<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 18, 1997
REGISTRATION NO.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AIR PRODUCTS AND CHEMICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction
of incorporation or organization)
23-1274455
(I.R.S. Employer
Identification No.)
7201 HAMILTON BOULEVARD
ALLENTOWN, PENNSYLVANIA 18195-1501
(610) 481-4911
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JAMES H. AGGER, ESQ.
Senior Vice President, General Counsel and Secretary
AIR PRODUCTS AND CHEMICALS, INC.
7201 HAMILTON BOULEVARD
ALLENTOWN, PENNSYLVANIA 18195-1501
(610) 481-4911
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
COPY TO:
D. COLLIER KIRKHAM, ESQ.
CRAVATH, SWAINE & MOORE
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
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, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
- ------------------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ------------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
------------------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Proposed maximum
Title of each class Amount maximum aggregate Amount of
of securities to be aggregate price offering registration
to be registered registered(1) per unit(2) price(2) fee(2)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities............................. $300,000,000 100% $300,000,000 $90,909
</TABLE>
================================================================================
(1) Any offering of Debt Securities denominated in any foreign currencies or
foreign currency units will be treated as the equivalent in U.S. dollars
based on the exchange rate applicable to the purchase of such Debt
Securities of the Registrant.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
The Registration Statement shall hereafter become effective in accordance
with the provisions of Section 8(a) of the Securities Act of 1933.
================================================================================
<PAGE> 2
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 AUGUST 18, 1997
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED [ ], 1997)
$300,000,000
AIR PRODUCTS AND CHEMICALS, INC.
MEDIUM-TERM NOTES, SERIES G
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
------------------------
Air Products and Chemicals, Inc. (the "Company"), may offer from time to
time up to $300,000,000 aggregate principal amount or its equivalent in foreign
currencies or currency units of its Medium-Term Notes, Series G, Due from 9
Months to 30 Years from Date of Issue (the "Notes"). Each Note will mature on a
Business Day (as defined herein) from 9 months to 30 years from the date of
issue, as selected by the initial purchaser and agreed to by the Company. The
Notes being offered hereby may be denominated in U.S. dollars or in such foreign
currencies or currency units (the "Specified Currency") as may be designated by
the Company in a pricing supplement (the "Pricing Supplement") to this
Prospectus Supplement at the time of the offering. See "Foreign Currency and
Other Risks."
The Notes may be issued as Fixed Rate Notes, which will bear interest at a
fixed rate (which may be zero in the case of certain Notes issued at a price
representing a discount from the principal amount payable at maturity), or as
Floating Rate Notes, which will bear interest at a rate or rates determined by
reference to a Base Rate, as adjusted by the Spread or Spread Multiplier, if
any, each as set forth in the applicable Pricing Supplement, or as Currency
Indexed Notes, the principal amount of which payable at maturity or upon earlier
redemption or repayment, and/or the interest payable on each interest payment
date and at maturity, is determined by the difference in the rate of exchange
between the Specified Currency and another currency or currency unit on certain
specified dates, or as Commodity Indexed Notes, the principal amount of which
payable at maturity or upon earlier redemption or repayment, and/or the interest
payable on each interest payment date and at maturity, is determined by the
difference in the price of a specified commodity on certain specified dates. See
"Description of Notes."
Each Note will be issued in fully registered form and will be represented by
either a global certificate (a "Book-Entry Note") registered in the name of a
nominee of The Depository Trust Company ("DTC") or another depositary (DTC or
such other depositary as is specified in the applicable Pricing Supplement is
herein referred to as the "Depositary"), or a certificate issued in definitive
form (a "Certificated Note"), as set forth in the applicable Pricing Supplement.
Interests in Book-Entry Notes will be shown on, and transfers thereof will be
effected only through, records maintained by the Depositary and its
participants. See "Description of Notes -- Book-Entry System." The Notes will be
issued in denominations of $100,000 and any larger amount that is an integral
multiple of $1,000, except as otherwise specified in the applicable Pricing
Supplement, or, in the case of Notes denominated in a Specified Currency other
than U.S. dollars, in the denominations described under "Special Provisions
Relating to Multi-Currency Notes -- General."
The interest rate or interest rate formula, issue price, Specified Currency,
stated maturity and redemption and repayment provisions, if any, for each Note,
whether such Note is a Fixed Rate Note or a Floating Rate Note, whether such
Note is a Currency Indexed Note or Commodity Indexed Note and whether such Note
is a Book-Entry Note or a Certificated Note will be established by the Company
at the date of issuance of such Note and will be set forth in the applicable
Pricing Supplement to this Prospectus Supplement. Interest rates and interest
rate formulae are subject to change by the Company, but no such change will
affect the interest rate on, or interest rate formula for, any Note theretofore
issued or which the Company has agreed to sell. See "Description of Notes."
Unless otherwise indicated in the applicable Pricing Supplement, interest on
Fixed Rate Notes will be payable on each June 15 and December 15 and at
maturity. Interest on Floating Rate Notes will be payable on the dates indicated
herein and in the applicable Pricing Supplement. See "Description of
Notes -- Interest Rates."
FOR DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION
WITH AN INVESTMENT IN THE NOTES OFFERED HEREBY, SEE "RISK FACTORS" ON PAGE S-2.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED 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
PROSPECTUS SUPPLEMENT, ANY PRICING SUPPLEMENT HERETO OR THE
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<TABLE>
<S> <C> <C> <C>
====================================================================================================================
PRICE TO AGENTS' PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) COMPANY(2)(3)
- --------------------------------------------------------------------------------------------------------------------
Per Note........................................ 100% .125% - .750% 99.250% - 99.875%
- --------------------------------------------------------------------------------------------------------------------
$375,000 - $297,750,000 -
Total (4)....................................... $300,000,000 $2,250,000 $299,625,000
====================================================================================================================
</TABLE>
(1) Unless otherwise indicated in the Pricing Supplement relating thereto, each
Note will be issued at 100% of its principal amount.
(2) The Company will pay a commission to Lehman Brothers, Lehman Brothers Inc.
and Goldman, Sachs & Co. (each an Agent and collectively the "Agents"), in
the form of a discount, ranging from .125% to .750% of the principal amount
of a Note, depending upon its maturity, sold through such Agent. Any Agent,
acting as principal, may also purchase Notes at a discount for resale to one
or more investors or one or more broker-dealers (acting as principal for
purposes of resale) at varying prices related to prevailing market prices at
the time of resale, as determined by such Agent, or, if so agreed, at a
fixed public offering price. Unless otherwise specified in the applicable
Pricing Supplement, any Note sold to an Agent as principal will 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. The Company has agreed to indemnify each Agent
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended. In the case of Notes sold directly to purchasers by the
Company, no commission will be paid.
(3) Before deducting expenses payable by the Company estimated at $400,000.
(4) Or the equivalent thereof in other currencies or currency units.
------------------------
The Notes are being offered on a continuous basis by the Company through the
Agents, each of which has agreed to use its reasonable best efforts to solicit
purchases of the Notes. The Company may sell Notes to any Agent, as principal,
for resale to one or more investors or to one or more broker-dealers (acting as
principal for purposes of resale) at varying prices related to prevailing market
prices at the time of resale, as determined by such Agent, or, if so agreed, at
a fixed public offering price. The Company reserves the right to sell Notes
directly to purchasers on its own behalf or to use additional agents to solicit
offers to purchase Notes. The Notes will not be listed on any securities
exchange, and there can be no assurance that the Notes will be sold or that
there will be a secondary market for the Notes. The Company reserves the right
to withdraw, cancel or modify the offer made hereby without notice. The Company
or the Agent that solicits any offer to purchase Notes may reject such offer in
whole or in part. See "Plan of Distribution."
------------------------
LEHMAN BROTHERS GOLDMAN, SACHS & CO.
, 1997
<PAGE> 3
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES, INCLUDING
OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH SECURITIES,
AND THE IMPOSITION OF A PENALTY BID, IN CONNECTION WITH THE OFFERING. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION".
This Prospectus Supplement contains brief summaries of certain documents
incorporated by reference in the Prospectus. Such summaries are qualified in
their entirety by the detailed information contained in the incorporated
documents.
------------------------
RISK FACTORS
EXCHANGE RATES
An investment in Multi-Currency Notes (as defined below under "Special
Provisions Relating to Multi-Currency Notes -- General") entails significant
risks that are not associated with a similar investment in a security
denominated in U.S. dollars. Similarly, an investment in a Currency Indexed Note
(as defined below under "Description of Notes -- Currency Indexed
Notes -- General") entails significant risks that are not associated with a
similar investment in non-Currency Indexed Notes. Such risks include, without
limitation, the possibility of significant changes in rates of exchange between
the U.S. dollar and the Specified Currency (and, in the case of Currency Indexed
Notes, the rate of exchange between the Specified Currency and the Indexed
Currency for such Currency Indexed Note) and the possibility of the imposition
or modification of foreign exchange controls by either the United States or
foreign governments. Such risks generally depend on economic, financial,
political and military events over which the Company has no control. To the
extent the rate is not fixed by sovereign governments, the exchange rate between
the U.S. dollar and foreign currencies or currency units is at any moment a
result of the supply of and demand for such currencies or currency units, and
changes in the rate result over time from the interaction of many factors, among
which are rates of inflation, interest rate levels, balances of payments and the
extent of governmental surpluses or deficits in the countries of the relevant
currencies. These factors are in turn sensitive to the monetary, fiscal and
trade policies pursued by such governments and those of other countries
important to international trade and finance. In recent years, rates of exchange
between the U.S. dollar and certain foreign currencies have been highly volatile
and such volatility may be expected in the future. Fluctuations in any
particular exchange rate that have occurred in the past are not necessarily
indicative, however, of fluctuations in the rate that may occur during the term
of any Multi-Currency Note or Currency Indexed Note. Depreciation of the
Specified Currency applicable to a Multi-Currency Note against the U.S. dollar
would result in a decrease in the U.S. dollar-equivalent yield of such Note, in
the U.S. dollar-equivalent value of the principal repayable at maturity of such
Note and, generally, in the U.S. dollar-equivalent market value of such Note.
Similarly, depreciation of the Specified Currency with respect to a Currency
Indexed Note against the applicable Indexed Currency would result in the
principal amount payable with respect to such Currency Indexed Note at the
Maturity Date (as defined below under "Description of Notes -- General") thereof
being less than the Face Amount (as defined below under "Special Provisions
Relating to Multi-Currency Notes -- General") of such Currency Indexed Note and
in the interest payable, if any, with respect to such Note reflecting an
interest rate less than the Base Interest Rate (as defined below under "Special
Provisions Relating to Multi-Currency Notes -- General") of such Note, which, in
turn, would decrease the effective yield of such Currency Indexed Note below its
stated interest rate and could also result in a loss to the investor. See
"Description of Notes -- Currency Indexed Notes."
Foreign exchange rates can either be fixed by sovereign governments or
float. Exchange rates of most economically developed nations are permitted to
fluctuate in value relative to the U.S. dollar. National governments, however,
rarely voluntarily allow their currencies to float freely in response to
economic forces. Sovereign governments in fact use a variety of techniques, such
as intervention by a country's central bank or imposition of regulatory controls
or taxes, to affect the exchange rate of their
S-2
<PAGE> 4
currencies. Exchange rates of certain governments may from time to time be fixed
by the central bank or other agencies at a rate above or below that which might
exist if the exchange rate were allowed to float in response to changes in
supply and demand. Governments may also issue a new currency to replace an
existing currency or alter the exchange rate or relative exchange
characteristics by devaluation or revaluation of a currency. Thus, a special
risk in purchasing Notes that are denominated in or indexed to a foreign
currency or currency unit is that their U.S. dollar equivalent yields could be
affected by governmental actions which could change or interfere with
theretofore freely determined currency valuation, fluctuations in response to
other market forces and the movement of currencies across borders. There will be
no adjustment or change in the terms of the Multi-Currency Notes or Currency
Indexed Notes in the event that exchange rates should become fixed, or in the
event of any devaluation or revaluation or imposition of exchange or other
regulatory controls or taxes, or in the event of other developments, affecting
the U.S. dollar or any applicable currency or currency unit.
PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL
ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN MULTI-CURRENCY NOTES OR
CURRENCY INDEXED NOTES. SUCH NOTES ARE NOT AN APPROPRIATE INVESTMENT FOR
INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS.
Unless otherwise indicated in the applicable Pricing Supplement, Notes
denominated in a Specified Currency other than the U.S. dollar or the ECU (as
defined below under "Description of Notes -- General") will not be sold in, or
to residents of, the country of the Specified Currency in which such Notes are
denominated. The information set forth in the Prospectus, this Prospectus
Supplement and the applicable Pricing Supplement is directed to prospective
purchasers who are United States residents and the Company disclaims any
responsibility to advise prospective purchasers who are residents of countries
other than the United States with respect to any matters that may affect the
purchase, holding or receipt of payments of principal of and interest on Notes.
Such persons should consult their own legal advisors with regard to such
matters.
GOVERNING LAW AND JUDGMENTS
Notes will be governed by and construed in accordance with the laws of the
State of New York. Courts in the United States have not customarily rendered
judgments for money damages denominated in any currency other than the U.S.
dollar. The Judiciary Law of the State of New York provides, however, that a
judgment or decree in an action based upon an obligation denominated in a
currency other than U.S. dollars will be rendered in the foreign currency of the
underlying obligation and converted into U.S. dollars at the rate of exchange
prevailing on the date of the entry of the judgment or decree.
EXCHANGE CONTROLS, ETC.
Governments have imposed from time to time exchange controls and may in the
future impose or revise exchange controls at or prior to a Note's maturity. Even
if there were no exchange controls, it is possible that the Specified Currency
for any particular Multi-Currency Note would not be available at an Interest
Payment Date or at such Note's maturity. In that event, the Company will repay
in U.S. dollars on the basis of the Exchange Rate (as defined below under
"Special Provisions Relating to Multi-Currency Notes -- Payment Currency") on
the second day prior to such payment, or if such Exchange Rate is not then
available, on the basis of the most recently available Exchange Rate. See
"Special Provisions Relating to Multi-Currency Notes -- Payment Currency." No
adjustment or change in the terms of the Multi-Currency Notes or Currency
Indexed Notes in the event of any controls or unavailability will be made.
A Pricing Supplement with respect to the applicable Specified Currency
(which includes information with respect to applicable current foreign exchange
controls, if any) is a part of the Prospectus and this Prospectus Supplement.
The Pricing Supplement relating to each Multi-Currency
S-3
<PAGE> 5
Note or Currency Indexed Note will contain information concerning relevant
historical exchange rates for the applicable Specified Currency and/or Indexed
Currency, as the case may be, a description of such currency or currencies and
any exchange controls affecting such currency or currencies. The information
concerning exchange rates and exchange rate controls, if any, is furnished as a
matter of information only and should not be regarded as indicative of the range
of or trends in fluctuations in currency exchange rates or an imposition of
exchange rate controls that may occur in the future. The Company disclaims any
responsibility to advise prospective purchasers of changes in such exchange
rates or exchange controls after the date of any such Pricing Supplement.
RISKS OF INDEXED NOTES
AN INVESTMENT IN CURRENCY INDEXED NOTES AND COMMODITY INDEXED NOTES
(COLLECTIVELY, "INDEXED NOTES") INDEXED, AS TO PRINCIPAL OR INTEREST OR BOTH, TO
ONE OR MORE VALUES OF CURRENCIES (INCLUDING EXCHANGE RATES BETWEEN CURRENCIES),
COMMODITIES OR INTEREST RATE OR OTHER INDICES (COLLECTIVELY, "INDICES" OR
"INDEX") ENTAILS SIGNIFICANT RISKS THAT ARE NOT ASSOCIATED WITH SIMILAR
INVESTMENTS IN A CONVENTIONAL FIXED-RATE DEBT SECURITY. IF THE INTEREST RATE OF
SUCH AN INDEXED NOTE IS SO INDEXED, IT MAY RESULT IN AN INTEREST RATE THAT IS
LESS THAN THAT PAYABLE ON A CONVENTIONAL FIXED-RATE DEBT SECURITY ISSUED AT THE
SAME TIME, INCLUDING THE POSSIBILITY THAT NO INTEREST WILL BE PAID, AND, IF THE
PRINCIPAL AMOUNT OF SUCH AN INDEXED NOTE IS SO INDEXED, THE PRINCIPAL AMOUNT
PAYABLE AT MATURITY MAY BE LESS THAN THE ORIGINAL PURCHASE PRICE OF SUCH INDEXED
NOTE IF ALLOWED PURSUANT TO THE TERMS OF SUCH INDEXED NOTE, INCLUDING THE
POSSIBILITY THAT NO PRINCIPAL WILL BE PAID. THE SECONDARY MARKET FOR SUCH
INDEXED NOTES WILL BE AFFECTED BY A NUMBER OF FACTORS, INDEPENDENT OF THE
CREDITWORTHINESS OF THE COMPANY AND THE VALUE OF THE APPLICABLE CURRENCY,
COMMODITY OR INDEX, INCLUDING THE VOLATILITY OF THE APPLICABLE CURRENCY,
COMMODITY OR INDEX, THE TIME REMAINING TO THE MATURITY OF SUCH INDEXED NOTES,
THE AMOUNT OUTSTANDING OF SUCH INDEXED NOTES AND MARKET INTEREST RATES. THE
VALUE OF THE APPLICABLE CURRENCY, COMMODITY OR INDEX DEPENDS ON A NUMBER OF
INTER-RELATED FACTORS, INCLUDING ECONOMIC, FINANCIAL AND POLITICAL EVENTS, OVER
WHICH THE COMPANY HAS NO CONTROL. ADDITIONALLY, IF THE FORMULA USED TO DETERMINE
THE PRINCIPAL AMOUNT OR INTEREST PAYABLE WITH RESPECT TO SUCH INDEXED NOTES
CONTAINS A MULTIPLE OR LEVERAGE FACTOR, THE EFFECT OF ANY CHANGE IN THE
APPLICABLE CURRENCY, COMMODITY OR INDEX WILL BE INCREASED.
THE HISTORICAL EXPERIENCE OF THE RELEVANT CURRENCIES, COMMODITIES OR
INDICES SHOULD NOT BE TAKEN AS AN INDICATION OF FUTURE PERFORMANCE OF SUCH
CURRENCIES, COMMODITIES OR INDICES DURING THE TERM OF ANY INDEXED NOTE. THE
CREDIT RATINGS ASSIGNED TO THE COMPANY'S MEDIUM-TERM NOTE PROGRAM ARE A
REFLECTION OF THE COMPANY'S CREDIT STATUS, AND, IN NO WAY, ARE A REFLECTION OF
THE POTENTIAL IMPACT OF THE FACTORS DISCUSSED ABOVE, OR ANY OTHER FACTORS, ON
THE MARKET VALUE OF INDEXED NOTES. ACCORDINGLY, PROSPECTIVE INVESTORS SHOULD
CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN
INVESTMENT IN SUCH INDEXED NOTES AND THE SUITABILITY OF SUCH INDEXED NOTES IN
LIGHT OF THEIR PARTICULAR CIRCUMSTANCES.
DESCRIPTION OF NOTES
The following description of the particular terms of the Notes offered
hereby supplements the description of the general terms of the Securities (as
such term is used in the accompanying
S-4
<PAGE> 6
Prospectus) under the heading "Description of Securities" in the accompanying
Prospectus, to which description reference is hereby made. Capitalized terms not
defined herein or in the Prospectus have the meanings specified in the Indenture
and/or the Notes.
GENERAL
The Notes constitute a single series for purposes of the Indenture and are
limited to an aggregate principal amount of $300,000,000 or its equivalent at
the time of issuance in foreign currencies or currency units. The foregoing
limit may be increased by the Company if in the future it determines that it may
wish to sell additional Notes. The Company may from time to time sell additional
series of Securities, including additional series of medium-term notes. The
aggregate principal amount of unsecured, unsubordinated indebtedness of the
Company and its consolidated subsidiaries at June 30, 1997, was $2,525,207,000.
The Notes will be offered on a continuous basis, and each Note will mature
(the "Maturity Date") on a Business Day from nine months to thirty years from
its date of issuance, as selected by the initial purchaser and agreed to by the
Company. Each Note will be denominated in United States dollars ("$," "dollars"
or "U.S. dollars") or the Specified Currency, as specified in the applicable
Pricing Supplement. Each Note may bear interest at either (i) a fixed rate
(which may be zero if issued at a price representing a discount from the
principal amount payable at maturity) or (ii) a floating rate determined by
reference to the Commercial Paper Rate, LIBOR, the Treasury Rate or such other
interest rate or formula (the "Base Rate") specified in the applicable Pricing
Supplement, which may be adjusted by a Spread and/or a Spread Multiplier (each
as defined below). Each Floating Rate Note will mature on an Interest Payment
Date (as defined below) for such Note.
The Notes may be issued as Currency Indexed Notes, the principal amount of
which payable at maturity or upon earlier redemption or repayment, and/or the
interest payable on each Interest Payment Date and at the Maturity Date, will be
determined by the difference in the rate of exchange between the Specified
Currency and another currency or currency unit set forth in the applicable
Pricing Supplement on certain specified dates, or as Commodity Indexed Notes,
the principal amount of which payable at maturity or upon earlier redemption or
repayment, and/or the interest payable on each Interest Payment Date and at the
Maturity Date, will be determined by the difference in the price of a specified
commodity on certain specified dates. See "Currency Indexed Notes" and
"Commodity Indexed Notes" below.
Each Note will be issued initially as either a Book-Entry Note or a
Certificated Note in fully registered form without coupons. Except as set forth
under "Book-Entry System" below, Book-Entry Notes will not be issuable in
certificated form.
The Notes will be issued in denominations of $100,000 and any larger amount
that is an integral multiple of $1,000 for Notes denominated in U.S. dollars,
except as otherwise specified in the applicable Pricing Supplement, and for
Notes denominated in foreign currencies or currency units, the denominations
described below under "Special Provisions Relating to Multi-Currency Notes." The
Notes will constitute unsecured, unsubordinated indebtedness of the Company and
will rank pari passu with all other unsecured, unsubordinated indebtedness of
the Company.
The Notes will not be subject to any sinking fund and will not be
redeemable at the option of the Company or repayable at the option of the
holders thereof prior to their stated maturity, except as may otherwise be
provided in the applicable Pricing Supplement. The Company may discharge its
indebtedness and its obligations or certain of its obligations under the
Indenture with respect to the Notes as described under "Description of
Securities -- Defeasance of the Indenture and Securities" in the accompanying
Prospectus.
