place as the
Company and the undersigned may agree upon in writing), upon delivery to the
undersigned of the Designated Securities then to be purchased by the undersigned
and in definitive fully registered form and in such denominations and
<PAGE>
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] [such] Delivery Date.
The obligation of the Company to sell and of the undersigned to take
delivery of and make payment for the Designated Securities on [the] [each]
Delivery Date shall be subject to the condition[s] that the purchase of the
Designated Securities to be made by the undersigned shall not on [the] [such]
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject [and the Company, on or before , 19 , shall
have sold to the several Underwriters (the "Underwriters") pursuant to the
Pricing Agreement dated , 19 , between the Company and the
Underwriters, an aggregate principal amount of Designated Securities equal to $
, minus the aggregate principal amount of Designated Securities covered by this
contract and other contracts similar to this contract]. The obligation of the
undersigned to take delivery of and make payment for the Designated Securities
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Designated Securities pursuant to other contracts similar
to this contract.
[The undersigned understands that the Underwriters are also purchasing
Designated Securities from the Company, but that the obligations of the
undersigned hereunder are not contingent on such purchases.] Promptly after
completion of the sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below a notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that (1) its investment in the Designated Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject, (2) all necessary corporate action for the due execution
and delivery of this contract and the payment for and purchase of the Designated
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase and (3) upon the acceptance hereof by the Company
and the mailing or delivery of a copy hereof as provided below, this contract
will constitute a valid and binding agreement of the undersigned in accordance
with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors,
-2-
<PAGE>
but will not be assignable by either party hereto without the written consent of
the other.
This contract shall be governed by the laws of the State of New York.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
It is understood [that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of the Debt Securities in excess of
$ and] that the acceptance of any Delayed Delivery Contract
(including this contract) is in the Company's sole discretion and that, without
limiting the foregoing, acceptances of such contracts need not be on a first-
come, first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
a signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned when such
copy is so mailed or delivered.
Yours very truly,
____________________________
(Name of Purchaser)
By _________________________
(signatures)
-------------------------
____________________________
(Name and Title)
____________________________
(address)
Accepted
, 19
R. R. Donnelley & SONS COMPANY
By ________________________
Title:_____________________
-3-
<PAGE>
Annex III
A. Pursuant to Section 6(g) of the Underwriting Agreement, Arthur
Andersen LLP, or such other independent accountants for the Company as
appropriate, shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
Exchange Act and the applicable published rules and regulations thereunder,
and no information as to them is required to be furnished pursuant to Item
509 of Regulation S-K;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules of the Company examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form with the applicable accounting requirements of
the Act or the Exchange Act, as the case may be, and the published rules
and regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information and/or
condensed financial statements derived from audited financial statements of
the Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representatives
of the Underwriters (the "Representatives");
(iii) In their opinion, the unaudited selected financial information
with respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included in
the Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year for
which such a Form 10-K has been filed with the Commission (the "Form 10-K")
complied as to form with the applicable accounting requirements of the Act
or the Exchange Act, as the case may be, and the published rules and
regulations thereunder and is fairly stated in relation to, and agrees with
the corresponding amounts (after restatement where applicable) in, the
audited consolidated financial statements for such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such five fiscal years or included in a Form S-K (a "Form S-
K") incorporated by reference in the Prospectus;
<PAGE>
(iv) on the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to
form with the applicable accounting requirements of the Exchange Act and
published rules and regulations thereunder or are not presented in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference in the Form
10-K or included in a Form 8-K;
(B) any unaudited income statement data and balance sheet items
included or incorporated by reference in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited data
and items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the Form 10-K or
included in a Form 8-K;
(C) the unaudited financial statements which were not included or
incorporated by reference in the Prospectus but from which were derived the
unaudited condensed financial information, income statement data and
balance sheet items included or incorporated by reference in the Prospectus
and referred to in Clause (A) or (B) are not fairly presented in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited financial
statements included or
-2-
<PAGE>
incorporated by reference in the Form 10-K or included in a Form 8-K;
(D) any unaudited pro forma financial statements included or
incorporated by reference in the Prospectus do not comply as to form with
the applicable accounting requirements of Rule 11-02 of Regulation S-X,
that the pro forma financial statements were not compiled on the respective
bases described therein, that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements, that the pro forma adjustments with respect to such pro forma
financial statements were not appropriate adjustments or that such pro
forma financial statements would require any further adjustments to give
effect to the transaction or transactions giving rise to the inclusion of
such pro forma financial statements;
(E) as of a specified date not more than five days prior to the date
of delivery of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and upon conversion of convertible securities which were
outstanding on the date of the latest statement of financial condition
included or incorporated by reference in the Prospectus) or any increases
in the consolidated long term debt of the Company and its subsidiaries or
any decreases in consolidated net current assets or net assets or other
items specified by the Representatives, or any changes in any other items
specified by the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
revenue, or operating profit or the total or per share amounts of
consolidated net income or any changes in any other items specified by the
Representatives in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified
by the Representatives, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter;
(v) With respect to any unaudited pro forma financial information of
the Company included or incorporated by
-3-
<PAGE>
reference in the Prospectus, they have compared such unaudited pro forma
financial information to corresponding amounts reflected in the audited
consolidated financial statements of the Company and found them to be in
agreement;
(vi) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in subparagraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries and which appear in the Prospectus, in
Part II of, or in exhibits and schedules to, the Registration Statement or
in documents incorporated by reference in the Prospectus, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them
to be in agreement; and
B. Pursuant to Section 6(g) of the Underwriting Agreement, the
Underwriters shall receive additional letters as to such matters as the
Representatives may reasonably request, in form and substance satisfactory to
the Representatives, from the independent certified public accountants for any
entity other than the Company for which financial statements are included or
incorporated by reference in the Registration Statement or Prospectus.
All references in this Annex III to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
-4-
<PAGE>
DRAFT: FEBRUARY 22, 1995
EXHIBIT 1.2
-----------
U.S. $___,000,000/*/
R. R. Donnelley & Sons Company
Medium-Term Notes, Series __
AGENCY AGREEMENT
----------------
[Date]
[Names and Addresses of Agents]
Ladies and Gentlemen:
R. R. Donnelley & Sons Company, a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents") with respect to the issue and sale by the Company of
up to an aggregate initial offering price of $___,000,000/*/ in gross proceeds
of its Medium-Term Notes, Series __ (the "Notes"). The Notes are to be issued
from time to time pursuant to an indenture, dated as of November 1, 1990 (as it
may be supplemented or amended from time to time, the "Indenture"), between the
Company and Citibank, N.A., as trustee (the "Trustee").
Subject to the terms and conditions stated herein, and subject to the
reservation by the Company of the rights to sell Notes directly on its own
behalf, and to sell Notes to or through such other agents as the Company shall
designate from time to time on terms substantially identical to those set forth
herein, the Company hereby appoints the Agents as agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that
whenever the Company determines to sell Notes directly to an Agent as principal
for resale to others, it will enter into a Purchase Agreement (hereafter
defined) relating to such sale in accordance with the provisions of Section 11
hereof. Each Agent may, with the prior approval of the Company (which approval
shall not be unreasonably withheld), appoint sub-agents or engage the services
of any other broker or dealer in connection with the offer or sale of the Notes.
The Company
- -----------------
/*/ Or the U.S. dollar equivalent in certain specified foreign currencies or
currency units.
<PAGE>
shall notify the Agents of any sale made to or through other agents on or prior
to the settlement date for such sale.
The Notes shall have the maturity ranges, annual interest rates,
currencies, redemption provisions and other terms set forth in the Prospectus
referred to in Section 1(a) as it may be amended or supplemented from time to
time, including any supplement providing for the interest rate and maturity of
any Note (a "Pricing Supplement"). The Notes will be issued, and the terms
thereof established, from time to time, by the Company in accordance with the
Indenture and the Procedures referred to below. This Agreement shall only apply
to sales of the Notes and not to sales of any other securities or evidences of
indebtedness of the Company and only on the specific terms set forth herein.
The Agents may take any action contemplated by this Agreement through wholly-
owned subsidiaries.
SECTION 1. Representations, Warranties and Agreements.
------------------------------------------
The Company represents and warrants to each Agent as of the date hereof, as
of the Closing Date (defined herein) referred to in Section 2(f) hereof, and as
of the times referred to in Sections 6(a) and 6(b) hereof (the Closing Date and
each such time being hereinafter sometimes referred to as a "Representation
Date"), as follows:
(a) The Company meets all of the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") (i) a registration statement on Form S-3 (File No. 33-_____) in
the form heretofore delivered to the Agents and such registration statement in
such form has been declared effective by the Commission and no stop order
suspending the effectiveness of such registration statement or the use of the
Prospectus (as hereinafter defined) has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (such registration
statement, including all exhibits thereto but excluding Form T-1, as amended at
the time such registration statement or any part thereof became effective, and
as from time to time amended or supplemented thereafter, being hereinafter
called the "Registration Statement"; the prospectus (including all documents
incorporated therein by reference) included in the Registration Statement,
together with any amendments or supplements (including in each case all
documents incorporated therein by reference and the applicable Pricing
Supplement) relating to the Notes, as filed with the Commission pursuant to
Section 424(b) of the rules and regulations of the Commission under the Act (the
"Rules and Regulations") being hereinafter called the "Prospectus").
2
<PAGE>
(b) The documents incorporated by reference in the Prospectus, at the
time they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Securities Exchange Act of 1934 (the "Exchange Act"), as applicable, and the
rules and regulations of the Commission thereunder, and such documents, when
read together with the other information in the Prospectus, do not contain, in
the case of a registration statement which became effective under the Act, an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and, in the case of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a material fact or omit
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, in
each case after excluding any statement in any such document which does not
constitute part of the Registration Statement or the Prospectus pursuant to Rule
412 under the Act; and any further documents so filed and incorporated by
reference in the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and will not contain, in the case of a
registration statement which becomes effective under the Act, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and,
in the case of other documents which are filed under the Act or the Exchange
Act, an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by any Agent expressly for use in the Prospectus.
(c) The Registration Statement and the Prospectus conform, and the
Registration Statement and the Prospectus will conform as of the applicable
Representation Date, in all material respects to the requirements of the Act and
the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules and
regulations of the Commission thereunder; the Registration Statement, at the
time it became effective, did not, and as of the applicable Representation Date
will not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, at the time the Registration
Statement became effective did not, as of the date
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hereof does not, and as of the applicable Representation Date will not, contain
an untrue statement of a material fact or omit 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; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by any Agent specifically for inclusion therein.
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business which is material to the Company and its subsidiaries considered as one
enterprise from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital stock
(other than issuances of common stock pursuant to existing employee benefit or
stock option plans, repurchases by the Company of its common stock in the
ordinary course of business or conversions of outstanding convertible
securities) or long-term debt (other than changes as a result of maturities,
sinking fund payments, amortization of debt discount or currency fluctuations)
of the Company or any of its subsidiaries or any material adverse change, or any
development which will result in a material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries considered as one enterprise,
otherwise than as set forth or contemplated in the Prospectus.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority under such laws to own, lease and operate its
properties and to conduct its business as described in the Prospectus; and the
Company is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction where the character of the business
conducted by it or the location of the property owned by it makes such
qualification necessary, except where the failure to be so qualified would not
have a material adverse effect on the Company and its subsidiaries considered as
one enterprise. Each subsidiary of the Company that is a significant subsidiary
within the meaning of Rule 1-02 of Regulation S-X under the Act and such other
subsidiaries of the Company designated in the list previously furnished to the
Agents
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by an officer of the Company for the purposes of this Agreement (collectively,
the "Subsidiaries") is a corporation duly incorporated and validly existing in
good standing under the laws of the state of its incorporation or formation, and
each has corporate power and authority under such laws to own, lease and operate
its properties and to conduct its business, and each is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction where the character of the business conducted by it or the location
of the property owned by it makes such qualification necessary, except where the
failure to be so qualified would not have a material adverse effect on the
Company and its subsidiaries considered as one enterprise. The Company,
directly or indirectly, owns all of the issued and outstanding voting securities
of each of the Subsidiaries, in each case free and clear of any liens,
encumbrances and claims.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable.
(g) The Notes have been duly authorized and, when the terms of the
Notes and of their issue and sale have been duly established in accordance with
the Indenture and the Notes have been duly executed, authenticated, issued and
delivered against payment of the agreed upon consideration therefor, such Notes
will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, which is substantially in the form filed as
an exhibit to the Registration Statement; the Indenture has been duly authorized
by the Company, has been duly qualified under the Trust Indenture Act, has been
duly executed and delivered by the Company and the Trustee and constitutes a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity; and the Notes and the Indenture conform to the
description thereof contained in the Prospectus.
(h) The issue and sale by the Company of the Notes and compliance by
the Company with all of the provisions of the Notes, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon
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any of the property or assets of the Company or any of its subsidiaries under
any agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries may be bound or to
which any of the property or assets of the Company or any of its subsidiaries is
subject (except for conflicts, breaches, defaults, liens, charges and
encumbrances which would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries considered as one
enterprise); nor will such action result in any violation of the provisions of
the Certificate or Articles of Incorporation, as amended, or the By-Laws of the
Company or any of its subsidiaries or any statute, order, rule or regulation
applicable to the Company or any of its subsidiaries of any court or of any
Federal, state or other regulatory authority or other governmental body having
jurisdiction over the Company or any of its subsidiaries; no authorization,
approval, consent, registration, qualification or order of or with any court or
any regulatory authority or other governmental agency or body is required for
issue and sale of the Notes by the Company, or the consummation by the Company
of the other transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the offer
and sale of the Notes by the Company.
(i) Except as set forth in the Prospectus, there are no actions,
suits or proceedings before or by any court or governmental agency or body,
domestic or foreign, pending, or, to the knowledge of the Company, threatened
against or, to the knowledge of the Company, affecting the Company or any of its
subsidiaries, which are, individually or in the aggregate, reasonably expected
to result in any material adverse change in the general affairs, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries considered as one enterprise, or which is reasonably expected to
materially and adversely affect the consummation by the Company of this
Agreement or the issuance and sale by the Company of any of the Notes; and there
are no contracts or exhibits required by the Act or by the Rules and Regulations
to be filed with the Registration Statement required to be described or
incorporated by reference in the Registration Statement or the Prospectus which
are not filed, incorporated by reference or described as required.
(j) This Agreement and the Purchase Agreement (if any) with respect
to the Notes have been duly authorized, executed and delivered by the Company.
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(k) Arthur Andersen LLP (formerly Arthur Andersen & Co.), who are
reporting upon the audited financial statements and schedules included or
incorporated by reference in the Registration Statement are independent public
accountants with respect to the Company as required by the Act and the Rules and
Regulations.
(l) The consolidated financial statements included or incorporated by
reference in the Prospectus present, and as of the applicable Representation
Date will present, fairly in all material respects, the financial position of
the Company and its subsidiaries as of the dates indicated and the consolidated
results of the operations and cash flows of the Company and its subsidiaries for
the periods specified. Such financial statements (except as disclosed in the
notes thereto or otherwise stated therein) have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the entire period or periods involved. The financial statement
schedules, if any, included or incorporated by reference in the Prospectus
present, and as of the applicable Representation Date will present, fairly in
all material respects, the information required to be stated therein. The
selected financial data included in the Prospectus present, and as of the
applicable Representation Date will present, fairly in all material respects,
the information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included or incorporated
by reference in the Registration Statement. The pro forma financial statements
and other pro forma financial information, if any, included or incorporated by
reference in the Prospectus present, and as of the applicable Representation
Date will present, fairly in all material respects, the information shown
therein, have been, and will be, prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements, have been,
and will be, properly compiled on the pro forma basis described therein, and, in
the opinion of the Company, the assumptions used in the preparation thereof are,
and as of the applicable Representation Date will be, reasonable and the
adjustments used therein are, and as of the applicable Representation Date will
be, appropriate to give effect to the transactions or circumstances referred to
therein.
(m) Neither the Company nor any of the Subsidiaries is in violation
of its charter or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any of the
Subsidiaries is subject, other than
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defaults (considered in the aggregate) which do not have, or which would not
reasonably be expected to result in, a material adverse effect on the general
affairs, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries considered as one enterprise.
(n) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
them, and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit, with such exceptions as would not, singly or
in the aggregate, materially and adversely affect the general affairs, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries considered as one enterprise.
(o) The Company has complied and will comply with the provisions of
Florida H.B. 1771 codified as Section 517.075 of the Florida Statutes, 1987, as
amended, and all regulations promulgated thereunder related to issuers doing
business in Cuba.
(p) The Notes, when issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture, will be excluded or exempted
under the provisions of the Commodity Exchange Act.
SECTION 2. Solicitations as Agent.
----------------------
(a) Reasonable Best Efforts to Solicit. On the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, each Agent agrees, as an agent of the Company, to
use its reasonable best efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth in the Prospectus.
(b) Suspension of Solicitation. The Company reserves the right, in
its sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or permanently. Upon receipt of
at least one business day's prior notice from the Company, the Agents will
forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised the Agents that such solicitation may
be resumed. Upon receipt of such notice by the Agents, the Company's
obligations to deliver the officers' certificates, opinions of counsel and
letters from accountants required to be delivered by Sections 6(b), 6(c) and
6(d) hereof for each such amendment or supplement to the Registration Statement
or the Prospectus occurring since the date
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of such notice shall likewise be suspended until the earlier of (i) receipt by
the Agents of notice from the Company to re-commence solicitation of offers to
purchase the Notes and (ii) such time that the Company delivers, or causes to be
delivered, as the case may be, to the Agents such certificate(s), opinion(s) and
letter(s) relating to the amendments or supplements to the Registration
Statement or the Prospectus or the documents incorporated by reference into the
Prospectus since the last certificates, opinions or letters so delivered, except
that such certificates, opinions and letters need not cover any statement in any
such document which does not constitute part of the Registration Statement or
the Prospectus pursuant to Rule 412 of the Act. For the purpose of this
paragraph, "business day" shall mean any day which is not a Saturday or Sunday
and which in New York City is not a day on which banking institutions are
generally authorized or obligated by law or executive order to close.
(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by an Agent, the
Company agrees to pay such Agent a commission in accordance with the schedule
set forth in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit
offers to purchase the Notes only in denominations of U.S. $l00,000/**/ or any
amount in excess thereof which is an integral multiple of U.S. $1,000, at a
purchase price equal to 100% of the principal amount thereof or such other
principal amount as shall be specified by the Company. Each Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes
received by it as Agent, and which it determines to be reasonable in its
discretion reasonably exercised. The Company shall have the sole right to
accept offers to purchase the Notes and may reject any such offer in whole or in
part. Each Agent shall have the right, in its discretion reasonably exercised
without advising the Company, to reject any offer to purchase the Notes received
by it, in whole or in part, and any such rejection shall not be deemed a breach
of its agreement contained herein.
(e) Administrative Procedures. Administrative procedures respecting
the sale of Notes (the "Procedures") are
- -----------------
/**/ Or the equivalent (rounded down to an integral multiple of units of the
denomination specified in a supplement to the Prospectus) in the relevant
foreign currency or currency unit, or such larger amount in integral
multiples of units of such denomination.
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set forth in Exhibit B hereto and may be amended in writing from time to time by
the Agents and the Company. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed by each
of them herein and in the Procedures.
(f) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of [Name], [Address], not
later than 10:00 A.M., Chicago time, on the date of this Agreement or at such
later time as may be mutually agreed upon by the Company and the Agents, which
in no event shall be later than the time at which the Agents commence
solicitation of offers to purchase Notes hereunder (the "Closing Date").
SECTION 3. Covenants of the Company.