The Pricing Supplement relating to a Note will describe the following terms
as applicable: (1) the Specified Currency of such Note; (2) if other than 100%,
the price (expressed as a percentage of the aggregate principal amount thereof)
at which such Note will be issued; (3) the date on which such
S-5
<PAGE> 7
Note will be issued; (4) the Maturity Date; (5) whether such Note may be
redeemed or repaid prior to maturity, and if so, the provisions relating to such
redemption or repayment; (6) whether such Note is a Fixed Rate Note or a
Floating Rate Note; (7) if such Note is a Fixed Rate Note, the rate per annum at
which such Note will bear interest; (8) if such Note is a Floating Rate Note,
the Base Rate, the Initial Interest Rate, the Interest Payment Dates, the Reset
Period, the Index Maturity, the Maximum Interest Rate and the Minimum Interest
Rate, if any, and the Spread or Spread Multiplier, if any (all as defined
herein), and any other terms relating to the particular method of calculating
the interest rate or rates for such Note; (9) whether such Note is a Currency
Indexed Note or a Commodity Indexed Note; (10) if such Note is a Currency
Indexed Note, the Specified Currency, the Indexed Currency, the Face Amount, the
Base Exchange Rate, the Base Interest Rate, if any, the Determination Agent and
the Reference Dealers (all as defined herein) relating to such Currency Indexed
Note and certain other information relating to Currency Indexed Notes; (11) if
such Note is a Commodity Indexed Note, the methods for determining the principal
amount payable at maturity and/or the interest, if any, payable on each Interest
Payment Date and at maturity and other information relating to Commodity Indexed
Notes; (12) whether such Note will be issued initially as a Book-Entry Note or a
Certificated Note; and (13) any other terms of such Note not inconsistent with
the provisions of the Indenture.
Notes may be issued in the form of Discount Notes (as defined below under
"U.S. Federal Income Tax Considerations -- U.S. Holders -- Original Issue
Discount"), including certain Notes offered at a discount from the principal
amount thereof due at the stated maturity of such Notes. There may or may not be
any periodic payments of interest on Discount Notes. In the event of an
acceleration of the maturity of any Discount Note, the amount payable to the
holder of such Discount Note upon such acceleration will be determined in
accordance with the applicable Pricing Supplement and the terms of such
security, but may be an amount less than the amount payable at the maturity of
the principal of such Discount Note. For federal income tax considerations with
respect to Discount Notes, see "U.S. Federal Income Tax Considerations -- U.S.
Holders -- Original Issue Discount" herein.
The Notes may be presented for registration of transfer or exchange at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York.
References to the "Securities" in the Prospectus include the Notes. For a
further description of the Trustee and the rights attaching to different series
of Securities under the Indenture, including the covenants, modification
provisions and events of default relating to the Notes, see "Description of
Securities" in the Prospectus. Unless otherwise specified in the applicable
Pricing Supplement, each Note will have the terms described herein.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in New York, New York or (i) with
respect to Notes denominated in a Specified Currency other than U.S. dollars,
the principal financial center of the country of the Specified Currency as
specified in the applicable Pricing Supplement, (ii) with respect to Notes
denominated in European Currency Units ("ECUs"), Brussels, Belgium or (iii) with
respect to LIBOR Notes, London, England. "London Banking Day" means any day on
which dealings in deposits in U.S. dollars are transacted in the London
interbank market.
PAYMENT OF PRINCIPAL AND INTEREST
Payments of principal of and interest, if any, on all Notes will be made in
the applicable Specified Currency, provided that holders of certain Notes
denominated in a Specified Currency other than U.S. dollars may elect to have
such payments converted to U.S. dollars. See "Special Provisions Relating to
Multi-Currency Notes -- Payment of Principal and Interest." Unless otherwise
specified in the applicable Pricing Supplement, interest on Certificated Notes
(other than interest paid on the Maturity Date or upon earlier redemption or
repayment) will be paid by mailing a check (from an account at a bank outside of
the United States if such check is payable in a Specified Currency other than
U.S. dollars) to the holders at the address of each holder appearing on the
register for the Notes
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<PAGE> 8
on the applicable Record Date (as defined below). At the option of the Company
or the holder of Certificated Notes in an aggregate principal amount exceeding
$5.0 million or the equivalent thereof in a Specified Currency, interest on
Certificated Notes (other than interest paid on the Maturity Date or upon
earlier redemption or repayment) will be paid by wire transfer to an account
maintained by such holder with a bank located in the United States for payments
in U.S. dollars or the country of the Specified Currency for other payments
(which shall be Belgium in the case of ECUs), provided that any such holder
selecting such option shall have designated such account by written notice to
the Trustee no later than the Record Date preceding the applicable Interest
Payment Date. In the case of a Note issued between a Record Date and the initial
Interest Payment Date relating to such Record Date, interest for the period
ending on such initial Interest Payment Date shall be paid to the person to whom
such Note shall have been originally issued. Payments of principal and interest
on Certificated Notes will be made, if at maturity or upon earlier redemption,
then on the Maturity Date or the date fixed for redemption, as applicable, upon
surrender of the Certificated Notes at the Corporate Trust Office of the Trustee
in The City of New York, and if upon repayment prior to maturity, then on the
applicable date for repayment (the "Repayment Date"), provided that the holder
shall have complied with the requirements for repayment set forth herein and in
the Certificated Notes. See "Repayment" below. All such payments at maturity or
upon any earlier redemption or repayment shall be made in immediately available
funds, provided that the Certificated Notes to be paid are presented to the
Corporate Trust Office of the Trustee in The City of New York in time for the
Trustee to make such payments in such funds in accordance with its normal
procedures. Any such payments made in a Specified Currency other than U.S.
dollars shall be made by wire transfer to an account maintained by the holder,
as designated by the holder by written notice to the Trustee at least 15
calendar days prior to the date fixed for payment, with a bank located in the
country of the Specified Currency (which shall be Belgium in the case of ECUs).
Beneficial owners of Book-Entry Notes will be paid in accordance with the
Depositary's and its participants' procedures in effect from time to time as
described under "Book-Entry System" below.
Any payment of interest or principal with respect to a Fixed Rate Note
required to be made on an Interest Payment Date, at the Maturity Date, on a date
fixed for redemption or on a Repayment Date, and any payment of interest or
principal with respect to a Floating Rate Note required to be made at the
Maturity Date, on a date fixed for redemption or on a Repayment Date, which is
not a Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, at the Maturity Date, on the date fixed for redemption or
on the Repayment Date, as the case may be, and no additional interest shall
accrue as a result of such delayed payment. The Company will pay any
administrative costs imposed by banks in connection with making payments by wire
transfer, but any tax, assessment or governmental charge imposed upon payments
will be borne by the holders of the Notes in respect of which payments are made.
INTEREST RATES
Interest rates, Base Rates, Spreads and Spread Multipliers are subject to
change by the Company from time to time, but no such change will affect any Note
theretofore issued or which the Company has agreed to sell. Unless otherwise
indicated in the applicable Pricing Supplement, the Interest Payment Dates and
the Record Dates for each Fixed Rate Note shall be as described below under
"Fixed Rate Notes." The Interest Payment Dates for each Floating Rate Note shall
be as indicated in the applicable Pricing Supplement, and unless otherwise
specified in the applicable Pricing Supplement, the Record Dates for a Floating
Rate Note will be the fifteenth day (whether or not a Business Day) next
preceding each Interest Payment Date.
FIXED RATE NOTES
Each Fixed Rate Note will bear interest from its date of issue at the
annual rate stated on the face thereof and in the applicable Pricing Supplement
until the principal amount thereof is paid on the
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<PAGE> 9
Maturity Date, or upon earlier redemption or repayment, if applicable. Unless
otherwise indicated in the applicable Pricing Supplement (and except as provided
above in "Payment of Principal and Interest"), the Interest Payment Dates for
Fixed Rate Notes will be June 15 and December 15 of each year, and the Record
Dates will be June 1 and December 1 of each year. Interest on Fixed Rate Notes
will be computed and paid on the basis of a 360-day year of twelve 30-day
months.
FLOATING RATE NOTES
Each Floating Rate Note will bear interest from its date of issue to the
first Interest Reset Date (as defined below) for such Note at the Initial
Interest Rate (the "Initial Interest Rate") set forth on the face thereof and in
the applicable Pricing Supplement. Thereafter, the interest rate on each
Floating Rate Note for each Reset Period (as defined below) will be equal to the
interest rate calculated by reference to the Base Rate specified on the face
thereof and in the applicable Pricing Supplement plus or minus a fixed
percentage per annum (the "Spread"), if any, or times a fixed factor (the
"Spread Multiplier"), if any, in each case as specified in the applicable
Pricing Supplement, until the principal thereof is paid on the Maturity Date, or
upon earlier redemption or repayment, if applicable. The Base Rate for a
Floating Rate Note will be (a) the Commercial Paper Rate, in which case such
Note shall be a "Commercial Paper Rate Note," (b) LIBOR, in which case such Note
shall be a "LIBOR Note," (c) the Treasury Rate, in which case such Note shall be
a "Treasury Rate Note" or (d) such other Base Rate, in each case as is specified
on the face of the Floating Rate Note and in the applicable Pricing Supplement.
The Company will appoint, and enter into an agreement with, an agent (a
"Calculation Agent") to calculate interest rates on Floating Rate Notes. Unless
otherwise provided in a Pricing Supplement, the Calculation Agent for each
Floating Rate Note will be the Trustee.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semiannually or annually (such type of 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 thereof and in the
applicable Pricing Supplement. Unless otherwise specified in the applicable
Pricing Supplement, the Interest Reset Dates will be: in the case of Floating
Rate Notes that reset daily, each Business Day; in the case of Floating Rate
Notes (other than Treasury Rate Notes) that reset weekly, Wednesday of each
week; in the case of Treasury Rate Notes that reset weekly, Tuesday of each
week; in the case of Floating Rate Notes that reset monthly, the third Wednesday
of each month; in the case of Floating Rate Notes that reset quarterly, the
third Wednesday of each March, June, September and December; in the case of
Floating Rate Notes that reset semiannually, the third Wednesday of each of two
months of each year specified on the face thereof and in the applicable Pricing
Supplement; and, in the case of Floating Rate Notes that reset annually, the
third Wednesday of one month of each year specified on the face thereof and in
the applicable Pricing Supplement. If an Interest Reset Date for a Floating Rate
Note would otherwise be a day that is not a Business Day, the Interest Reset
Date for such Floating Rate Note shall be postponed to the next day that is a
Business Day, except that, in the case of a LIBOR Note, if such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day.
The interest rate for each Reset Period will be the rate determined by the
Calculation Agent by reference to an interest determination date pertaining to
such Reset Period. The interest determination date pertaining to a Reset Period
for a Commercial Paper Rate Note (the "Commercial Paper Interest Determination
Date") will be the Business Day prior to the Interest Reset Date that commences
such Reset Period. The interest determination date pertaining to a Reset Period
for a LIBOR Note (the "LIBOR Interest Determination Date") will be the second
London Banking Day prior to the Interest Reset Date that commences such Reset
Period. The interest determination date pertaining to a Reset Period for a
Treasury Rate Note (the "Treasury Interest Determination Date") will be the day
of the week in which the Interest Reset Date that commences such Reset Period
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
S-8
<PAGE> 10
the following Tuesday, except that such auction may be held on the preceding
Friday. If, as the 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.
Except as provided below, interest on Floating Rate Notes will be payable,
in the case of Floating Rate Notes that reset daily, weekly or monthly, on the
third Wednesday of each month as specified on the face thereof and in the
applicable Pricing Supplement; in the case of Floating Rate Notes that reset
quarterly, on the third Wednesday of March, June, September and December of each
year; in the case of Floating Rate Notes that reset semiannually, on the third
Wednesday of each of two months of each year specified on the face thereof and
in the applicable Pricing Supplement; and, in the case of Floating Rate Notes
that reset annually, on the third Wednesday of one month of each year specified
on the face thereof and in the applicable Pricing Supplement (each such day
being an "Interest Payment Date"). If an Interest Payment Date with respect to a
Floating Rate Note would otherwise fall on a day that is not a Business Day,
such Interest Payment Date will be the following day that is a Business Day,
except that, in the case of a LIBOR Note, if such Business Day falls in the next
calendar month, such Interest Payment Date will be the immediately preceding
Business Day.
Unless otherwise indicated in the applicable Pricing Supplement, each
payment of interest on a Floating Rate Note will include interest accrued to but
excluding the applicable Interest Payment Date. Accrued interest from the date
of issue or from the last date to which interest has been paid is calculated by
multiplying the face amount of a 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 (expressed as a decimal rounded upward, if necessary, to the
nearest one hundred-thousandth of a percentage point (e.g., 9.876541%, or
.09876541, being rounded to 9.87655%, or .0987655, respectively)) for each such
day is computed by dividing the interest rate (expressed as a decimal rounded
upward, if necessary, to the nearest one hundred-thousandth of a percentage
point) applicable to such date by 360, in the case of Commercial Paper Rate
Notes and LIBOR Notes, or by the actual number of days in the year, in the case
of Treasury Rate Notes.
The Calculation Agent will, upon the request of the holder of any Floating
Rate Note, provide the interest rate then in effect and, if determined, the
interest rate that will become effective on the next Interest Reset Date with
respect to such Note.
Any Floating Rate Note may also have either or both of the following: (i) a
maximum numerical interest rate limitation, or ceiling, on the rate of interest
that may accrue during any Reset Period (a "Maximum Interest Rate") and (ii) a
minimum numerical interest rate limitation, or floor, on the rate of interest
that may accrue during any Reset Period (a "Minimum Interest Rate"). The
interest rate on the Notes will in no event be higher than the maximum rate
permitted by New York law as the same may be modified by United States law of
general application. Under present New York law, the maximum rate of interest,
with certain exceptions, for any loan in an amount less than $250,000 is 16% per
annum on a simple interest basis and for any loan in an amount equal to or
greater than $250,000 but less than $2,500,000 is 25% per annum on a simple
interest basis. These limits do not apply to Notes in which $2,500,000 or more
has been invested.
"Index Maturity" is the particular maturity of the type of instrument or
obligation from which a Base Rate is calculated.
Commercial Paper Rate Notes
Each Commercial Paper Rate Note will bear interest for each Reset Period at
the interest rate (calculated with reference to the Commercial Paper Rate on the
Commercial Paper Interest Determination Date for such Reset Period and the
Spread or Spread Multiplier, if any) specified in such Note and in the
applicable Pricing Supplement.
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<PAGE> 11
Unless otherwise indicated in the applicable Pricing Supplement,
"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 that date for commercial paper having the Index Maturity designated
in the applicable Pricing Supplement placed on behalf of industrial issuers
whose corporate bonds are rated "AA," or the equivalent, from a nationally
recognized securities rating agency as such rate is made available by the
Federal Reserve Bank of New York for such date. In the event that such rate is
not made available by the Federal Reserve Bank of New York by 3:00 p.m., New
York City time, on such Commercial Paper Interest Determination Date, 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 (each as rounded upward, if necessary, to the nearest one
hundred-thousandth of a percentage point) of the offered rates for such
commercial paper quoted as of 11:00 a.m., New York City time, on such Commercial
Paper Interest Determination Date by three leading dealers of commercial paper
in The City of New York selected, after consultation with the Company, by the
Calculation Agent; 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 on such
Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
upwards, if necessary, to the nearest one hundred-thousandth of a percentage
point) calculated in accordance with the following formula:
<TABLE>
<S> <C>
D X 360
Money Market Yield = ------------- X 100
360 - (D X M)
</TABLE>
where "D" refers to the per annum rate for the commercial paper, quoted on a
bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
LIBOR Notes
Each LIBOR Note will bear interest for each Reset Period at the interest
rate (calculated with reference to LIBOR on the LIBOR Interest Determination
Date for such Reset Period and the Spread or Spread Multiplier, if any)
specified in such Note and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, LIBOR will
be determined by the Calculation Agent in accordance with the following
provisions:
(i) On each LIBOR Interest Determination Date, LIBOR will be, as
specified in the applicable Pricing Supplement, either: (a) the arithmetic
mean of the offered rates for deposits having the Index Maturity designated
in the applicable Pricing Supplement, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date,
that appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time,
on such LIBOR Interest Determination Date, if at least two such offered
rates appear on the Reuters Screen LIBO Page ("LIBOR Reuters"), or (b) the
rate for deposits having the Index Maturity designated in the applicable
Pricing Supplement, commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date, that appears
on Telerate Page 3750 as of 11:00 a.m., London time, on such LIBOR Interest
Determination Date ("LIBOR Telerate"). "Reuters Screen LIBO Page" means the
display designated as page "LIBO" on the Reuters Monitor Money Rates
Service (or such other page as may replace page LIBO on that service for
the purpose of displaying London interbank offered rates of major banks).
"Telerate Page 3750" means the display designated as page "3750" on the
Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the
British Bankers' Association for the purpose of displaying London interbank
offered rates for deposits). If neither LIBOR Reuters nor LIBOR Telerate is
specified in the applicable Pricing Supplement, LIBOR will be determined as
if LIBOR Telerate had been specified. If at least two
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<PAGE> 12
such offered rates appear on the Reuters Screen LIBO Page, the rate in
respect of such LIBOR Interest Determination Date will be the arithmetic
mean of such offered rates as determined by the Calculation Agent. If fewer
than two offered rates appear on the Reuters Screen LIBO Page, or if no
rate appears on Telerate Page 3750, as applicable, LIBOR in respect of such
LIBOR Interest Determination Date will be determined as if the parties had
specified the rate described in (ii) below.
(ii) On any LIBOR Interest Determination Date on which fewer than two
offered rates appear on the Reuters Screen LIBO Page, as specified in
(i)(a) above, or on which no rate appears on Telerate Page 3750, as
specified in (i)(b) above, as applicable, LIBOR will be determined on the
basis of the rates at which deposits having the Index Maturity designated
in the applicable Pricing Supplement are offered at approximately 11:00
a.m., London time, on such LIBOR Interest Determination Date by four major
banks in the London interbank market (the "Reference Banks") selected,
after consultation with the Company, by the Calculation Agent to prime
banks in the London interbank market having the Index Maturity designated
in the applicable Pricing Supplement, commencing on the second London
Banking Day immediately following such LIBOR Interest Determination Date
and in a principal amount equal to an amount of not less than $1,000,000
that is representative for a single transaction in such market at such
time. The Calculation Agent will request the principal London office of
each of such Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR in respect of such LIBOR
Interest Determination Date will be the arithmetic mean (rounded upward, if
necessary, to the nearest one hundred-thousandth of a percentage point) of
such quotations. If fewer than two quotations are provided, LIBOR in
respect of such LIBOR Interest Determination Date will be the arithmetic
mean (rounded upward, if necessary, to the nearest one hundred-thousandth
of a percentage point) of the rates quoted at approximately 11:00 a.m., New
York City time, on such LIBOR Interest Determination Date by three major
banks in The City of New York selected, after consultation with the
Company, by the Calculation Agent for loans in U.S. dollars to leading
European banks having the Index Maturity designated in the applicable
Pricing Supplement, commencing on the second London Banking Day immediately
following such LIBOR Interest Determination Date and in a principal amount
equal to an amount of not less than $1,000,000 that is representative for a
single transaction in such market at such time; provided, however, that if
the banks in The City of New York selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR with respect to
such LIBOR Interest Determination Date will be LIBOR in effect on such
LIBOR Interest Determination Date.
Treasury Rate Notes
Each Treasury Rate Note will bear interest for each Reset Period at the
interest rate (calculated with reference to the Treasury Rate on the Treasury
Interest Determination Date for such Reset Period and the Spread or Spread
Multiplier, if any) specified in such Note and in the applicable Pricing
Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, "Treasury
Rate" means, with respect to any Treasury Interest Determination Date, the
auction average rate (expressed as a bond equivalent, rounded upward, if
necessary, to the nearest one hundred-thousandth of a percentage point, on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
for the most recent auction of direct obligations of the United States
("Treasury bills") having the Index Maturity designated in the applicable
Pricing Supplement, as made available by the U.S. Department of the Treasury. In
the event that the results of the auction of Treasury bills having the Index
Maturity designated in the applicable Pricing Supplement are not made available
as provided above by 3:00 p.m., New York City time, on such Treasury Interest
Determination Date or no such auction is held in a particular week (or on the
preceding Friday, if applicable), then the Treasury Rate shall be calculated by
the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, rounded upward, if necessary, to the nearest one hundred-thousandth
of a percentage point, on the basis of a
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<PAGE> 13
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 3:30 p.m., New York
City time, on such Treasury Interest Determination Date, of three leading
primary U.S. government securities dealers selected, after consultation with the
Company, by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity designated in the applicable
Pricing Supplement; 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 on such Treasury Interest Determination Date.
CURRENCY INDEXED NOTES
General.
The Company may from time to time offer Notes ("Currency Indexed Notes"),
the principal amount of which payable at the Maturity Date, and/or the interest
payable on each Interest Payment Date and at the Maturity Date, is determined by
the difference in the rate of exchange between the Specified Currency and the
other currency or currency unit specified as the Indexed Currency (the "Indexed
Currency") in the applicable Pricing Supplement on certain specified dates.
Unless otherwise specified in the applicable Pricing Supplement, holders of
Currency Indexed Notes (i) will be entitled to receive a principal amount in
respect of such Currency Indexed Notes exceeding the amount designated as the
face amount in respect of such Currency Indexed Notes in the applicable Pricing
Supplement (the "Face Amount") if, at the Maturity Date, the rate at which the
Specified Currency can be exchanged for the Indexed Currency is greater than the
rate of such exchange designated as the Base Exchange Rate, expressed in units
of the Indexed Currency per one unit of the Specified Currency, in the
applicable Pricing Supplement (the "Base Exchange Rate"), and will be entitled
to receive a principal amount in respect of such Currency Indexed Notes less
than the Face Amount of such Currency Indexed Notes, if, at the Maturity Date,
the rate at which the Specified Currency can be exchanged for the Indexed
Currency is less than such Base Exchange Rate and/or (ii) will be entitled to
receive an amount of interest on each Interest Payment Date and/or at the
Maturity Date at an interest rate greater than the base interest rate of such
Currency Indexed Note as designated in the applicable Pricing Supplement (the
"Base Interest Rate") if, on such Interest Payment Date and/or at the Maturity
Date, as the case may be, the rate at which the Specified Currency can be
exchanged into the Indexed Currency is greater than the Base Exchange Rate, and
will be entitled to receive an amount of interest on each Interest Payment Date
and/or at the Maturity Date at an interest rate less than the Base Interest Rate
if, on such Interest Payment Date and/or at the Maturity Date, as the case may
be, the rate at which the Specified Currency can be exchanged into the Indexed
Currency is less than the Base Exchange Rate, in each case determined as
described below under "Payment of Principal and Interest." Information as to the
relative historical value of the applicable Specified Currency against the
applicable Indexed Currency, any exchange controls applicable to such Specified
Currency or Indexed Currency and the tax consequences to holders will be set
forth in the applicable Pricing Supplement. See "Risk Factors."
Unless otherwise specified in the applicable Pricing Supplement, the term
'Exchange Rate Day" shall mean any day which is a Business Day in The City of
New York and, (i) if the Specified Currency or Indexed Currency is any currency
or currency unit other than the U.S. dollar or the ECU, a Business Day in the
principal financial center of the country of such Specified Currency or Indexed
Currency, or (ii) in the case of an ECU, a day which is not a non-ECU clearing
day as determined by the ECU Banking Association in Paris.