------------------------
The Company covenants and agrees:
(a) Delivery of Signed Registration Statement and Prospectus. To
furnish promptly to the Agents and to their counsel a total of two signed copies
of the Registration Statement as originally filed and each amendment or
supplement thereto, and a copy of each Prospectus filed with the Commission,
including all supplements thereto and all documents incorporated therein by
reference and all consents and exhibits filed therewith;
(b) Delivery of Other Documents. To deliver promptly to the Agents
such number of the following documents as they may reasonably request: (i)
conformed copies of the Registration Statement (excluding exhibits other than
the computation of the ratio of earnings to fixed charges, the Indenture and
this Agreement), (ii) the Prospectus and (iii) any documents incorporated by
reference in the Prospectus;
(c) Revisions to Prospectus - Material Changes. If, during any period
in which, in the opinion of counsel for the Agents, a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a result of
which the Prospectus 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, to
notify the Agents promptly, in writing, to suspend solicitation of purchases of
the Notes (and, if so notified, such Agents shall cease such solicitation as
soon as practicable, but in any event not later than one (1) business day after
such notification); and if the Company shall decide to amend or supplement the
Registration
10
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Statement or the Prospectus, to promptly advise the Agents by telephone (with
confirmation in writing) and to promptly 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; provided, however, that if during
the period referred to above any Agent shall own any Notes which it has
purchased from the Company as principal with the intention of reselling them,
the Company shall promptly prepare and timely file with the Commission any
amendment or supplement to the Registration Statement or any Prospectus that
may, in the judgment of the Company or the Agents, be required by the Act or
requested by the Commission;
(d) Commission Filings. To timely file with the Commission during the
period referred to in (c) above all documents (and any amendments to previously
filed documents) required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act;
(e) Copies of Filings with Commission. Prior to filing with the
Commission during the period referred to in (c) above (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or supplement to
the Prospectus or (iii) any document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated documents,
to furnish a copy thereof to the Agents;
(f) Notice to Agent of Certain Events. To advise the Agents
immediately (i) when any post-effective amendment to the Registration Statement
relating to or covering the Notes becomes effective, (ii) of any request or
proposed request by the Commission for an amendment or supplement to the
Registration Statement, to the Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information, (iii) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any part thereof or any order directed to the
Prospectus or any document incorporated therein by reference or the initiation
or threat of any stop order, proceeding or of any challenge to the accuracy or
adequacy of any document incorporated by reference in the Prospectus, (iv) of
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose and (v) of the happening of any event
which makes untrue any statement of a material fact made in the Registration
Statement or the Prospectus or which requires the making of a change in or
addition to the Registration Statement or the Prospectus in order to make any
material statement therein not misleading;
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(g) Stop Orders. If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time;
(h) Earnings Statements. To make generally available to its security
holders, in the manner contemplated by Rule 158(b) under the Act or otherwise,
as soon as practicable, but in any event not later than 18 months after the date
of each acceptance by the Company of an offer to purchase Notes hereunder, an
earnings statement of the Company satisfying the requirements of Section 11(a)
of the Act;
(i) Copies of Reports, Releases and Financial Statements. So long as
any of the Notes are outstanding, to furnish to the Agents, not later than the
time the Company makes the same publicly available, copies of all public reports
or releases and all reports and financial statements furnished by the Company to
any securities exchange on which the Notes are listed pursuant to requirements
of or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder; and
(j) Blue Sky Qualifications. To endeavor, in cooperation with the
Agents, to qualify the Notes for offering and sale under the securities laws of
such jurisdictions as the Agents may designate, and to maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; and to file such statements and reports as may be required by the
laws of each jurisdiction in which the Notes have been qualified as above
provided; provided, however, that in connection therewith, the Company shall not
be required to qualify as a foreign corporation or file a general consent to
service of process.
SECTION 4. Payment of Expenses.
-------------------
The Company will pay:
(a) the costs incident to the authorization, issuance, sale and
delivery of the Notes and any taxes payable in that connection;
(b) the costs incident to the preparation, printing and filing under
the Act of the Registration Statement and any amendments and exhibits thereto;
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(c) the costs incident to the preparation, printing and filing of any
document and any amendments and exhibits thereto required to be filed by the
Company under the Exchange Act;
(d) the costs of distributing the Registration Statement, as
originally filed, and each amendment and post-effective amendment thereof
(including exhibits), the Prospectus, any supplement or amendment to the
Prospectus and any documents incorporated by reference in any of the foregoing
documents;
(e) the fees and expenses of the Trustee, any paying agent, any
calculation agent, any exchange rate agent and any other agents appointed by the
Company, and their respective counsel;
(f) the costs and fees in connection with the listing of the Notes on
any securities exchange;
(g) the cost and fees of any required filings with the National
Association of Securities Dealers, Inc.;
(h) the fees and disbursements of counsel to the Company and counsel
to the Agents;
(i) the fees paid to rating agencies in connection with the rating of
the Notes;
(j) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 3(j) hereof
and of preparing and printing a Blue Sky Memorandum and a memorandum concerning
the legality of the Notes as an investment (including fees and expenses of
counsel for the Agents in connection therewith);
(k) all advertising expenses in connection with the offering of the
Notes incurred with the consent of the Company; and
(l) all other costs and expenses incident to the performance of the
Company's obligations under this Agreement.
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SECTION 5. Conditions.
----------
The obligation of the Agents, as agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any person
who has agreed to purchase Notes to make payment for and take delivery of Notes,
and the obligation of any Agent to purchase Notes pursuant to any Purchase
Agreement (as defined), is subject to the accuracy, on each Representation Date,
of the representations and warranties of the Company contained herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) Registration Statements. No stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any order
directed to any document incorporated by reference in the Prospectus shall have
been issued or threatened by the Commission and no challenge shall have been
made to the accuracy or adequacy of any document incorporated by reference in
the Prospectus; any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with to the Agents' reasonable satisfaction; and the Company
shall have not filed with the Commission any amendment or supplement to the
Registration Statement or the Prospectus (or any document incorporated by
reference therein) without the consent of the Agent that arranged such purchase,
which consent shall not be unreasonably withheld or delayed.
(b) No Suspension of Sale of the Notes. No order suspending the sale
of the Notes in any jurisdiction designated by the Agents pursuant to Section
3(j) hereof shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened.
(c) No Material Omissions or Untrue Statements. The Agents shall not
have discovered and disclosed to the Company that the Registration Statement or
any Prospectus contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
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(d) Legal Matters Satisfactory to Counsel. All corporate proceedings
and other legal matters incident to the authorization, form and validity of this
Agreement, the Notes, the Indenture, the form of the Registration Statement,
each Prospectus and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
counsel for the Agents and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(e) Opinions of Company Counsel. At the Closing Date, the Agents
shall have received (1) the opinion, addressed to the Agents and dated the
Closing Date, of Deborah M. Regan, Esq., Vice President and Secretary of the
Company, in form and substance satisfactory to the Agents, to the effect that:
(i) Each of the Subsidiaries is a corporation duly incorporated and
validly existing in good standing under the laws of the respective state or
jurisdiction of its incorporation or formation, and each of the
Subsidiaries has full corporate power and authority under such laws to own,
lease and operate its properties and to conduct its business as described
in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) The Company, directly or indirectly, owns all of the issued and
outstanding voting securities of each of the Subsidiaries, in each case
free and clear of any liens, encumbrances or claims of which such counsel
has knowledge;
(iv) The Company and each of the Subsidiaries is a corporation duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the character of the business
conducted by it or the location of the property owned by it makes such
qualification necessary except where the failure to be so qualified would
not have a material adverse effect on the Company and its subsidiaries
considered as one enterprise;
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no actions, suits or proceedings before
or by any court or governmental agency or body, domestic or foreign,
pending or threatened, against or affecting the Company or any of its
subsidiaries which are, individually or in the aggregate, reasonably
15
<PAGE>
expected to result in any material adverse change in the general affairs,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as one enterprise, or which are
reasonably expected to materially and adversely affect the consummation of
this Agreement or the issuance and sale by the Company of the Notes; and to
the best of such counsel's knowledge, there are no contracts or exhibits
required by the Act or by the Rules and Regulations, or which are required
to be filed by the Exchange Act or the rules and regulations of the
Commission thereunder, to be filed with the Registration Statement or
required to be summarized, described or incorporated by reference in the
Registration Statement or the Prospectus which are not filed, incorporated
by reference, summarized or described as required;
(vi) The issue and sale by the Company of the Notes and the
compliance by the Company with all of the provisions of the Notes, the
Indenture, this Agreement and the Purchase Agreement (if any) and the
consummation of the transactions herein and therein contemplated will not,
to the best knowledge of such counsel, conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of any of the subsidiaries of the
Company under, any agreement or instrument to which any of the subsidiaries
of the Company is a party or by which any of the subsidiaries of the
Company may be bound or to which any of the property or assets of any of
the subsidiaries of the Company is subject (except for conflicts, breaches,
defaults, liens, charges and encumbrances which would not, individually or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries considered as one enterprise); nor will such action result in
any violation of the provisions of the Certificate or Articles of
Incorporation, as amended, or the By-Laws of any of the subsidiaries of the
Company or, to the best of such counsel's knowledge, any statute or order,
rule or regulation applicable to any of the subsidiaries of the Company of
any court or of any Federal, state or other regulatory authority or other
governmental body having jurisdiction over any of the subsidiaries of the
Company;
(vii) Nothing has come to the attention of such counsel to cause such
counsel to believe that either the Registration Statement or any amendment
thereof at the time each became effective contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Prospectus contains an
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untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial or statistical data included therein, as to which such counsel
need express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and
nothing has come to the attention of such counsel to cause such counsel to
believe that any of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and, in
the case of other documents which were filed under the Act or Exchange Act
with the Commission, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
documents were so filed, not misleading, in each case after excluding any
statement in any such document which does not constitute part of the
Registration Statement or the Prospectus pursuant to Rule 412 under the
Act;
and to such further effect with respect to other legal matters relating to this
Agreement, the Purchase Agreement (if any), or the sale of the Notes hereunder
as counsel for the Agents may/ reasonably request; and (2) the opinion,
addressed to the Agents and dated the Closing Date, of Sidley & Austin, counsel
for the Company, in form and substance satisfactory to the Agents and their
counsel, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware and the
Company has full corporate power and authority under such laws to own,
lease and operate its properties and to conduct its business as described
in the Prospectus.
(ii) This Agreement and the Purchase Agreement (if
any) have been duly authorized, executed and delivered by the Company;
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(iii) The Notes have been duly authorized and, when the terms thereof
have been duly established in accordance with the Indenture and when the
Notes have been duly executed, authenticated, issued and delivered, and
upon receipt by the Company of the agreed upon consideration therefor, will
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization and other similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity; the
Indenture has been duly authorized, executed and delivered by the Company
and duly qualified under the Trust Indenture Act and is substantially in
the form filed as an exhibit to the Registration Statement, and constitutes
a valid and legally binding obligation of the Company, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity;
(iv) The issue and sale by the Company of the Notes and the
compliance by the Company with all of the provisions thereof, and of the
Indenture, this Agreement and the Purchase Agreement (if any) and the
consummation of the transactions herein and therein contemplated will not,
to the best knowledge of such counsel, conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Company under any agreement or
instrument to which the Company is a party or by which the Company may be
bound or to which any of the property or assets of the Company is subject
(except for conflicts, breaches, defaults, liens, charges and encumbrances
which would not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries considered as one enterprise);
nor will such action result in any violation of the provisions of the
Certificate of Incorporation, as amended, or the By-Laws of the Company or,
to the best of such counsel's knowledge, any statute, order, rule or
regulation applicable to the Company of any court or of any Federal, state
or other regulatory authority or other governmental body having
jurisdiction over the Company; and no authorization, approval, consent,
registration, qualification or order of or with any such court or any such
regulatory authority or other governmental agency or body is required for
the issue and sale of the Notes by the Company
18
<PAGE>
or the consummation by the Company of the other transactions contemplated
by this Agreement, the Purchase Agreement (if any) or the Indenture, except
such as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the offer and sale of the Notes by the Company;
(v) The Registration Statement has become and is now effective under
the Act and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission;
(vi) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Closing
Date (other than the financial statements and related schedules and other
financial and statistical data therein as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; the Notes and the Indenture conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus, and the information in the Prospectus under
the captions "Description of Debt Securities" and "Description of Notes" or
a comparable caption describing the Notes, to the extent that it
constitutes matters of law or legal conclusions, has been reviewed by such
counsel and is correct in all material respects; nothing has come to the
attention of such counsel to cause such counsel to believe that either the
Registration Statement at the time it became effective contained or as of
the Closing Date contains an untrue statement of a material fact or omitted
or omits 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 Closing Date contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and
(vii) The statements contained under the caption "United States
Federal Income Tax Consequences" relating to the Notes, to the extent that
they constitute matters of law or legal conclusions, have been reviewed by
such counsel and are correct in all material respects;
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<PAGE>
and to such further effect with respect to other legal matters relating to
this Agreement, the Purchase Agreement (if any), or the sale of the Notes
hereunder as counsel for the Agents may reasonably request. Such counsel may
also state, that insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials, which
certificates, if any, shall be delivered to counsel for the Agents.
(f) Officers' Certificate. The Company shall have furnished to the
Agents on the Closing Date a certificate, dated the Closing Date and addressed
to the Agents, of its Chairman of the Board, the President or a Vice President
and its Secretary or an Assistant Secretary stating that the representations and
warranties of the Company herein are true and correct at and as of the Closing
Date; the Company complied with all of its obligations hereunder to be performed
at or prior to the Closing Date; and the conditions set forth in Sections 5(a)
and 5(b) hereof have been fulfilled; such certificate to be based upon knowledge
or belief as to proceedings initiated or threatened referred to in Sections 5(a)
and 5(b).
(g) Accountant's Letter. The Company shall have furnished to the
Agents on the Closing Date a letter of Arthur Andersen LLP, addressed jointly to
the Company and the Agents and dated the Closing Date, of the type described in
the American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, covering such specified financial statement items and
procedures as the Agents may reasonably request and in form and substance
reasonably satisfactory to the Agents.
(h) Additional Conditions. There shall not have occurred: (i) any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries considered as one enterprise,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented on the date of the acceptance by the Company of an offer to
purchase a Note, the effect of which, in any such case described in this clause
is, in the judgment of the Agents, so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Notes or the purchase of Notes from the Company as principal pursuant
to the applicable Purchase Agreements, as the case may be; (ii) a suspension or
material limitation in trading in securities generally, or in the Common Stock
of the Company, on the New York Stock Exchange or the establishment of minimum
prices on such exchange; (iii) a general moratorium on commercial banking
activities declared by either
20
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Federal or New York State authorities; (iv) any downgrading in the rating
accorded to any of the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act or any public announcement that any
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); (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 calamity or emergency; or (vi) any material adverse change in the
existing financial, political or economic conditions in the United States that,
or any effect of international conditions on the financial markets in the United
States that, in the judgment of the Agents, makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Notes or the
purchase of Notes from the Company as principal pursuant to the applicable
Purchase Agreement, as the case may be.
(i) Other Information and Documentation. Prior to the Closing Date,
the Company shall have furnished to the Agents such further information,
certificates and documents as the Agents or counsel to the Agents may reasonably
request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in the form and substance satisfactory to
counsel for the Agents.
SECTION 6. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes shall be deemed
to be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore given to the
Agents pursuant hereto are true and correct at the time of such acceptance, and
an undertaking that such representations and warranties will be true and correct
at the time of delivery to the purchaser or his agent of the Notes relating to
such acceptance as though made at and as of each such time (and it is understood
that such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented to each such time).
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<PAGE>
(b) Subsequent Delivery of Officers' Certificates. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the interest rates or
maturities of the Notes or the principal amount of Notes remaining to be sold or
other changes as agreed to by the Agents on a case-by-case basis) or the Company
files with the Commission any document incorporated by reference into the
Prospectus, the Company shall, concurrently with such amendment, supplement or
filing, furnish the Agents with a certificate of the Chairman of the Board, the
President or any Vice President and the Secretary or any Assistant Secretary of
the Company in form satisfactory to the Agents to the effect that the statements
contained in the certificate referred to in Section 5(f) hereof which was last
furnished to the Agents are true and correct at the time of such amendment,
supplement or filing, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(f), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the interest rates or
maturities of the Notes or the principal amount of Notes remaining to be sold or
other changes as agreed to by the Agents on a case-by-case basis) or the Company
files with the Commission any document incorporated by reference into the
Prospectus, the Company shall, concurrently with such amendment, supplement or
filing, furnish the Agents and their counsel with written opinions of the
counsel to the Company specified in Section 5(e), addressed to the Agents and
dated the date of delivery of such opinions, in form satisfactory to the Agents,
of the same tenor as the respective opinions referred to in Section 5(e)(1) and
(2) hereof, but modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented to the time of delivery of such
opinions; provided, however, that in lieu of such opinions, such counsel may
furnish the Agents with letters to the effect that the Agents may rely on such
prior opinions to the same extent as though they were dated the date of such
letter authorizing reliance (except that statements in such prior opinions shall
be deemed to relate to the Registration Statement and the Prospectus as amended
or supplemented to the time of delivery of such letters authorizing reliance).
22
<PAGE>
(d) Subsequent Accountant's Letter. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented to include
additional financial information or the Company files with the Commission any
document incorporated by reference into the Prospectus which contains additional
financial information the Company shall cause Arthur Andersen LLP to furnish the
Agents, concurrently with such amendment, supplement or filing, a letter,
addressed jointly to the Company and the Agents and dated the date of delivery
of such letter, in form and substance reasonably satisfactory to the Agents, of
the same tenor as the letter referred to in Section 5(g) hereof but modified to
relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter, Arthur Andersen
LLP may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless there is contained therein any
other accounting, financial or statistical information that, in the reasonable
judgment of the Agents, should be covered by such letter, in which event such
letter shall also cover such other information.
(e) On any settlement date for the sale of Notes, the Company shall
furnish to the Agent that solicited or received the offer to purchase any Notes
being delivered on such settlement date, if requested by such Agent prior to
acceptance of such offer by the Company, with written opinions of the counsel to
the Company set forth in Section 5(e), dated such settlement date, in form
satisfactory to such Agent, to the effect set forth in section 5(e) hereof, but
modified, as necessary, to relate to the Prospectus relating to the Notes to be
delivered on such settlement date; provided, however, that in lieu of such
opinion, such counsel may furnish the Agent with a letter to the effect that the
Agent may rely on such prior opinion to the same extent as though it was dated
such settlement date (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and such Prospectus as amended
or supplemented to the time of delivery of such letter authorizing reliance).
SECTION 7. Indemnification and Contribution.
--------------------------------
(a) The Company shall indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of the Act from and
against any loss, claim, damage or liability, joint or several, and any action
in respect thereof,
23
<PAGE>
to which such Agent or controlling person may become subject, under the Act, the
Exchange Act or other Federal, state or foreign statutory law or regulation, at
common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, or arises out of, or is 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 shall reimburse each Agent and
controlling person promptly after receipt of invoices therefrom for any legal
and other expenses reasonably incurred by such Agent or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or the alleged omission made in the
Registration Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company by the Agents specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Agent or controlling
person. The statements with respect to the Agents set forth on the last
paragraph of the cover page of the Prospectus Supplement relating to the Notes
and under the heading "Supplemental Plan of Distribution" in such Prospectus
Supplement constitute the only information furnished in writing by the Agents
specifically for inclusion in the Registration Statement, and each of you, as
the Agents, confirm that such statements are correct.
(b) Each Agent shall severally, but not jointly, indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement and any person who controls the Company within the
meaning of the Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Act, the
Exchange Act or Federal, state or foreign statutory law or regulation, at common
law or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus, or arises out of, or is 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, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with
24
<PAGE>
written information furnished to the Company by such Agent specifically for
inclusion therein, and shall reimburse the Company or any such director, officer
or controlling person, promptly after receipt of invoices therefrom, for any
legal and other expenses reasonably incurred by such indemnified party in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in addition
to any liability which any Agent may otherwise have to the Company or any of its
directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section except to the
extent that it has been materially prejudiced by such failure. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Agents shall have the right to employ counsel to represent the Agents who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Agents against the Company under this Section if,
in the reasonable judgment of the Agents, it is advisable for the Agents to be
represented by separate counsel, and in that event the fees and expenses of such
counsel shall be paid by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any
25
<PAGE>
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding. In no event shall the indemnifying party or parties be liable for
the fees and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Agents on the other from the
offering of the Notes 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 Agents on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agents on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes (before deducting expenses) received by the Company bears to the
total commissions received by such Agent with respect to such offering. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or any Agent, the
intent of the parties and their relative knowledge, and access to information
and opportunity to correct or prevent such statement or omission. The Company
and
26
<PAGE>
the Agents agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even
if the Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7(d) shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating, preparing to defend
or defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which the Notes sold through such Agent
and distributed to the public were offered to the public exceed the amount of
any damages which such Agent has otherwise paid or become liable to pay by
reason of any 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 Agents' obligations
under this Section 7(d) are several and not joint. Any party receiving notice
of its obligation to contribute any amount pursuant to this Section 7(d) shall
provide prompt notice to all other parties required to contribute hereunder.
SECTION 8. Status of each Agent.
--------------------
In soliciting offers to purchase the Notes from the Company pursuant
to this Agreement (other than offers to purchase pursuant to Section 11), each
Agent is acting solely as agent for the Company and not as principal. Each
Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company has
been solicited by such Agent and accepted by the Company but such Agent shall
have no liability to the Company in the event any such purchase is not
consummated for any reason. If the Company shall default in its obligations to
deliver Notes to a purchaser whose offer it has accepted, the Company shall (i)
hold each Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) in particular, pay to each Agent
any commission to which it would be entitled in connection with such sale.
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<PAGE>
SECTION 9. Representations and Warranties to Survive Delivery.
--------------------------------------------------
All representations and warranties of the Company contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of the termination or cancellation of this Agreement or any investigation made
by or on behalf of any Agent or any person controlling such Agent or by or on
behalf of the Company, and shall survive each delivery of and payment for any of
the Notes.
SECTION 10. Termination.
-----------
This Agreement may be terminated for any reason with respect to any
party hereto, at any time, by any party hereto upon the giving of one day's
written notice of such termination to the other parties hereto; provided,
however, that in case of termination by less than all the Agents such
termination shall be effective only with respect to such terminating Agent. If,
at the time of termination, an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the purchaser has not
occurred, the provisions of Sections 3(c), 3(g), 3(i) and 3(j) shall remain in
effect until such Notes are delivered. The provisions of Sections 3(d), 3(h),
4, 7, 8, 9, 12, 13, 14 and 15 hereof shall survive any such termination.
SECTION 11. Purchases as Principal.
----------------------
(a) From time to time any Agent may agree with the Company to purchase
Notes from the Company as principal, in which case such purchase shall be made
in accordance with the terms of a separate agreement (a "Purchase Agreement") to
be entered into between such Agent and the Company in the form attached hereto
as Exhibit C. A Purchase Agreement, to the extent set forth therein, may
incorporate by reference specified provisions of this Agreement. Each Purchase
Agreement shall be substantially in the form of Exhibit C hereto but may take
the form of (i) an exchange of any form of written telecommunication between the
Agent and the Company or (ii) an oral agreement with an authorized officer of
the Company promptly confirmed in writing. The Agent's commitment to purchase
Notes as principal shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth as well as any other
representations, warranties, terms and conditions set forth in the Purchase
Agreement.
28
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(b) Unless otherwise agreed to between the Company and an Agent in a
Purchase Agreement, any Note sold to an Agent as principal (i) shall be
purchased by such Agent at a price equal to 100% of the principal amount thereof
less a percentage equal to the commission applicable to an agency sale of a Note
of identical maturity and (ii) may be resold by such Agent at varying prices
from time to time or, if set forth in the applicable Purchase Agreement and
Pricing Supplement, at a fixed public offering price. In connection with any
resale of Notes purchased, any such Agent may use a selling or dealer group and
may reallow to any broker or dealer any portion of the discount or commission
payable pursuant hereto.
SECTION 12. Sales of Notes Denominated in a Foreign Currency and Indexed
------------------------------------------------------------
Notes.
- -----
If at any time the Company and any of the Agents shall determine to
issue and sell Notes denominated in a currency or currency unit other than U.S.
Dollars, which other currency may include a composite currency, or with respect
to which an index is used to determine the amounts of payments of principal or
any premium or interest, the Company and any such Agent shall execute and
deliver an Amendment (a "Foreign Currency Amendment" or "Indexed Note
Amendment," as the case may be) in the form attached hereto as Exhibit D. Such
Amendment shall establish, as appropriate, additions and modifications that
shall apply to the sales, whether offered on an agency or principal basis, of
the Notes covered thereby.
SECTION 13. 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 the Agents shall be directed to each of them as follows:
; notices to the Company shall be directed to it as follows: R. R. Donnelley &
Sons Company, 77 West Wacker Drive, Chicago, Illinois 60601, Attention:
Treasurer.
SECTION 14. Binding Effect; Benefits.
------------------------
This Agreement shall be binding upon each Agent, the Company, and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Agent within the
29
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meaning of Section 15 of the Act, (b) the agreements of the Agents contained in
Section 7 hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company and (c) to the extent any person who has
agreed to purchase Notes may be relieved of his obligation to make payment
thereof and take delivery thereof pursuant to the first paragraph of Section 5
hereof. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 15. Governing Law; Counterparts.
---------------------------
This Agreement shall be governed by and construed in accordance with
the laws of New York. This Agreement may be executed in counterparts and the
executed counterparts shall together constitute a single instrument.
SECTION 16. Paragraph Headings.
------------------
The paragraph headings used in this Agency Agreement are for
convenience of reference only, and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
30
<PAGE>
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
R. R. DONNELLEY & SONS COMPANY
By____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[AGENT]
By____________________________
Name:
Title:
31
<PAGE>
EXHIBIT A
R. R. Donnelley & Sons Company
Medium-Term Notes, Series __
Schedule of Payments
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate U.S. dollar equivalent of the principal
amount of Notes:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
__ year to less than __ years %
__ years to less than __ years %
__ years to less than __ years %
__ years to less than __ years %
__ years to less than __ years %
__ years to __ years and one month %
</TABLE>
<PAGE>
EXHIBIT B
R. R. Donnelley & Sons Company
Medium-Term Notes, Series __
Administrative Procedures
Medium-Term Notes, Series __, due from _____ year[s] to ___ years and
one month from date of issue (the "Notes") may be offered on a continuing basis
by R. R. Donnelley & Sons Company (the "Company"). ___________________,
_____________________ and ______________________ as agents (each an "Agent" and
collectively, the "Agents"), have each agreed to use their reasonable best
efforts to solicit offers to purchase the Notes. The Notes are being sold
pursuant to an Agency Agreement between the Company and the Agents dated
________, 199_ (as it may be supplemented or amended from time to time, the
"Agency Agreement") to which these administrative procedures are attached as an
exhibit. The Notes will be issued pursuant to an Indenture, dated as of
November 1, 1990 (as it may be amended or supplemented from time to time, the
"Indenture"), between the Company and Citibank, N.A., as trustee (the
"Trustee"). The Notes will rank equally with all other unsecured and
unsubordinated indebtedness of the Company and will have been registered with
the Securities and Exchange Commission (the "Commission"). Unless otherwise
noted, terms not defined herein shall have the same meaning as in the Prospectus
Supplement relating to the Notes (the "Prospectus") and in the Agency Agreement.
Special administrative procedures for Multi-Currency Notes and for Global
Securities for Book-Entry Notes follow these administrative procedures.
Administrative responsibilities, document control and record-keeping
functions to be performed by the Company will be performed by its Treasury
Department. Administrative procedures for the offering are explained below.
Price to Public
- ---------------
Each Note will be issued at 100% of principal amount, unless otherwise
determined by the Company.
Date of Issuance
- ----------------
Each Note will be dated and issued as of the date of its
authentication by the Trustee.
B-1
<PAGE>
Maturities
- ----------
Each Note will mature on a Business Day selected by the initial
purchaser and agreed upon by the Company, such date being at least ____ year[s]
but not more than ___ years and one month from the date of issuance. Each
Floating Rate Note will mature on an Interest Payment Date (as defined below).
Registration
- ------------
Notes will be issued only in fully registered form as either a Book-
Entry Note or a Certificated Note. Certificated Notes may be presented for
registration of transfer or exchange at the Trustee's New York office.
Denominations
- -------------
Unless otherwise indicated in the applicable Pricing Supplement, Notes
(other than Book-Entry Notes) will be issued and payable in U.S. dollars in the
denomination of $100,000 and integral multiples of $1,000 in excess thereof.
Interest Payments
- -----------------
Each Note bearing interest at a fixed rate (a "Fixed Rate Note") will
bear interest from its issue date at the annual rate stated on the face thereof,
payable either semi-annually on May 15 and November 15 or annually on May 15 of
each year (each an "Interest Payment Date" with respect to such Fixed Rate Note)
and at Maturity.
Special provisions are set forth in a supplement to the Prospectus
relating to Notes bearing interest at a rate or rates determined by reference to
an interest rate formula (the "Floating Rate Notes") stated on the face thereof,
payable in arrears on such dates as are specified therein (each an "Interest
Payment Date" with respect to such Floating Rate Note).
Interest on Fixed Rate Notes will be calculated and paid on the basis
of a 360-day year of twelve 30-day months. Interest will be payable to the
person in whose name such Note is registered at the close of business on each of
May 1 or November 1, or May 1, as the case may be (whether or not a Business
Day) (the "Regular Record Dates") next preceding the respective Interest Payment
Date. Any payment of principal and interest on such Note required to be paid on
an Interest Payment Date or at Maturity which is not a Business Day shall be
postponed to the next day which is a Business Day. The first payment of
interest on any Note originally issued between a Regular Record Date and an
Interest Payment Date will be made on the Interest Payment
B-2
<PAGE>
Date following the next succeeding Regular Record Date. All interest payments,
excluding interest payments made at Maturity, will be made by check mailed to
the person entitled thereto as provided in the supplement to the Prospectus
relating to the Notes, or, at the option of the Company, by wire transfer to an
account maintained by such person with a bank located in the United States.
Notwithstanding the foregoing, the holder of $10 million or more in aggregate
principal amount of Notes with the same Interest Payment Date shall upon written
request be entitled to receive payments of interest (other than at Stated
Maturity or upon redemption) by wire transfers to an account maintained by such
holder with a bank located in the United States.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Trustee will furnish the Company with the total amount of the interest
payments to be made on such Interest Payment Date. The Trustee (or any duly
selected paying agent) will provide monthly to the Company's Treasury Department
a list of the principal and interest to be paid on Notes maturing in the next
succeeding month. The Company will provide to the Trustee not later than the
payment date sufficient moneys to pay in full all principal and interest
payments due on such payment date. The Trustee will assume responsibility for
withholding taxes on interest paid as required by law.
Acceptance and Rejection of Offers
- ----------------------------------
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable offer
to purchase Notes from the Company received by it other than those rejected by
such Agent. Each Agent shall have the right, in its discretion reasonably
exercised without advising the Company, to reject any offers in whole or in
part.
Settlement
- ----------
The receipt of immediately available funds in U.S. Dollars by the
Company in the City of New York in payment for a Note (less the applicable
commission) and the authentication and issuance of such Note shall, with respect
to such Note, constitute "Settlement." All offers accepted by the Company will
be settled from one to five Business Days from the date of acceptance by the
Company pursuant to the timetable for Settlement set forth below unless the
Company and the purchaser agree to Settlement on a later date; provided,
however, that the Company will so notify the Trustee of any such later date on
or before the Business Day immediately prior to the Settlement date.
B-3
<PAGE>
Settlement Procedures for Certificated Notes
- --------------------------------------------
In the event of a purchase of Notes by an Agent, as principal,
appropriate Settlement details will be set forth in the applicable Purchase
Agreement to be entered into between such Agent and the Company pursuant to the
Agency Agreement. In the Event of the sale of a Multi-Currency Note or an
Indexed Note, additional or different Settlement details may be set forth in the
applicable Amendment to be entered into between the Agent and the Company
pursuant to the Agency Agreement.
Settlement procedures with regard to each Note sold through each
Agent shall be as follows:
A. Such Agent will advise the Company by telex or facsimile of the
following Settlement information:
1. Exact name in which the Note is to be registered
("Registered Owner").
2. Exact address of the Registered Owner and address for
payment of principal and interest, if any.
3. Taxpayer identification number of the Registered Owner (if
available).
4. Principal amount of the Note (and, if multiple Notes are to
be issued, denominations thereof).
5. Settlement date (Original Issue Date).
6. Stated Maturity.
7. Issue Price.
8. Trade Date.
9. Specified Currency and whether the option to elect payments
in a Specified Currency applies and if the Specified
Currency is not U.S. Dollars, the authorized denominations.
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
B-4
<PAGE>
ii) overdue rate, if any
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g.,
Commercial Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier,
if any
iv) Interest Reset Dates
v) Index Maturity
vi) maximum and minimum interest
rates, if any
vii) overdue rate, if any
(c) Indexed Notes
The applicable terms thereof
11. Interest Payment Date(s) and Interest Payment Period.
12. Optional Interest Reset Date, if any, and Subsequent
Interest Period, if any.
13. Extension Period, if any, and Final Maturity Dates, if any.
14. The date on or after which the Notes are redeemable at the
option of the Company or repurchasable by the Company at the
option of the holder, and additional redemption or
repurchase provisions, if any.
15. Amortization schedule, if any.
16. Wire transfer information, if applicable.
17. Agent's Commission (to be paid in the form of a discount
from the proceeds remitted to the Company upon Settlement).
18. Whether such Certificated Note is issued at an original
issue discount ("OID"), and, if so, the total amount of OID,
the yield to maturity and the initial accrual period of OID.
B. The Company will confirm the above Settlement information to the
Trustee by telex or facsimile. If the
B-5
<PAGE>
Company rejects an offer, the Company will promptly notify such Agent by
telephone.
C. The Trustee will assign a Note number to the transaction and will
complete the first page of the preprinted 4-ply Note packet, the form of
which was previously approved by the Company, the Agents and the Trustee.
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Agent. Such Agent will
acknowledge receipt of the Note by completing the yellow stub and returning
it to the Trustee.
E. Such Agent will cause to be wire transferred to a bank account
designated by the Company immediately available funds in U.S. dollars in
the amount of the principal amount of the Note, less the applicable
commission or discount, if any.
F. Such Agent will deliver the Note (with the attached white
confirmation) to the purchaser against payment in immediately available
funds in the amount of the principal amount of the Note. Such Agent will
deliver to the purchaser a copy of the most recent Prospectus applicable to
the Note with or prior to any written offer of Notes, delivery of the Note
and the confirmation and payment by the purchaser for the Note.
G. Such Agent will obtain the acknowledgement of receipt for the Note
and Prospectus by the purchaser through the purchaser's completion of the
blue stub.
H. The Trustee will mail the pink stub to the Company's Treasurer.
Settlement Procedures Timetable
- -------------------------------
For offers accepted by the Company, Settlement procedures "A" through
"H" set forth above shall be completed on or before the respective times set
forth below:
Settlement
Procedure Time (New York)
--------- ----
A 5:00 PM on date of order
B 3:00 PM on the Business Day prior to
Settlement date
B-6
<PAGE>
C-D 12 noon on the Settlement date
E 2:15 PM on the Settlement date
F-G 3:00 PM on the Settlement date
H 5:00 PM on Business Day after the Settlement
date
Failure
- -------
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Company for
Settlement, such Agent will immediately notify the Trustee and the Company's
Treasurer by telephone, confirmed in writing, of such failure and return the
Note to the Trustee. Upon the Trustee's receipt of the Note from the Agent, the
Company will promptly return to the Agent an amount of immediately available
funds in U.S. dollars equal to any amount previously transferred to the Company
in respect of the Note pursuant to advances made by the Agent. Such returns
will be made on the Settlement date, if possible, and in any event not later
than 12 noon (New York City time) on the Business Day following the Settlement
date. The Company will reimburse such Agent on an equitable basis for its loss
of the use of the funds during the period when the funds were credited to the
account of the Company. Upon receipt of the Note in respect of which the default
occurred, the Trustee will mark the Note "cancelled", make appropriate entries
in its records and deliver the Note to the Company with an appropriate debit
advice. Such Agent will not be entitled to any commission with respect to any
Note which the purchaser does not accept or make payment for.
Redemption
- ----------
Except as otherwise specified in the applicable Pricing Supplement and
on the Notes, the Notes will not be redeemable prior to their Stated Maturity.
If so specified in a Pricing Supplement and on the Note, such Note will be
subject to redemption by the Company, at any time on or after the date set forth
on such supplement and the Note, in whole or from time to time in part, at the
option of the Company, at the redemption price, together with interest accrued
thereon on the date of redemption.
Notice of redemption shall be given by first-class mail postage
prepaid, mailed not less than 30 days nor more than 60 days prior to the date of
redemption, to each holder of Notes to be redeemed, in the manner and in
accordance with the Indenture. In the event of redemption in part of any Note, a
new Note for the amount of the unredeemed portion shall be issued in the name of
the Holder upon cancellation of the redeemed Note.
B-7
<PAGE>
Maturity
--------
Upon presentation of each Note at Maturity the Trustee (or any duly
appointed Paying Agent) will pay the principal amount thereof, together with
accrued interest through the date of redemption. Such payment shall be made in
immediately available funds in U.S. dollars, provided that the Note is presented
to the Trustee (or any such Paying Agent) in time for the Trustee (or such
Paying Agent) to make payments in such funds in accordance with its normal
procedures. The Company will provide the Trustee (and any such Paying Agent)
with funds available for immediate use for such purpose. Notes presented at
Maturity will be cancelled by the Trustee as provided in the Indenture.
Procedures for Establishing the Terms of the Notes
- --------------------------------------------------
The Company and the Agents 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 Agents. Once any Agent has recorded any indication of interest in Notes
upon certain terms and communicated with the Company, if the Company accepts an
offer to purchase Notes upon such terms, the Company will prepare a Pricing
Supplement, in the form previously approved by the Agents, reflecting the terms
of such Notes and, after approval from such Agent, will arrange to
electronically transmit for filing with the SEC under the EDGAR system a copy of
such Pricing Supplement (together with the Prospectus, if amended or
supplemented) filed with the Commission and will supply an appropriate number of
copies of the Prospectus, as then amended or supplemented, together with such
Pricing Supplement, to the Agent who presented such offer. See "Delivery of
Prospectus." No settlements with respect to Notes upon such terms may occur
prior to such filing and such Agents will not, prior to such filing, mail
confirmations to customers who have offered to purchase Notes upon such terms.
After such 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 Company decides to post rates and a decision has been reached
to change interest rates, the Company will promptly notify each Agent. Each
Agent will forthwith suspend solicitation of purchases. At that time, the
Agents will recommend and the Company will establish rates to be so "posted".
Following establishment of posted rates and prior to the filing described in the
following sentence, the Agents may only record indications of interest in
purchasing Notes at the posted rates. Once any Agent has recorded any
indication of interest in Notes at the posted rates and communicated with the
Company, if the
B-8
<PAGE>
Company plans to accept an offer at the posted rate, the Company will prepare a
Pricing Supplement reflecting such posted rates and, after approval from the
Agents, will arrange to electronically transmit for filing with the SEC under
the EDGAR system a copy of such Pricing Supplement (together with the Prospectus
if amended or supplemented) filed with the Commission and will supply an
appropriate number of copies of the Prospectus, as then amended or supplemented,
to the Agent who presented such offer. See "Delivery of Prospectus." No
settlements at the posted rates may occur prior to such filing and the Agents
will not, prior to such filing, mail confirmations to customers who have offered
to purchase Notes at the posted rates. After such filing, sales, mailing of
confirmations and settlements may resume, subject to the provisions of "Delivery
of Prospectus" below.
Suspension of Solicitation; Amendment or Supplement
- ---------------------------------------------------
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there shall
be any orders outstanding which have not been settled, the Company will promptly
advise the Agents and the Trustee whether such orders may be settled and whether
copies of the Prospectus as theretofore amended and/or supplemented as in effect
at the time of the suspension may be delivered in connection with the settlement
of such orders. The Company will have the sole responsibility for such decision
and for any arrangements which may be made in the event that the Company
determines that such orders may not be settled or that copies of such Prospectus
may not be so delivered.
Delivery of Prospectus
- ----------------------
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof, together with the applicable Pricing Supplement,
must be delivered to a purchaser prior to or simultaneously with the earlier of
the delivery of (i) the written confirmation of a sale sent to a purchaser or
his agent and (ii) any Note purchased by such purchaser. The Company shall
ensure that the applicable Agent receives copies of the Prospectus and each
amendment or supplement thereto (including the applicable Pricing Supplement) in
such quantities and within such time limits as will enable such Agent to deliver
such confirmation or Note to a purchaser as contemplated by these procedures and
in compliance with the preceding sentence. Copies of Pricing Supplements should
be delivered to:
B-9
<PAGE>
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 Company 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 Trustee will make all such deliveries
with respect to all Notes sold directly by the Company.