Payment of Principal and Interest.
Unless otherwise specified in the applicable Pricing Supplement, principal
of a Currency Indexed Note will be payable by the Company in the Specified
Currency at the Maturity Date in an amount equal to the Face Amount of the
Currency Indexed Note, plus or minus an amount determined by the determination
agent specified in the applicable Pricing Supplement (the "Determination Agent")
by
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<PAGE> 14
reference to the difference between the Base Exchange Rate and the rate at which
the Specified Currency can be exchanged for the Indexed Currency as determined
on the second Exchange Rate Day (the "Determination Date") prior to the Maturity
Date of such Currency Indexed Note by the Determination Agent based upon the
arithmetic mean of the open market spot offer quotations for the Indexed
Currency obtained by the Determination Agent from the Reference Dealers (as
defined below) in The City of New York at 11:00 a.m., New York City time, on the
Determination Date, for an amount of Indexed Currency equal to the Face Amount
of such Currency Indexed Note multiplied by the Base Exchange Rate, for
settlement on the Maturity Date (such rate of exchange, as so determined and
expressed in units of the Indexed Currency per one unit of the Specified
Currency, is hereafter referred to as the "Spot Rate"). If such quotations from
the Reference Dealers are not available on the Determination Date due to
circumstances beyond the control of the Company or the Determination Agent, the
Spot Rate will be determined on the basis of the most recently available
quotations from the Reference Dealers. The principal amount of the Currency
Indexed Notes determined by the Determination Agent to be payable at the
Maturity Date will be payable to the holders thereof in the manner set forth
herein and in the applicable Pricing Supplement. As used herein, the term
"Reference Dealers" shall mean the three banks or firms specified as such in the
applicable Pricing Supplement or, if any of them shall be unwilling or unable to
provide the requested quotations, such other major money center bank or banks in
The City of New York selected by the Company, in consultation with the
Determination Agent, to act as Reference Dealer or Reference Dealers in
replacement therefor. In the absence of manifest error, the determination by the
Determination Agent of the Spot Rate and the principal amount of Currency
Indexed Notes payable at the Maturity Date thereof shall be final and binding on
the Company and the holders of such Currency Indexed Notes.
Unless otherwise specified in the applicable Pricing Supplement, on the
basis of the aforesaid determination by the Determination Agent and the formulae
and limitations set forth below, (i) if the Base Exchange Rate equals the Spot
Rate for any Currency Indexed Note, then the principal amount of such Currency
Indexed Note Payable at the Maturity Date will be equal to the Face Amount of
such Currency Indexed Note; (ii) if the Spot Rate exceeds the Base Exchange Rate
(i.e., the Specified Currency has appreciated against the Indexed Currency
during the term of the Currency Indexed Note), then the principal amount so
payable will be greater than the Face Amount of such Currency Indexed Note up to
an amount equal to twice the Face Amount of such Currency Indexed Note; (iii) if
the Spot Rate is less than the Base Exchange Rate (i.e., the Specified Currency
has depreciated against the Indexed Currency during the term of the Currency
Indexed Note) but is greater than one-half of the Base Exchange Rate, then the
principal amount so payable will be less than the Face Amount of such Currency
Indexed Note; and (iv) if the Spot Rate is less than or equal to one-half of the
Base Exchange Rate, then the Spot Rate will be deemed to be one-half of the Base
Exchange Rate and no principal amount of the Currency Indexed Note will be
payable at the Maturity Date.
Unless otherwise specified in the applicable Pricing Supplement, the
formulae to be used by the Determination Agent to determine the principal amount
of a Currency Indexed Note payable at the Maturity Date will be as follows:
If the Spot Rate exceeds or equals the Base Exchange Rate, the principal
amount of a Currency Indexed Note payable at the Maturity Date shall equal:
<TABLE>
<S> <C>
Spot Rate -- Base Exchange Rate
Face Amount + ( Face Amount X = ------------------------------- ).
Spot Rate
</TABLE>
If the Base Exchange Rate exceeds the Spot Rate, the principal amount of a
Currency Indexed Note payable at the Maturity Date (which shall, in no event, be
less than zero) shall equal:
<TABLE>
<S> <C>
Base Exchange Rate -- Spot Rate
Face Amount - (Face Amount X = ------------------------------- ).
Spot Rate
</TABLE>
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If the formulae set forth above are applicable to a Currency Indexed Note,
the maximum principal amount payable at the Maturity Date in respect of such a
Currency Indexed Note would be an amount equal to twice the Face Amount and the
minimum principal amount payable would be zero.
Unless otherwise specified in the applicable Pricing Supplement, interest
will be payable by the Company in the Specified Currency based on the Face
Amount of the Currency Indexed Notes, and such interest will be payable at the
rate and times and in the manner set forth herein and in the applicable Pricing
Supplement. In the event that the applicable Pricing Supplement specifies that
interest on the Currency Indexed Notes will be determined by reference to the
Indexed Currency and unless otherwise specified in such Pricing Supplement,
interest will be payable by the Company in the Specified Currency on each
Interest Payment Date and at the Maturity Date at a rate per annum equal to the
Base Interest Rate specified in the applicable Pricing Supplement multiplied by
an Interest Index Factor. The "Interest Index Factor" shall be an amount
determined by the Determination Agent by reference to the following formula:
Interest Spot Rate
--------------------
Base Exchange Rate
where, "Interest Spot Rate" is (i) if at an Interest Payment Date, the rate at
which the Specified Currency can be exchanged for the Indexed Currency as
determined on the second Exchange Rate Day prior to such Interest Payment Date
(the "Interest Determination Date") by the Determination Agent in the manner
specified in the applicable Pricing Supplement, on such Interest Determination
Date, or (ii) if at the Maturity Date, the Spot Rate. The amount of interest
determined by the Determination Agent to be payable on any Interest Payment Date
and at the Maturity Date in respect of the Currency Indexed Notes will be
payable to the holders thereof in the manner set forth herein and in the
applicable Pricing Supplement. In the absence of manifest error, the
determination by the Determination Agent of the Interest Index Factor, the
Interest Spot Rate on each Interest Payment Date, the interest payments payable
and the Spot Rate at the Maturity Date on the Currency Indexed Notes shall be
final and binding on the Company and the holders of such Currency Indexed Notes.
Unless otherwise specified in the applicable Pricing Supplement, on the
basis of the aforesaid determinations by the Determination Agent, (i) if the
Base Exchange Rate equals the Interest Spot Rate on any Interest Determination
Date or the Spot Rate on the Determination Date for any Currency Indexed Note,
then the amount of interest payable in respect of such Currency Indexed Note on
the applicable Interest Payment Date or at the Maturity Date, as the case may
be, would reflect an interest rate equal to the Base Interest Rate of such
Currency Indexed Note; (ii) if the Interest Spot Rate on any Interest
Determination Date or the Spot Rate on the Determination Date exceeds the Base
Exchange Rate (i.e., the Specified Currency has appreciated against the Indexed
Currency during the term of the Currency Indexed Note), then the amount of
interest so payable would reflect an interest rate greater than the Base
Interest Rate of such Currency Indexed Note; and (iii) if the Interest Spot Rate
on any Interest Determination Date or the Spot Rate on the Determination Date is
less than the Base Exchange Rate (i.e., the Specified Currency has depreciated
against the Indexed Currency during the term of the Currency Indexed Note), then
the amount of interest so payable would reflect an interest rate less than the
Base Interest Rate of such Currency Indexed Note.
Unless otherwise specified in the applicable Pricing Supplement, in the
event of any redemption or repayment of a Currency Indexed Note prior to its
Maturity Date, the term "Maturity Date" used above would refer to the redemption
or repayment date of such Currency Indexed Note.
PROSPECTIVE INVESTORS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS
AS TO THE RISKS ENTAILED BY AN INVESTMENT IN CURRENCY INDEXED NOTES. SUCH
CURRENCY INDEXED NOTES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE
UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS. SEE "RISK
FACTORS."
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COMMODITY INDEXED NOTES
The Pricing Supplement relating to a Commodity Indexed Note will set forth
the method by which the amount of interest payable on an Interest Payment Date
and the amount of interest and principal payable at the Maturity Date in respect
of such Commodity Indexed Note will be determined, a description of certain tax
consequences to holders of Commodity Indexed Notes, a description of certain
risks associated with investments in Commodity Indexed Notes and other
information relating to such Commodity Indexed Notes.
REDEMPTION
The Notes will not be subject to redemption through the operation of a
sinking fund, but each Note may be redeemed at the option of the Company at any
time on and after the date, if any, specified at the time of sale and set forth
in the applicable Pricing Supplement and on the face of such Note. A Note will
not be redeemable if no such date is set forth on such Note. On and after such
date, if any, such Note will be redeemable in whole or from time to time in part
on notice mailed not more than 60 nor less than 30 days prior to the date of
redemption at a redemption price set forth in the applicable Pricing Supplement,
together with interest accrued thereon to the date of redemption.
REPAYMENT
The Pricing Supplement relating to each Note will indicate either that such
Note cannot be repaid prior to maturity or that such Note will be repayable at
the option of the holder prior to maturity on the Repayment Date or Repayment
Dates, if any, specified in the applicable Pricing Supplement and on the face of
such Note. A Note will not be repayable if no such Repayment Date is set forth
on such Note. On such Repayment Date or Repayment Dates, if any, such Note will
be repayable in whole or from time to time in part at a price set forth in the
applicable Pricing Supplement, together with interest accrued on such portion to
the date of repayment.
In order for a Note to be repaid, the Company must receive at the Corporate
Trust Office of the Trustee in the Borough of Manhattan, The City of New York,
during the period from and including the first day of the Repayment Option
Period set forth on the face of such Note for such Repayment Date to and
including the close of business on the last day of such Repayment Option Period
(or if such day is not a business day, the next succeeding business day): (i)
the Note with the form entitled "Option to Elect Repayment" on the reverse of
the Note duly completed, or (ii) a telegram, telex, facsimile transmission or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank or a trust company
in the United States of America, dated no later than the last day of such
Repayment Option Period (or if such day is not a business day, the next
succeeding business day) setting forth the name of the holder of the Note, the
principal amount of the Note, the portion of the principal amount of the Note to
be repaid, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Note to be repaid in whole or in part (with the
form entitled "Option to Elect Repayment" on the reverse of the Note duly
completed) will be received at the Corporate Trust Office of the Trustee in the
Borough of Manhattan, The City of New York, not later than five business days
after the date of such telegram, telex, facsimile transmission or letter and
such Note and form duly completed must be received at the Corporate Trust Office
of the Trustee in the Borough of Manhattan, The City of New York, by such fifth
business day. Effective exercise of any repayment option by the holder of any
Note shall be irrevocable. No transfer or exchange of any Note (or, in the event
that any Note is to be repaid in part, such portion of the Note to be repaid)
will be permitted after exercise of a repayment option. A repayment option may
be exercised by the holder of a Note for less than the entire principal amount
of the Note, provided that the principal amount which is to be repaid is equal
to $1,000 or any integral multiple thereof for Notes denominated in U.S. dollars
or 10,000 units of the Specified Currency or any integral multiple thereof for
Notes denominated in a Specified Currency other than U.S. dollars. All questions
as to the validity, eligibility (including time of receipt) and acceptance of
any Note for repayment will be determined by the Company, whose determination
will be final, binding and non-appealable. For purposes of this
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<PAGE> 17
provision, "business day" means any day other than Saturday and Sunday or a
legal holiday or any day on which banking institutions in New York, New York are
authorized or required by law or regulation to close.
If a Note is represented by a Global Security (as defined below), the
Depositary's nominee will be the holder of such Note and, therefore, will be the
only entity that can exercise a right to repayment. In order to ensure that the
Depositary's nominee will timely exercise a right to repayment with respect to a
particular Note, the beneficial owner of such Note must instruct the broker or
other direct or indirect participant through which it holds an interest in such
Note to notify the Depositary of its desire to exercise a right to repayment.
Different firms have different cut-off times for accepting instructions from
their customers, and, accordingly, each beneficial owner should consult the
broker or other direct or indirect participant through which it holds an
interest in a Note in order to ascertain the cut-off time by which such an
instruction must be given in order for timely notice to be delivered to the
Depositary.
BOOK-ENTRY SYSTEM
Upon issuance, all Book-Entry Notes having the same Specified Currency,
Original Issue Date, Maturity Date, reset, extension, redemption and repayment
provisions, Interest Payment Dates, Record Dates, and, in the case of Fixed Rate
Notes, interest rate, or, in the case of Floating Rate Notes, Base Rate, Initial
Interest Rate, Index Maturity, Reset Period, Interest Payment Dates, Spread or
Spread Multiplier, if any, Maximum Interest Rate, if any, and Minimum Interest
Rate, if any, and in the case of Fixed Rate Notes or Floating Rate Notes that
are also Currency Indexed Notes, Specified Currency, Indexed Currency and Base
Exchange Rate, or that are also Commodity Indexed Notes, the same comparable
terms, will be represented by a single global security (a "Global Security").
Each Global Security representing Book-Entry Notes will be deposited with, or on
behalf of, DTC or such other Depositary as is specified in the applicable
Pricing Supplement, and registered in the name of the Depositary or its nominee.
Book-Entry Notes will not be exchangeable for Certificated Notes at the option
of the holder and, except as set forth below, will not otherwise be issuable in
definitive form. Unless otherwise specified in the applicable Pricing
Supplement, DTC will be the Depositary.
DTC has advised the Company and the Agents as follows: DTC is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code and a "clearing agency" registered pursuant
to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC was
created to hold securities of its participants and to facilitate the clearance
and settlement of securities transactions among its participants in such
securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of securities
certificates. DTC's participants include securities brokers and dealers
(including the Agents), banks, trust companies, clearing corporations and
certain other organizations, some of which (and/or their representatives) own
DTC. Access to DTC's book-entry system is also available to others, such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly.
Upon the issuance by the Company of Book-Entry Notes represented by a
Global Security, the Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Book-Entry Notes
represented by such Global Security to the accounts of institutions that have
accounts with the Depositary ("participants"). The accounts to be credited shall
be designated by the agents or underwriters of such Book-Entry Notes or by the
Company if such Book-Entry Notes are offered and sold directly by the Company.
Ownership of beneficial interests in a Global Security will be limited to
participants or persons that hold interests through participants. Ownership of
beneficial interests in Book-Entry Notes represented by a Global Security will
be shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary (with respect to interests of participants
in the Depositary), or by participants in the
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<PAGE> 18
Depositary or persons that may hold interests through such participants (with
respect to persons other than participants in the Depositary). The laws of some
states require that certain purchasers of securities take physical delivery of
such securities in definitive form. Such limits and such laws may impair the
ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of the Global Security, the Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Book-Entry Notes
represented by such Global Security for all purposes under the Indenture. Except
as provided below, owners of beneficial interests in Book-Entry Notes
represented by a Global Security will not be entitled to have Book-Entry Notes
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Book-Entry Notes in definitive
form and will not be considered the owners or holders thereof under the
Indenture. Unless and until it is exchanged in whole or in part for individual
certificates evidencing the Book-Entry Notes represented thereby, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any nominee to a successor Depositary or any nominee of such
successor.
Payments of principal of and interest, if any, on the Book-Entry Notes
represented by a Global Security registered in the name of the Depositary or its
nominee will be made by the Company through the Trustee to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security.
Neither the Company, the Trustee nor the registrar for the Notes will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company has been advised that the Depositary, upon receipt of any
payment of principal of or interest on a Global Security, will credit
immediately the accounts of the related participants with payment in amounts
proportionate to their respective holdings in principal amount of beneficial
interest in such Global Security as shown on the records of the Depositary. The
Company expects that payments by participants to owners of beneficial interests
in a Global Security will be governed by standing customer instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such payments will be
the responsibility of such participants.
If the Depositary with respect to any Global Security or Global Securities
is at any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Company within 90 days, the Company will
issue Certificated Notes in exchange for the Book-Entry Notes represented by
such Global Security or Global Securities. In addition, the Company may at any
time and in its sole discretion determine not to have Global Securities, and, in
such event, will issue Certificated Notes in exchange for the Book-Entry Notes
represented by such Global Securities.
SPECIAL PROVISIONS RELATING TO MULTI-CURRENCY NOTES
GENERAL
Unless otherwise indicated in the applicable Pricing Supplement, if any
Notes are to be denominated in U.S. dollars, payments of principal of and
interest on such Notes will be made in U.S. dollars. If any of the Notes are to
be denominated in a Specified Currency other than U.S. dollars ("Multi-Currency
Notes"), the following provisions shall apply which are in addition to, and to
the extent inconsistent therewith replace, the description of the general terms
and provisions of Notes set forth in the accompanying Prospectus and elsewhere
in this Prospectus Supplement.
The authorized denominations of Multi-Currency Notes will be the amounts of
the Specified Currency for such Notes that are equivalent, at the Exchange Rate
(as defined below) for purchases of
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<PAGE> 19
such Specified Currency on the Business Day immediately preceding the trade date
for such Notes, to $100,000 (rounded down to an integral multiple of 10,000
units of such Specified Currency), and any larger amount that is an integral
multiple of 10,000 units of such Specified Currency, except as otherwise
specified in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, payment of
the purchase price of Multi-Currency Notes will be made in immediately available
funds.
CURRENCY EXCHANGE
Unless otherwise specified in the applicable Pricing Supplement, purchasers
are required to pay for Multi-Currency Notes in the Specified Currency. At the
present time, there are limited facilities in the United States for conversion
of U.S. dollars into foreign currencies or currency units, and vice versa, and
it is believed that only a limited number of U.S. banks offer foreign currency
checking or savings facilities in the United States. However, if requested by a
purchaser at the time an offer to purchase an applicable Note is made to an
Agent (or by such other day as such Agent may determine), such Agent will
arrange for the conversion of U.S. dollars into the applicable Specified
Currency to enable the purchaser to pay for such Multi-Currency Note. Each such
conversion will be made by the Agents on such terms and subject to such
conditions, limitations and charges as the Agents may from time to time
establish in accordance with their regular foreign exchange practices. All costs
of exchange will be borne by the purchasers of the Multi-Currency Notes.
Specific information about the foreign currency or currency units in which
a particular Multi-Currency Note is denominated, including historical exchange
rates and a description of the currency or currency units and any exchange
controls, will be set forth in the applicable Pricing Supplement.
PAYMENT OF PRINCIPAL AND INTEREST
Principal and interest, if any, on Multi-Currency Notes will be paid by the
Company in the Specified Currency. If so specified in the applicable Pricing
Supplement, at the request of a holder of a Multi-Currency Note, payments of
principal and interest in respect of such Note shall be paid in U.S. dollars.
Under such circumstances, the Company would be required to tender payment in
U.S. dollars at the Exchange Rate, and any costs associated with such conversion
would be borne by such holder through deduction from such payments. In such
case, a holder may elect to receive payments in U.S. dollars by delivering a
written request to the Trustee not later than the Record Date immediately
preceding the applicable payment date. Such election will remain in effect until
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee not later than the Record Date immediately preceding the
next Interest Payment Date or the fifteenth day preceding the Maturity Date, as
the case may be. Upon request, the Trustee will mail a copy of a form of request
to any holder.
OUTSTANDING MULTI-CURRENCY NOTES
For purposes of calculating the principal amount of any Multi-Currency Note
payable in a Specified Currency which is outstanding under the Indenture for
purposes of determining whether the holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver under such Indenture or whether a quorum is present at
a meeting of holders of Securities, the principal amount of such Multi-Currency
Note at any time outstanding shall be deemed to be the U.S. dollar equivalent,
determined as of the date of the original issuance of such Multi-Currency Note,
of the principal amount of such Multi-Currency Note. Unless otherwise indicated
in the applicable Pricing Supplement, whenever the Indenture provides for any
distribution to holders, any amount in respect of any Multi-Currency Note shall
be treated for any such distribution as that amount of U.S. dollars that could
be obtained for such amount on such reasonable basis of exchange as the Company
may specify.
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<PAGE> 20
PAYMENT CURRENCY
If the principal of, or interest on, any Note is payable in a Specified
Currency that is not available to the Company for making payments thereof 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 Notes by making such payment in U.S. dollars on the basis of the Exchange
Rate on the second Business Day preceding the Interest Payment Date or the
second Business Day preceding the maturity of an installment of principal, as
the case may be (or, if no rate is quoted for such Specified Currency on such
date, the last date such rate is quoted). Any payment made under such
circumstances in U.S. dollars where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default under
the Indenture.
"Exchange Rate" means (a) with respect to U.S. dollars in which payment is
to be made on Multi-Currency Notes denominated in a composite currency unit, the
exchange rate between U.S. dollars and such composite currency unit reported by
the agency or organization, if any, responsible for overseeing such composite
currency unit or by the Council of the European Communities (in the case of ECU,
whose reports are currently based on the rates in effect at 2:30 p.m., Brussels
time, on the relevant exchange markets), as appropriate, on the applicable
Record Date with respect to an Interest Payment Date or the fifteenth day
immediately preceding the maturity of an installment of principal, or on such
other date provided in the Indenture, as the case may be; (b) with respect to
U.S. dollars in which payment is to be made on Multi-Currency Notes denominated
in a foreign currency, the noon U.S. dollar buying rate for that currency for
cable transfers quoted by the Exchange Rate Agent in The City of New York
designated by the Company on the Record Date with respect to an Interest Payment
Date or the fifteenth day immediately preceding the maturity of an installment
of principal, or on such other date provided therefor, as the case may be, as
certified for customs purposes by the Federal Reserve Bank of New York; and (c)
with respect to a Specified Currency other than U.S. dollars in which payment is
to be made on Multi-Currency Notes converted into U.S. dollars pursuant to the
Indenture as described above under "Payment Currency," the noon U.S. dollar
selling rate for that currency for cable transfers quoted by the Exchange Rate
Agent in The City of New York on the second Business Day preceding the
applicable Interest Payment Date or the second Business Day preceding the
maturity of an installment of principal, as the case may be, as certified for
customs purposes by the Federal Reserve Bank of New York. If for any reason such
rates are not available with respect to one or more currencies for which an
Exchange Rate is required, the Company shall use such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more commercial banks in The City of New York or in the country of
issue of the currency in question, or such other quotations as the Company, in
each case, shall deem appropriate. If there is more than one market for dealing
in any currency by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency shall be the largest market upon
which a nonresident issuer of securities designated in such currency would
purchase such currency in order to make payments in respect of such securities.
The value and composition of the ECU in which any Notes are denominated or
in which any such Notes are payable, as the case may be, will be the same as the
composition of the European Currency Unit that is from time to time used as the
unit of account of the European Communities (the "EC"). Changes to the ECU may
be made by the EC, in which event the ECU will change accordingly. References
herein to the ECU shall be deemed to be references to the ECU as so changed from
time to time.
From the start of the third stage of the European monetary union, if any
payment of principal or interest in respect of a Note is to be made in ECU, all
payments in respect of such Note will be payable in Euro at the rate then
established in accordance with the Treaty establishing the EC, as amended by the
Treaty on European Union.
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<PAGE> 21
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material U.S. federal income tax
consequences resulting from the beneficial ownership of Notes by certain
persons. This summary does not purport to consider all the possible U.S. federal
tax consequences of the purchase, ownership or disposition of the Notes and is
not intended to reflect the individual tax position of any beneficial owner. It
deals only with Notes denominated in U.S. dollars, Notes denominated in
currencies or composite currencies other than U.S. dollars ("Foreign Currency"),
and Foreign Currency in each case held as capital assets. Moreover, except as
expressly indicated, it addresses initial purchasers and does not address
beneficial owners that may be subject to special tax rules, such as banks,
insurance companies, dealers in securities or currencies, purchasers that hold
Notes (or Foreign Currency) as a hedge against currency risks or as part of a
straddle with other investments or as part of a "synthetic security" or other
integrated investment (including a "conversion transaction") comprised of a Note
and one or more other investments, or purchasers that have a "functional
currency" other than the U.S. dollar. Except to the extent discussed below under
"Non-U.S. Holders," this summary is not applicable to non-United States persons
not subject to U.S. federal income tax on their worldwide income. This summary
is based upon the U.S. federal tax laws and regulations as now in effect and as
currently interpreted and does not take into account possible changes in such
tax laws or such interpretations, any of which may be applied retroactively. It
does not include any description of the tax laws of any state, local or foreign
governments that may be applicable to the Notes or holders thereof, and it does
not discuss the tax treatment of Notes denominated in certain hyperinflationary
currencies or dual currency Notes.
Persons considering the purchase of Notes should consult their own tax
advisors concerning the tax consequences of holding Notes, including the
application of the U.S. federal tax laws discussed below to their particular
situations, as well as the application of state, local and other national tax
laws.
U.S. HOLDERS
Payments of Interest
In general, interest on a Note, whether payable in U.S. dollars or a
Foreign Currency (other than certain payments on a Discount Note, as defined and
described below under "Original Issue Discount"), will be taxable to a
beneficial owner who or which is (i) a citizen or resident of the United States,
(ii) a corporation created or organized under the laws of the United States or
any State thereof (including the District of Columbia) or (iii) a person
otherwise subject to United States federal income taxation on its worldwide
income (a "U.S. Holder") as ordinary income at the time it is received or
accrued, depending on the holder's method of accounting for tax purposes. If an
interest payment is denominated in or determined by reference to a Foreign
Currency, then special rules, described below under "Foreign Currency Notes,"
apply.
Original Issue Discount
The following discussion summarizes the United States federal income tax
consequences to U.S. Holders of Notes issued with original issue discount
("OID") for federal income tax purposes. U.S. Holders of a Note issued with OID
generally will be subject to special tax accounting rules provided in the
Internal Revenue Code of 1986, as amended (the "Code").
Special rules apply to OID on a Discount Note that is denominated in
Foreign Currency. See "Foreign Currency Notes -- Foreign Currency Discount
Notes" below.
General. A Note will be treated as issued with OID (a "Discount Note") if
the excess of the Note's "stated redemption price at maturity" over its issue
price is greater than a de minimis amount (set forth in the Code and the OID
Regulations). Under the OID Regulations, the "stated redemption price at
maturity" of a Note is the sum of all payments provided by the Note that are not
payments of "qualified stated interest." A "qualified stated interest" payment
includes any stated interest payment on a Note that is unconditionally payable
in cash or property (other than debt instruments of the
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<PAGE> 22
Company) at least annually at a single fixed rate (or at certain floating rates)
that appropriately takes into account the length of the interval between stated
interest payments. Generally, the issue price of a Note (or any Note that is
part of an issue of Notes) will be the first price at which a substantial amount
of Notes that are part of such issue of Notes are sold (other than to
underwriters, placement agents or wholesalers). The applicable Pricing
Supplement will state whether a particular issue of Notes will constitute an
issue of Discount Notes.
In general, if the excess of a Note's stated redemption price at maturity
over its issue price is de minimis, then such excess constitutes "de minimis
OID." Under the OID Regulations, unless a U.S. Holder makes the election
described below under "Election to Treat All Interest as Original Issue
Discount," such a Note will not be treated as issued with OID (in which case the
following paragraphs under "Original Issue Discount" will not apply) and a U.S.
Holder of such a Note will recognize capital gain with respect to such de
minimis OID as stated principal payments on the Note are made. The amount of
such gain with respect to each such payment will equal the product of the total
amount of the Note's de minimis OID and a fraction, the numerator of which is
the amount of the principal payment made and the denominator of which is the
stated principal amount of the Note.
The OID Regulations provide that a Note bearing interest at a floating rate
(a "Floating Rate Note") will bear qualified stated interest if the Floating
Rate Note provides for stated interest at: (1) one or more qualified floating
rates; (2) a single fixed rate and one or more qualified floating rates; (3) a
single objective rate; or (4) a single fixed rate and a single objective rate
that is a qualified inverse floating rate.
For this purpose, a variable interest rate is a qualified floating rate if
variations in the value of the rate can reasonably be expected to measure
contemporaneous variations in the cost of newly borrowed funds in the currency
in which the debt instrument is denominated. A variable rate is not qualified
stated interest if, among other things, the terms of the Note provide for a
maximum interest rate or a minimum interest rate that is reasonably expected as
of the issue date to cause the yield on the debt instrument to be significantly
less, in the case of a maximum rate, or significantly more, in the case of a
minimum rate, than the expected yield determined without the maximum or minimum
rate, as the case may be.
An objective rate is a rate that is determined using a single fixed formula
and that is based on: (1) one or more qualified floating rates; (2) one or more
rates where each rate would be a qualified floating rate for a debt instrument
denominated in a currency other than the currency in which the debt instrument
is denominated; (3) the yield or change in the price of actively traded personal
property; or (4) a combination of the foregoing rates. An objective rate is a
qualified inverse floating rate if the rate is equal to a fixed rate minus a
qualified floating rate, and the variation in the rate can be reasonably
expected to inversely reflect contemporaneous variations in the cost of newly
borrowed funds. A variable rate of interest on a debt instrument is not an
objective rate if it is reasonably expected that the average value of the rate
during the first half of the instrument's term will be either significantly less
than or significantly greater than the average value of the rate during the
final half of the debt instrument's term. Unless specified in the applicable
Pricing Supplement, Floating Rate Notes will not be Discount Notes.
The Code and the OID Regulations require a U.S. Holder of a Discount Note
having a maturity of more than one year from its date of issue to include OID in
gross income, as it accrues economically on a constant yield basis, without
regard to the holder's method of accounting for tax purposes and prior to the
receipt of cash attributable to such income. In addition, qualified stated
interest is included in income under the U.S. Holder's regular method of
accounting.
The amount of OID includible in gross income by a U.S. Holder of a Discount
Note is the sum of the "daily portions" of OID with respect to the Discount Note
for each day during the taxable year in which the U.S. Holder holds such
Discount Note ("accrued OID"). The daily portion is determined by allocating to
each day in any "accrual period" a pro rata portion of the OID allocable to that
accrual period. Under the OID Regulations, accrual periods with respect to a
Note may be any set of periods
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(which may be of varying lengths) selected by the U.S. Holder as long as (i) no
accrual period is longer than one year and (ii) each scheduled payment of
interest or principal on the Note occurs on the first day or final day of an
accrual period.
The amount of OID allocable to an accrual period equals the excess of (a)
the product of the Discount Note's adjusted issue price at the beginning of the
accrual period and the Discount Note's yield to maturity (determined on the
basis of compounding at the close of each accrual period and properly adjusted
for the length of the accrual period) over (b) the sum of any payments of
qualified stated interest on the Discount Note allocable to the accrual period.
In the case of a Floating Rate Note, both the yield to maturity and the
qualified stated interest will generally be determined for these purposes as
though the Note will bear interest in all periods at a fixed rate equal to the
value of the rate as of the issue date. In the case of Floating Rate Notes using
an objective rate other than a qualified inverse floating rate, the yield to
maturity and the qualified stated interest will generally be determined as
though the Note will bear interest in all periods at a fixed rate equal to the
rate that reflects the yield that is reasonably expected for the Note.
(Additional rules may apply if interest on a Floating Rate Note is based on more
than one interest index.)
The "adjusted issue price" of a Discount Note at the beginning of the first
accrual period is the issue price. Thereafter, the adjusted issue price at the
beginning of any accrual period is (x) the sum of the issue price of such
Discount Note, the accrued OID for each prior accrual period (determined without
regard to the amortization of any acquisition premium or bond premium, which are
discussed below), and the amount of any qualified stated interest on the Note
that has accrued prior to the beginning of the accrual period but is not payable
until a later date, less (y) any prior payments on the Discount Note that were
not qualified stated interest payments. If a payment (other than a payment of
qualified stated interest) is made on the first day of an accrual period, then
the adjusted issue price at the beginning of such accrual period is reduced by
the amount of the payment. If a portion of the initial purchase price of a Note
is attributable to interest that accrued prior to the Note's issue date, the
first stated interest payment on the Note is to be made within one year of the
Note's issue date and such payment will equal or exceed the amount of
pre-issuance accrued interest, then the issue price will be decreased by the
amount of pre-issuance accrued interest, in which case a portion of the first
stated interest payment will be treated as a return of the excluded pre-issuance
accrued interest and not as an amount payable on the Note.
The OID Regulations contain certain special rules that generally allow any
reasonable method to be used in determining the amount of OID allocable to a
short initial accrual period (if all other accrual periods are of equal length)
and require that the amount of OID allocable to the final accrual period equal
the excess of the amount payable at the maturity of the Discount Note (other
than any payment of qualified stated interest) over the Discount Note's adjusted
issue price as of the beginning of such final accrual period. In addition, if an
interval between payments of qualified stated interest on a Discount Note
contains more than one accrual period, then the amount of qualified stated
interest payable at the end of such interval is allocated pro rata (on the basis
of their relative lengths) between the accrual periods contained in the
interval.
U.S. Holders of Discount Notes generally will have to include in income
increasingly greater amounts of OID over the life of the Notes.
Acquisition Premium. A U.S. Holder that purchases a Discount Note at its
original issuance for an amount in excess of its issue price but less than its
stated redemption price at maturity (any such excess being "acquisition
premium"), and that does not make the election described below under "Election
To Treat All Interest as Original Issue Discount," reduces the daily portions of
OID by an amount equal to the amount which would be the daily portion for such
day (determined without regard to this paragraph) multiplied by a fraction, the
numerator of which is the excess of the U.S. Holder's purchase price for the
Note over the issue price, and the denominator of which is the excess of the sum
of all amounts payable on the Note after the purchase date, other than payments
of qualified stated interest, over the Note's issue price. Alternatively, a U.S.
Holder may elect to compute
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OID accruals as described under "Original Issue Discount -- General" above,
treating the U.S. Holder's purchase price as the issue price.
Optional Redemption or Repurchase. If the Company has an option to redeem
a Discount Note, or the U.S. Holder has an option to cause a Discount Note to be
repurchased, prior to the Discount Note's stated maturity, such option will be
presumed to be exercised if, by utilizing any date on which such Discount Note
may be redeemed or repurchased as the maturity date and the amount payable on
such date in accordance with the terms of such Discount Note (the "redemption
price") as the stated redemption price at maturity, the yield on the Discount
Note would be (i) in the case of an option of the Company, lower than its yield
to stated maturity, or (ii) in the case of an option of the U.S. Holder, higher
than its yield to stated maturity. If such option is not in fact exercised when
presumed to be exercised, the Note would be treated solely for OID purposes as
if it were redeemed or repurchased, and a new Note were issued, on the presumed
exercise date for an amount equal to the Discount Note's adjusted issue price on
that date.
Short-Term Notes. Under the Code, special rules apply with respect to OID
on Notes that mature one year or less from the date of issuance ("Short-Term
Notes"). In general, a cash basis U.S. Holder of a Short-Term Note is not
required to include OID in income as it accrues for United States federal income
tax purposes unless it elects to do so. Accrual basis U.S. Holders and certain
other U.S. Holders, including banks, regulated investment companies, dealers in
securities and cash basis U.S. Holders who so elect, are required to include OID
in income as it accrues on Short-Term Notes on a straight-line basis or, at the
election of the U.S. Holder, under the constant yield method (based on daily
compounding). In the case of U.S. Holders not required and not electing to
include OID in income currently, any gain realized on the sale or retirement of
Short-Term Notes will be ordinary income to the extent of the OID accrued on a
straight-line basis (unless an election is made to accrue the original issue
discount under the constant yield method) through the date of sale or
retirement. U.S. Holders who are not required and do not elect to include OID on
Short-Term Notes in income as it accrues will be required to defer deductions
for interest on borrowings allocable to Short-Term Notes in an amount not
exceeding the deferred income until the deferred income is realized.
Any U.S. Holder of a Short-Term Note can elect to apply the rules in the
preceding paragraph taking into account the amount of "acquisition discount," if
any, with respect to the Note (rather than the OID with respect to such Note).
Acquisition discount is the excess of the stated redemption price at maturity of
the Short-Term Note over the U.S. Holder's purchase price therefor. Acquisition
discount will be treated as accruing on a ratable basis or, at the election of
the U.S. Holder, on a constant-yield basis.
For purposes of determining the amount of OID subject to these rules, the
OID Regulations provide that no interest payments on a Short-Term Note are
qualified stated interest, but instead such interest payments are included in
the Short-Term Note's stated redemption price at maturity. Actual receipt of
stated interest will be taxable to the extent of accrued OID at the time of
receipt.
Notes Purchased at a Premium
Under the Code, a U.S. Holder that purchases a Note for an amount in excess
of its stated redemption price at maturity will not be subject to the OID rules
and may elect to treat such excess as "amortizable bond premium," in which case
the amount of qualified stated interest required to be included in the U.S.
Holder's income each year with respect to interest on the Note will be reduced
by the amount of amortizable bond premium allocable (based on the Note's yield
to maturity) to such year. Any election to amortize bond premium is applicable
to all bonds (other than bonds the interest on which is excludible from gross
income) held by the U.S. Holder at the beginning of the first taxable year to
which the election applies or thereafter acquired by the U.S. Holder, and may
not be revoked without the consent of the Internal Revenue Service ("IRS"). A
U.S. Holder that does not elect to amortize bond premium will generally be
entitled to treat the premium as capital loss when the Note matures. See also
"Election to Treat All Interest as Original Issue Discount" below.
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Notes Purchased at a Market Discount
A Note, other than a Short-Term Note, will be treated as issued at a market
discount (a "Market Discount Note") if the amount for which a U.S. Holder
purchased the Note is less than the Note's issue price, subject to a de minimis
rule similar to the rule relating to de minimis OID described under "Original
Issue Discount -- General."
In general, any gain recognized on the maturity or disposition of a Market
Discount Note will be treated as ordinary income to the extent that such gain
does not exceed the accrued market discount on such Note. Alternatively, a U.S.
Holder of a Market Discount Note may elect to include market discount in income
currently over the life of the Market Discount Note. Such an election applies to
all debt instruments with market discount acquired by the electing U.S. Holder
on or after the first day of the first taxable year to which the election
applies and may not be revoked without the consent of the IRS.
Market discount accrues on a straight-line basis unless the U.S. Holder
elects to accrue such discount on a constant yield to maturity basis. Such an
election is applicable only to the Market Discount Note with respect to which it
is made and is irrevocable. A U.S. Holder of a Market Discount Note that does
not elect to include market discount in income currently generally will be
required to defer deductions for interest on borrowings allocable to such Note
in an amount not exceeding the accrued market discount on such Note until the
maturity or disposition of such Note.
The market discount rules do not apply to a Short-Term Note.
Election To Treat All Interest as Original Issue Discount
Any U.S. Holder may elect to include in gross income all interest that
accrues on a Note using the constant yield method described above under the
heading "Original Issue Discount -- General," with the modifications described
below. For purposes of this election, interest includes stated interest, OID, de
minimis OID, market discount acquisition discount, de minimis market discount
and unstated interest, as adjusted by any amortizable bond premium or
acquisition premium.
In applying the constant yield method to a Note with respect to which this
election has been made, the issue price of the Note will equal the electing U.S.
Holder's adjusted basis in the Note immediately after its acquisition, the issue
date of the Note will be the date of its acquisition by the electing U.S.
Holder, and no payments on the Note will be treated as payments of qualified
stated interest. This election is generally applicable only to the Note with
respect to which it is made and may not be revoked without the consent of the
IRS. If this election is made with respect to a Note with amortizable bond
premium, the electing U.S. Holder will be deemed to have elected to apply
amortizable bond premium against interest with respect to all debt instruments
with amortizable bond premium (other than debt instruments the interest on which
is excludible from gross income) held by such electing U.S. Holder as of the
beginning of the taxable year in which the election is made or any debt
instruments acquired thereafter. The deemed election with respect to amortizable
bond premium may not be revoked without the consent of the IRS.
If the election described above to apply the constant yield method to all
interest on a Note is made with respect to a Market Discount Note, as defined
above, then the electing U.S. Holder will be treated as having made the election
discussed above under "Notes Purchased at a Market Discount" to include market
discount in income currently over the life of all debt instruments held or
thereafter acquired by such U.S. Holder.
Purchase, Sale and Retirement of the Notes
General. A U.S. Holder's tax basis in a Note generally will equal its U.S.
dollar cost (which, in the case of a Note purchased with a Foreign Currency,
will be the U.S. dollar value of the purchase price on the date of purchase),
(i) increased by the amount of any OID or market discount (or acquisition
discount, in the case of a Short-Term Note) included in the U.S. Holder's income
with respect to the
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Note and the amount, if any, of income attributable to de minimis OID included
in the U.S. Holder's income with respect to the Note, and (ii) reduced by the
amount of any payments that are not qualified stated interest payments, and the
amount of any amortizable bond premium applied to reduce interest on the Note. A
U.S. Holder generally will recognize gain or loss on the sale or retirement of a
Note equal to the difference between the amount realized on the sale or
retirement and the U.S. Holder's tax basis in the Note. The amount realized on a
sale or retirement for an amount in Foreign Currency will be the U.S. dollar
value of such amount on the date of sale or retirement. Except to the extent
described above under "Original Issue Discount -- Short-Term Notes" or "Notes
Purchased at a Market Discount" or below under "Foreign Currency
Notes -- Exchange Gain or Loss," and except to the extent attributable to
accrued but unpaid interest, gain or loss recognized on the sale or retirement
of a Note will be capital gain or loss and will be long-term capital gain or
loss if the Note was held for more than one year, although the capital gain rate
will be lower for an individual Holder if the Note is held for more than
eighteen months.
Foreign Currency Notes
Interest Payments. If an interest payment is denominated in or determined
by reference to a Foreign Currency, the amount of income recognized by a cash
basis U.S. Holder will be the U.S. dollar value of the interest payment, based
on the exchange rate in effect on the date of receipt, regardless of whether the
payment is in fact converted into U.S. dollars. Accrual basis U.S. Holders may
determine the amount of income recognized with respect to such interest payment
in accordance with either of two methods. Under the first method, the amount of
income recognized will be based on the average exchange rate in effect during
the interest accrual period (or, with respect to an accrual period that spans
two taxable years, the partial period within the taxable year). Upon receipt of
an interest payment (including a payment attributable to accrued but unpaid
interest upon the sale or retirement of a Note) determined by reference to a
Foreign Currency, an accrual basis U.S. Holder will recognize ordinary income or
loss measured by the difference between such average exchange rate and the
exchange rate in effect on the date of receipt, regardless of whether the
payment is in fact converted into U.S. dollars. Under the second method, an
accrual basis U.S. Holder may elect to translate interest income into U.S.
dollars at the spot exchange rate in effect on the last day of the accrual
period or, in the case of an accrual period that spans two taxable years, at the
exchange rate in effect on the last day of the partial period within the taxable
year. Additionally, if a payment of interest is actually received within 5
business days of the last day of the accrual period or taxable year, an accrual
basis U.S. Holder applying the second method may instead translate such accrued
interest into U.S. dollars at the spot exchange rate in effect on the day of
actual receipt (in which case no exchange gain or loss will result). Any
election to apply the second method will apply to all debt instruments held by
the U.S. Holder at the beginning of the first taxable year to which the election
applies or thereafter acquired by the U.S. Holder and may not be revoked without
the consent of the IRS.
Exchange of Amounts in Other than U.S. Dollars. Foreign Currency received
as interest on a Note or on the sale or retirement of a Note will have a tax
basis equal to its U.S. dollar value at the time such interest is received or at
the time of such sale or retirement, as the case may be. Foreign Currency that
is purchased will generally have a tax basis equal to the U.S. dollar value of
the Foreign Currency on the date of purchase. Any gain or loss recognized on a
sale or other disposition of a Foreign Currency (including its use to purchase
Notes or upon exchange for U.S. dollars) will be ordinary income or loss.
Foreign Currency Discount Notes. OID for any accrual period on a Discount
Note that is denominated in a Foreign Currency will be determined in the Foreign
Currency and then translated into U.S. dollars in the same manner as stated
interest accrued by an accrual basis U.S. Holder. Upon receipt of an amount
attributable to original issue discount (whether in connection with a payment of
interest or the sale or retirement of a Note), a U.S. Holder may recognize
ordinary income or loss.
Amortizable Bond Premium. In the case of a Note that is denominated in a
Foreign Currency, bond premium will be computed in units of Foreign Currency,
and amortizable bond premium will reduce interest income in units of the Foreign
Currency. At the time amortized bond premium offsets
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interest income, a U.S. Holder may realize ordinary income or loss, measured by
the difference between exchange rates at that time and at the time of the
acquisition of the Notes.
Market Discount. Market discount is determined in units of the Foreign
Currency. Accrued market discount that is required to be taken into account on
the maturity or upon disposition of a Note is translated into U.S. dollars at
the exchange rate on the maturity or the disposition date, as the case may be
(and no part is treated as exchange gain or loss). Accrued market discount
currently includible in income by an electing U.S. Holder is translated into
U.S. dollars at the average exchange rate for the accrual period (or the partial
accrual period during which the U.S. Holder held the Note), and exchange gain or
loss is determined on maturity or disposition of the Note (as the case may be)
in the manner described above under "Foreign Currency Notes -- Interest
Payments" with respect to the computation of exchange gain or loss on the
receipt of accrued interest by an accrual method holder.
Exchange Gain or Loss. Gain or loss recognized by a U.S. Holder on the
sale or retirement of a Note that is attributable to changes in exchange rates
will be treated as ordinary income or loss. However, exchange gain or loss is
taken into account only to the extent of total gain or loss realized on the
transaction.
Indexed Notes
The applicable Pricing Supplement will contain a discussion of any special
United States federal income tax rules with respect to Currency Indexed Notes,
Commodity Indexed Notes or other indexed Notes.