Authenticity of Signatures
- --------------------------
The Company will cause the Trustee to furnish the Agents from time to
time with the specimen signatures of each of the Trustee's officers, employees
and agents who have been authorized by the Trustee to authenticate Notes, but
the Agents will have no obligation or liability to the Company or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Note.
Advertising Costs
- -----------------
The Company will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Notes. Advertising expenses
incurred with the consent of the Company will be paid by the Company.
B-10
<PAGE>
SPECIAL ADMINISTRATIVE PROCEDURES
FOR MULTI-CURRENCY NOTES
Unless otherwise set forth in an applicable Foreign Currency
Amendment, the following procedures and terms shall apply to Multi-Currency
Notes in addition to, and to the extent inconsistent therewith in replacement
of, the procedures and terms set forth above.
Denominations
- -------------
The authorized denominations of any Multi-Currency Note will be the
amount of the Specified Currency for such Multi-Currency Note equivalent, at the
noon buying rate in the City of New York for cable transfers for such Specified
Currency (the "Market Exchange Rate") on the first Business Day in the City of
New York and the country issuing such currency (or in the case of ECUs,
Brussels) next preceding the date on which the Company accepts the offer to
purchase such Multi-Currency Note, to U.S.$100,000 (rounded down to an integral
multiple of 10,000 units of such Specified Currency) and any greater amount that
is an integral multiple of 10,000 units of such Specified Currency.
Currencies
- ----------
Unless otherwise specified in the applicable Pricing Supplement,
payments of principal of (and premium, if any) and interest on all Multi-
Currency Notes will be made in the applicable Specified Currency, provided,
however, that payments of principal of (and premium, if any) and interest on
Multi-Currency Notes denominated in other than U.S dollars will nevertheless be
made in U.S. dollars (i) at the option of the Holders thereof under the
procedures decribed below and (ii) at the option of the Company in the case of
imposition of exchange controls or other circumstances beyond the control of the
Company as described below.
Payment of Principal and Interest
- ---------------------------------
If so specified in the applicable Pricing Supplement, except as
provided in the next paragraph, payments of interest and principal (and premium,
if any) with respect to any Multi-Currency Note will be made in U.S. dollars if
the Holder of such Note on the relevant Regular Record Date or at Maturity, as
the case may be, has transmitted a written request for such payment in U.S.
dollars to the Trustee at its Corporate Trust Office in The City of New York on
or prior to such Regular Record Date or the date 15 days prior to Maturity, as
the case may be. Such request may be in writing (mailed or hand delivered) or
by cable, telex or other form or facsimile transmission. Any such request
B-11
<PAGE>
made with respect to any Multi-Currency Note by a Holder will remain in effect
with respect to any further payments of interest and principal (and premium, if
any) with respect to such Multi-Currency Note payable to such Holder, unless
such request is revoked on or prior to the relevant Regular Record Date or the
date 15 days prior to Maturity, as the case may be. Holders of Multi-Currency
Notes denominated in other than U.S. dollars whose Notes are registered in the
name of a broker or nominee should contact such broker or nominee to determine
whether and how an election to receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by a Holder of a Multi-Currency
Note who elects to receive payments in U.S. dollars will be based on the highest
bid quotation in The City of New York received by the Currency Determination
Agent (as defined below) as of noon New York City time on the third Business Day
next preceding the applicable payment date from three recognized foreign
exchange dealers (one of which may be the Currency Determination Agent) for the
purchase by the quoting dealer of the Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to all Holders of Multi-Currency Notes electing to receive U.S.
dollar payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available on the third Business
Day preceding the date of payment of principal (and premium, if any) or interest
with respect to any such Multi-Currency Note, such payment will be made in the
Specified Currency. All currency exchange costs associated with any payment in
U.S. dollars on any such Multi-Currency Note will be borne by the Holder thereof
by deductions from such payment. Unless otherwise provided in the applicable
Pricing Supplement, Citibank, N. A. will be the Currency Determination Agent
(the "Currency Determination Agent") with respect to the Multi-Currency Notes.
Payment Currency
- ----------------
If the principal of (and premium, if any) or interest on any Multi-
Currency Note is payable in any currency other than U.S. dollars and such
Specified Currency is not available due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to Holders of the Multi-Currency Notes by
making such payment in U.S. dollars on the basis of the Market Exchange Rate on
the last date such Specified Currency was available (the "Conversion Date").
Any payment made under such circumstances in U.S. dollars where the required
payment is in other than U.S. dollars will not constitute an Event of Default
under the Indenture.
B-12
<PAGE>
If payment in respect of a Note is required to be made in any currency
unit (e.g., ECU) and such currency unit is unavailable due to the imposition of
exchange controls or other circumstances beyond the Company's control, then all
payments in respect of such Multi-Currency Note shall be made in U.S. dollars
until such currency unit is again available. The amount of each payment in U.S.
dollars shall be computed on the basis of the equivalent of the currency unit in
U.S. dollars, which shall be determined by the Company or its agent on the
following basis. The component currencies of the currency unit for this purpose
(the "Component Currencies") shall be the currency amounts that were components
of the currency unit as of the Conversion Date for such currency unit. The
equivalent of the currency unit in U.S. dollars shall be calculated by
aggregating the U.S. dollar equivalents of the Component Currencies. The U.S.
dollar equivalent of each of the Component Currencies shall be determined by the
Company or such agent on the basis of the Market Exchange Rate for each such
Component Currency that is available as of the third Business Day prior to the
date on which the relevant payment is due and for each such Component Currency
that is unavailable, if any, as of the Conversion Date for such Component
Currency.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion, if two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
Outstanding Multi-Currency Notes
- --------------------------------
For purposes of calculating the principal amount of any Multi-Currency
Note for any purpose under the Indenture, the principal amount of such Multi-
Currency Note at any time outstanding shall be deemed to be the U.S. dollar
equivalent at the Market Exchange Rate, determined as of the date of the
original issuance of such Multi-Currency Note, of the principal amount of such
Multi-Currency Note.
B-13
<PAGE>
Details for Settlement of Multi-Currency Notes
- ----------------------------------------------
In addition to the Settlement information specified in "Settlement
Procedures" above, the Agents shall communicate to the Company in the manner set
forth in "Settlement Procedures" the following information:
1. Specified Currency.
2. Denominations.
3. Wire transfer and overseas bank account information (if holder
has elected payment in a Specified Currency).
B-14
<PAGE>
SPECIAL ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to the Trustee, as agent for the Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the Holder thereof or a Person designated
by such Holder (a "Certificated Note"). An owner of a Book-Entry Note will not
be entitled to receive a certificate representing such Note. 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
respective obligations under a Letter of Representations from the Company and
the Trustee to DTC dated the date hereof and a Medium-Term Note Certificate
Agreement between the Trustee and DTC, dated as of October 31, 1988, and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS"). Except as otherwise set forth in this Exhibit B, Book-Entry
Notes will be issued in accordance with the administrative procedures set forth
below.
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Fixed Rate
Book-Entry Notes, the Company will issue a single
Global Security in fully registered form without
coupons (a "Global Security") representing up to
$150,000,000 principal amount of all of such Notes
that have the same Original Issue Date, interest
rate and Stated Maturity. Similarly, on any
settlement date for one or more Floating Rate
Book-Entry Notes, the Company will issue a single
Global Security representing up to $150,000,000
principal amount of all of such Notes that have
the same Original Issue Date, Interest Rate Basis,
Initial Interest Rate, Interest Payment Period,
Interest Payment Dates, Index Maturity, Spread or
Spread Multiplier, if any, minimum interest rate
(if any), maximum interest rate (if any),
redemption provisions, if any, and Stated
Maturity. Each Global Security
B-15
<PAGE>
will be dated and issued as of the date of its
authentication by the Trustee, as Trustee. No
Global Security will represent (i) both Fixed Rate
and Floating Rate Book-Entry Notes or (ii) any
Certificated Note or (iii) any Multi-Currency or
Indexed Note.
Identification The Company will arrange, on or prior to
Numbers: commencement of a program for the offering of
Book-Entry Notes, 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), consisting of
approximately 900 CUSIP numbers and relating to
Global Securities representing the Book-Entry
Notes. The Trustee has or will obtain from the
CUSIP Service Bureau a written list of such series
of reserved CUSIP numbers and will deliver to the
Company and DTC such written list of 900 CUSIP
numbers of such series. The Trustee will assign
CUSIP numbers to Global Securities as described
below under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Trustee has assigned to
Global Securities. The Trustee will notify the
Company at any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to Global
Securities, and if it deems necessary, the Company
will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-
Entry Notes. Upon obtaining such additional CUSIP
numbers the Trustee shall deliver such additional
CUSIP numbers to the Company and DTC.
B-16
<PAGE>
Registration: Each Global Security 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.
Transfers: 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.
Consolidation and The Trustee may deliver to DTC and the CUSIP
Exchange: Service Bureau at any time a written notice of
consolidation specifying (i) the CUSIP numbers of
two or more Outstanding Global Securities that
represent (A) Fixed Rate Book-Entry Notes having
the same Original Issue Date, interest rate and
Stated Maturity and with respect to which interest
has been paid to the same date or (B) Floating
Rate Book-Entry Notes having the same
B-17
<PAGE>
Interest Rate Basis, Original Issue Date, Initial
Interest Rate, Interest Payment Dates, Index
Maturity, Spread or Spread Multiplier, if any,
minimum interest rate (if any), maximum interest
rate (if any), redemption provisions, if any, and
Stated Maturity and with respect to which interest
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 for such
Book-Entry Notes, on which such Global Securities
shall be exchanged for a single replacement Global
Security and (iii) a new CUSIP number, obtained
from the Company, to be assigned to such
replacement Global Security. Upon receipt of such
a notice, DTC will send to its participants
(including the Trustee) a written reorganization
notice to the 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 Securities to be exchanged will no
longer be valid. On the specified exchange date,
the Trustee will exchange such Global Securities
for a single Global Security bearing the new CUSIP
number, and the CUSIP numbers of the exchanged
Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the
foregoing, if the Global Securities to be
exchanged exceed $150,000,000 in aggregate
principal amount, one Global Security will be
B-18
<PAGE>
authenticated and issued to represent each
$150,000,000 of principal amount of the exchanged
Global Securities and an additional Global
Security will be authenticated and issued to
represent any remaining principal amount of such
Global Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not
less than ____ year[s] or more than ___ years and
one month after the settlement date for such Note.
A Floating Rate Book-Entry Note will mature only
on an Interest Payment Date for such Note.
Denominations: Book-Entry Notes will be issued in principal
amounts of $100,000 or any amount in excess
thereof that is an integral multiple of $1,000.
Global Securities representing one or more Book-
Entry Notes will be denominated in principal
amounts not in excess of $150,000,000. If one or
more Book-Entry Notes having an aggregate
principal amount in excess of $150,000,000 would,
but for the preceding sentence, be represented by
a single Global Security, then one Global Security
will be issued to represent each $150,000,000
principal amount of such Book-Entry Note or Notes
and an additional Global Security will be issued
to represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case,
each of the Global Securities representing such
Book-Entry Note or Notes shall be assigned the
same CUSIP number.
Interest: General. Interest on each Book-Entry Note will
accrue from the Original Issue Date or the most
recent Interest Payment Date to which interest has
been paid on the
B-19
<PAGE>
Global Security representing such Note. Each
payment of interest on a Book-Entry Note will
include interest accrued through the day
preceding, as the case may be, the Interest
Payment Date or Maturity; provided, however, that
if the Interest Reset Dates with respect to any
such Note are daily or weekly, interest payable on
any Interest Payment Date, other than interest
payable on any date on which principal for such
Note is payable, will include interest accrued
from but excluding the second preceding Regular
Record Date to and including the next preceding
Regular Record Date. Standard & Poor's
Corporation will use the information received in
the pending deposit message described under
Settlement Procedure "C" below in order to include
the amount of any interest payable and certain
other information regarding the related Global
Security in the appropriate weekly bond report
published by Standard & Poor's Corporation.
Promptly after each Interest Determination Date
for Floating Rate Notes, the Company will notify
the Trustee, and the Trustee in turn will notify
Standard & Poor's Corporation, of the interest
rates determined on such Interest Determination
Date.
Payments of Payments of Interest Only. Promptly after each
Principal Regular Record Date, the Trustee will deliver to
and Interest: the Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on
each Global Security on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such
amounts. DTC
B-20
<PAGE>
will confirm the amount payable on each Global
Security on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's Corporation. The Company will
pay to the Trustee, as paying agent, 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".
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Company, DTC and each of the
Trustees a written list of principal and interest
to be paid on each Global Security maturing in the
following month. The Company, the Trustee and DTC
will confirm the amounts of such principal and
interest payments with respect to each such Global
Security on or about the fifth Business Day
preceding the Maturity of such Global Security.
The Company will pay to the Trustee, as the paying
agent, the principal amount of such Global
Security, together with interest due at such
Maturity. The Trustee will pay such amount to DTC
at the times and in the manner set forth below
under "Manner of Payment".
Promptly after payment to DTC of the principal and
interest due at the Maturity of such Global
Security, the Trustee will cancel such Global
Security and deliver it to the Company with an
appropriate debit advice.
Manner of Payment. The total amount of any
principal and interest due on Global Securities on
any Interest Payment Date or at
B-21
<PAGE>
Maturity shall be paid by the Company to the
Trustee in funds available for use by the Trustee
as of 9:30 A.M. (New York City time) on such date.
The Company will make such payment on such Global
Securities by instructing the Trustee to withdraw
funds from an account maintained by the Company at
the Trustee. The Company will confirm such
instructions in writing to the Trustee. For
maturity, redemption or any other principal
payments: prior to 10 A.M. (New York City time) on
such date or as soon as possible thereafter, the
Trustee will make such payments to DTC in same day
funds in accordance with DTC's Same Day Funds
Settlement Paying Agent Operating Procedures. For
interest payments: the Trustee will make such
payments to DTC in accordance with existing
arrangements between DTC and the Trustee. DTC
will allocate such payments to its participants in
accordance with its existing operating procedures.
Neither the Company (either as issuer or as Paying
Agent) nor the Trustee shall have any direct
responsibility or liability for the payment by DTC
to such Participants of the principal of and
interest on the Book-Entry Notes.
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.
Settlement Settlement Procedures with regard
B-22
<PAGE>
Procedures: to each Book-Entry Note which will be registered
in the name of the nominee of DTC (unless
otherwise indicated in the applicable Pricing
Supplement, "Cede & Co.") sold by the Company
through an Agent, as agent, shall be as follows:
A. Such Agent will advise the Company by telex or
facsimile of the following settlement
information:
1. Principal amount of the Note (and, if
multiple Notes are to be issued,
denominations thereof).
2. Settlement date (Original Issue Date).
3. Stated Maturity.
4. Issue Price.
5. Trade Date.
6. Specified Currency and whether the
option to elect payments in a Specified
Currency applies and if the Specified
Currency is not U.S. Dollars, the
authorized denominations.
7. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g.,
Commercial Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier,
if any
B-23
<PAGE>
iv) Interest Reset Dates
v) Index Maturity
vi) maximum and minimum interest
rates, if any
vii) overdue rate, if any
(c) Currency Indexed Notes
The applicable terms thereof
8. Interest Payment Date(s) and Interest
Payment Period.
9. Optional Interest Reset Date, if any,
and Subsequent Interest Period, if any.
10. Extension Period, if any, and Final
Maturity Dates, if any.
11. The date on or after which the Notes are
redeemable at the option of the Company
or repurchasable by the Company at the
option of the holder, and additional
redemption or repurchase provisions, if
any.
12. Amortization schedule, if any.
13. Wire transfer information, if
applicable.
14. Agent's Commission (to be paid in the
form of a discount from the proceeds
remitted to the Company upon
Settlement).
15. Whether such Book-Entry Note is issued
at an original issue discount ("OID"),
and, if so, the total amount of OID, the
yield to maturity and the initial
accrual period of OID.
B. The Company will advise the Trustee by
electronic transmission of the information set
forth in Settlement Procedure "A" above and
the name of such Agent. Each such
B-24
<PAGE>
communication by the Company shall constitute
a representation and warranty by the Company
to the Trustee and each Agent that (i) such
Note is then, and at the time of issuance and
sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) such
Note, and the Global Security representing
such Note, will conform with the terms of the
Indenture and (iii) upon authentication and
delivery of such Global Security, the
aggregate initial offering price of all Notes
issued under the Indenture will not exceed
$150,000,000 (except for Book-Entry Notes
represented by Global Securities authenticated
and delivered in exchange for or in lieu of
Global Securities pursuant to Sections 304,
305, 906 or 907 of the Indenture and except
for Certificated Notes authenticated and
delivered upon registration of transfer of, in
exchange for, or in lieu of Certificated Notes
pursuant to any such Section).
C. The Trustee will assign a CUSIP number to the
Global Security representing such Note and
enter a pending deposit message through DTC's
Participant Terminal System, providing the
following settlement information to DTC, such
Agent and Standard & Poor's Corporation:
1. The applicable information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate Book-
Entry Note or a Floating Rate Book-Entry
Note.
3. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related "DTC Regular
B-25
<PAGE>
Record Date" (which term means the
Regular Record Date except in the case
of floating rate notes which reset daily
or weekly in which case it means the
date 5 calendar days immediately
preceding the Interest Payment Date) and
amount of interest payable on such
Interest Payment Date per $1,000 of
principal amount of such Note.
4. Frequency of interest payments (monthly,
semiannually, quarterly, etc.).
5. CUSIP number of the Global Security
representing such Note.
6. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
D. Such Agent will deliver to the purchaser a
copy of the most recent Prospectus applicable
to the Note with or prior to any written offer
of Notes and the confirmation and payment by
the purchaser of the Note.
Such Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such Note
a confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
E. The Trustee, as Trustee, will complete and
authenticate the note certificate evidencing
the Global Security representing such Book-
Entry Note.
B-26
<PAGE>
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such
Note to such Agent's participant account and
(ii) debit such Agent's settlement account and
credit the Trustee's settlement account for an
amount equal to the price of such Note less
such Agent's commission. The entry of such a
deliver order shall constitute a
representation and warranty by the Trustee to
DTC that (i) the Global Security representing
such Book-Entry Note has been issued and
authenticated and (ii) the Trustee is holding
such Global Security pursuant to the Medium-
Term Note Certificate Agreement between the
Trustee and DTC (the "Certificate Agreement").
H. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent'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 Agent for an amount equal to the price
of such Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement date.
B-27
<PAGE>
J. The Trustee will credit to an account of the
Company maintained at the Trustee funds
available for immediate use in the amount
transferred to the Trustee in accordance with
Settlement Procedure "G".
Settlement For orders of Book-Entry Notes solicited by an
Procedures Agent, as agent, and accepted by the Company for
Timetable: settlement, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as
possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12 Noon on the sale date
C 2:00 P.M. on the sale date
D Day after sale date
E 3:00 P.M. on day before
Settlement date
F 10:00 A.M. on Settlement date
G-H 2:00 P.M. on Settlement
date
I 4:45 P.M. on Settlement
date
B-28
<PAGE>
J 5:00 P.M. on Settlement
date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12 Noon
and 2:00 P.M., as the case may be, on the first
Business Day after the sale date. If the initial
interest rate for a Floating Rate Book-Entry Note
has not been determined at the time that
Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon
as such rate has been determined but no later than
12:00 Noon and 2:00 P.M., respectively, on the
second Business Day before the Settlement date.
Settlement Procedure "J" is subject to extension
in accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the Settlement date.
If Settlement of a Book-Entry Note is rescheduled
or canceled, 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. on the Business Day immediately
preceding the scheduled Settlement date.
Failure to If the Trustee has not entered an SDFS deliver
Settle: order with respect to a Book-Entry Note pursuant
to Settlement Procedure "G", then, upon written
request (which may be effected by facsimile
transmission) of the Company, 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 Security representing such
Note that is
B-29
<PAGE>
at least equal to the principal amount to be
debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will
mark such Global Security "canceled", make
appropriate entries in the Trustee's records and
send such canceled Global Security to the Company.