NON-U.S. HOLDERS
Subject to the discussion of backup withholding below, payments of
principal (and premium, if any) and interest (including OID) by the Company or
any agent of the Company (acting in its capacity as such) to any holder of a
Note that is not a U.S. Holder (a "Non-U.S. Holder") will not be subject to U.S.
federal withholding tax, provided, in the case of interest (including OID), that
(i) the Non-U.S. Holder does not actually or constructively own 10% or more of
the total combined voting power of all classes of stock of the Company entitled
to vote, (ii) the Non-U.S. Holder is not a controlled foreign corporation for
U.S. tax purposes that is related to the Company (directly or indirectly)
through stock ownership and (iii) either (A) the Non-U.S. Holder certifies to
the Company or its agent under penalties of perjury that it is not a United
States person and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution") and holds the Note certifies to the Company or its agent under
penalties of perjury that such statement has been received from the Non-U.S.
Holder by it or by another financial institution and furnishes the payor with a
copy thereof. A Non-U.S. Holder of a Note providing for payments of contingent
interest within the meaning of Section 871(h) of the Code, will not, however, be
exempt from U.S. federal withholding tax with respect to payments of such
contingent interest. The applicable Pricing Supplement will contain a
description of U.S. federal withholding tax consequences to Non-U.S. Holders of
a purchase of a Note providing for payments of such contingent interest.
If a Non-U.S. Holder is engaged in a trade or business in the United States
and interest (including OID) on the Note is effectively connected with the
conduct of such trade or business, the Non-U.S. Holder, although exempt from the
withholding tax discussed in the preceding paragraph (provided that such holder
furnishes a properly executed IRS Form 4224 on or before any payment date to
claim such exemption), may be subject to U.S. federal income tax on such
interest (or OID) in the same manner as if it were a U.S. Holder. In addition,
if the Non-U.S. Holder is a foreign corporation, it may be subject to a branch
profits tax equal to 30% of its effectively connected earnings and profits for
the taxable year, subject to certain adjustments. For purposes of the branch
profits tax, interest (including OID) on a Note will be included in the earnings
and profits of such holder if such interest (or OID) is effectively connected
with the conduct by such holder of a trade or business in the United States. In
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lieu of the certificate described in the preceding paragraph, such a holder must
provide the payor with a properly executed IRS Form 4224 to claim an exemption
from U.S. federal withholding tax.
Any capital gain, market discount or exchange gain realized on the sale,
exchange, retirement or other disposition of a Note by a Non-U.S. Holder will
not be subject to U.S. federal income or withholding taxes if (i) such gain is
not effectively connected with a U.S. trade or business of the Non-U.S. Holder
and (ii) in the case of an individual, such Non-U.S. Holder (A) is not present
in the United States for 183 days or more in the taxable year of the sale,
exchange, retirement or other disposition or (B) does not have a tax home (as
defined in Section 911(d)(3) of the Code) in the United States in the taxable
year of the sale, exchange, retirement or other disposition and the gain is not
attributable to an office or other fixed place of business maintained by such
individual in the United States.
Notes held by an individual who is neither a citizen nor a resident of the
United States for U.S. federal tax purposes at the time of such individual's
death will not be subject to U.S. federal estate tax, provided that the income
from such Notes was not or would not have been effectively connected with a U.S.
trade or business of such individual and that such individual qualified for the
exemption from U.S. federal withholding tax (without regard to the certification
requirements) described above.
PURCHASERS OF NOTES THAT ARE NON-U.S. HOLDERS SHOULD CONSULT THEIR OWN TAX
ADVISORS WITH RESPECT TO THE POSSIBLE APPLICABILITY OF UNITED STATES WITHHOLDING
AND OTHER TAXES UPON INCOME REALIZED IN RESPECT OF THE NOTES.
INFORMATION REPORTING AND BACKUP WITHHOLDING
For each calendar year in which the Notes are outstanding, the Company is
required to provide the IRS with certain information, including the holder's
name, address and taxpayer identification number (either the holder's Social
Security number or its employer identification number, as the case may be), the
aggregate amount of principal and interest paid (including OID, if any) to that
holder during the calendar year and the amount of tax withheld, if any. This
obligation, however, does not apply with respect to certain U.S. Holders,
including corporations, tax-exempt organizations, qualified pension and profit
sharing trusts and individual retirement accounts.
In the event that a U.S. Holder subject to the reporting requirements
described above fails to supply its correct taxpayer identification number in
the manner required by applicable law or underreports its tax liability, the
Company, its agents or paying agents or a broker may be required to "backup"
withhold a tax equal to 31% of each payment of interest (including OID) and
principal (and premium, if any) on the Notes. This backup withholding is not an
additional tax and may be credited against the U.S. Holder's U.S. federal income
tax liability, provided that the required information is furnished to the IRS.
Under current Treasury Regulations, backup withholding and information
reporting will not apply to payments made by the Company or any agent thereof
(in its capacity as such) to a Non-U.S. Holder of a Note if such holder has
provided the required certification that it is not a United States person as set
forth in clause (iii) in the first paragraph under "Non-U.S. Holders" above, or
has otherwise established an exemption (provided that neither the Company nor
its agent has actual knowledge that the holder is a United States person or that
the conditions of any exemption are not in fact satisfied).
Payment of the proceeds from the sale of a Note to or through a foreign
office of a broker will not be subject to information reporting or backup
withholding, except that if the broker is a United States person, a controlled
foreign corporation for United States tax purposes or a foreign person 50
percent or more of whose gross income from all sources for the three-year period
ending with the close of its taxable year preceding the payment was effectively
connected with a U.S. trade or business, information reporting may apply to such
payments. Payment of the proceeds from a sale of a Note to or through the U.S.
office of a broker is subject to information reporting and backup withholding
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<PAGE> 29
unless the holder or beneficial owner certifies as to its taxpayer
identification number or otherwise establishes an exemption from information
reporting and backup withholding.
PLAN OF DISTRIBUTION
The Notes are being offered on a continuing basis by the Company through
each of Lehman Brothers, Lehman Brothers Inc. and Goldman, Sachs & Co., as an
agent (each an "Agent" and collectively the "Agents"), each of which has agreed
to use its reasonable best efforts to solicit offers to purchase the Notes. The
Company will pay each Agent a commission, in the form of a discount, ranging
from .125% to .750% of the principal amount of each Note, depending upon the
time until its Maturity Date, sold through such Agent. The Company may use
additional agents to solicit offers to purchase Notes as the Company may
designate from time to time on terms substantially identical to those set forth
above. Such other agents, if any, will be named in the applicable Pricing
Supplement. The Company also may sell Notes to any Agent, acting as principal,
at a discount to be agreed upon at the time of sale, for resale to one or more
investors or to one or more broker-dealers (acting as principal for purposes of
resale) at varying prices related to prevailing market prices at the time of
resale, as determined by such Agent, or, if so agreed, at a fixed public
offering price. The Notes may also be sold by the Company directly to
purchasers. No commission will be payable to the Agents on Notes sold directly
to purchasers by the Company.
The Company will have the sole right to accept offers to purchase Notes and
may reject any proposed purchase of Notes in whole or in part whether placed
directly with the Company or through an Agent. Each Agent will have the right,
in its discretion reasonably exercised, to reject any offer to purchase Notes
received by it in whole or in part.
Payment of the purchase price of the Notes will be required to be made in
funds immediately available in The City of New York.
The Agents may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Act"). The Company has agreed to
indemnify each Agent against certain liabilities, including liabilities under
the Act. The Company has agreed to reimburse the Agents for certain expenses,
including fees and disbursements of counsel to the Agents. The Agents may sell
to or through dealers who may resell to investors. The Agents may pay all or
part of their commission to such dealers. Such dealers may be deemed to be
"underwriters" within the meaning of the Act.
No Note will have an established trading market when issued. The Notes will
not be listed on any securities exchange. The Company has been advised by each
of the Agents that it may from time to time purchase and sell Notes in the
secondary market, but that it is not obligated to do so. No assurance can be
given that there will be a secondary market for the Notes.
In connection with the offering, the Agents may purchase and sell the Notes
in the open market. These transactions may include overallotment and stabilizing
transactions and purchases to cover short positions created by the Agents in
connection with the offering. The Agents also may impose a penalty bid, whereby
selling concessions allowed to broker-dealers in respect of the securities sold
in the offering may be reclaimed by the Agents if such Notes are repurchased by
the Agents in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Notes, which may
be higher than the price that might otherwise prevail in the open market; and
these activities, if commenced, may be discontinued at any time. These
transactions may be effected in the over-the-counter market or otherwise.
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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 AUGUST 18, 1997
PROSPECTUS
AIR PRODUCTS AND CHEMICALS, INC.
DEBT SECURITIES
Air Products and Chemicals, Inc. (the "Company"), directly, through agents
designated from time to time, or through dealers or underwriters also to be
designated, may sell from time to time after the date of this Prospectus up to
$300,000,000 aggregate principal amount or the equivalent thereof in other
currencies or currency units of its debt securities (the "Securities"), in one
or more series, on terms to be determined at the time of sale. The specific
designation, aggregate principal amount, authorized denominations, currency,
maturity, interest rate or method for its calculation, if any, interest payment
dates, purchase price, any terms for redemption, repayment or defeasance or
other specific terms, any listing on a securities exchange, sinking fund
provisions, if any, and the agents, dealers or underwriters, if any, in
connection with the sale of the Securities in respect of which this Prospectus
is being delivered are set forth in the accompanying Prospectus Supplement
("Prospectus Supplement"), and Pricing Supplement ("Pricing Supplement"), if
any, together with the terms of offering of the Securities. The Company reserves
the sole right to accept and, together with its agents from time to time, to
reject in whole or in part any proposed purchase of Securities to be made
directly or through agents.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED 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 PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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If an agent of the Company or a dealer or underwriter is involved in the
sale of the Securities in respect of which this Prospectus is being delivered,
the agent's commission, dealer's purchase price or underwriter's discount is set
forth in, or may be calculated from, the Prospectus Supplement and the net
proceeds to the Company from such sale will be the purchase price of such
Securities less such commission in the case of an agent, the purchase price of
such Securities in the case of a dealer or the public offering price less such
discount in the case of an underwriter, and less, in each case, the other
attributable issuance and distribution expenses. The aggregate proceeds to the
Company from all the Securities will be the purchase price of Securities sold
less the aggregate of agents' commissions and underwriters' discounts and other
expenses of issuance and distribution. See "Plan of Distribution" for possible
indemnification arrangements for the agents, dealers and underwriters.
, 1997
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports, proxy statements
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information, including
the documents incorporated herein by reference, can be inspected and copied at
the office of the Commission at Room 1024 (Public Reference Room), 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as at the Regional Offices of the
Commission at Northwestern Atrium Center, 500 West Madison Street (Suite 1400),
Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can be obtained by mail from the Public Reference
Room of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding the Registrant;
the address of such Web site is http://www.sec.gov. In addition, such reports,
proxy statements and other information concerning the Company can be inspected
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York, and the Pacific Stock Exchange, 115 Sansome Street, San Francisco,
California.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
following document:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996, filed pursuant to Section 13 of the Securities Exchange Act
of 1934;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1996, March 31, 1997 and June 30, 1997 pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934; and
(c) The Company's Current Reports on Form 8-K filed October 23, 1996,
October 25, 1996, January 24, 1997, April 22, 1997 and July 24, 1997, filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities shall
be deemed to be incorporated by reference into this Prospectus 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 or is 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.
Any person receiving a copy of this Prospectus may obtain without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents. Requests should be
directed to the Corporate Secretary's Office, Air Products and Chemicals, Inc.,
7201 Hamilton Boulevard, Allentown, Pennsylvania 18195-1501, telephone: (610)
481-4911.
THE COMPANY
The Company, through internal development and by acquisitions, has
established an internationally recognized industrial gas and related industrial
process equipment business, and developed strong positions as a producer of
certain chemicals.
The industrial gases business segment recovers and distributes industrial
gases such as oxygen, nitrogen, argon and hydrogen and a variety of medical and
specialty gases. The chemicals business
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segment produces and markets polymer chemicals, performance chemicals and
chemical intermediates. The equipment and services business segment supplies
cryogenic and other process equipment and related engineering services and
includes the Company's power generation and flue gas treatment business.
The Company was incorporated in 1961 under Delaware law and is the
successor to a Michigan corporation organized in 1940. Its principal executive
offices are located at 7201 Hamilton Boulevard, Allentown, Pennsylvania
18195-1501, telephone (610) 481-4911. Except as otherwise indicated by the
context, the term "Company" as used herein means Air Products and Chemicals,
Inc. and its consolidated subsidiaries.
RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
(UNAUDITED)
NINE MONTHS
(UNAUDITED) ENDED
YEAR ENDED SEPTEMBER 30, JUNE 30,
- ---------------------------------------- -----------
1992 1993 1994 1995 1996 1997
- ---- ---- ---- ---- ---- -----------
<S> <C> <C> <C> <C> <C>
3.9 3.2 3.4 4.1 3.7 3.3
</TABLE>
For the purpose of determining the unaudited ratios of earnings to fixed
charges, earnings represent income (before extraordinary item and cumulative
effect of accounting changes) before income taxes, fixed charges (less interest
capitalized), amortization of capitalized interest and undistributed earnings of
less-than-fifty-percent owned affiliates. Fixed charges consist of interest on
all indebtedness (including capital lease obligations), capitalized interest,
amortization of debt discount premium and expense and the portion of rent
charges under operating leases considered to be representative of the interest
factor.
USE OF PROCEEDS
Net proceeds to the Company are expected to be $297,750,000 - $299,625,000
(prior to deducting expenses payable by the Company estimated at $400,000). The
Company currently intends to apply the net proceeds from the sale of the
Securities to its general funds to be used for general corporate purposes. Such
corporate purposes may include the refunding of maturing debt, including
commercial paper and long-term debt obligations (as described in Note 4 of the
Company's 1996 Consolidated Financial Statements, as incorporated into the
Company's Form 10-K for the fiscal year ended September 30, 1996) and the
repurchase of shares of the Company's Common Stock and acquisitions. Pending
such application, all or a portion of the net proceeds may be invested in
short-term money market instruments. The precise amount and timing of the use of
the proceeds will depend upon future requirements and the availability of other
funds to the Company.
DESCRIPTION OF SECURITIES
The Securities offered hereby will be issuable in one or more series under
an Indenture dated as of January 10, 1995 (the "Indenture"), entered into
between the Company and First Union National Bank (formerly, First Fidelity
Bank, National Association), as Trustee (the "Trustee"). The following
statements are subject to the detailed provisions of the Indenture, a copy of
which is filed as an exhibit to the Registration Statement. Wherever references
are made to particular provisions of the Indenture, such provisions are
incorporated by reference as a part of the statements made and such statements
are qualified in their entirety by such reference. Certain defined terms are
capitalized. Section references in italics are to the Indenture.
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GENERAL
The Indenture provides that the aggregate principal amount of Securities
which may be issued under the Indenture is unlimited. Reference is made to the
Prospectus Supplement and the applicable Pricing Supplement for the following
terms of the Securities in respect of which this Prospectus is being delivered:
(1) the designation, aggregate principal amount and authorized denominations of
such Securities; (2) the percentage of their principal amount at which such
Securities will be issued; (3) the currency or currency unit of payment; (4) the
date on which such Securities will mature; (5) the rate or rates per annum, if
any, at which such Securities will bear interest or the method for calculating
such rate; (6) the times at which such interest, if any, will be payable; (7)
provisions for a sinking fund, if any; (8) whether such Securities are to be
issued in book-entry form, and, if so, the identity of the depositary and
information with respect to book-entry procedures; and (9) any redemption,
repayment or defeasance terms or other specific terms. Principal and interest,
if any, will be payable, and the Securities offered hereby will be transferable
or exchangeable, as provided therein.
The Securities will be unsecured and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company.
One or more series of the Securities may be issued as discounted Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such series of discounted Securities will be
described in the Prospectus Supplement and/or the applicable Pricing Supplement
relating thereto.
Special federal income tax and other considerations relating to Securities
denominated in foreign currencies or units of two or more foreign currencies
will be described in the applicable Prospectus Supplement and/or the applicable
Pricing Supplement.
The Securities offered hereby will be issued only in fully registered form
without coupons. No service charge will be made for any transfer or exchange of
the Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Section
2.8)
CERTAIN COVENANTS OF THE COMPANY
Limitations on Liens -- Subject to the exceptions set forth below under
"Exempted Indebtedness," the Company covenants that it will not create or
assume, nor will it permit any Restricted Subsidiary (as hereinafter defined) to
create or assume, any mortgage, security interest, pledge or lien (collectively
referred to herein as "lien") of or upon any Principal Property (as hereinafter
defined), or any underlying real estate of such property, or shares of capital
stock or indebtedness of any Restricted Subsidiary, whether owned at the date of
the Indenture or thereafter acquired, without equally and ratably securing the
outstanding Securities. This restriction will not apply to certain permitted
liens, including the following: (1) liens on any Principal Property which are
created or assumed contemporaneously with, or within 120 days after (or in the
case of any such Principal Property which is being financed on the basis of
long-term contracts or similar financing arrangements for which a firm
commitment is made by one or more banks, insurance companies or other lenders or
investors (not including the Company or any Restricted Subsidiary), then within
360 days after), the completion of the acquisition, construction or improvement
of such Principal Property to secure or provide for the payment of any part of
the purchase price of such property or the cost of such construction or
improvement, or liens on any Principal Property existing at the time of
acquisition thereof; (2) liens on property or shares of capital stock or
indebtedness of a corporation existing at the time such corporation is merged
into or consolidated with the Company or a Restricted Subsidiary or at the time
of a sale, lease or other disposition of the properties of a corporation
substantially as an entirety to the Company or a Restricted Subsidiary; (3)
liens on property or shares of capital stock or indebtedness of a corporation
existing at the time such corporation becomes a Restricted Subsidiary; (4) liens
to secure indebtedness of a Restricted Subsidiary to the Company or to another
Restricted Subsidiary, but only
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so long as such indebtedness is held by the Company or a Restricted Subsidiary;
(5) liens in favor of the United States of America or any State thereof, or any
department, agency or political subdivision of the United States of America or
any State thereof, to secure certain payments pursuant to any contract or
statute, including liens to secure indebtedness of the pollution control or
industrial revenue bond type, or to secure indebtedness incurred for the purpose
of financing all or any part of the purchase price or cost of constructing or
improving property subject to such liens; (6) liens in favor of any customer
arising in respect of certain payments made by or on behalf of such customer for
goods produced for or services rendered to such customer in the ordinary course
of business not exceeding the amount of such payments; (7) liens to extend,
renew or replace in whole or in part any lien referred to in the foregoing
clauses (1) to (6), or in this clause (7), or any lien created prior to and
existing on the date of the Indenture, provided that the principal amount of
indebtedness secured thereby shall not exceed the principal amount of
indebtedness so secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited to all or a
part of the property subject to the lien so extended, renewed or replaced (plus
improvements on such property); and (8) certain statutory liens, liens for taxes
and certain other liens. (Section 3.6)
Limitations on Sale and Lease-Back Transactions -- Subject to the
exceptions set forth below under "Exempted Indebtedness," sale and lease-back
transactions by the Company or any Restricted Subsidiary of any Principal
Property which has been owned and operated by the Company or a Restricted
Subsidiary for more than 120 days are prohibited unless (1) the property
involved is property which could be the subject of a lien without equally and
ratably securing the Securities; (2) an amount equal to the Attributable Debt
(as hereinafter defined) of any such sale and lease-back transaction is applied
to the acquisition of another Principal Property of equal or greater fair market
value or to retirement of indebtedness for borrowed money (including the
Securities) which by its terms matures on or is renewable at the option of the
obligor to a date more than twelve months after the creation of such
indebtedness; or (3) the lease involved is for a term (including renewals) of
not more than three years. (Section 3.7)
Exempted Indebtedness -- The Company or a Restricted Subsidiary may create
or assume liens and enter into sale and lease-back transactions, notwithstanding
the limitations outlined above, provided that at the time thereof and after
giving effect thereto the aggregate amount of indebtedness secured by all such
liens and Attributable Debt of all such sale and lease-back transactions
outstanding shall not exceed 5% of Consolidated Net Tangible Assets (as
hereinafter defined). (Section 3.8)
Limitations on Mergers, Consolidations and Sales of Assets -- If, upon any
consolidation or merger of the Company with or into any other corporation, or
upon any sale, conveyance or lease of substantially all its properties, any
Principal Property would thereupon become subject to any lien, the Company,
prior to such event, will secure the Securities equally and ratably with any
other obligations of the Company then entitled thereto by a direct lien on all
such Principal Property prior to all other liens other than any theretofore
existing thereon. (Section 3.9)
Certain Definitions -- The term "Subsidiary" means any corporation of which
at least a majority of all outstanding voting stock is at the time owned by the
Company or by one or more Subsidiaries of the Company. 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 and (b) which owns or leases a Principal Property. The term
"Principal Property" means any manufacturing plant, research facility or
warehouse owned or leased by the Company or any Subsidiary which is located
within the United States and has a net book value exceeding the greater of
$5,000,000 and 1% of shareholders' equity of the Company and its consolidated
Subsidiaries, excluding any property which the Board of Directors by resolution
declares is not of material importance to the total business of the Company and
its Subsidiaries as an entirety. The term "Attributable Debt" means the present
value (discounted as provided in the Indenture) of the obligation of a lessee
for required rental payments for the remaining term of any lease. The term
"Consolidated Net Tangible Assets" means at any time the total of all assets
appearing on the most recent consolidated balance sheet of the Company and its
consolidated Subsidiaries, prepared in accordance with generally accepted
accounting principles, at their net book values (after deducting related
depreciation, depletion, amortization
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and all other valuation reserves which, in accordance with such principles, are
set aside in connection with the business conducted), but excluding goodwill,
trademarks, patents, unamortized debt discount and all other like segregated
intangible assets, and amounts on the asset side of such balance sheet for
capital stock of the Company, all as determined in accordance with such
principles, less Consolidated Current Liabilities. The term "Consolidated
Current Liabilities" means the aggregate of the current liabilities of the
Company and its consolidated Subsidiaries appearing on the consolidated balance
sheet of the Company and its consolidated Subsidiaries, all as determined in
accordance with generally accepted accounting principles. (Section 1.1)
EVENTS OF DEFAULT, WAIVER AND NOTICE
As to any series of Securities, an Event of Default is defined in the
Indenture as being any one of the following events and such events as may be
established with respect to the Securities of such series in any applicable
Pricing Supplement: (a) default for 30 days in the payment of any interest on
the Securities of such series; (b) default in the payment of principal and
premium, if any, on the Securities of such series when due either at maturity,
upon redemption, by declaration or otherwise; (c) default in the payment of any
sinking fund installment on the Securities of such series; (d) default by the
Company in the performance of any other of the covenants or agreements in the
Indenture (other than those set forth exclusively in the terms of any series of
Securities) which shall not have been remedied for a period of 90 days after
appropriate notice, as specified in the Indenture; or (e) certain events of
bankruptcy, insolvency and reorganization of the Company. (Section 5.1) No Event
of Default with respect to any particular series of Securities necessarily
constitutes an Event of Default with respect to any other series of Securities.