The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security,
the Trustee will exchange such Global Security for
two Global Securities, one of which shall
represent such Book-Entry Note or Notes and shall
be canceled immediately after issuance and the
other of which shall represent the other Book-
Entry Notes previously represented by the
surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
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 Agent for such Note
may enter SDFS deliver orders through DTC's
Participant Terminal System debiting such Book-
Entry Note free to such Agent's participant
account and crediting such Book-Entry Note free to
the participant account of the Trustee and shall
notify the Trustee and the Company thereof.
Thereafter, the Trustee (i) will immediately
notify the Company, once the Trustee has confirmed
that such Book-Entry Note has been credited to its
participant account, and the Company shall
immediately transfer by Fed wire (immediately
available funds) to such Agent an amount equal to
the amount with
B-30
<PAGE>
respect to such Book-Entry Note which was
previously sent by wire transfer to the account of
the Company in accordance with Settlement
Procedure "J", 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 such failure shall have occurred for any
reason other than a default by the Agent in the
performance of its obligations hereunder and under
the Agency Agreement, then the Company will
reimburse the Agent on an equitable basis for the
loss of the use of the funds during the period
when they were credited to the account of the
Company.
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 Security, the Trustee
will provide, in accordance with Settlement
Procedure "E", for the authentication and issuance
of a Global Security representing the other Book-
Entry Notes to have been represented by such
Global Security and will make appropriate entries
in its records.
Trustee Not to Nothing herein shall be deemed to require the
Risk Funds: Trustee to risk or expend its own funds in
connection with any payment to the Company, DTC,
the Agents, or the purchaser, it being understood
by all parties that payments made by the Trustee
to the Company, DTC, the Agents, or the purchaser
shall be made only to such extent that funds are
provided to the Trustee for such purpose.
Similarly, nothing herein shall alter any duty, or
B-31
<PAGE>
limit or diminish any right or immunity, of the
Trustee under the Indenture.
B-32
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
------------------
R. R. Donnelley & Sons Company _____________, __, 19__
77 West Wacker Drive
Chicago, Illinois 60601
Attention: Treasurer
The undersigned agrees to purchase the following principal amount of the
Notes described in the Agency Agreement dated August__, 1994 (as it may be
supplemented or amended from time to time, the "Agency Agreement"):
Principal Amount [$] __________________________
Specified Currency: __________________________
Indexed Currency: __________________________
Interest Rate: ______%
Discount: ______% of Principal Amount
Aggregate Price to be
paid to Company
(in immediately
available funds): [$] __________________________
Settlement Date: __________________________
Other Terms: __________________________
[In the case of Notes issued in a foreign currency or currency unit, unless
otherwise specified below, settlement and payments of principal and interest
will be in U.S. dollars based on the highest bid quotation in The City of New
York received by the Exchange Rate Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date from
three recognized foreign exchange dealers selected by the Exchange Rate Agent
and approved by the Company (one of which may be the Exchange Rate Agent) for
the purchase by the quoting dealer of the Specified Currency for U.S. dollars
for settlement on such payment date in the aggregate amount of the Specified
Currency payable to all holders of Notes denominated in such Specified Currency
electing to receive U.S. dollar payments and at which the applicable dealer
commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency.]
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Agency
Agreement and to your performance and observance of all applicable covenants and
agreements contained therein, including,
C-1
<PAGE>
without limitation, your obligations pursuant to Section 6 and Section 7
thereof. Our obligation hereunder is subject to the conditions set forth in
Section 5 of the Agency Agreement and to the further condition that we shall
receive (a) the opinions required to be delivered pursuant to Sections 5(d) and
5(e) of the Agency Agreement, (b) the certificate required to be delivered
pursuant to Section 5(f) of the Agency Agreement, (c) the letter referred to in
Section 5(g), in each case dated as of the above Settlement Date and (d) and
such further information, certificates and documents as the Agents or counsel to
the Agents may reasonably request.
In further consideration of our agreement hereunder, you agree that between
the date hereof and the above Settlement date, you will not offer or sell, or
enter into any agreement to sell, any debt securities of the Company, [other
than borrowings under your revolving credit agreements and lines of credit, the
private placement of securities and issuances of your commercial paper or other
issuances of Notes].
We may terminate this Agreement, immediately upon notice to you, at any
time prior to the Settlement date, if after the date hereof and prior to the
Settlement date, there shall have occurred: (i) any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries considered as one enterprise, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented on the date hereof,
the effect of which, in any such case described in this clause is, in our
judgment, so material and adverse as to make it impracticable or inadvisable to
proceed with the purchase of Notes from the Company as principal pursuant to
this Purchase Agreement; (ii) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the establishment of
minimum prices on such exchange; (iii) a general moratorium on commercial
banking activities declared by Federal or State of New York authorities; (iv)
any downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act or any public
announcement that any 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); (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 calamity or emergency; or (vi) any
material adverse change in the existing financial, political or economic
conditions in the United States, including any effect of international
conditions on the financial markets in the United States, that in our judgment
makes it impracticable or inadvisable to proceed with the purchase of Notes from
the Company or you are unable to
C-2
<PAGE>
provide any of the opinions, certificates or letters referred to in the second
preceding paragraph. In the event of such termination, no party shall have any
liability to the other party hereto, except as provided in Sections 4, 7 and 14
of the Agency Agreement.
This Agreement shall be governed by and construed in accordance with the
laws of New York.
[Insert name of Agent[s]]
By_____________________________
[Title]
Accepted: , 19__
R. R. Donnelley & Sons Company
By____________________________
[Title]
C-3
<PAGE>
EXHIBIT D
[FOREIGN CURRENCY] [INDEXED NOTE]
AMENDMENT NO. _____________ TO AGENCY AGREEMENT DATED ________, 19__, AS
AMENDED
__________________________________________
[Insert Title of Foreign Currency and, in the case of Indexed Notes, the Indexed
Basis]
The undersigned hereby agree that for the purposes of the issue and sale of
Notes denominated in [title of currency or currency unit] (the "Specified
Currency") [and indexed to [title of index basis] (the "Index Basis")] pursuant
to the Agency Agreement, dated August 17, 1994, as it may be amended (the
"Agency Agreement"), the following additions and modifications shall be made to
the Agency Agreement. The additions and modifications adopted hereby shall be
of the same effect for the sale under the Agency Agreement of all Notes
denominated in the Specified Currency [and indexed to the Index Basis], whether
offered on an agency or principal basis, but shall be of no effect with respect
to Notes denominated in any currency or currency unit other than the Specified
Currency.
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Agency Agreement shall have the same meanings as in the
Agency Agreement. The term[s] Agent [or Agents], as used in the Agency
Agreement, shall be deemed to refer [only] to the undersigned Agent[s] for
purposes of this Amendment.
[Insert appropriate additions and modifications to the Agency Agreement,
for example, to opinions of counsel, conditions to obligations and settlement
procedures, etc.]
_____________________, 19__
R. R. Donnelley & Sons Company
By______________________
Name:
Title:
[Name(s) of Agent(s) participating in the offering of Notes in the Specified
Currency]
By_____________________
Name:
Title:
<PAGE>
EXHIBIT 4.3
[Face of Note]
CUSIP NO. R. R. DONNELLEY & SONS COMPANY
REGISTERED NO. FXB MEDIUM-TERM NOTE, SERIES __ PRINCIPAL AMOUNT:
(Fixed Rate)
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a global Note and the following legend is applicable:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of CEDE & CO., or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
is made to CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
CEDE & CO., has an interest herein.
The following summary of terms is subject to the information set forth on
the reverse hereof:
OPTIONAL REDEMPTION: [_] YES [_] NO
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: REDEMPTION PRICE: Initially % of Principal
Amount and declining by % of the Principal
SPECIFIED CURRENCY: Amount on each anniversary of the Initial
Redemption Date until the Redemption Price is
AUTHORIZED DENOMINATIONS: 100% of the Principal Amount.
OPTION TO ELECT PAYMENTS IN
U.S. DOLLARS [_] YES [_] NO
FORM: [_] BOOK-ENTRY
[_] CERTIFICATED OPTION TO ELECT REPAYMENT: [_] YES [_] NO
INTEREST RATE: OPTIONAL REPAYMENT DATES:
INTEREST PAYMENT DATE[S]: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATE[S]: OPTIONAL INTEREST RESET: [_] YES [_] NO
OVERDUE RATE: OPTIONAL INTEREST RESET DATES:
U.S. DEPOSITARY: OPTIONAL EXTENSIONS OF MATURITY: [_] YES [_] NO
CURRENCY DETERMINATION
AGENT: EXTENSION PERIOD:
AMORTIZING NOTE:
[_] YES [_] NO NUMBER OF EXTENSION PERIODS:
OTHER PROVISIONS: FINAL MATURITY DATE:
If this Security was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended, the
following shall be completed:
ORIGINAL ISSUE DISCOUNT
SECURITY: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a
percentage of aggregate
[_] Yes [_] No principal amount):
YIELD TO MATURITY: SHORT ACCRUAL METHOD USED TO
PERIOD OID: DETERMINE YIELD FOR
SHORT ACCRUAL PERIOD:
[_] Approximate [_] Exact
R. R. DONNELLEY & SONS COMPANY, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
, or registered assigns, the principal sum set forth
above on the Stated Maturity shown above, and to pay interest thereon from the
Original Issue Date shown above or from and including the most recent Interest
Payment Date (as hereinafter defined) to which interest has been paid or duly
provided for, as the case may be. (Continued on next page.)
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATION R. R. DONNELLEY & SONS COMPANY
OF AUTHENTICATION
This is one of the
Securities of the By:___________________________________
series designated herein Its:__________________________________
and referred to in the
within-mentioned Indenture.
CITIBANK, N.A. Attest: _______________________________
as Trustee Its: ________________________
By: ___________________
<PAGE>
(Continued from previous page.)
Interest will be paid on the Interest Payment Date or Dates shown
above ("Interest Payment Dates"), commencing with the first such Interest
Payment Date next succeeding the Original Issue Date shown above (except as
provided below), at the rate per annum specified above, until the principal
hereof is paid or made available for payment and on Stated Maturity, and, if
specified above, interest shall accrue on any overdue principal and on any
overdue installment of interest (to the extent that the payment of such interest
shall be legally enforceable) at the overdue rate per annum set forth above.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date set forth above next preceding such Interest
Payment Date, which shall be the fifteenth calendar day next preceding such
Interest Payment Date. The first payment of interest on any Note originally
issued between a Regular Record Date and an Interest Payment Date will be made
on the Interest Payment Date following the next succeeding Regular Record Date
to the registered owner on such succeeding Regular Record Date. Except as
otherwise provided in the Indenture, any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof to be given to Holders of Notes of this series not
less than 10 calendar days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture.
Payments of interest to be paid in U.S. dollars (other than interest,
and if this is an Amortizing Note, principal (if this is not a global Note)
payable at Stated Maturity) will be made by mailing a check to the Holder at the
address of the Holder appearing in the Security Register as of the applicable
Regular Record Date. Notwithstanding the foregoing, at the option of the
Company, all payments of interest and, if this is an Amortizing Note, principal
on this Note may be made by wire transfer of immediately available funds to an
account maintained by such Holder with a bank located in the United States as
designated by the Holder not less than 15 calendar days prior to the Interest
Payment Date. If a Holder holds U.S. $10,000,000 or more in aggregate principal
amount of Notes of like tenor and terms (including the same Interest Payment
Date) (or is the Holder of the equivalent thereof in a Specified Currency other
than U.S. dollars), such Holder shall be entitled to receive payments of
interest (other than at Stated Maturity or upon earlier redemption or repayment)
in U.S. dollars by wire transfer of immediately available funds, but only if
appropriate payment instructions have been received in writing by the Trustee
not less than 15 calendar days prior to the applicable Interest Payment Date.
Simultaneously with the election by the Holder to receive payments in a
Specified Currency other than U.S. dollars (by written request to the Trustee,
as provided below), the Holder shall provide appropriate payment instructions to
the Trustee, and all such payments will be made in immediately available funds
to a bank account maintained by the Holder in the country of the Specified
Currency (or, with respect to ECUs, Brussels). If such a payment with respect
to this Note cannot be made by wire transfer because the required designation
has not been received by the Trustee on or before the requisite date or for any
other reason, a notice will be mailed to the Holder at its registered address
requesting a designation pursuant to which such wire transfer can be made and,
upon the Trustee's receipt of such a designation, such payment will be made
within 15 days of such receipt. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer, but not
any tax, assessment or governmental charge imposed upon the Holder of this Note.
In the event that payment is so made in accordance with the instructions of the
Holder, such wire transfer shall be deemed to constitute full and complete
payment of such interest and principal on this Note. If this is not a global
Note, payment of the principal, premium, if any, and interest payable at
Maturity in respect of this Note will be paid in immediately available funds
upon surrender of this Note accompanied by wire instructions at the principal
office of the Trustee, provided that the Note is presented in time for the
Trustee to make such payments in such funds in accordance with its normal
procedures.
If the Holder of this Note (as indicated above) is the U.S. Depositary
or a nominee of the U.S. Depositary, this Note is a global Note and the
following legend is applicable except as specified on the reverse hereof: THIS
GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE U.S. DEPOSITARY OR
BY A NOMINEE OF THE U.S. DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF
THE U.S. DEPOSITARY OR BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
OF THE U.S. DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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<PAGE>
[Reverse of Note]
R. R. DONNELLEY & SONS COMPANY
MEDIUM-TERM NOTE, SERIES __
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of November 1, 1990 (herein
called the "Indenture"), between the Company and Citibank, N.A., as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Note is one of the Securities of the
series designated on the face hereof. The Notes may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption provisions and may otherwise vary, all as provided in the
Indenture. The Notes are limited to $___,000,000 in aggregate principal amount
(or the equivalent thereof in the Specified Currency, calculated at the Market
Exchange Rate on the applicable trade date).
SECTION 2. Payments. Interest on this Note will be payable on the
Interest Payment Date or Interest Payment Dates as specified on the face hereof
and, in either case, at Stated Maturity or earlier redemption or repayment.
Interest payments on each Interest Payment Date for this Note will
include accrued interest from the Original Issue Date or from and including the
last date in respect of which interest has been paid, as the case may be, to,
but excluding, such Interest Payment Date or the date of Maturity, as the case
may be. Interest payments for this Note shall be computed and paid on the basis
of a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof, if this Note is
specified on the face hereof as an Amortizing Note, payments with respect to
this Note will be applied first to interest due and payable hereon and then to
the reduction of the unpaid principal amount hereof. If this Note is specified
on the face hereof as an Amortizing Note, a table setting forth repayment
information in respect to this Note will be provided to the original purchaser
hereof and will be available, upon request, to subsequent Holders.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U.S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as the
case may be. Such request may be delivered by mail, by hand or by cable, telex
or any other form of facsimile transmission. Any such request made with respect
to this Note by a Holder will remain in effect with respect to any further
payments of interest and principal (and premium, if any) with respect to this
Note payable to such Holder, unless such request is revoked by written notice
received by the Paying Agent on or prior to the relevant Regular Record Date or
the date 15 days prior to Maturity, as the case may be (but no such revocation
may be made with respect to payments made on this Note if an Event of Default
has occurred with respect hereto or upon the giving of a notice of redemption).
A Holder whose Note is registered in the name of a broker or nominee should
contact such broker or nominee to determine whether and how an election to
receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by a Holder of a Note who elects
to receive payments in U.S. dollars will be based on the highest indicated bid
quotation for the purchase of U.S. dollars in exchange for the Specified
Currency obtained by the Currency Determination Agent (as defined below) at
approximately 11:00 A.M., New York City time, on the second Business Day next
preceding the applicable payment date (the "Conversion Date") from the bank
composite or multicontributor pages of the Quoting Source for three (or two if
three are not available) major banks in The City of New York. The first three
(or two) such banks selected by the Currency Determination Agent which are
offering quotes on the Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on the second
Business day next preceding the applicable payment date, such payment will be
based on the Market Exchange Rate as of the second Business Day next preceding
the applicable payment date. If the Market Exchange Rate for such date is not
then available, such payment will be made in the Specified Currency. As used
herein, the "Quoting Source" means Reuters Monitor Foreign Exchange Service, or
if the Currency Determination Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that neither service is available, such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All
currency exchange costs associated with any payment in U.S. dollars on this Note
will be borne by the Holder by deductions from such payment. Any currency
determination agent (the "Currency Determination Agent") is specified on the
face hereof.
If payment in respect of this Note is required to be made in any
currency unit (e.g. ECUs) and such currency unit is unavailable, in the good
faith judgment of the Company, due to the imposition of exchange controls or
other circumstances beyond the Company's control, then all payments in respect
of this Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on the
basis of the equivalent of the currency unit in U.S. dollars, which shall be
determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the currency
unit as of the Conversion Date. The equivalent of the currency unit in U.S.
dollars shall be calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination Agent on the basis
of the Market Exchange Rate for each such Component Currency as of the
Conversion Date. "Market Exchange Rate" means the noon buying rate in The City
of New York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into
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<PAGE>
two or more currencies, the amount of the original Component Currency shall be
replaced by the amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and binding on the Holder of this
Note.
All percentages resulting from any calculations under this Note will
be rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit or dollar amounts used in or resulting from any
such calculation in respect of the Notes will be rounded to the nearest one-
hundredth of a unit (with five one-thousandths being rounded upward) or nearest
cent, as the case may be.
SECTION 3. Redemption. If so specified on the face hereof, the
Company may at its option redeem this Note in whole or from time to time in part
on or after the date designated as the Initial Redemption Date on the face
hereof at the redemption price specified on the face hereof, together with
accrued and unpaid interest to the date of redemption, but interest installments
whose Stated Maturity is on or prior to the date of redemption will be payable
to the Holder of this Note of record at the close of business on the relevant
Regular Record Date referred to on the face hereof, all as provided in the
Indenture. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption at least 30 but not more than 60 calendar days prior
to the date of redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note (if it is repayable at
the option of the Holder) to be repaid prior to Stated Maturity, the Paying
Agent must receive at least 30 but not more than 45 calendar days prior to an
Optional Repayment Date (i) this Note with the form below entitled "Option to
Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission or letter (first class, postage prepaid) from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States of America
setting forth the name of the Holder of this Note, the principal amount of the
Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note with the form below entitled
"Option to Elect Repayment" duly completed will be received by the Paying Agent
not later than five Business Days after the date of such telegram, telex,
facsimile transmission or letter (first class, postage prepaid). If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Trustee by such fifth
Business Day. Exercise of the repayment option by the Holder of this Note shall
be irrevocable, except that a Holder who has tendered this Note for repayment
may revoke any such tender for repayment by written notice to the Paying Agent
received prior to the close of business on the tenth calendar day prior to the
repayment date. The repayment option may be exercised by the Holder of this
Note for less than the entire principal amount of the Note provided that the
principal amount of the Note remaining outstanding after repayment is an
authorized denomination. Upon such partial repayment this Note shall be
cancelled and a new Note or Notes for the remaining principal amount hereof
shall be issued in the name of the Holder of this Note.
SECTION 5. Optional Interest Reset. If so specified on the face
hereof, the interest rate on this Note may be reset by the Company on the date
or dates specified on the face hereof (each an "Optional Interest Reset Date").
The Company may exercise such option by notifying the Trustee of such exercise
at least 45 but not more than 60 calendar days prior to an Optional Interest
Reset Date. If the Company so notifies the Trustee of such exercise, not later
than 40 calendar days prior to each Optional Interest Reset Date, the Trustee
will send by telegram, telex, facsimile transmission or letter (first class,
postage prepaid) to the Holder of this Note a notice (the "Reset Notice")
indicating (i) that the Company has elected to reset the interest rate, (ii)
such new interest rate and (iii) the provisions, if any, for redemption during
the period from such Optional Interest Reset Date to the next Optional Interest
Reset Date or, if there is no such next Optional Interest Reset Date, to Stated
Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Company may, at its option, revoke the
interest rate provided for in the Reset Notice and establish a higher interest
rate for the Subsequent Interest Period commencing on such Optional Interest
Reset Date by causing the Trustee to send by telegram, telex, facsimile
transmission or letter (first class, postage prepaid) notice of such higher
interest rate to the Holder of this Note. Such notice shall be irrevocable.
All Notes with respect to which the interest rate is reset on an Optional
Interest Reset Date will bear such higher interest rate, whether or not tendered
for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to
reset the interest rate of this Note, the Holder of this Note will have the
option to elect repayment of this Note by the Company on such Optional Interest
Reset Date at a price equal to the principal amount hereof plus interest accrued
and unpaid thereon to such Optional Interest Reset Date. In order to obtain
repayment on an Optional Interest Reset Date, the Holder must follow the
procedures set forth under Section 4 for optional repayment except that the
period for delivery or notification to the Trustee shall be at least 25 but not
more than 35 calendar days prior to such Optional Interest Reset Date. If the
Holder has tendered this Note for repayment following receipt of a Reset Notice,
the Holder may revoke such tender for repayment by written notice to the Trustee
received prior to the close of business on the tenth calendar day prior to such
Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the
face hereof, the Stated Maturity of this Note may be extended at the option of
the Company for the period or periods of from one to five whole years specified
on the face hereof (each an "Extension Period") up to but not beyond the date
(the "Final Maturity Date") set forth on the face hereof. The Company may
exercise such option with respect to a Note by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to Stated Maturity
of such Note in effect prior to the exercise of such option (the "Original
Stated Maturity Date"). If the Company so notifies the Trustee of such
exercise, the Trustee will send by telegram, telex, facsimile transmission or
letter (first class, postage prepaid) to the Holder of this Note not later than
40 calendar days prior to the Original Stated Maturity Date a notice (the
"Extension Notice") indicating (i) that the Company has elected to extend the
Stated Maturity of this Note, (ii) the new Stated Maturity, (iii) the interest
rate applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period, including the date or dates on which or
the period or periods during which and the price or prices at
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<PAGE>
which such redemption may occur during such Extension Period. Upon the
Trustee's sending of the Extension Notice, Stated Maturity of this Note shall be
extended automatically and, except as modified by the Extension Notice and as
described in the next two paragraphs, this Note will have the same terms as
prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days before
the Original Stated Maturity Date of this Note, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to send by
telegram, telex, facsimile transmission or letter (first class, postage prepaid)
notice of such higher interest rate to the Holder of this Note. Such notice
shall be irrevocable. All Notes with respect to which Stated Maturity is
extended will bear such higher interest rate for the Extension Period, whether
or not tendered for repayment as provided in the next paragraph.
If the Company extends the Stated Maturity of this Note, the Holder
will have the option to elect repayment of this Note by the Company on the
Original Stated Maturity Date at a price equal to the principal amount hereof,
plus interest accrued and unpaid thereon to such date. In order to obtain
repayment on the Original Stated Maturity Date once the Company has extended the
Stated Maturity hereof, the Holder must follow the procedures set forth under
Section 4 for optional repayment except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 calendar
days prior to the Original Stated Maturity Date. A Holder who has tendered this
Note for repayment following receipt of an Extension Notice may revoke such
tender for repayment by written notice to the Trustee received prior to the
close of business on the tenth calendar day before the Original Stated Maturity
Date.
SECTION 7. Sinking Fund. This Note will not be subject to any
sinking fund.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event of redemption or repayment prior to the Stated
Maturity hereof in lieu of the principal amount due at the Stated Maturity
hereof shall be the Amortized Face Amount of this Note as of the redemption date
or the date of repayment, as the case may be. The "Amortized Face Amount" of
this Note shall be the amount equal to (a) the Issue Price (as set forth on the
face hereof) plus (b) that portion of the difference between the Issue Price and
the principal amount hereof that has accrued at the yield to maturity (as set
forth on the face hereof) (computed in accordance with generally accepted United
States bond yield computation principles) at the date as of which the Amortized
Face Amount is calculated but in no event shall the Amortized Face Amount of
this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect
to Notes of this series shall occur and be continuing, the principal of the
Notes of this series may be declared due and payable in the manner and with the
effect provided in the Indenture; provided, however, that notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount so declared due and payable shall be the Amortized Face Amount
of this Note as of the date of such declaration.
SECTION 10. Modifications and Waivers; Obligation of the Company
Absolute. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holder of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates, and in the coin or
currency, herein prescribed.
SECTION 11. Defeasance and Covenant Defeasance. The Indenture
contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Note and (b) certain restrictive covenants and the related
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise noted on the
face hereof, the Notes of this series are issuable only in global or
certificated registered form, without coupons, in denominations of $100,000 and
any integral multiple of $1,000 in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth and to the limitations
described below, if applicable, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
SECTION 13. Registration of Transfer. As provided in the Indenture
and subject to certain limitations therein set forth and to the limitations
described below, if applicable, the transfer of this Note is registerable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar (which shall initially be the Trustee, 111 Wall Street, 5th
Floor, New York, N.Y. 10043 (Attention: Corporate Trust Department) or at such
other address as it may designate as its principal corporate trust office in The
City of New York) duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series and of
like tenor, of authorized denominations and for the same Stated Maturity and
aggregate principal amount, will be issued to the designated transferee or
transferees.
If this Note is a global Note (as specified on the face hereof), this
Note is exchangeable only if (x) the U.S. Depositary notifies the Company that
it is unwilling or unable to continue as U.S. Depositary for this global Note or
if at any time the U.S. Depositary ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, (y) the Company in its
sole discretion determines that this Note shall be exchangeable for certificated
Notes in registered form or (z) an Event of Default, or an event which with the
passage of time or the giving of notice would become an Event of Default, with
respect to the Notes represented hereby has occurred and is continuing, provided
that the definitive Notes so issued in exchange for this permanent global Note
shall be in denominations of $100,000 and any integral multiple of $1,000 in
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<PAGE>
excess thereof and be of like aggregate principal amount and tenor as the
portion of this permanent global Note to be exchanged, and provided further
that, unless the Company agrees otherwise, Notes of this series in certificated
registered form will be issued in exchange for this permanent global Note, or
any portion hereof, only if such Notes in certificated registered form were
requested by written notice to the Trustee or the Security Registrar by or on
behalf of a person who is beneficial owner of an interest hereof given through
the Holder hereof. Except as provided above, owners of beneficial interests in
this permanent global Note will not be entitled to receive physical delivery of
Notes in certificated registered form and will not be considered the Holders
thereof for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and none of
the Company, the Trustee or any such agent shall be affected by notice to the
contrary.
SECTION 15. Governing Law. The Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
shall be deemed to include the Notes. "Business Day" means any Monday, Tuesday,
Wednesday, Thursday or Friday that in The City of New York is not a day on which
banking institutions are authorized or required by law, regulation or executive
order to close; provided that with respect to a Specified Currency, such day is
also not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the principal financial center of the
country of such Specified Currency (or in the case of ECUs, is not a day
designated as an ECU Non-Settlement Day by the ECU Banking Association in Paris
or otherwise generally regarded in the ECU interbank market as a day on which
payment on ECUs shall not be made).
-6-
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 4 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be repaid pursuant to Section 5 hereof, or to the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 6 hereof. Specify the
denomination or denominations (which shall be $100,000 or an integral multiple
of $1,000 in excess thereof or, if the Note is denominated in a currency other
than U.S. dollars, an Authorized Denomination) of the Note or Notes to be issued
to the Holder for the portion of the within Note not being repaid (in the
absence of any specification, one such Note will be issued for the portion not
being repaid):
______________________________.
Dated: _______________________ ___________________________________
Signature
Sign exactly as name appears on the
front of this Note.
Principal amount to be repaid Indicate address where check
if amount to be repaid is less is to be sent, if repaid:
than the entire principal amount
of this Note (principal amount ___________________________________
remaining must be an
authorized denomination) ___________________________________
$ ______________________
(which shall be an integral
multiple of $1,000 or, if
the Note is denominated in
a currency other than U.S. SOCIAL SECURITY OR OTHER
dollars, of an amount equal TAXPAYER ID NUMBER
to the integral multiples
referred to on the face hereof _____________________________
under "Authorized Denominations"
(or, if no such reference is
made, an amount equal to the
minimum Authorized Denomination)).
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ............Custodian............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above list.
____________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________
| |
|______________________________|
________________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: _________________ ____________________________________________
Signature
Sign exactly as name appears on the
front of this Note
[SIGNATURE MUST BE GUARANTEED by a
commercial bank, a trust company or by
a member of the New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
EXHIBIT 4.4
[Face of Note]
CUSIP NO.
REGISTERED NO. FLB PRINCIPAL AMOUNT:
R. R. DONNELLEY & SONS COMPANY
MEDIUM-TERM NOTE, SERIES __
(Floating Rate)
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a global Note and the following legend is applicable:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of CEDE & CO., or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
is made to CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
CEDE & CO., has an interest herein.
The following summary of terms is subject to the information set forth
on the reverse hereof:
OPTIONAL REDEMPTION: [_] YES [_] NO
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: REDEMPTION PRICE: Initially ____% of Principal
Amount and declining by ____% of the Principal
SPECIFIED CURRENCY: Amount on each anniversary of the Initial
Redemption Date until the Redemption Price is
AUTHORIZED DENOMINATIONS: 100% of the Principal Amount.
OPTION TO ELECT PAYMENTS IN
U.S. DOLLARS: [_] YES [_] NO
FORM: [_] BOOK ENTRY OPTION TO ELECT REPAYMENT: [_] YES [_] NO
[_] CERTIFICATED
INTEREST RATE BASIS: OPTIONAL REPAYMENT DATES:
INDEX MATURITY: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATES: OPTIONAL INTEREST RESET: [_] YES [_] NO
INITIAL INTEREST RATE: OPTIONAL INTEREST RESET DATES:
MAXIMUM INTEREST RATE: OPTIONAL EXTENSIONS OF MATURITY: [_] YES [_] NO
MINIMUM INTEREST RATE:
SPREAD: EXTENSION PERIOD:
SPREAD MULTIPLIER: NUMBER OF EXTENSION PERIODS:
INTEREST RESET PERIOD: FINAL MATURITY DATE:
INTEREST RESET DATES: OTHER PROVISIONS:
INTEREST DETERMINATION DATE:
INTEREST PAYMENT DATES:
OVERDUE RATE:
<PAGE>
CALCULATION AGENT:
CURRENCY DETERMINATION
AGENT: AMORTIZING NOTE: [_] YES [_] NO
U.S. DEPOSITARY:
If this Security was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
<TABLE>
<CAPTION>
ORIGINAL ISSUE DISCOUNT TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as percentage of
SECURITY: aggregate principal amount):
<S> <C> <C>
[_] Yes [_] No
YIELD TO MATURITY: SHORT ACCRUAL PERIOD OID: METHOD USED TO DETERMINE YIELD
FOR SHORT ACCRUAL PERIOD:
[_] Approximate [_] Exact
</TABLE>
R. R. DONNELLEY & SONS COMPANY, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to ________________
____________________________________ or registered assigns, the principal sum
set forth above on the Stated Maturity shown above, and to pay interest thereon
from the Original Issue Date shown above or from and including the most recent
Interest Payment Date (as hereinafter defined) to which interest has been paid
or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Dates shown above
("Interest Payment Dates"), at the rate per annum determined in accordance with
the provisions on the reverse hereof, depending on the Interest Rate Basis
specified above, commencing with the first such Interest Payment Date next
succeeding the Original Issue Date shown above (except as provided below) until
the principal hereof is paid or made available for payment and on Stated
Maturity, and, if specified above, interest shall accrue on any overdue
principal and on any overdue installment of interest (to the extent that the
payment of such interest shall be legally enforceable) at the Overdue Rate per
annum set forth above. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more predecessor Notes)
is registered at the close of business on the Regular Record Date set forth
above next preceding such Interest Payment Date, which shall be the fifteenth
calendar day next preceding such Interest Payment Date. The first payment of
interest on any Note originally issued between a Regular Record Date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Regular Record Date to the registered owner on such succeeding
Regular Record Date. Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof to be given to
Holders of Notes of this series not less than 10 calendar days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payments of interest to be paid in U.S. dollars (other than interest,
and if this is an Amortizing Note, principal (if this is not a global Note)
payable at Stated Maturity) will be made by mailing a check to the Holder at the
address of the Holder appearing in the Security Register as of the applicable
Regular Record Date. Notwithstanding the foregoing, at the option of the
Company, all payments of interest and, if this is an Amortizing Note, principal
on this Note may be made by wire transfer of immediately available funds to an
account maintained by such Holder with a bank located in the United States as
designated by the Holder not less than 15 calendar days prior to the Interest
Payment Date. If a Holder holds U.S. $10,000,000 or more in aggregate principal
amount of Notes of like tenor and terms (including the same Interest Payment
Date) (or is the Holder of the equivalent thereof in a Specified Currency other
than U.S. dollars), such Holder shall be entitled to receive payments of
interest (other than at Stated Maturity or upon earlier redemption or repayment)
in U.S. dollars by wire transfer of immediately available funds, but only if
appropriate payment instructions have been received in writing by the Trustee
not less than 15 calendar days prior to the applicable Interest Payment Date.
Simultaneously with the election by the Holder to receive payments in a
Specified Currency other than U.S. dollars (by written request to the Trustee,
as provided below), the Holder shall provide appropriate payment instructions to
the Trustee, and all such payments will be made in immediately available funds
to a bank account maintained by the Holder in the country of the Specified
Currency (or, with respect to ECUs, Brussels). If such a payment with respect
to this Note cannot be made by wire transfer because the required designation
has not been received by the Trustee on or before the requisite date or for any
other reason, a notice will be mailed to the Holder at its registered address
requesting a designation pursuant to which such wire transfer can be made and,
upon the Trustee's receipt of such a designation, such payment will be made
within 15 days of such receipt. The Company will pay any administrative costs
imposed by banks in connection with
-2-
<PAGE>
making payments by wire transfer, but not any tax, assessment or governmental
charge imposed upon the Holder of this Note. In the event that payment is so
made in accordance with the instructions of the Holder, such wire transfer shall
be deemed to constitute full and complete payment of such interest and principal
on this Note. If this is not a global Note, payment of the principal, premium,
if any, and interest payable at Maturity in respect of this Note will be paid in
immediately available funds upon surrender of this Note accompanied by wire
instructions at the principal office of the Trustee, provided that the Note is
presented in time for the Trustee to make such payments in such funds in
accordance with its normal procedures.
If the Holder of this Note (as indicated above) is the U.S. Depositary
or a nominee of the U.S. Depositary, this Note is a global Note and the
following legend is applicable except as specified on the reverse hereof: THIS
GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE U.S. DEPOSITARY OR
BY A NOMINEE OF THE U.S. DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF
THE U.S. DEPOSITARY OR BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
OF THE U.S. DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
R. R. DONNELLEY & SONS COMPANY
By:________________________________
Its:____________________________
Attest:____________________________
Its:___________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated herein and referred
to in the within-mentioned Indenture.
CITIBANK, N.A.
as Trustee
By:_______________________________
Authorized Officer
-3-
<PAGE>
[Reverse of Note]
R. R. DONNELLEY & SONS COMPANY
MEDIUM-TERM NOTE, SERIES __
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of November 1, 1990 (herein
called the "Indenture"), between the Company and Citibank, N.A., as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Note is one of the Securities of the
series designated on the face hereof. The Notes may bear different dates,
mature at different times, bear interest at different rates, be subject to
different redemption provisions and may otherwise vary, all as provided in the
Indenture. The Notes are limited to $___,000,000 in aggregate principal amount
(or the equivalent thereof in the Specified Currency, calculated at the Market
Exchange Rate on the applicable trade date).
SECTION 2. Interest Rate Calculations; Payments. The interest rate
on this Note will be equal to either (i) the interest rate calculated by
reference to the specified Interest Rate Basis plus or minus the Spread, if any,
or (ii) the interest rate calculated by reference to the specified Interest Rate
Basis multiplied by the Spread Multiplier, if any. The "Spread" is the number
of basis points (one basis point equals one-hundredth of a percentage point)
specified on the face hereof as being applicable to this Note, and the "Spread
Multiplier" is the percentage specified on the face hereof as being applicable
to this Note. Set forth on the face hereof is the Interest Rate Basis and the
Spread or Spread Multiplier, if any, and the maximum or minimum interest rate
limitation, if any, applicable to this Note. Set forth on the face hereof are
particulars as to the Calculation Agent (unless specified otherwise, Citibank,
N.A. (in such capacity, the "Calculation Agent")), Index Maturity, Original
Issue Date, the interest rate in effect for the period from the Original Issue
Date to the first Interest Reset Date set forth on the face hereof (the "Initial
Interest Rate"), Interest Determination Dates, Interest Payment Dates, Regular
Record Dates and Interest Reset Dates with respect to this Note.
Except as provided below, interest on this Note will be payable (i) if
this Note resets daily, weekly or monthly, on the third Wednesday of each month
or on the third Wednesday of March, June, September and December of each year,
as specified on the face hereof; (ii) if this Note resets quarterly, on the
third Wednesday of March, June, September and December of each year; (iii) if
this Note resets semiannually, on the third Wednesday of each of two months of
each year specified on the face hereof; and (iv) if this Note resets annually,
on the third Wednesday of one month of each year specified on the face hereof
(each such day being an "Interest Payment Date"), and in each case at Maturity.
If any Interest Payment Date, other than Maturity, for this Note would otherwise
be a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next day that is a Business Day, except that if this Note is a
LIBOR Note, if such Business Day is in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding London Business Day.
If the Maturity for this Note falls on a day that is not a Business Day, payment
of principal, premium, if any, and interest with respect to this Note will be
made on the next succeeding Business Day with the same force and effect as if
made on the due date, and no interest shall be payable on the date of payment
for the period from and after the due date.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually (such period being the "Reset
Period" for such Note, and the first day of each Reset Period being an "Interest
Reset Date"), as specified on the face hereof. The Interest Reset Date will be,
if this Note resets daily, each Business Day; if this Note resets weekly (unless
the Interest Rate Basis on the face hereof is the Treasury Rate), the Wednesday
of each week; if this Note resets weekly and the Interest Rate Basis on the face
hereof is the Treasury Rate, the Tuesday of each week; if this Note resets
monthly (unless the Interest Rate Basis on the face hereof is the 11th District
Cost of Funds Rate), the third Wednesday of each month; if this Note resets
monthly and the Interest Rate Basis on the face hereof is the 11th District Cost
of Funds Rate, the first calendar date of the month; if this Note resets
quarterly, the third Wednesday of each March, June, September and December; if
this Note resets semiannually, the third Wednesday of the two months of each
year specified on the face hereof; and if this Note resets annually, the third
Wednesday of one month of each year specified on the face hereof; provided,
however, that the interest rate in effect from the date of issue to the first
Interest Reset Date will be the Initial Interest Rate specified on the face
hereof. If the Interest Reset Date would otherwise be a day that is not a
Business Day, the Interest Reset Date shall be postponed to the next day that is
a Business Day, except that if the Interest Rate Basis on the face hereof is
LIBOR, if such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day. Each
adjusted rate shall be applicable on and after the Interest Reset Date to which
it relates to, but not including, the next succeeding Interest Reset Date or
until Stated Maturity or the date of redemption, as the case may be.
The interest rate for each Reset Period will be the rate determined by
the Calculation Agent on the Calculation Date (as defined below) pertaining to
the Interest Determination Date pertaining to the Interest Reset Date for
-4-
<PAGE>
such Reset Period. Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date for (a) a Commercial
Paper Rate Note (the "Commercial Paper Interest Determination Date"), (b) a
Federal Funds Rate Note (the "Federal Funds Interest Determination Date"), (c) a
CD Rate Note (the "CD Interest Determination Date"), (d) a Prime Rate Note (the
"Prime Interest Determination Date"), (e) a CMT Rate Note (the "CMT Interest
Determination Date"), or (f) a Kenny Rate Note (the "Kenny Rate Interest
Determination Date") will be the second Business Day prior to such Interest
Reset Date. Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date for an 11th District
Cost of Funds Rate Note (the "11th District Interest Determination Date") will
be the last Business Day of the month immediately preceding such Interest Reset
Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below). Unless otherwise specified
on the face hereof, the Interest Determination Date pertaining to an Interest
Reset Date for a LIBOR Note (the "LIBOR Interest Determination Date") will be
the second London Business Day immediately preceding each Interest Reset Date.