The Indenture provides that the Trustee may withhold notice to the holders of
Securities of any series of any default (except in payment of principal of or
interest on such Securities or in the making of any sinking fund payment with
respect to such Securities) if the Trustee considers it in the interest of the
holders of Securities of such series to do so. (Section 5.11)
The Indenture provides that: (1) if an Event of Default described in clause
(a), (b) or (c) above or established with respect to the Securities of any
series shall have occurred and be continuing, either the Trustee or the holders
of 25% in aggregate principal amount of the Securities of such series then
outstanding may declare the principal (or, in the case of discounted Securities,
the amount specified in the terms thereof) of all such Securities to be due and
payable immediately and (2) if an Event of Default described in clause (d) or
(e) above shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of all Securities
then outstanding may declare the principal (or, in the case of discounted
Securities, the amount specified in the terms thereof) of all Securities to be
due and payable immediately, but upon certain conditions such declarations may
be annulled and past defaults (except for defaults in the payment of principal
of, or premium or interest, if any, on, such Securities) may be waived by the
holders of a majority in aggregate principal amount of the Securities of such
series (or of all series as the case may be) then outstanding. (Section 5.1 and
Section 5.10)
The holders of a majority in aggregate principal amount of the Securities
of each series affected (with each series voting as a separate class) and then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under the
Indenture, subject to certain limitations specified in the Indenture, provided
that the holders of Securities shall have offered to the Trustee reasonable
indemnity against costs, expenses and liabilities. (Section 5.9 and Section
6.2(d)) The Indenture requires the annual filing by the Company with the Trustee
of a certificate as to the absence of certain defaults under the Indenture.
(Section 3.5)
Other than the restrictions on liens and sale and lease-back transactions
described above, the Indenture and the Securities do not contain any covenants
or other provisions designed to afford holders of the Securities protection in
the event of a highly leveraged transaction involving the Company or any
Subsidiary, including without limitation any takeover, recapitalization or other
restructuring that may result in a sudden and significant decline in credit
rating.
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MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in aggregate principal
amount of the Securities of all series affected by such modification at the time
outstanding (voting as one class), to modify the Indenture or any supplemental
indenture or the rights of the holders of the Securities, provided that no such
modification shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable upon redemption thereof, or
reduce the amount of the principal of a discounted Security due and payable upon
acceleration of the maturity thereof or provable in bankruptcy, or impair or
affect the right of a holder to institute suit for the payment thereof or the
right of repayment, if any, at the option of the holder thereof, without the
consent of the holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Securities of any series, the consent of the holders of which is
required for any such modification, without the consent of the holder of each
Security so affected. (Section 8.2)
GLOBAL SECURITIES
The Securities of a series may be issued in the form of a global security
which is deposited with and registered in the name of the depositary (or a
nominee of the depositary) specified in the accompanying Prospectus Supplement.
So long as the depositary for a global security, or its nominee, is the
registered owner of the global security, the depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Securities
represented by such global security for all purposes under the Indenture. Except
as provided in the Indenture, owners of beneficial interests in Securities
represented by a global security will not (a) be entitled to have such
Securities registered in their names, (b) receive or be entitled to receive
physical delivery of certificates representing such Securities in definitive
form, (c) be considered the owners or holders thereof under the Indenture and
(d) have any rights under the Indenture with respect to such global security
(Section 2.14). The Company, in its sole discretion, may at any time determine
that any series of Securities issued or issuable in the form of a global
security shall no longer be represented by such global security and such global
security shall be exchanged for securities in definitive form pursuant to the
Indenture. (Section 2.14)
Upon the issuance of a global security, the depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
such global security to the accounts of participants in the depositary.
Ownership of beneficial interests in a global security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the depositary (with respect to interests of participants in the depositary), or
by participants in the depositary or persons that may hold interests through
such participants (with respect to persons other than participants in the
depositary). Ownership of beneficial interests in a global security will be
limited to participants or persons that hold interests through participants.
CONCERNING THE TRUSTEE
First Union National Bank (formerly, First Fidelity Bank, National
Association), the Trustee under the Indenture, also performs certain cash
management services for, and provides certain credit facilities to, the Company
in the normal course of business.
DEFEASANCE OF THE INDENTURE AND SECURITIES
The Company at any time may satisfy its obligations with respect to
payments of principal of, premium, if any, and interest, if any, on, any
Security or Securities of any series by depositing in trust with the Trustee (a)
money (in such currency in which such securities are payable) or (b), in the
case of Securities denominated in U.S. dollars, U.S. Government Obligations (as
defined in the Indenture) or, in the case of Securities denominated in a foreign
currency, Foreign Government Securities (as defined in the Indenture) or a
combination of (a) and (b) sufficient to make such payments when due.
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If such deposit is sufficient to make all payments of (1) interest, if any, on
such Securities prior to and on their redemption or maturity, as the case may
be, and (2) principal of, and premium, if any, on such Securities when due upon
redemption or at maturity, as the case may be, all the obligations of the
Company with respect to such Securities and the Indenture insofar as it relates
to such Securities will be discharged and terminated (except as to the Company's
obligations to compensate, reimburse and indemnify the Trustee pursuant to the
Indenture). In the event of any such defeasance, holders of such Securities
would be able to look only to such trust fund for payment of principal and
premium, if any, and interest, if any, on Securities of such series until
maturity or redemption. (Article Ten)
For federal income tax purposes, any deposit of cash and/or U.S. Government
Obligations or Foreign Government Securities with respect to which the Company
shall have elected to satisfy and fully discharge its obligations with respect
to any series of Securities would be treated as a taxable exchange of such
Securities for interests in the trust (or, alternatively, for an instrument
representing indebtedness of the trust). In that event, a holder would be
required to recognize taxable gain or loss at the time of such defeasance as if
the Securities had been sold for an amount equal to the sum of the amount of
money and the fair market value of the U.S. Government Obligations or Foreign
Government Securities held in the defeasance trust (or, alternatively, the value
of the instrument). Thereafter, a holder might be required to include in income
the holder's share of the income, gain and loss of the trust (or, alternatively,
the trust might be considered a separate taxable entity with respect to such
items and with respect to the debt instrument, in which case a holder might also
be taxable on original issue discount as well as interest on the instrument).
Purchasers of the Securities should consult their own advisors with respect to
the more detailed tax consequences to them of such deposit and discharge,
including the applicability and effect of tax laws other than federal income tax
law.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of four ways: (i) directly to
purchasers; (ii) through agents; (iii) through underwriters; or (iv) through
dealers.
Offers to purchase Securities may be solicited directly by the Company or
by agents designated by the Company from time to time. Any such agent, who may
be deemed to be an underwriter as that term is defined in the Securities Act of
1933, involved in the offer or sale of the Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment. Agents may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If an underwriter or underwriters are utilized in the sale, the Company
will enter into an underwriting, purchase or agency agreement with such
underwriters at the time of sale to them and the names of the underwriters and
the terms of the transaction will be set forth in the Prospectus Supplement,
which will be used by the underwriters to make resales of the Securities in
respect of which this Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to such
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale.
Agents, underwriters and dealers may be entitled under the relevant
agreements to indemnificaion by the Company against certain liabilities,
including liabilities under the Securities Act of 1933.
If so indicated in the Prospectus Supplement, the Company will authorize
agents or underwriters to solicit offers by certain institutions to purchase
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date stated in the Prospectus
Supplement. Each Contract
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will be for an amount not less than, and unless the Company otherwise agrees the
aggregate principal amount of Securities sold pursuant to Contracts shall be not
more than, the respective amounts stated in the Prospectus Supplement.
Institutions with which Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions but
shall in all cases be subject to the approval of the Company. Contracts will not
be subject to any conditions except that the purchase by an institution of the
Securities covered by its Contract shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject. A commission indicated in the Prospectus Supplement will
be paid to underwriters or agents soliciting purchases of Securities pursuant to
Contracts accepted by the Company.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered will be set forth in the Prospectus Supplement.
LEGAL OPINIONS
The legality of the Securities in respect of which this Prospectus is being
delivered will be passed on for the Company by James H. Agger, Esq., Senior Vice
President, General Counsel and Secretary of the Company, or Robert F. Gerkens,
Esq., Assistant General Counsel of the Company, and for the underwriters, if
any, by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York,
New York 10019. The tax disclosure set forth under "U.S. Federal Income Tax
Considerations" on pages S-20 through S-28 of the Prospectus Supplement has been
passed on for the Company by Kenneth R. Petrini, Esq., Vice President -- Taxes
of the Company. Messrs. Agger, Gerkens and Petrini, in their capacities
indicated, are paid salaries by the Company, they are participants in various
employee benefit plans offered to employees of the Company generally and each
owns shares of common stock of the Company and participates in the Company's
long-term incentive program, which entitles executives to stock options and
deferred stock units. Cravath, Swaine & Moore from time to time acts as special
counsel for the Company.
EXPERTS
The financial statements and schedule for the year ended 30 September 1996
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement, have been audited by Arthur Andersen LLP, 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.
9
<PAGE> 39
===============================================================================
NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS SUPPLEMENT, THE ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT IN
CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS SUPPLEMENT, THE
ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY ANY AGENT, DEALER OR UNDERWRITER. NEITHER THIS PROSPECTUS
SUPPLEMENT, NOR THE ACCOMPANYING PROSPECTUS NOR ANY PRICING SUPPLEMENT SHALL
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY STATE TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION IN SUCH STATE. THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT, THE ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT AT ANY TIME
DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
Prospectus Supplement
<TABLE>
<CAPTION>
PAGE
<S> <C>
Risk Factors................................ S-2
Description of Notes........................ S-4
Special Provisions Relating to
Multi-Currency Notes...................... S-17
U.S. Federal Income Tax Considerations...... S-20
Plan of Distribution........................ S-28
Prospectus
Available Information....................... 2
Incorporation of Certain Documents by
Reference................................. 2
The Company................................. 2
Ratios of Earnings to Fixed Charges......... 3
Use of Proceeds............................. 3
Description of Securities................... 3
Plan of Distribution........................ 8
Legal Opinions.............................. 9
Experts..................................... 9
</TABLE>
===============================================================================
===============================================================================
$300,000,000
[AIR PRODUCTS LOGO]
MEDIUM-TERM NOTES,
SERIES G
DUE FROM 9 MONTHS TO 30 YEARS
FROM DATE OF ISSUE
------------------------------------------------------
PROSPECTUS
, 1997
AND
PROSPECTUS SUPPLEMENT
, 1997
------------------------------------------------------
LEHMAN BROTHERS
GOLDMAN, SACHS & CO.
===============================================================================
<PAGE> 40
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration Fee.................................................. $ 90,909
Printing Fees..................................................... 35,000*
Legal Fees........................................................ 50,000*
Accountants' Fees................................................. 30,000*
Rating Agency Fees................................................ 130,000*
Fees and Expenses of Trustee...................................... 35,000*
Blue Sky Fees and Expenses........................................ 5,000*
Miscellaneous..................................................... 24,091
--------
Total................................................... $400,000
========
</TABLE>
- ---------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware Corporation Law gives corporations the power to
indemnify officers and directors under certain circumstances.
Article Ninth of the Company's Restated Certificate of Incorporation
contains provisions which provide for indemnification of certain persons
(including officers and directors). The Restated Certificate of Incorporation is
filed as an exhibit to the Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 1987.
The Company maintains insurance that generally insures the officers and
directors of the Company and its subsidiaries (as defined in said policy)
against liabilities incurred in such capacities, and insures the Company with
respect to amounts to which officers and directors become entitled as
indemnification payments from the Company, subject to certain specified
exclusions and deductible and maximum amounts. The Company also maintains a
policy of insurance that insures, among others, certain officers and directors
of the Company and certain of its subsidiaries against liabilities incurred for
Breach of Fiduciary Duty (as defined in said policy) with respect to their
performance of their duties and responsibilities in connection with certain
pension and retirement plans of the Company and certain of its subsidiaries,
subject to certain specified exclusions and deductible and maximum amounts.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<S> <C>
Exhibit 1 -- Form of Agency Agreement.
Exhibit 4(a) -- Indenture dated as of January 10, 1995, between the Company and
First Union National Bank (formerly, First Fidelity Bank, National
Association), as Trustee, relating to the Securities (filed as
Exhibit 4(a) to the Company's Registration Statement No. 33-57357).
(b) -- Form of Fixed Rate Medium-Term Note, Series G.
(c) -- Form of Floating Rate Medium-Term Note, Series G.
(d) -- Form of Fixed Rate Currency Indexed Medium-Term Note, Series G.
(e) -- Form of S&P 500 Linked Medium-Term Note, Series G.
Exhibit 5 -- Opinion of Company counsel as to legality of the Securities to be
issued.
Exhibit 12 -- Computation of Ratios of Earnings to Fixed Charges (filed as
Exhibit (a)(12) to the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997, and incorporated herein by
reference).
Exhibit 23(a) -- Consent of Arthur Andersen LLP.
(b) -- Consent of Company counsel.
</TABLE>
II-1
<PAGE> 41
<TABLE>
<S> <C>
Exhibit 24 -- Power of Attorney.
Exhibit 25 -- Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of First Union National Bank, as Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS.
THE UNDERSIGNED REGISTRANT HEREBY UNDERTAKES:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, 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;
(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 the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section
13 or 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.
The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth or described in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question 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> 42
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) 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.
II-3
<PAGE> 43
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Allentown and Commonwealth of Pennsylvania on the
18th day of August, 1997.
AIR PRODUCTS AND CHEMICALS, INC.
(Issuer)
By /s/ A. H. KAPLAN
------------------------------------
(A. H. Kaplan, Senior Vice
President -- Finance)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on August 18, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -----------------------------------------------
<C> <S> <C>
/s/ HAROLD A. WAGNER Director, Chairman of the Board
and President (Principal
- ----------------------------------------------- Executive Officer)
(Harold A. Wagner)
/s/ A. H. KAPLAN Senior Vice President -- Finance
(Principal Financial Officer)
- -----------------------------------------------
(A. H. Kaplan)
/s/ PAUL E. HUCK Vice President and Corporate
Controller (Principal
- ----------------------------------------------- Accounting Officer)
(Paul E. Huck)
* Director
- -----------------------------------------------
(Dexter F. Baker)
* Director
- -----------------------------------------------
(Tom H. Barrett)
* Director
- -----------------------------------------------
(L. Paul Bremer, III)
* Director
- -----------------------------------------------
(Robert Cizik)
* Director
- -----------------------------------------------
(Ruth M. Davis)
* Director
- -----------------------------------------------
(Edward E. Hagenlocker)
</TABLE>
II-4
<PAGE> 44
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -----------------------------------------------
<C> <S> <C>
* Director
- -----------------------------------------------
(James F. Hardymon)
* Director
- -----------------------------------------------
(Joseph J. Kaminski)
* Director
- -----------------------------------------------
(Terry R. Lautenbach)
* Director
- -----------------------------------------------
(Rudolphus F. N. Lubbers)
* Director
- -----------------------------------------------
(Takeo Shiina)
* Director
- -----------------------------------------------
(Lawrason D. Thomas)
</TABLE>
* Arnold H. Kaplan, Senior Vice President -- Finance, by signing his name
hereto, does sign this document on behalf of the above-noted individuals
pursuant to a power of attorney duly executed by such individuals, which power
of attorney is filed with the Securities and Exchange Commission as Exhibit 24
hereto.
/s/ ARNOLD H. KAPLAN
-------------------------------------
(Arnold H. Kaplan, Attorney-in-Fact)
II-5
<PAGE> 45
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
--------------- ------------------------------------------------------------ ------------
<S> <C> <C>
Exhibit 1 -- Form of Agency Agreement.
Exhibit 4(a) -- Indenture dated as of January 10, 1995, between the
Company and First Union National Bank (formerly, First
Fidelity Bank, National Association), as Trustee, relating
to the Securities (Filed as Exhibit 4(a) to the Company's
Registration Statement No. 33-57357).
(b) -- Form of Fixed Rate Medium-Term Note, Series G.
(c) -- Form of Floating Rate Medium-Term Note, Series G.
(d) -- Form of Fixed Rate Currency Indexed Medium-Term Note,
Series G.
(e) -- Form of S&P 500 Linked Medium-Term Note, Series G.
Exhibit 5 -- Opinion of Company counsel as to legality of the
Securities to be issued.
Exhibit 12 -- Computation of Ratios of Earnings to Fixed Charges (filed
as Exhibit (a)(12) to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1997, and incorpo-
rated herein by reference).
Exhibit 23(a) -- Consent of Arthur Andersen LLP.
(b) -- Consent of Company counsel.
Exhibit 24 -- Power of Attorney.
Exhibit 25 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of First Union National Bank
as Trustee.
</TABLE>
<PAGE> 1
EXHIBIT 1
U.S. $ 1/
Air Products and Chemicals, Inc.
Medium-Term Notes, Series
AGENCY AGREEMENT
, 199
[Agents]
Dear Ladies and Gentlemen:
Air Products and Chemicals, Inc., a Delaware corporation (the
"Corporation"), confirms its agreement with each of you with respect to the
issue and sale by the Corporation of up to $ 1/ aggregate principal amount
of its Medium-Term Notes, Series , Due from 9 Months to 30 Years from Date of
Issue (the "Notes"). The Notes are to be issued from time to time pursuant to an
indenture, dated as of January 10, 1995 (as it may be supplemented or amended
from time to time, the "Indenture"), between the Corporation and First Union
National Bank (formerly First Fidelity Bank, National Association), as trustee
(the "Trustee").
The Notes will be issued, and the terms thereof established,
in accordance with the Indenture and the Medium-Term Notes, Series ,
Administrative Procedures attached hereto as Exhibit B (the "Procedures")
(unless a Terms Agreement (as defined in Section 2(b)) modifies or otherwise
supersedes such Procedures with respect to the Notes issued pursuant to such
Terms Agreement). For the purposes of this Agreement, the term "Agent" shall
refer to any of you acting solely in the capacity as agent for the Corporation
pursuant to Section 2(a) and not as principal (collectively, the "Agents"), the
term "Purchaser" shall refer to one of you acting solely as principal pursuant
to Section 2(b) and not as agent, and the term "you" shall refer to you
collectively whether at any time any of you is acting in both such capacities or
in either such capacity. In acting under this Agreement, in whatever capacity,
each of you is acting individually and not jointly.
- --------
1/ Or its equivalent in foreign currencies or currency
units.
<PAGE> 2
2
SECTION 1. Representations and Warranties. The Corporation
represents and warrants to each of you as of the Closing Date referred to in
Section 2(a)(viii), and as of the times referred to in Section 9(a) at which the
Corporation accepts offers to purchase Notes and delivers Notes so purchased
(each such time being hereinafter sometimes referred to as a "Representation
Date"), as follows:
(a) Registration Statement and Prospectus. The Corporation has
filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), and the published rules and regulations adopted by the
Commission thereunder (the "Rules"), a registration statement on Form
S-3 (No. 333-[ ]) (the "Registration Statement"), including a basic
prospectus, which has become effective under the Securities Act, for
the registration under the Securities Act of $ aggregate principal
amount of debt securities (the "Securities"), including the Notes. The
Registration Statement meets the requirements set forth in Rule
415(a)(1) under the Securities Act and complies in all other material
respects with said Rule. The Corporation has included in the
Registration Statement a supplement to the form of prospectus included
in the Registration Statement relating to the Notes and the plan of
distribution thereof (as amended or supplemented from time to time, the
"Prospectus Supplement"). In connection with the sale of the Notes, the
Corporation proposes to file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Securities Act further
supplements to the Prospectus Supplement specifying the interest rates,
maturity dates, redemption provisions and other similar terms of the
Notes sold pursuant hereto or the offering thereof. "Basic Prospectus"
shall mean the form of basic prospectus relating to the Securities
contained in the Registration Statement. The term "Prospectus" means
the Basic Prospectus as supplemented by the Prospectus Supplement. Any
reference herein to the Registration Statement, the Basic Prospectus,
the Prospectus Supplement or the Prospectus includes the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date hereof or the issue date of the
Prospectus Supplement or the Prospectus, as the case may be, and any
reference herein to "amend", "amendment" or "supplement" with respect
to the
<PAGE> 3
3
Registration Statement, the Basic Prospectus, the Prospectus Supplement
or the Prospectus includes the filing of any document under the
Exchange Act after the date hereof or the issue date of the Prospectus
Supplement or the Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) Accuracy of Registration Statement. The Registration
Statement, as amended, as of each Representation Date, complies in all
material respects with the provisions of the Securities Act and the
Rules and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and the
Prospectus, as supplemented as of any such time, complies in all
material respects with the provisions of the Securities Act and the
Rules and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Prospectus as supplemented at the Closing Date may
not include the information contemplated by Section l(a) to be
contained in pricing supplements thereto; provided, further, however,
that none of the representations and warranties contained in this
Section 1(b) shall apply to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee or (ii) statements in, or
omissions from, the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto made in reliance upon and in
conformity with information furnished in writing to the Corporation by
or on behalf of you for use in connection with the preparation of the
Registration Statement or the Prospectus or any such amendment or
supplement.
(c) Accountants. The accountants whose reports with respect to
financial statements are included in the Registration Statement and the
Prospectus are independent with respect to the Corporation and its
subsidiaries as required by the Securities Act and the Rules.
(d) Material Changes. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
as amended or
<PAGE> 4
4
supplemented as of such Representation Date, and except as set forth
therein, there has not been any material adverse development or change
in the condition, financial or other, or the results of operations of
the Corporation and its consolidated subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business.
(e) Litigation. Except as set forth in the Registration
Statement and the Prospectus, as amended or supplemented as of such
Representation Date, neither the Corporation nor any of its
subsidiaries has any litigation or governmental proceeding pending of a
character which will result in a judgment, decree or order having a
material adverse effect on the condition, financial or other, or the
results of operations of the Corporation and its consolidated
subsidiaries, taken as a whole.
(f) Valid Incorporation; Subsidiaries. The Corporation and
each subsidiary of the Corporation has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
jurisdiction in which it was incorporated, has the corporate power to
own or hold under lease the property it purports to own or hold under
lease and to carry on the business in which it is engaged, and is duly
licensed and duly qualified and is in good standing as a foreign
corporation in each jurisdiction wherein the character of the property
owned or held under lease by it, or the nature of the business
transacted by it, makes such licensing or qualification necessary; and
all the outstanding shares of the capital stock of the subsidiaries of
the Corporation are owned directly, or indirectly through wholly owned
subsidiaries, by the Corporation, free and clear of any material lien,
pledge or other encumbrance, except for (i) directors' and officers'
qualifying shares and (ii) shares of such stock representing minority
interests reflected in the financial statements of the Corporation and
its consolidated subsidiaries included in the Prospectus.
(g) Legality. At the date when the Prospectus Supplement is
filed with, or mailed for filing to, the Commission pursuant to Rule
424(b) under the Securities Act and at each Representation Date
thereafter, (i) the issuance and delivery of the Notes by the
Corporation pursuant to this Agreement will have been duly and
validly authorized by all necessary corporate action and no
authorization, consent or approval of the stockholders and no further
authorization or approval
<PAGE> 5
5
of the Board of Directors of the Corporation will be required for the
issuance, sale and delivery of the Notes as contemplated herein; (ii)
neither such issuance, sale or delivery of the Notes nor the
consummation of any other of the transactions herein contemplated will
result in a breach by the Corporation of any terms of, or constitute a
default under, any other agreement or undertaking of the Corporation;
and (iii) no authorization, consent or approval of, or filing or
registration with, or exemption by, any government or public body or
authority of the United States or of any State or any department or
subdivision thereof, other than such as may be required under the
securities or blue sky laws of any jurisdiction and other than
registration of the Notes under the Securities Act and qualification
of the Indenture under the Trust Indenture Act, is required for the
validity of the Notes or for the valid offering, issuance, sale and
delivery of the Notes by the Corporation pursuant to this Agreement or
for the execution and delivery by the Corporation of this Agreement and
the Indenture.
(h) No Stop Order. The Commission has not issued any order
preventing or suspending the use of the Prospectus as supplemented as
of such Representation Date.
(i) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, as amended or
supplemented as of such Representation Date, present fairly the
financial condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods indicated, and
have been, and in the case of financial statements included in any
amendments or supplements as of such Representation Date will be,
prepared, except as stated therein, in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved.
(j) Timely Filing of Documents. During the twelve calendar
months and any portion of a calendar month immediately preceding the
date of the filing of the Registration Statement with the Commission,
the Corporation has timely filed all documents and amendments to
previously filed documents required to be filed by it pursuant to
Section 12, 13, 14 or 15(d) of the Exchange Act. The documents
incorporated by reference into the Prospectus, as supplemented as of
the applicable Representation Date, have been, and each document
subsequently incorporated by reference therein
<PAGE> 6
6
as of such Representation Date will be, prepared by the Corporation in
conformity with the requirements of the Exchange Act and the rules and
regulations thereunder and such documents have been, or in the case of
documents subsequently incorporated by reference therein will be as of
the applicable Representation Date, timely filed as required thereby.
Copies of each of the documents incorporated by reference into the
Prospectus, together with satisfactory evidence of the filing thereof
and of the other documents and amendments referred to in the first
sentence of this paragraph, have been, or as of the applicable
Representation Date will be, delivered by the Corporation to each of
you.
(k) Doing Business with Cuba. The Corporation confirms as of
the date hereof, and each acceptance by the Corporation of an offer to
purchase Notes will be deemed to be an affirmation, that the
Corporation is in compliance with all provisions of Section 517.075 of
the Florida Securities and Investor Protection Act relating to
disclosure of business in Cuba, and the Corporation further agrees that
it will continue so to comply in the future.
SECTION 2. Appointment of Agents; Solicitation by the Agents
of Offers to Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms
and conditions stated herein, and subject to the reservation by the Corporation
of the right to sell Notes directly on its own behalf, and to sell Notes to or
through such other agents as the Corporation shall appoint from time to time:
(i) the Corporation hereby appoints the Agents as agents of
the Corporation for the purpose of soliciting or receiving offers to
purchase the Notes from the Corporation by others;
(ii) the Corporation shall notify the Agents of any sale made
to or through other agents on or promptly after the settlement date for
such sale. This Agreement shall apply only to sales of the Notes and
not to sales of any other securities or evidences of indebtedness of
the Corporation and only on the specific terms set forth herein;
(iii) 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 Corporation, to use its
reasonable best efforts to solicit offers to purchase the Notes upon
<PAGE> 7
7
the terms and conditions set forth in the Prospectus, as supplemented
from time to time. Except as provided in Section 2(b), under no
circumstances will any Agent be obligated to purchase any Notes for its
own account. It is understood and agreed, however, that any Agent may
purchase Notes as principal pursuant to Section 2(b);
(iv) the Corporation 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
Corporation, the Agents will forthwith suspend solicitation of offers
to purchase Notes from the Corporation until such time as the
Corporation has advised the Agents that such solicitation may be
resumed. For the purpose of the foregoing sentence, "business day"
shall mean any day which is not a Saturday or Sunday or a legal holiday
and which is not a day on which banking institutions are authorized or
required by law or regulation to close in New York, New York. The
suspension of solicitation of offers to purchase the Notes by the
Corporation shall likewise suspend until the next Representation Date
the representations and warranties set forth in Section 1 and the
covenants set forth in Sections 4 and 9 except as and to the extent
provided in Section 13;
(v) promptly upon the closing of the sale of any Notes sold by
the Corporation as a result of a solicitation made by an Agent, the
Corporation agrees to pay such Agent a commission in accordance with
the schedule set forth in Exhibit A hereto;
(vi) the Agents are authorized to solicit offers to purchase
the Notes only in denominations of U.S. $100,000 2/ 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 Corporation. Each
Agent shall communicate to the Corporation, orally or in writing, each
reasonable
- --------
2/ Or the equivalent (rounded down to an integral multiple of 10,000
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 10,000 units of such denomination.
<PAGE> 8
8
offer to purchase Notes received by it as an Agent other than those
rejected by such Agent pursuant to the next sentence. Each Agent shall
have the right, in its discretion reasonably exercised without advising
the Corporation, 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. The Corporation shall have
the sole right to accept offers to purchase the Notes and may reject
any such offer in whole or in part;
(vii) the Procedures may be amended in writing from time to
time by mutual agreement of the Agents and the Corporation after notice
to, and with the approval of, the Trustee. Each Agent and the
Corporation agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures; and
(viii) the documents required to be delivered by Section 6
hereof shall be delivered at the offices of Cravath, Swaine & Moore,
825 Eighth Avenue, New York, New York 10019 not later than 10:00 A.M.,
New York City time, on the date of this Agreement or at such later time
or other location in New York City as may be mutually agreed upon by
the Corporation 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").
(b) Subject to the terms and conditions stated herein,
whenever the Corporation and any of you determines that the Corporation shall
sell Notes directly to any of you as principal, each such sale of Notes shall be
made in accordance with the terms of this Agreement and a supplemental agreement
relating to such sale. Each such supplemental agreement, which may be either
oral or written, is herein referred to as a "Terms Agreement":
(i) each Terms Agreement shall describe to the extent as
appropriate the Notes to be purchased by the Purchaser pursuant thereto
and shall specify the aggregate principal amount of such Notes, the
price to be paid to the Corporation for such Notes, the currency in
which such Notes are issued, the maturity date of such Notes, the rate
at which interest will be paid on such Notes, the dates on which
interest will be paid on such Notes and the record date with respect to
each such payment of interest, the Closing Date for the purchase of
such Notes, the place of delivery of the Notes and payment therefor,
the method of payment, the
<PAGE> 9
9
portion of the expenses described in Section 5 to be paid or reimbursed
to the Corporation by the Purchaser and any requirements for the
delivery of opinions of counsel, certificates from the Corporation or
its officers or a letter from the Corporation's independent public
accountants as described in Section 7(f). Any such Terms Agreement may
also specify the period of time referred to in Section 4(k). Any
written Terms Agreement may be in the form attached hereto as Exhibit
C. The Purchaser's commitment to purchase Notes shall be deemed to have
been made on the basis of the representations and warranties of the
Corporation herein contained and shall be subject to the terms and
conditions herein set forth;
(ii) delivery of the certificates for Notes sold to the
Purchaser pursuant to a Terms Agreement shall be made not later than
the Closing Date agreed to in such Terms Agreement, against payment of
funds to the Corporation in the net amount due to the Corporation for
such Notes by the method and in the form set forth in such Terms
Agreement; and
(iii) unless otherwise agreed to between the Corporation and
the Purchaser in a Terms Agreement, any Note sold to a Purchaser (A)
shall be purchased by such Purchaser 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 (B)
may be resold by such Purchaser at varying prices from time to time or,
if set forth in the applicable Terms Agreement and pricing supplement,
at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser 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 3. Offering and Sale of Notes. Each Agent and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Corporation. The Corporation
covenants and agrees:
(a) To furnish promptly to each of you and to your counsel a
signed copy 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 incorpo-
<PAGE> 10
10
rated therein by reference and all consents and exhibits filed therewith.
(b) To deliver promptly to each of you such number of the
following documents as each of you 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 Basic Prospectus, each preliminary prospectus and the Prospectus and (iii)
any documents incorporated by reference in the Prospectus.
(c) If, during any period in which, in the opinion of your
counsel, a prospectus relating to the Notes is required to be delivered under
the Securities Act in respect of Notes being offered for sale by any of you, any
event relating to or affecting the Corporation 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 in order 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 Securities
Act (other than periodic reports under the Exchange Act that are timely filed),
to notify each of you promptly to suspend solicitation of purchases of the
Notes; and if the Corporation shall decide to amend or supplement the
Registration Statement or the Prospectus, to promptly advise each of you by
telephone (with confirmation in writing) and to promptly prepare and timely 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, in the case of a sale made
pursuant to a Terms Agreement, the Corporation 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 Corporation or the
Purchaser, be required by the Securities Act or requested by the Commission.
(d) 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 Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(e) Upon 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
<PAGE> 11
11
of or supplement to any such incorporated document, to furnish a copy thereof to
each of you.
(f) During the period referred to in (c) above, to advise each
of you (i) when any post-effective amendment to the Registration Statement
relating to or covering the Notes becomes effective, (ii) of any demand 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 (other than any demand for an amendment or
supplement to or additional information concerning documents hereafter filed
with the Commission pursuant to the Exchange Act and incorporated by reference
in the Registration Statement and Prospectus, where the failure to comply with
such request would not cause the Registration Statement or the Prospectus, as
then supplemented or amended, to fail to comply in any material respect with the
provisions of the Securities Act and the applicable Rules or to contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading),
(iii) 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, (iv) of receipt by the
Corporation 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
relating to or affecting the Corporation 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 the Registration Statement or the Prospectus
in order to make any material statement therein not misleading.
(g) 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) As soon as practicable, but not later than 18 months,
after the date of each acceptance by the Corporation of an offer to purchase
Notes hereunder, to make generally available to its security holders and each of
you an earnings statement or statements which will satisfy the provisions of
Section 11(a) of the Securities Act
<PAGE> 12
12
(including, at the option of the Corporation, Rule 158 of the Rules).
(i) So long as any of the Notes are outstanding (including by
way of resale by a Purchaser of Notes), to furnish to each of you, not later
than the time the Corporation makes the same available to others, copies of all
public reports or press releases (i) sent by the Corporation over the P.R.
Newswire, (ii) furnished by the Corporation to any securities exchange on which
the Notes are listed pursuant to requirements of or agreements with such
exchange or (iii) filed with the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder.
(j) To endeavor, in cooperation with each of you, to qualify
the Notes for offering and sale under the securities laws of such jurisdictions
as each of you 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
the Corporation shall not be required to register or qualify as a foreign
corporation nor, except as to matters and transactions relating to the offer or
sale of the Notes, take any action which would subject it to service of process
generally in any jurisdiction.
(k) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Corporation shall not, without the prior
consent of the Purchaser thereunder, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of, any
debt securities issued or guaranteed by the Corporation (other than the Notes
being sold pursuant to such Terms Agreement, borrowings under the Corporation's
revolving credit agreements and lines of credit, the private placement of
securities and issuances of the Corporation's commercial paper).
SECTION 5. Payment of Expenses. The Corporation will pay (i)
the costs incident to the authorization, issuance, sale and delivery of the
Notes and any taxes payable in that connection, (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto, (iii) the costs incident to
the preparation, printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Corporation
<PAGE> 13
13
under the Exchange Act, (iv) the costs of distributing, as each of you may
reasonably request, the Registration Statement, as originally filed, and each
amendment and post-effective amendment thereof (including exhibits), any
preliminary prospectus, the Basic Prospectus, the Prospectus, any supplement or
amendment to the Prospectus and any documents incorporated by reference in any
of the foregoing documents, (v) the fees and disbursements of the Trustee, any
paying agent, any calculation agent, any exchange rate agent and any other
agents appointed by the Corporation, and their respective counsel, (vi) the
costs and fees in connection with the listing of the Notes on any securities
exchange, (vii) the cost of any filings with the National Association of
Securities Dealers, Inc., (viii) except to the extent paid or reimbursed to the
Corporation by a Purchaser pursuant to a Terms Agreement (which payment or
reimbursement shall be in an amount proportional to the principal amount of
Notes sold under such Terms Agreement to $ ), the reasonable fees and
disbursements of counsel to the Corporation and your counsel, (ix) the fees paid
to rating agencies in connection with the rating of the Notes, (x) the fees and
expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 4(j) hereof and of preparing and printing a
Blue Sky Memorandum and a memorandum concerning the legality of the Notes as an
investment (including the reasonable fees and expenses of your counsel in
connection therewith), (xi) all advertising expenses in connection with the
offering of the Notes incurred with the consent of the Corporation and (xii)
other costs and expenses incurred by the Corporation in connection with the
performance of its obligations under this Agreement.
SECTION 6. Conditions of Obligations of the Agents. The
obligations of the Agents, as agents of the Corporation, under this Agreement to
solicit offers to purchase the Notes, and the obligation of any person who has
agreed to purchase Notes sold through an Agent as agent to make payment for and
take delivery of Notes, are subject to the accuracy on each Representation Date
of the representations and warranties of the Corporation contained herein, to
the performance by the Corporation of its obligations hereunder, and to each of
the following additional terms and conditions:
(a) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); no stop order suspending the effectiveness of the Registration
Statement or any part thereof nor any order
<PAGE> 14
14
directed to any document incorporated by reference in the Prospectus shall have
been issued; no stop order proceeding shall have been initiated or threatened by
the Commission; no challenge shall have been made by the Commission and shall
not have been satisfactorily answered or remedied by the Corporation to the
accuracy or adequacy of any document incorporated by reference in the Prospectus
in any respect that would constitute a failure of the Prospectus, as
supplemented, to comply in any material respect with the provisions of the
Securities Act and the applicable Rules or that, if substantiated, would mean
that the Prospectus, as supplemented, would contain any untrue statement of a
material fact or would omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances in which they were made, not misleading; any request of the
Commission of the nature referred to in Section 4(f)(ii) shall have been
complied with.
(b) No order suspending the sale of the Notes in any
jurisdiction designated by the Agents pursuant to Section 4(j) hereof shall have
been issued, and no proceeding for that purpose shall have been initiated or
threatened.
(c) The Agents shall not have discovered and disclosed to the
Corporation 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.
(d) 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, the Prospectus (other than
financial statements and other financial data) 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 Corporation shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(e) At the Closing Date, the Agents shall have received the
opinion, addressed to the Agents and dated the Closing Date, of the General
Counsel of the Corporation or the Assistant General Counsel of the Corporation,
in form and substance satisfactory to the Agents and their counsel, to the
effect that:
<PAGE> 15
15
(i) the Corporation has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
State of Delaware, and has the corporate power to own or hold under
lease the property it purports to own or hold under lease and to carry
on the business in which it is engaged;
(ii) the form of the Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(iii) the issuance, sale and delivery of the Notes by the
Corporation pursuant to this Agreement have been duly and validly
authorized by all necessary corporate action; and no authorization,
consent or approval of, or filing or registration with, or exemption
by, any government or public body or authority of the United States or
of any State or any Department or subdivision thereof, other than such
as may be required under the securities or blue sky laws of any
jurisdiction, is required for the validity of the Notes or for the
valid offering, issuance, sale and delivery of the Notes by the
Corporation pursuant to this Agreement or for the execution and
delivery by the Corporation of this Agreement and the Indenture;
(iv) the Indenture has been duly and validly authorized,
executed and delivered by the Corporation and constitutes an instrument
valid and binding on the Corporation and enforceable in accordance with
its terms (except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability);
(v) the Notes, when issued in a form conforming to the
specimens thereof examined by such counsel, will be in a form
contemplated by the Indenture and, assuming due execution of the Notes
on behalf of the Corporation and authentication thereof by the Trustee,
upon the delivery thereof and payment therefor as provided in this
Agreement, the Notes will constitute valid and binding obligations of
the Corporation enforceable in accordance with their respective terms
(except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally and (b) rights of acceleration and the
<PAGE> 16
16
availability of equitable remedies may be limited by equitable
principles of general applicability), entitled to the benefits of the
Indenture;
(vi) this Agreement has been duly authorized, executed and
delivered by the Corporation, and the performance of this Agreement and
the consummation of the transactions herein contemplated will not
result in a breach of any of the terms or provisions of, or constitute
a default under, the Restated Certificate of Incorporation or By-laws
of the Corporation or, to the knowledge of such counsel, any law,
administrative regulation or court decree applicable to the Corporation
or by which the Corporation or any of its proper ties is bound or
affected (except to the extent that the enforceability of the indemnity
provisions of this Agreement may be limited by securities laws or
public policy);
(vii) the performance of this Agreement and the consummation
of the transactions herein contemplated will not result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, deed of trust, note, note agreement or other agreement or
instrument known to such counsel to which the Corporation or any of its
subsidiaries is a party or by which the Corporation or any of its
subsidiaries or any of their properties is bound or affected;
(viii) the Registration Statement and any amendments thereof
have become and are effective and the Registration Statement, the
Prospectus and each amendment thereof or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Securities Act, and the
Rules (except that no opinion need be expressed as to financial
statements and other financial data), the Securities are registered
under the Securities Act, and the Indenture has been qualified under
the Trust Indenture Act; and
(ix) in passing upon the form of the Registration Statement
and the Prospectus, such counsel has necessarily assumed the
correctness and completeness of the statements made or included therein
and takes no responsibility therefor, except insofar as such statements
relate to the description of the Notes or the Indenture or relate
to such counsel; the statements with regard to such counsel made under
the heading "Legal Opinions" in the Prospectus are correct; and such
counsel has no reason to believe that (except as
<PAGE> 17
17
aforesaid) the Registration Statement (or any post-effective amendment
thereof) at the time it became effective contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that (except as aforesaid) the Prospectus (as amended or
supplemented, if so amended or supplemented) contains any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading as of the Closing Date.
(f) The Corporation shall have furnished to the Agents on the
Closing Date a certificate of the Corporation, dated the Closing Date, signed on
its behalf by the President, the Vice President-Finance or the Treasurer,
stating that:
(i) The representations, warranties and agreements of the
Corporation in section 1 hereof are true and correct in all material
respects as of the date of such certificate with the same effect as if
made on such date; and the Corporation has not received any notice that
the conditions set forth in Section 5(a) hereof will not be satisfied
as of the Closing Date or any other Representation Date; and
(ii) The person executing such certificate has examined the
Registration Statement and the Prospectus and, in such person's
opinion, (A) the Registration Statement at the date thereof, or as of
the most recent amendment thereto, if any, did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) the Prospectus as supplemented at the date of such
certificate does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than
the information to be provided in pricing supplements thereto as
contemplated by Section l(a) hereof), and (C) since the effective date
of the Registration Statement (or the most recent amendment thereto, if
any) there has not occurred any event required to be set forth in an
amendment to the Registration Statement which has not been so set
forth.
<PAGE> 18
18
(g) The Corporation shall have furnished to the Agents on the
Closing Date a letter of Arthur Andersen LLP, addressed jointly to the
Corporation 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. 76 substantially in the form hereto fore approved by the Agents,
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) There shall not have occurred, since the date of this
Agreement, in the case of the obligations of the Agents to solicit offers, or
since the date of the Corporation's acceptance of an offer to purchase Notes, in
the case of the obligation to purchase such Notes: any material adverse change
in, or any adverse development which materially affects the business,
properties, condition (financial or other), results of operations or prospects
of the Corporation and its consolidated subsidiaries taken as a whole; 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; a
general moratorium on commercial banking activities declared by either federal
or New York State authorities; any material adverse change in the existing
financial, political or economic conditions in the United States or elsewhere;
an outbreak or escalation of major hostilities involving the United States or
the declaration of a national emergency or war by the United States; or any
downgrading in the rating accorded the Corporation's debt securities by any
"nation ally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities
Act, or any public announcement by any such organization that the rating
accorded any of the Corporation's debt securities have been placed under
surveillance or review with possible negative implications, if the effect
thereof in the judgment of such Agent or purchaser makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Notes or the
purchase of Notes from the Corporation, as the case may be.
(i) Prior to the Closing Date, the Corporation 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
<PAGE> 19
19
if they are in form and substance satisfactory to counsel for the Agents.
SECTION 7. Conditions to the Obligations of a Purchaser. The
obligations of a Purchaser to purchase any Notes will be subject to the accuracy
of the representations and warranties on the part of the Corporation herein as
of the date of the related Terms Agreement and as of the Closing Date for such
Notes, to the performance and observance by the Corporation of all covenants and
agreements herein contained on its part to be performed and observed and to the
following additional conditions precedent:
(a) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); 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; no stop order proceeding shall have
been initiated or threatened by the Commission; no challenge shall have
been made by the Commission and shall not have been satisfactorily
answered or remedied by the Corporation to the accuracy or adequacy of
any document incorporated by reference in the Prospectus in any respect
that would constitute a failure of the Prospectus, as supplemented, to
comply in any material respect with the provisions of the Securities
Act and the applicable Rules or that, if substantiated, would mean that
the Prospectus, as supplemented, would contain any untrue statement of
a material fact or would omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances in which they were made, not misleading;
any request of the Commission of the nature referred to in Section
4(f)(ii) shall have been complied with.
(b) No order suspending the sale of the Notes in any
jurisdiction designated by the Purchaser pursuant to Section 4(j)
hereof shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened.
(c) The Purchaser shall not have discovered and disclosed to
the Corporation that the Registration Statement or any Prospectus
contains an untrue statement of a fact which, in the opinion of counsel
<PAGE> 20
20
for the Purchaser, 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.
(d) 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, the Prospectus
(other than financial statements and other financial data) and all
other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel
for the Purchaser and the Corporation shall have furnished to such
counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(e) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the
Company prior to delivery of any payment for any Note to be purchased
thereunder, if prior to such time: any material adverse change in, or
any adverse development which materially affects the business,
properties, condition (financial or other), results of operations or
prospects of the Corporation and its consolidated subsidiaries taken as
a whole; 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; a general moratorium on commercial
banking activities declared by either federal or New York State
authorities; any material adverse change in the existing financial,
political or economic conditions in the United States or elsewhere; an
outbreak or escalation of major hostilities involving the United States
or the declaration of a national emergency or war by the United States;
or any downgrading in the rating accorded the Corporation'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 Securities Act, or any public announcement
by any such organization that the rating accorded any of the
Corporation's debt securities have been placed under surveillance or
review with possible negative implications, if the effect thereof in
the judgment of such Purchaser makes it impracticable or inadvisable to
proceed with the purchase of Notes from the Corporation.