Unless otherwise specified on the face hereof, the Interest Determination Date
pertaining to an Interest Reset Date for a Treasury Rate Note (the "Treasury
Interest Determination Date") will be the day of the week in which such Interest
Reset Date falls on which Treasury bills would normally be auctioned. Treasury
bills are usually sold at auction on Monday of each week, unless that day is a
legal holiday, in which case the auction is usually held on the following
Tuesday, except that such auction may be held on the preceding Friday. If, as a
result of a legal holiday, an auction is so held on the preceding Friday, such
Friday will be the Treasury Interest Determination Date pertaining to the Reset
Period commencing in the next succeeding week, if an auction date shall fall on
any Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date
shall instead be the first Business Day immediately following such auction date.
Unless otherwise specified on the face hereof, the "Calculation Date" pertaining
to any Interest Determination Date shall be the earlier of (i) the tenth
calendar day after the Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity, as the case may be.
As used herein, "Business Day" means, unless otherwise specified on
the face hereof, any Monday, Tuesday, Wednesday, Thursday or Friday that in The
City of New York is not a day on which banking institutions are authorized or
required by law, regulation or executive order to close and, if the Interest
Rate Basis of this Note is LIBOR, is also a London Business Day; provided that
with respect to a Specified Currency, such day is also not a day on which
banking institutions are authorized or required by law, regulation or executive
order to close in the principal financial center of the country of such
Specified Currency (or in the case of ECUs, is not a day designated as an ECU
Non-Settlement Day by the ECU Banking Association in Paris or otherwise
generally regarded in the ECU interbank market as a day on which payment on ECUs
shall not be made). As used herein, "London Business Day" means any day (a) if
the Designated LIBOR Currency is other than the ECU, on which dealings in
deposits in such Designated LIBOR Currency are transacted in the London
interbank market or (b) if the Designated LIBOR Currency is the ECU, that is not
designated as an ECU Non-Settlement Day by the ECU Banking Association in Paris
or otherwise generally regarded in the ECU interbank market as a day on which
payments on ECUs shall not be made.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the face
hereof.
Unless otherwise specified on the face hereof, if this Note is
specified on the face hereof as an Amortizing Note, payments with respect to
this Note will be applied first to interest due and payable hereon and then to
the reduction of the unpaid principal amount hereof. If this Note is specified
on the face hereof as an Amortizing Note, a table setting forth repayment
information in respect to this Note will be provided to the original purchaser
hereof and will be available, upon request, to subsequent Holders.
Unless otherwise indicated on the face hereof, interest on this Note
will accrue from and including the date of issue or from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly provided for, as the case may be, to but excluding the
Interest Payment Date or the Maturity, as the case may be. Accrued interest is
calculated by multiplying the face amount of this Note by an accrued interest
factor. This accrued interest factor is computed by adding the interest factors
calculated for each day from the date of issue, or from the last date to which
interest has been paid, to the date for which accrued interest is being
calculated. The interest factor for each such day is computed by dividing the
interest rate applicable to such day by 360, in the case of Commercial Paper
Rate Notes, CD Rate Notes, 11th District Cost of Funds Rate Notes, Federal Funds
Rate Notes, LIBOR Notes and Prime Rate Notes, or by the actual number of days in
the year, in the case of Treasury Rate Notes or CMT Rate Notes, or by 365 days
in the case of Kenny Rate Notes.
The Calculation Agent shall calculate the interest rate on this Note,
as provided below. The Calculation Agent will, upon the request of the Holder
of this Note, provide the interest rate then in effect and, if then determined,
the interest rate which will become effective as a result of a determination
made with respect to the most recent Interest Determination Date with respect to
this Note. The Trustee shall act as the initial Calculation Agent for the
Notes. For purposes of calculating the rate of interest payable on this Note,
the Company will enter into an agreement with the Calculation Agent. The
Calculation Agent's determination of any interest rate shall be final and
binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided
below, the interest rate on this Note for any interest period shall not be
greater than the maximum interest rate, if any, or less than the minimum
interest rate, if
-5-
<PAGE>
any, specified on the face hereof. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York or other applicable
law, as the same may be modified by United States law of general application.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis specified on
the face hereof is Commercial Paper Rate, the interest rate determined with
respect to the Commercial Paper Rate Interest Determination Date shall be the
Commercial Paper Rate plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, as specified on the face hereof, as determined on
such Commercial Paper Rate Interest Determination Date.
"Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the Index Maturity
designated on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of Governors ("H.15(519)")
under the heading "Commercial Paper." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Commercial Paper Interest Determination Date, then the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date shall be the Money Market Yield of the rate on such
Commercial Paper Interest Determination Date for commercial paper having the
Index Maturity designated on the face hereof as published by the Federal Reserve
Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any successor publication
("Composite Quotations") under the heading "Commercial Paper." If by 3:00 P.M.,
New York City time, on such Calculation Date such rate is not yet published in
either H.15(519) or Composite Quotations, then the Commercial Paper Rate for
such Commercial Paper Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean of
the offered rates (quoted on a bank discount basis) as of 11:00 A.M., New York
City time, on such Commercial Paper Interest Determination Date, of three
leading dealers of commercial paper in The City of New York selected by the
Calculation Agent for commercial paper having the Index Maturity designated on
the face hereof placed for an industrial issuer whose bond rating is "AA," or
the equivalent, from a nationally recognized securities rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate with
respect to such Commercial Paper Interest Determination Date will be the
Commercial Paper Rate in effect immediately prior to such Commercial Paper
Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded, if necessary, to the nearest one hundred-thousandth of a percent)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
DETERMINATION OF CD RATE. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to the CD Interest
Determination Date shall be the CD Rate plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, as specified on the face hereof, as
determined on such CD Interest Determination Date.
"CD Rate" means, with respect to any CD Interest Determination Date,
the rate on such date for negotiable certificates of deposit having the Index
Maturity designated on the face hereof as published in H.15(519) under the
heading "CDs (Secondary Market)." In the event that such rate is not published
prior to 9:00 A.M., New York City time, on the Calculation Date pertaining to
such CD Interest Determination Date, then the CD Rate with respect to such CD
Interest Determination Date shall be the rate on such CD Interest Determination
Date for negotiable certificates of deposit having the Index Maturity designated
on the face hereof as published in Composite Quotations under the heading
"Certificates of Deposit." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, then the CD Rate on such CD Interest Determination Date shall be
calculated by the Calculation Agent and shall be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money market banks (in the market for negotiable certificates of deposit) with a
remaining maturity closest to the Index Maturity specified on the face hereof in
a denomination of $5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate with respect to such CD Interest Determination Date will
be the CD Rate in effect immediately prior to such CD Interest Determination
Date.
DETERMINATION OF CMT RATE. If the Interest Rate Basis specified on the face
hereof is CMT Rate, the interest rate determined with respect to the CMT
Interest Determination Date shall be the CMT Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, as specified on the face
hereof, as determined on such CMT Interest Determination Date.
"CMT Rate" means, with respect to any CMT Interest Determination Date,
the rate displayed in the Designated CMT Telerate Page (as defined below) under
the caption "... Treasury Constant Maturities...Federal Reserve Board Release H.
15... Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Interest Determination Date and
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(ii) if the Designated CMT Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which the applicable CMT
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CMT Interest Determination Date, then the
CMT Rate for such CMT Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index as published in the relevant
H. 15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate for such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CMT Interest Determination
Date, then the CMT Rate for the CMT Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity, based on
the arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 P.M., New York City time, on the CMT Interest Determination
Date reported, according to their written records, by three leading primary
United States government securities dealers (each, a "Reference Dealer") in The
City of New York selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent cannot obtain three
such Treasury Note quotations, the CMT Rate for such CMT Interest Determination
Date will be calculated by the Calculation Agent and will be a yield to maturity
based on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time, on the CMT Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for Treasury Notes
with an original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100,000,000. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the CMT Rate
will he the CMT Rate in effect on such CMT Interest Determination Date. If two
Treasury Notes with an original maturity as described in the third preceding
sentence have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the quotes for the Treasury Note with the shorter remaining term
to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as published in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as published in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the Treasury Notes (either one, two, three, five, seven, ten, twenty or
thirty years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis specified on
the face hereof is Federal Funds Rate, the interest rate determined with respect
to the Federal Funds Interest Determination Date shall be the Federal Funds Rate
plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if
any, specified on the face hereof, as determined on such Federal Funds Interest
Determination Date.
"Federal Funds Rate" means, with respect to any Federal Funds Interest
Determination Date, the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." In the event that such
rate is not published prior to 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Federal Funds Interest Determination Date, then the
Federal Funds Rate shall be the rate on such Federal Funds Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, then the Federal Funds Rate with respect to such Federal Funds
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean (rounded, if necessary, to the nearest one hundred-
thousandth of a percent) of the rates as of 9:00 A.M., New York City time, on
such Federal Funds Interest Determination Date for the last transaction in
overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate with
respect to such Federal Funds Interest Determination Date will be the Federal
Funds Rate in effect immediately prior to such Federal Funds Interest
Determination Date.
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DETERMINATION OF 11TH DISTRICT COST OF FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is 11th District Cost of Funds Rate, the interest
rate determined with respect to the 11th District Interest Determination Date
shall be the 11th District Cost of Funds Rate plus or minus the Spread, if any,
or multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on such 11th District Interest Determination Date.
"11th District Cost of Funds Rate" means, with respect to any 11th
District Interest Determination Date, the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such 11th District Cost
of Funds Rate Interest Determination Date as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such
11th District Interest Determination Date. If such rate does not appear on
Telerate Page 7058 on any related 11th District Interest Determination Date, the
11th District Cost of Funds Rate for such 11th District Interest Determination
Date shall be the monthly weighted average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District that was most
recently announced (the "Index") by the FHLB of San Francisco as such cost of
funds for the calendar month preceding the date of such announcement. If the
FHLB of San Francisco fails to announce such rate for the calendar month next
preceding such 11th District Interest Determination Date, then the 11th District
Cost of Funds Rate for such 11th District Interest Determination Date will be
the 11th District Cost of Funds Rate then in effect on such 11th District
Interest Determination Date.
KENNY RATE NOTES. If the Interest Rate Basis specified on the face hereof is
Kenny Rate, the interest rate determined with respect to the Kenny Rate Interest
Determination Date shall be the Kenny Rate plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on such Kenny Rate Interest Determination Date.
"Kenny Rate" means, with respect to any Kenny Rate Interest
Determination Date, the high grade weekly index (the "Weekly Index") on such
date made available by Kenny Information Systems ("Kenny") to the Calculation
Agent. The Weekly Index is, and shall be, based upon 30 day yield evaluations
at par of bonds, the interest on which is exempt from Federal income taxation
under the Internal Revenue Code of 1986, as amended, of not less than five high
grade component issuers selected by Kenny which shall include, without
limitation, issuers of general obligation bonds. The specific issuers included
among the component issuers may be changed from time to time by Kenny in its
discretion. The bonds on which the Weekly Index is based shall not include any
bonds on which the interest is subject to a minimum tax or similar tax under the
Internal Revenue Code of 1986, as amended, unless all tax-exempt bonds are
subject to such tax. In the event Kenny ceases to make available such Weekly
Index, a successor indexing agent will be selected by the Calculation Agent,
such index to reflect the prevailing rate for bonds rated in the highest short-
term rating category by Moody's Investors Service, Inc. and Standard & Poor's
Corporation in respect of issuers most closely resembling the high grade
component issuers selected by Kenny for its Weekly Index, the interest on which
is (A) variable on a weekly basis, (B) exempt from Federal income taxation under
the Internal Revenue Code of 1986, as amended, and (C) not subject to a minimum
tax or similar tax under the Internal Revenue Code of 1986, as amended, unless
all tax-exempt bonds are subject to such tax. If such successor indexing agent
is not available, the rate for any Kenny Rate Interest Determination Date shall
be 67% of the rate determined if the Treasury Rate option had been originally
selected.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the face hereof
is LIBOR, the interest rate determined with respect to the LIBOR Interest
Determination Date shall be LIBOR plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on such LIBOR Interest Determination Date.
LIBOR will be determined by the Calculation Agent in accordance with
the following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will
be either: (a) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the specified designated LIBOR
Page (as defined below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the Designated
LIBOR Currency (as defined below) having the Index Maturity designated on
the face hereof, commencing on the second London Business Day immediately
following the LIBOR Interest Determination Date, which appear on the
Designated LIBOR Page specified on the face hereof as of 11:00 A.M., London
time, on that LIBOR Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is required)
on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on
the face hereof, the rate for deposits in the Designated LIBOR Currency (as
defined below) having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, which appears on the Designated LIBOR
page specified on the face hereof as of 11:00 A.M. London time on that
LIBOR Interest Determination Date. Notwithstanding the foregoing, if fewer
than two offered rates appear on the Designated LIBOR Page with respect to
LIBOR Reuters (unless the specified Designated LIBOR Page with respect to
LIBOR Reuters by its terms provides only for a single rate, in which case
such single rate shall be used), or if no rate appears on the Designated
LIBOR Page with respect to LIBOR Telerate, whichever may be applicable,
LIBOR in respect of the related LIBOR Interest Determination Date will be
determined as if the parties had specified the rate described in clause
(ii) below.
(ii) With respect to any LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page with
respect to LIBOR Reuters (unless the Designated LIBOR
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Page by its terms provides only for a single rate, in which case such
single rate shall be used), or if no rate appears on the Designated LIBOR
Page with respect to LIBOR Telerate, as the case may be, the Calculation
Agent will request the principal London office of each of four major banks
in the London interbank market selected by the Calculation Agent to provide
the Calculation Agent with its offered rate quotation for deposits in the
Designated LIBOR Currency (as defined below) for the period of the Index
Maturity specified on the face hereof, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date,
to prime banks in the London interbank market as of 11:00 A.M., London
time, on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in such Designated LIBOR
Currency in such market at such time. If at least two such quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date will
be the arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR determined on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted as of 11:00 A.M. in the
applicable major banks in such Principal Financial Center (as defined
below), on such LIBOR Interest Determination Date by three major banks in
such Principal Financial Center selected by the Calculation Agent for loans
in the Designated LIBOR Currency to leading banks, having the Index
Maturity designated on the face hereof in a principal amount that is
representative for a single transaction in such Designated LIBOR Currency
in such market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined on such LIBOR Interest Determination Date will
be LIBOR in effect on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency (including a composite
currency), if any, designated on the face hereof as the Designated LIBOR
Currency. If no such currency is designated in on the face hereof, the
Designated LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London interbank
rates of major banks for the applicable Designated LIBOR Currency (if "LIBOR
Reuters" is designated on the face hereof), or (b) the display on the Dow Jones
Telerate Service for the purpose of displaying the London interbank rates of
major banks for the applicable designated LIBOR Currency (if "LIBOR Telerate" is
designated on the face hereof). If neither LIBOR Reuters nor LIBOR Telerate is
specified on the face hereof, LIBOR for the applicable Designated LIBOR Currency
will be determined as if LIBOR Telerate (and, if the U.S. dollar is the
Designated LIBOR Currency, page 3750) had been chosen.
"Principal Financial Center" means, unless otherwise specified on the
face hereof, the capital city of the country that issues as its legal tender the
Designated LIBOR Currency of this Note, except that with respect to U.S. dollars
and ECUs, the Principal Financial Center shall be The City of New York and
Brussels, respectively.
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the interest rate determined with respect to the
Treasury Interest Determination Date shall be the Treasury Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified on
the face hereof, as determined on such Treasury Interest Determination Date.
"Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury bills") having the Index Maturity specified on
the face hereof as published in H.15(519) under the heading, "Treasury bills --
auction average (investment)" or, if not so published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, the average auction rate (expressed as a bond equivalent, on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the U.S. Department of the Treasury. In the
event that such rate is not available by 3:00 P.M., New York City time, on such
Treasury Interest Determination Date, or if no such auction is held in a
particular week, then the Treasury Rate with respect to such Treasury Interest
Determination Date shall be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent, on the basis of a year of 365
or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Interest Determination Date, of three leading primary
U.S. government securities dealers selected by the Calculation Agent for the
issue of Treasury bills with a remaining maturity closest to the Index Maturity
designated on the face hereof; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate with respect to such Treasury Interest Determination
Date will be the Treasury Rate in effect immediately prior to such Treasury
Interest Determination Date.
DETERMINATION OF PRIME RATE. If the Interest Rate Basis specified on the face
hereof is the Prime Rate, the interest rate determined with respect to the Prime
Interest Determination Date shall be the Prime Rate plus or minus the Spread, if
any, or Spread Multiplier, if any, specified on the face hereof, as determined
on such Prime Interest Determination Date.
"Prime Rate" means, with respect to any Prime Interest Determination
Date, the rate set forth on such date in H.15(519) under the heading "Bank Prime
Loan." In the event that such rate is not published prior to 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Prime Rate Interest
Determination Date, then the Prime Rate
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with respect to such Prime Interest Determination Date shall be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen NYMF Page as such bank's prime rate or base lending rate as
in effect for that Prime Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen NYMF Page for the Prime Interest
Determination Date, the Prime Rate shall be the arithmetic mean of the prime
rates quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Interest Determination
Date by four major money center banks in The City of New York selected by the
Calculation Agent. If fewer than two quotations are provided, the Prime Rate
with respect to such Prime Interest Determination Date shall be determined on
the basis of the rates furnished in The City of New York by the appropriate
number of substitute banks or trust companies organized and doing business under
the laws of the United States, or any state thereof, having total equity capital
of at least U.S. $500 million and being subject to supervision or examination by
Federal or state authority, selected by the Calculation Agent to provide such
rate or rates; provided, however, that if the bank or trust company selected as
aforesaid is not quoting as mentioned in this sentence, the Prime Rate with
respect to such Prime Interest Determination Date will be the Prime Rate in
effect immediately prior to such Prime Interest Determination Date. "Reuters
Screen NYMF Page" means the display designated as page "NYMF" on the Reuters
Monitor Money Rate Service (or such other page as may replace the NYMF page on
the service for the purpose of displaying the prime rate or base lending rate of
major banks).
The Calculation Agent shall calculate the interest rate on this Note
in accordance with the foregoing as soon as practicable after the Interest
Determination Date.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U.S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as the
case may be. Such request may be delivered by mail, by hand or by cable, telex
or any other form of facsimile transmission. Any such request made with respect
to this Note by a Holder will remain in effect with respect to any further
payments of interest and principal (and premium, if any) with respect to this
Note payable to such Holder, unless such request is revoked by written notice
received by the Paying Agent on or prior to the relevant Regular Record Date or
the date 15 days prior to Maturity, as the case may be (but no such revocation
may be made with respect to payments made on this Note if an Event of Default
has occurred with respect thereto or upon the giving of a notice of redemption).
A Holder whose Note is registered in the name of a broker or nominee should
contact such broker or nominee to determine whether and how an election to
receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by the Holder of this Note who
elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable payment date (the "Conversion Date") from the
bank composite or multicontributor pages of the Quoting Source for three (or two
if three are not available) major banks in The City of New York. The first
three (or two) such banks selected by the Currency Determination Agent which are
offering quotes on the Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on the second
Business day next preceding the applicable payment date, such payment will be
based on the Market Exchange Rate as of the second Business Day next preceding
the applicable payment date. If the Market Exchange Rate for such date is not
then available, such payment will be made in the Specified Currency. As used
herein, the "Quoting Source" means Reuters Monitor Foreign Exchange Service, or
if the Currency Determination Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that neither service is available, such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All
currency exchange costs associated with any payment in U.S. dollars on this Note
will be borne by the Holder by deductions from such payment. Any currency
determination agent (the "Currency Determination Agent") with respect to this
Note is specified on the face hereof.
If payment in respect of this Note is required to be made in any
currency unit (e.g. ECUs) and such currency unit is unavailable, in the good
faith judgment of the Company, due to the imposition of exchange controls or
other circumstances beyond the Company's control, then all payments in respect
of this Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on the
basis of the equivalent of the currency unit in U.S. dollars, which shall be
determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the currency
unit as of the Conversion Date. The equivalent of the currency unit in U.S.
dollars shall be calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination Agent on the Basis
of the Market Exchange Rate for each such Component Currency as of the
Conversion Date. "Market Exchange Rate" means the noon buying rate in The City
of New York for cable transfers of such Specified Currency as certified for
customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated
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Component Currencies expressed in such single currency. If any Component
Currency is divided into two or more currencies, the amount of the original
Component Currency shall be replaced by the amounts of such two or more
currencies, the sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and binding on the Holder of this
Note.
All percentages resulting from any calculations under this Note will
be rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit or dollar amounts used in or resulting from any
such calculation in respect of the Notes will be rounded to the nearest one-
hundredth of a unit (with five one-thousandths being rounded upward) or nearest
cent, as the case may be.
SECTION 3. Redemption. If so specified on the face hereof, the
Company may at its option redeem this Note in whole or from time to time in part
on or after the date designated as the Initial Redemption Date on the face
hereof at the redemption price specified on the face hereof, together with
accrued and unpaid interest to the date of redemption, but interest installments
whose Stated Maturity is on or prior to the date of redemption will be payable
to the Holder of this Note of record at the close of business on the relevant
Regular Record Date referred to on the face hereof, all as provided in the
Indenture. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption at least 30 but not more than 60 calendar days prior
to the date of redemption. In the event of redemption of this Note in part
only, a new Note or Notes for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note (if it is repayable at
the option of the Holder) to be repaid prior to Stated Maturity, the Paying
Agent must receive at least 30 but not more than 45 calendar days prior to an
Optional Repayment Date (i) this Note with the form below entitled "Option to
Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission or letter (first class, postage prepaid) from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States of America
setting forth the name of the Holder of this Note, the principal amount of the
Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note with the form below entitled
"Option to Elect Repayment" duly completed will be received by the Paying Agent
not later than five Business Days after the date of such telegram, telex,
facsimile transmission or letter (first class, postage prepaid). If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Trustee by such fifth
Business Day. Exercise of the repayment option by the Holder of this Note shall
be irrevocable, except that a Holder who has tendered this Note for repayment
may revoke any such tender for repayment by written notice to the Paying Agent
received prior to the close of business on the tenth calendar day prior to the
repayment date. The repayment option may be exercised by the Holder of this
Note for less than the entire principal amount of the Note provided that the
principal amount of the Note remaining outstanding after repayment is an
authorized denomination. Upon such partial repayment this Note shall be
cancelled and a new Note or Notes for the remaining principal amount hereof
shall be issued in the name of the Holder of this Note.
SECTION 5. Optional Interest Reset. If so specified on the face
hereof, the Spread or the Spread Multiplier on this Note may be reset by the
Company on the date or dates specified on the face hereof (each an "Optional
Interest Reset Date"). The Company may exercise such option by notifying the
Trustee of such exercise at least 45 but not more than 60 calendar days prior to
an Optional Interest Reset Date. If the Company so notifies the Trustee of such
exercise, not later than 40 calendar days prior to each Optional Interest Reset
Date, the Trustee will send by telegram, telex, facsimile transmission or letter
(first class, postage prepaid) to the Holder of this Note a notice (the "Reset
Notice") indicating (i) that the Company has elected to reset the Spread or the
Spread Multiplier, (ii) such new Spread or Spread Multiplier and (iii) the
provisions, if any, for redemption during the period from such Optional Interest
Reset Date to the next Optional Interest Reset Date or, if there is no such next
Optional Interest Reset Date, to Stated Maturity of this Note (each such period
a "Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior
to an Optional Interest Reset Date, the Company may, at its option, revoke the
Spread and/or the Spread Multiplier provided for in the Reset Notice and
establish a higher Spread and/or Spread Multiplier for the Subsequent Interest
Period commencing on such Optional Interest Reset Date by causing the Trustee to
send by telegram, telex, facsimile transmission or letter (first class, postage
prepaid) notice of such higher Spread and/or Spread Multiplier to the Holder of
this Note. Such notice shall be irrevocable. All Notes with respect to which
the Spread and/or Spread Multiplier is reset on an Optional Interest Reset Date
will bear such higher Spread and/or Spread Multiplier, whether or not tendered
for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to
reset the interest rate of this Note, the Holder of this Note will have the
option to elect repayment of this Note by the Company on such Optional Interest
Reset
-11-
<PAGE>
Date at a price equal to the principal amount hereof plus interest accrued and
unpaid thereon to such Optional Interest Reset Date. In order to obtain
repayment on an Optional Interest Reset Date, the Holder must follow the
procedures set forth under Section 4 for optional repayment except that the
period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 calendar days prior to such Optional Interest Reset Date. If
the Holder has tendered this Note for repayment following receipt of a Reset
Notice, the Holder may revoke such tender for repayment by written notice to the
Trustee received prior to the close of business on the tenth calendar day prior
to such Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the
face hereof, the Stated Maturity of this Note may be extended at the option of
the Company for the period or periods of from one to five whole years specified
on the face hereof (each an "Extension Period") up to but not beyond the date
(the "Final Maturity Date") set forth on the face hereof. The Company may
exercise such option with respect to a Note by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to Stated Maturity
of such Note in effect prior to the exercise of such option (the "Original
Stated Maturity Date"). If the Company so notifies the Trustee of such
exercise, the Trustee will send by telegram, telex, facsimile transmission or
letter (first class, postage prepaid) to the Holder of this Note not later than
40 calendar days prior to the Original Stated Maturity Date a notice (the
"Extension Notice") indicating (i) that the Company has elected to extend the
Stated Maturity of this Note, (ii) the new Stated Maturity, (iii) the Spread
and/or Spread Multiplier applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period, including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during such Extension Period. Upon
the Trustee's sending of the Extension Notice, Stated Maturity of this Note
shall be extended automatically and, except as modified by the Extension Notice
and as described in the next two paragraphs, this Note will have the same terms
as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days before
the Original Stated Maturity Date of this Note, the Company may, at its option,
revoke the Spread and/or Spread Multiplier provided for in the Extension Notice
and establish a higher Spread and/or Spread Multiplier for the Extension Period
by causing the Trustee to send by telegram, telex, facsimile transmission or
letter (first class, postage prepaid) notice of such higher Spread and/or Spread
Multiplier to the Holder of this Note. Such notice shall be irrevocable. All
Notes with respect to which Stated Maturity is extended will bear such higher
Spread and/or Spread Multiplier for the Extension Period, whether or not
tendered for repayment as provided in the next paragraph.
If the Company extends the Stated Maturity of this Note, the Holder
will have the option to elect repayment of this Note by the Company on the
Original Stated Maturity Date at a price equal to the principal amount hereof,
plus interest accrued and unpaid thereon to such date. In order to obtain
repayment on the Original Stated Maturity Date once the Company has extended the
Stated Maturity hereof, the Holder must follow the procedures set forth under
Section 4 for optional repayment except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 calendar
days prior to the Original Stated Maturity Date. A Holder who has tendered this
Note for repayment following receipt of an Extension Notice may revoke such
tender for repayment by written notice to the Trustee received prior to the
close of business on the tenth calendar day before the Original Stated Maturity
Date.
SECTION 7. Sinking Fund. This Note will not be subject to any
sinking fund.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event of redemption or repayment prior to the Stated
Maturity hereof in lieu of the principal amount due at the Stated Maturity
hereof shall be the Amortized Face Amount of this Note as of the redemption date
or the date of repayment, as the case may be. The "Amortized Face Amount" of
this Note shall be the amount equal to (a) the Issue Price (as set forth on the
face hereof) plus (b) that portion of the difference between the Issue Price and
the principal amount hereof that has accreted at the yield to maturity (as set
forth on the face hereof) (computed in accordance with generally accepted United
States bond yield computation principles) at the date as of which the Amortized
Face Amount is calculated but in no event shall the Amortized Face Amount of
this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect
to Notes of this series shall occur and be continuing, the principal of the
Notes of this series may be declared due and payable in the manner and with the
effect provided in the Indenture; provided, however, that notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount so declared due and payable shall be the Amortized Face Amount
of this Note as of the date of such declaration.
SECTION 10. Modifications and Waivers; Obligation of the Company
Absolute. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holder of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the
-12-
<PAGE>
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates, and in the coin or
currency, herein prescribed.
SECTION 11. Defeasance and Covenant Defeasance. The Indenture
contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Note and (b) certain restrictive covenants and the related
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise noted on the
face hereof, the Notes of this series are issuable only in global or certified
registered form, without coupons, in denominations of $100,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth and to the limitations described below,
if applicable, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Indenture
and subject to certain limitations therein set forth and to the limitations
described below, if applicable, the transfer of this Note is registrable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar (which shall initially be the Trustee, 111 Wall Street, 5th
Floor, New York, New York 10043 (Attention: Corporate Trust Department) or at
such other address as it may designate as its principal corporate trust office
in The City of New York) duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
If this Note is a global Note (as specified on the face hereof), this
Note is exchangeable only if (x) the U.S. Depositary notifies the Company that
it is unwilling or unable to continue as U.S. Depositary for this global Note or
if at any time the U.S. Depositary ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, (y) the Company in its
sole discretion determines that this Note shall be exchangeable for certificated
Notes in registered form or (z) an Event of Default, or an event which with the
passage of time or the giving of notice would become an Event of Default, with
respect to the Notes represented hereby has occurred and is continuing, provided
that the definitive Notes so issued in exchange for this permanent global Note
shall be in denominations of $100,000 and any integral multiple of $1,000 in
excess thereof and be of like aggregate principal amount and tenor as the
portion of this permanent global Note to be exchanged, and provided further
that, unless the Company agrees otherwise, Notes of this series in certificated
registered form will be issued in exchange for this permanent global Note, or
any portion hereof, only if such Notes in certificated registered form were
requested by written notice to the Trustee or the Security Registrar by or on
behalf of a person who is beneficial owner of an interest hereof given through
the Holder hereof. Except as provided above, owners of beneficial interests in
this permanent global Note will not be entitled to receive physical delivery of
Notes in certificated registered form and will not be considered the Holders
thereof for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note be registered as the
owner hereof for all purposes, whether or not this Note be overdue, and none of
the Company, the Trustee or any such agent shall be affected by notice to the
contrary.
SECTION 15. Governing Law. The Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
shall be deemed to include the Notes.
-13-
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option of the Holder and
the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 4 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be repaid pursuant to Section 5 hereof, or to the Original Stated Maturity
Date, if this Note is to be repaid pursuant to Section 6 hereof. Specify the
denomination or denominations (which shall be $100,000 or an integral multiple
of $1,000 in excess thereof or, if the Note is denominated in a currency other
than U.S. dollars, an Authorized Denomination) of the Note or Notes to be issued
to the Holder for the portion of the within Note not being repaid (in the
absence of any specification, one such Note will be issued for the portion not
being repaid):
___________________________.
Dated: ____________________ ______________________________
Signature
Sign exactly as name appears on the front of
this Note.
Principal amount to be Indicate address where check
if amount to be repaid is to be sent, if repaid:
is less than the entire
principal amount of this ______________________________
Note (principal amount
remaining must be an
authorized denomination)
$______________________
(which shall be an integral
multiple of $1,000 or, if
the Note is denominated in
a currency other than U.S. SOCIAL SECURITY OR OTHER
dollars, of an amount equal TAXPAYER ID NUMBER
to the integral multiples
referred to on the face hereof ________________________
under "Authorized Denominations"
(or, if no such reference is
made, an amount equal to the
minimum Authorized Denomination))
<PAGE>
______________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ..........Custodian..............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above list.
____________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_________________________________
| |
|_______________________________|
________________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated:____________ ________________________________________
Signature
Sign exactly as name appears on the front of this Note
[SIGNATURE MUST BE GUARANTEED by a commercial bank, a trust
company or by a member of the New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
EXHIBIT 5
February 23, 1995
R. R. Donnelley & Sons Company
77 West Wacker Drive
Chicago, Illinois 60601
Re: Registration Statement on Form S-3 of
$500,000,000 Principal Amount of Debt Securities
------------------------------------------------
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by R.R. Donnelley & Sons Company (the "Company") with
the Securities and Exchange Commission (the "SEC") under the Securities Act of
1933, as amended (the "Securities Act"), relating to the shelf registration of
$500,000,000 principal amount of the Company's debt securities (the "Debt
Securities"). The Debt Securities are to be issued under an Indenture (the
"Indenture") between the Company and Citibank, N.A., as trustee (the "Trustee").
I am familiar with the proceedings to date with respect to the proposed
issuance and sale of the Debt Securities and have examined such records,
documents and questions of law, and have satisfied myself as to such matters of
fact, as I have considered relevant and necessary as a basis for this opinion.
Based on the foregoing, I am 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 duly executed and delivered the Indenture and has
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, fraudulent
transfer 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
<PAGE>
R. R. Donnelley & Sons Company
February 23, 1995
Page 2
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 (or transmitted for filing) with the SEC pursuant to Rule 424
under the Securities Act; (iii) the Company's Board of Directors or a duly
authorized committee thereof shall have duly adopted final resolutions
authorizing the issuance and sale of such series of Debt Securities as
contemplated by the Registration Statement and the Indenture; and (iv) such
series of Debt Securities shall have been duly executed and authenticated as
provided in the Indenture and such resolutions and shall have been duly
delivered to the purchasers thereof against payment of the agreed consideration
therefor.
For the purposes of this opinion, I have assumed that there will be no
changes in the laws currently applicable to the Company and that such laws will
be the only laws applicable to the Company.
I do not find it necessary for the purposes of this opinion to cover, and
accordingly express no opinion as to, the application of the securities or blue
sky laws of the various states to the offer or sale of the Debt Securities.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Opinions" in the Registration Statement upon its effectiveness and in any
Prospectus Supplement relating to the Registration Statement reviewed and
approved by me prior to the distribution of such Prospectus Supplement and
filing thereof with the SEC.
Very truly yours,
/s/ Deborah M. Regan
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of (a) our reports dated
January 27, 1994 included in the Form 10-K for the year ended December 31, 1993
of R.R. Donnelley & Sons Company (the "Company") and (b) our report dated
January 26, 1995 included in the Current Report on Form 8-K dated February 21,
1995 of the Company and to all references to our Firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
_____________________________________
ARTHUR ANDERSEN LLP
Chicago, Illinois
February 23, 1995
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ John R. Walter
----------------------------
John R. Walter
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Ronald G. Eidell and
Deborah M. Regan, and each of them with full power to act without the other, his
or her true and lawful attorney-in-fact, with full power and authority, for the
purpose of executing, in the name and on behalf of the undersigned as a director
and/or officer of R. R. Donnelley & Sons Company, a Delaware corporation (the
"Company"), a Registration Statement on Form S-3 for the registration under the
Securities Act of 1933, as amended, of the Company's debt securities and any and
all amendments to such Registration Statement, including post-effective
amendments, and to deliver on behalf of the undersigned such Registration
Statement and any and all amendments thereto, as each thereof is so executed,
for filing with the Securities and Exchange Commission. The undersigned hereby
grants unto each such attorney-in-fact full power of substitution and revocation
in the premises and hereby ratifies and confirms all that each such attorney-in-
fact may do or cause to be done by virtue of these presents.
Dated: January 26, 1995
/s/ Frank R. Jarc
----------------------------
Frank R. Jarc
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Deborah
M. Regan and Roanld G. Eidell, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ William L. White
----------------------------
William L. White
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ Martha Layne Collins
----------------------------
Martha Layne Collins
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ James R. Donnelley
----------------------------
James R. Donnelley
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ Charles C. Haffner III
----------------------------
Charles C. Haffner III
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ Thomas S. Johnson
----------------------------
Thomas S. Johnson
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ Richard M. Morrow
----------------------------
Richard M. Morrow
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ M. Bernard Puckett
----------------------------
M. Bernard Puckett
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ John M. Richman
----------------------------
John M. Richman
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ William D. Sanders
----------------------------
William D. Sanders
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ Jerre L. Stead
----------------------------
Jerre L. Stead
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ Bide L. Thomas
----------------------------
Bide L. Thomas
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ H. Blair White
----------------------------
H. Blair White
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Frank R. Jarc, Ronald
G. Eidell and Deborah M. Regan, and each of them with full power to act without
the other, his or her true and lawful attorney-in-fact, with full power and
authority, for the purpose of executing, in the name and on behalf of the
undersigned as a director and/or officer of R. R. Donnelley & Sons Company, a
Delaware corporation (the "Company"), a Registration Statement on Form S-3 for
the registration under the Securities Act of 1933, as amended, of the Company's
debt securities and any and all amendments to such Registration Statement,
including post-effective amendments, and to deliver on behalf of the undersigned
such Registration Statement and any and all amendments thereto, as each thereof
is so executed, for filing with the Securities and Exchange Commission. The
undersigned hereby grants unto each such attorney-in-fact full power of
substitution and revocation in the premises and hereby ratifies and confirms all
that each such attorney-in-fact may do or cause to be done by virtue of these
presents.
Dated: January 26, 1995
/s/ Stephen M. Wolf
----------------------------
Stephen M. Wolf
<PAGE>
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)
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. Employer
Identification No.)
399 Park Avenue, New York, New York 10043
(Address of principal executive offices) (Zip Code)
_______________________
R.R. DONNELLEY & SONS COMPANY
(Exact name of obligor as specified in its charter)
Delaware 36-1004130
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
77 West Wacker Drive
Chicago, Illinois 60601
(Address of principal executive offices) (Zip Code)
_______________________
Debt Securities
(Title of the indenture securities)
<PAGE>
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.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, N.Y.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
16. List of Exhibits
----------------
Exhibit 1 -- Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983).
Exhibit 2 -- Copy of certificate of authority of the Trustee to commence
business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577).
Exhibit 3 -- Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519).
Exhibit 4 -- Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1
to Registration Statement No. 33-34988).
Exhibit 5 -- Not applicable.
Exhibit 6 -- The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227).
Exhibit 7 -- Copy of the latest Report of Condition of Citibank, N.A.
(as of September 30, 1994 -- attached)
Exhibit 8 -- Not applicable.
Exhibit 9 -- Not applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee,Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York and State of New York,
on the 14th day of February, 1995.
CITIBANK, N.A.
By /s/ R.T. Kirchner
--------------------
R.T. Kirchner
Vice President
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
CITIBANK, N. A.
of New York in the State of New York, at the close of business on September 30,
1994, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............ $ 6,482,000
Interest-bearing balances..................................... 7,724,000
Securities:
Held-to-maturity securities................................... 3,836,000
Available-for-sale securities................................. 12,275,000
Federal funds sold and securities
purchased under agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold............................................. 1,954,000
Securities purchased under agreements to resell................ 1,613,000
Loans and lease financing receivables:
Loans and leases, net of unearned income..........$124,721,000
LESS: Allowance for loan and lease losses......... 3,871,000
------------
Loans and leases, net of unearned income and allowance........ 120,850,000
Assets held in trading accounts................................. 39,855,000
Premises and fixed assets (including capitalized leases)........ 3,173,000
Other real estate owned......................................... 2,689,000
Investments in unconsolidated subsidiaries and associated
companies...................................................... 1,010,000
Customers' liability to this bank on acceptances outstanding.... 1,404,000
Intangible assets............................................... 14,000
Other assets.................................................... 7,463,000
------------
TOTAL ASSETS.................................................... $210,342,000
============
LIABILITIES
Deposits:
In domestic offices........................................... $ 32,505,000
Noninterest-bearing..............................$11,333,000
Interest-bearing................................. 21,172,000
-----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs. 105,210,000
Noninterest-bearing.............................. 7,568,000
Interest-bearing................................. 97,642,000
-----------
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased....................................... 5,588,000
Securities sold under agreements to repurchase................ 1,390,000
Trading liabilities............................................. 25,140,000
Other borrowed money:
With original maturity of one year or less.................... 8,448,000
With original maturity of more than one year.................. 3,751,000
Mortgage indebtedness and obligations under capitalized leases.. 61,000
Bank's liability on acceptances executed and outstanding........ 1,425,000
Notes and debentures subordinated to deposits................... 5,200,000
Other liabilities............................................... 8,813,000
------------
TOTAL LIABILITIES............................................... $197,531,000
------------
EQUITY CAPITAL
Common stock.................................................... $ 751,000
Surplus......................................................... 6,006,000
Undivided profits and capital reserves.......................... 6,402,000
Net unrealized holding gains (losses) on available-for-sale
securities..................................................... 228,000
Cumulative foreign currency translation adjustments............. (576,000)
------------
TOTAL EQUITY CAPITAL............................................ $ 12,811,000
------------
TOTAL LIABILITIES AND EQUITY CAPITAL............................ $210,342,000
============
</TABLE>
<PAGE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
CHRISTOPHER J. STEFFEN )
WILLIAM R. RHODES ) Directors
PAUL J. COLLINS )