<PAGE> 21
21
(f) To the extent agreed to between the Corporation and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Corporation, dated as
of the Closing Date, to the effect set forth in Section 6(f) (except
that references to the Prospectus shall be to the Prospectus as
supplemented as of the date of such Terms Agreement), (ii) the opinion
of the General Counsel of the Corporation or the Assistant General
Counsel of the Corporation, dated as of the Closing Date, to the effect
set forth in Section 6(e), and (iii) letter of Arthur Andersen LLP,
independent accountants for the Corporation, dated as of the Closing
Date, to the effect set forth in Section 6(g).
(g) Prior to the Closing Date, the Corporation shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and the applicable Terms Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement or such Terms
Agreement and required to be delivered to the Purchaser pursuant to the terms
hereof and thereof shall not be in all material respects reasonably satisfactory
in form and substance to the Purchaser and its counsel, such Terms Agreement and
all obligations of the Purchaser thereunder and with respect to the Notes
subject thereto may be canceled at, or at any time prior to, the respective
Closing Date by the Purchaser. Notice of such cancelation shall be given to the
Corporation in writing or by telephone or telegraph confirmed in writing.
SECTION 8. Right of Person Who Agreed to Purchase to Refuse to
Purchase. The Company agrees that any person who has agreed to purchase and pay
for any Note pursuant to a solicitation by any of the Agents shall have the
right to refuse to purchase such Note if, at the Closing Date there for, any
condition set forth in Section 6 shall not be satisfied.
SECTION 9. Additional Covenants of the Corporation. The
Corporation covenants and agrees that:
(a) Each acceptance by it of an offer for the purchase of
Notes solicited by an Agent hereunder shall be deemed to be an affirmation that
the representations and warranties of the Corporation contained in this
Agreement
<PAGE> 22
22
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).
(b) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a pricing supplement
or an amendment or supplement providing solely for a change in the interest
rates or maturities of the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes and other than by the filing of a
document incorporated by reference into the Prospectus other than the documents
specified below) or the Corporation files with the Commission an Annual Report
on Form 10-K, a Quarterly Report on Form 10-Q, or a Current Report on Form 8-K
pursuant to Item 1, 2, 4, or 6 of such Form, the Corporation shall, concurrently
with or promptly after such amendment, supplement or filing, furnish the Agents
with a certificate of the President, the Vice President--Finance or the
Treasurer of the Corporation in form satisfactory to the Agents to the effect
that the statements contained in the certificate referred to in Section 6(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 6(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; provided, however,
that if at the time of such amendment or supplement, the Corporation is not
accepting offers to purchase the Notes or has instructed the Agents to cease
their solicitation of offers to purchase the Notes, then the certificate
required to be delivered pursuant to this Section 9(b) shall not be required
until the Corporation requests that the Agents resume the solicitation of offers
to purchase Notes.
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a pricing supplement
or an amendment or supplement providing solely for a change in the interest
rates or maturities of the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes and other
<PAGE> 23
23
than by the filing of a document incorporated by reference into the Prospectus
other than the documents specified below) or the Corporation files with the
commission an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, or a
Current Report on Form 8-K pursuant to Item 1, 2, 4, or 6 of such Form, the
Corporation shall, concurrently with or promptly after such amendment,
supplement or filing, furnish the Agents and their counsel with the written
opinion of the General Counsel or the Assistant General Counsel of the
Corporation, addressed to the Agents and dated the date of delivery of such
opinion, in form satisfactory to the Agents, of the same tenor as the opinion
referred to in Section 6(e) 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 opinion; provided, however, that in lieu of such opinion,
such counsel may furnish the Agents with a letter to the effect that the Agents
may rely on such prior opinion to the same extent as though it was dated the
date of such letter authorizing reliance (except that statements in such prior
opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such letter
authorizing reliance); provided, further, however, that if at the time of such
amendment or supplement, the Corporation is not accepting offers to purchase the
Notes or has instructed the Agents to cease their solicitation of offers to
purchase the Notes, then the opinion or letter required to be delivered pursuant
to this Section 9(c) shall not be required until the Corporation requests that
the Agents resume the solicitation of offers to purchase Notes.
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information (other than by the filing of a document incorporated by reference
into the Prospectus other than the documents specified below) or the Corporation
files with the Commission an Annual Report on Form 10-K, a Quarterly Report on
Form 10-Q or a current Report on Form 8-K pursuant to Item 2 or 4 of such Form,
the Corporation shall cause Arthur Andersen LLP (or the Corporation's then
current independent public accountants) to furnish the Agents, concurrently with
or promptly after such amendment, supplement or filing, a letter, addressed
jointly to the Corporation 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 6(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
<PAGE> 24
24
statements and other information derived from the accounting records of the
Corporation; 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; provided, further, however, that if at the time of such
amendment or supplement, the Corporation is not accepting offers to purchase the
Notes or has instructed the Agents to cease their solicitation of offers to
purchase the Notes, then the letter required to be delivered pursuant to this
Section 9(d) shall not be required until the Corporation requests that the
Agents resume the solicitation of offers to purchase Notes.
SECTION 10. Indemnities. (a) By the Corporation. The
Corporation agrees to indemnify and hold harmless each of you and each person
who controls each of you within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which you, they or any of you or them may
become subject under the Securities Act, the Exchange Act or any other statute
or common law, and to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating any
claims and defending any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereof, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, if used prior to the issue date of the Prospectus, or
contained in the Prospectus (as amended or supplemented, if the Corporation
shall have filed with the Commission any amendment thereof or supplement
thereto), if, in the case of a sale made by the Agents, used within the period
during which the Agents are authorized to solicit offers to purchase the Notes
as provided in Section 2(a)(iv) hereof, or the omission or alleged omission to
state therein (if so used) a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not
<PAGE> 25
25
misleading; provided, however, that the indemnity agreement contained in this
Section 10(a) shall not apply to any such losses, claims, damages, liabilities
or actions arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Corporation by or on behalf of any of you for use in
connection with the preparation of the Registration Statement, any preliminary
prospectus or the Prospectus or any such amendment thereof or supplement
thereto, or was contained in that part of the Registration Statement
constituting the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee; and provided, further, such indemnity with
respect to the Prospectus or any preliminary prospectus shall not inure to the
benefit of an Agent or a Purchaser (or any person controlling such Agent or such
Purchaser) if the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof from such Agent or such
Purchaser and such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the Securities Act and the
untrue statement or omission of a material fact contained in the Prospectus or
any preliminary prospectus was corrected in the Prospectus (or the Prospectus as
supplemented). The indemnity agreement contained in this Section 10(a) is
subject to the undertaking of the Corporation with respect to indemnification
of officers and directors of the Corporation contained in the Registration
Statement, but only to the extent stated in said undertaking.
(b) By the Agents. Each Agent or Purchaser agrees, in the
manner and to the same extent as set forth in Section 10(a) hereof, to indemnify
and hold harmless the Corporation, each person who controls the Corporation
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each director of the Corporation and each of its officers who
shall have signed the Registration Statement, with respect to any statement in
or omission from the Registration Statement or any post-effective amendment
thereof or the Basic Prospectus, any preliminary prospectus or the Prospectus
(as amended or supplemented, if so amended or supplemented), if such statement
or omission was made in reliance upon and in conformity with information
furnished as herein stated or otherwise furnished in writing to the Corporation
by or on behalf of such Agent or such Purchaser for use in connection with the
preparation of the
<PAGE> 26
26
Registration Statement or any preliminary prospectus or the Prospectus or any
such amendment thereof or supplement thereto.
(c) General. Each indemnified party will, promptly after the
receipt of notice of the commencement of any action against such indemnified
party in respect of which indemnity may be sought from an indemnifying party on
account of an indemnity agreement contained in this Section 10, notify the
indemnifying party in writing of the commencement thereof. The omission of any
indemnified party so to notify an indemnifying party of any such action shall
relieve such indemnifying party from any liability which it may have to such
indemnified party on account of the indemnity agreement contained in this
Section 10, but shall not relieve such indemnifying party from any other
liability which it may have to such indemnified party. Except as provided in the
next succeeding sentence, in case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from such indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party will not be liable to such indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. Such indemnified party shall have the right to employ
its own counsel in any such action, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the employment of
such counsel has been authorized by the indemnifying party in connection with
the defense of such action, (ii) the named parties to any such action (including
any impleaded parties) include both such indemnified party and the indemnifying
party and such indemnified party shall have been advised by such counsel that
representation of both such indemnified party and the indemnifying party by the
same counsel would be inappropriate due to actual or potential differing
interests between them (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action, or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
<PAGE> 27
27
expenses with respect to any period during the pendency of such action or
similar or related actions of more than one separate firm of attorneys for all
indemnified parties so named, designated in writing by the Agents or the
Purchaser if the indemnifying party is the Corporation or by the Corporation if
the indemnifying party is any of the Agents or the Purchaser, it being further
understood, however, that the firm of attorneys so designated may be changed
from time to time with respect to different periods during the pendency of such
action or similar or related actions) or (iii) the indemnifying party shall not
have assumed the defense of such action and employed counsel therefor
satisfactory to such indemnified party within a reasonable time after notice of
commencement of such action, in any of which events such fees and expenses shall
be borne by the indemnifying party.
The indemnifying party shall not be liable for any settlement of any action or
claim effected without its consent, which consent shall not be unreasonably
withheld.
(d) Contribution. If the indemnification provided for in this
Section 10 shall for any reason be unavailable to an indemnified party under
Section 10(a) or 10(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
Corporation on the one hand and by each of you 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 Corporation on the one hand and by each of you 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 Corporation on
the one hand and either Agent 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 Corporation
bear to the total commissions received by such Agent with respect to such
offering (or, in the case of Notes sold pursuant to a Terms Agreement, the
aggregate commissions that would have been received by such Purchaser if such
commissions had been
<PAGE> 28
28
payable). The relative fault of the Corporation on the one hand and each of you
on the other shall be determined by reference to, among other things, 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
Corporation or by each of you, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Corporation and each of you agree that it would not
be just and equitable if contributions pursuant to this Section 10(d) were to be
determined by pro rata allocation (even if both of you 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
10(d) shall be deemed to include, for purposes of this Section 10(d), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such claim. Notwithstanding the provisions
of this Section 10(d), neither 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 were offered to the public exceeds the amount of any damages which
such Agent or Purchaser has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission (or, in
the case of Notes sold pursuant to a Terms Agreement, the aggregate commissions
that would have been received by such Purchaser if such commissions had been
payable). No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) Survival of Indemnity and Contribution Agreements. The
respective indemnity and contribution agreements of the Corporation and the
Agents contained in this Section 10, and the representations and warranties of
the Corporation set forth in Section 1 hereof, shall remain operative and in
full force and effect, regardless of any termination or cancelation of this
Agreement or any investigation made by or on behalf of (i) any of you or any
such controlling person of any of you or (ii) the Corporation or any such
controlling person, director or officer of the Corporation and shall survive the
delivery of the Notes, and any successor of any of you or of any such
controlling person or of the Corporation, or any legal representative of any
such controlling person, director or officer, as the
<PAGE> 29
29
case may be, shall be entitled to the benefit of the respective indemnity and
contribution agreements.
SECTION 11. Status of Each Agent. In soliciting offers to
purchase the Notes from the Corporation pursuant to this Agreement (other than
offers to purchase pursuant to Section 2(b)), each Agent is acting solely as
agent for the Corporation and not as principal. Each Agent will make reasonable
efforts to assist the Corporation in obtaining performance by each purchaser
whose offer to purchase Notes from the Corporation has been solicited by such
Agent and accepted by the Corporation, but such Agent shall have no liability to
the Corporation in the event any such purchase is not consummated for any
reason. If the Corporation shall default in its obligations to deliver Notes to
a purchaser whose offer it has accepted, the Corporation shall (i) hold the
Agents harmless against any loss, claim or damage arising from or as a result of
such default by the Corporation and (ii), in particular, pay to the Agents any
commission to which they would be entitled in connection with such sale. The
Corporation does not authorize either Agent to give any information or make any
representations, other than those contained in the Prospectus, as from time to
time amended or supplemented, in connection with the sale of the Notes.
SECTION 12. Representations and Warranties to Survive
Delivery. All representations and warranties of the Corporation contained in
this Agreement, or contained in certificates of officers of the Corporation
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of the termination or cancelation of this Agreement or any
investigation made by or on behalf of any of you or any person controlling such
of you or by or on behalf of the Corporation, and shall survive each delivery of
and payment for any of the Notes.
SECTION 13. Termination. This Agreement may be terminated for
any reason, at any time, by either the Corporation as to any Agent or an Agent
insofar as this Agreement relates to such Agent upon the giving of one day's
written notice of such termination to such Agent or the Corporation, as the case
may be. The provisions of Sections 4(c) (with respect to Notes that have been
sold but not yet delivered and with respect to Notes owned by a Purchaser),
4(h), 4(j), 5, 10, 11, 12, 15 and 16 hereof shall survive any such termination.
SECTION 14. Sales of Securities Denominated in a Foreign
Currency. If at any time the Corporation and any of you shall determine to issue
and sell Notes denominated in a
<PAGE> 30
30
currency or currency unit other than U.S. dollars, which other currency may
include a composite currency, the Corporation and such of you shall execute and
deliver a Foreign Currency Amendment in the form attached hereto as Exhibit D.
The Foreign Currency Amendment shall establish, as appropriate, additions and
modifications to this Agreement that shall apply to the sales, whether offered
on an agency or principal basis, of all Notes denominated in the currency or
currency unit covered thereby.
SECTION 15. 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 sent by registered mail or transmitted by any
standard form of telecommunication. Notices to the Agents or the Purchaser shall
be directed to them as follows: Notices to the Corporation shall be directed to
it as follows: Air Products and Chemicals, Inc., 7201 Hamilton Boulevard,
Allentown, Pennsylvania 18195-1501, Attention: Corporate Secretary.
SECTION 16. Binding Effect; Benefits. This Agreement shall be
binding upon each of you, your respective successors, the Corporation, and its
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only each of you and these persons, except that (a) the
indemnity agreement of the Corporation contained in Section 10 hereof shall also
be deemed to be for the benefit of the person or persons, if any, who control
each of you within the meaning of Section 15 of the Securities Act, and (b) the
indemnity agreement of the Agents contained in Section 10 hereof shall be deemed
to be for the benefit of directors of the Corporation, officers of the
Corporation who have signed the Registration Statement and any persons
controlling the Corporation within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be considered 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. The term "successor" or the term "successors and
assigns" as used in this Agreement shall not include any purchaser of Notes from
an Agent.
SECTION 17. 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.
<PAGE> 31
31
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
AIR PRODUCTS AND CHEMICALS, INC.,
by________________________________
Title: Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
[AGENTS]
by _____________________________
Name:
Title:
<PAGE> 1
EXHIBIT 4(b)
[FORM OF FACE OF NOTE]
AIR PRODUCTS AND CHEMICALS, INC.
MEDIUM-TERM NOTE, SERIES G
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
(FIXED RATE)
Registered Principal Amount
No. FX- CUSIP
Global Note: __ Yes __ No
Depositary:
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
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 is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), 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.]
[THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE
INDENTURE HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
IF APPLICABLE THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
Issue Price: Record Dates:
Interest Rate: Initial Accrual Period OID:
Interest Payment Dates: Initial Redemption Date:
Original Issue Date: Repayment Option Period(s):
Maturity Date: Specified Currency:
Repayment Date(s): U.S. Dollars __
Total Amount of OID: Other: ____________________
Yield to Maturity: U.S. Dollar Payments Option:
If applicable as described above, the Optional Redemption
Price initially shall be __% of the principal amount of this Note to be redeemed
and shall decline at each anniversary of the Initial Redemption Date by __% of
1
<PAGE> 2
the principal amount to be redeemed until the Optional Redemption Price is 100%
of such principal amount, together with interest thereon to the date fixed for
redemption.
AIR PRODUCTS AND CHEMICALS, INC., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
PRINCIPAL AMOUNT
on the Maturity Date specified above or upon earlier redemption or repayment at
the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City
of New York, State of New York, or such other location or locations as may be
provided for pursuant to the Indenture referred to herein, in such coin,
currency or currency unit specified above as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest
semiannually on each Interest Payment Date in each year and on the Maturity Date
or upon earlier redemption or repayment; commencing with the first Interest
Payment Date next succeeding the Original Issue Date specified above on said
principal sum at the Interest Rate specified above from the most recent date to
which interest has been paid or duly provided for, or, if no interest has been
paid or duly provided for, from the Original Issue Date, until the principal
hereof becomes due and payable; provided, however, that any payment of principal
or interest to be made on an Interest Payment Date, on the Maturity Date, on a
date fixed for redemption or on a Repayment Date which is not a Business Day (as
hereinafter defined) shall be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, on the Maturity
Date, on the date fixed for redemption or on the Repayment Date, as the case may
be, and no additional interest shall accrue as a result of such delayed payment.
For purposes of this Note, "Business Day" means any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in New
York, New York, or, if this Note is denominated in a Specified Currency other
than U.S. Dollars,
-----------------------------------------------------------
Principal Financial Center of Country of Specified Currency
or, if this Note is denominated in European Currency Units, Brussels, Belgium.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will 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 Record
Date (whether or not a Business Day) immediately preceding such Interest Payment
Date and interest payable on the Maturity Date or upon earlier redemption or
repayment will be payable to the person to whom principal is payable, except
that, if this Note is issued between a Record Date and the initial Interest
Payment Date relating to such Record Date, interest for the period beginning on
the Original Issue Date and ending on such initial Interest Payment Date shall
be paid to the person to whom this Note shall have been originally issued.
Payment of principal and interest on this Note will be made, if at maturity or
upon earlier redemption, then on the Maturity Date or the date fixed for
redemption, as applicable, upon surrender of this Note at the Corporate Trust
Office of the Trustee in The City of New York, and if upon repayment prior to
maturity, then on the applicable Repayment Date, provided that the holder shall
have complied with the requirements for repayment set forth on the reverse
hereof. All such payments shall be made in immediately available funds, provided
that this Note is presented to the Corporate Trust Office of the Trustee in The
City of New York in time for the Trustee to make such payments in such funds in
accordance with its normal procedures. Any such payments made in a Specified
Currency other than U.S. Dollars shall be made by wire transfer to an account
maintained by the holder, as designated by the holder by written notice to the
Trustee at least 15 calendar days prior to the date fixed for payment, with a
bank located in the country of the Specified Currency. Payment of interest on
this Note (other than interest paid on the Maturity Date or upon earlier
redemption or repayment) will be made by check (from an account at a bank
outside of the United States if such check is payable in a Specified Currency
other than U.S. Dollars) mailed to the address of the person entitled thereto
appearing on the register for the Notes on the applicable Record Date. At the
option of the Issuer or a holder of Notes (as defined
2
<PAGE> 3
on the reverse hereof) in an aggregate principal amount exceeding $5 million or
the equivalent in a Specified Currency, payment of interest on this Note (other
than interest paid on the Maturity Date or upon earlier redemption or repayment)
will be made by wire transfer to an account maintained by such holder with a
bank located in the United States for a payment in U.S. Dollars or with a bank
located in the country of the Specified Currency for other payments, provided
that any such holder selecting such option shall have designated such account by
written notice to the Trustee no later than the Record Date preceding the
applicable Interest Payment Date. Any interest not punctually paid or duly
provided for shall be payable as provided in the Indenture referred to on the
reverse hereof.
Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL HAVE THE
SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by or on behalf of the Trustee under the Indenture referred to on the
reverse hereof.
AGENCY FOR TRANSFER, EXCHANGE AND PAYMENT: FIRST UNION NATIONAL BANK
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed in its name by the facsimile signatures of its duly authorized
officers, and has caused its corporate seal to be affixed hereunto or imprinted
hereon by facsimile.
Dated: _____________________ AIR PRODUCTS AND CHEMICALS, INC.
By:
_________________________________________
Chairman of the Board
(CORPORATE SEAL) Attest:
_________________________________________
Vice President and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION
NATIONAL BANK, as Trustee
By:
___________________________
Authorized Officer
3
<PAGE> 4
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of January 10, 1995 (the
"Indenture"), duly executed and delivered by the Issuer to First Union National
Bank (formerly First Fidelity Bank, National Association), as Trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder of the Securities). The Securities may be issued in one or
more series, which different series (and which securities issued within each
series) may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption or repayment provisions (if any), may be subject to
different sinking fund or analogous provisions (if any), may be subject to
different Events of Default (as defined in the Indenture) and may otherwise vary
as in the Indenture provided. This Note is one of a series designated as
"Medium-Term Notes, Series G, Due from 9 Months to 30 Years from Date of Issue"
(the "Notes") of the Issuer, limited in aggregate principal amount to U.S.
$300,000,000, or the equivalent thereof in the Specified Currency or Currencies.
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the holders of not less than 66-2/3% in
aggregate principal amount of the Securities at the time outstanding (as defined
in the Indenture) of all series to be affected (voting as one class), evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Securities of each such series; provided, however,
that no such supplemental indenture shall (i) extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 of the Indenture or the amount thereof
provable in bankruptcy pursuant to Section 5.2 of the Indenture, or impair or
affect the right of any Securityholder to institute suit for the payment thereof
or the right of repayment, if any, at the option of the Securityholder without
the consent of the holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities of any series, the consent of the holders of
which is required for any such supplemental indenture, without the consent of
the holder of each Security so affected. Any such consent or waiver by the
holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Note and any Notes which may be issued in exchange or substitution
therefor, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Note at the place, at the respective times, at the rate and in
the coin, currency or currency unit herein prescribed unless in accordance with
Section 10.1(c) or Section 10.2 of the Indenture the Issuer shall have
irrevocably deposited or caused to be deposited in trust with the Trustee funds
in cash and/or U.S. Government Obligations and/or Foreign Government Securities
(each as defined in the Indenture) as will be sufficient to pay interest due or
to become due on the Notes to, and to pay the principal and any premium due on
the Notes upon, the Maturity Date or upon earlier redemption or repayment.
The Issuer shall be deemed to have paid the principal of,
premium, if any, and interest on the Notes when the same shall have become due
and payable if in accordance with Section 10.1(c) or Section 10.2(A) the Issuer
shall have irrevocably deposited or caused to be deposited in trust with the
Trustee funds in cash and/or U.S.
4
<PAGE> 5
Government Obligations and/or Foreign Government Securities (each as defined in
the Indenture) as will be sufficient to pay interest due or to become due on the
Notes to, and to pay the principal and any premium due on the Notes upon, the
Maturity Date or upon earlier redemption or repayment of the outstanding Notes.
The Notes are issuable in fully registered form without
coupons in the minimum denomination of U.S. $100,000 or the equivalent thereof
in the Specified Currency, and in integral multiples of U.S. $1,000 in excess
thereof or 10,000 units of the Specified Currency.
If an Initial Redemption Date is specified on the face hereof,
this Note may be redeemed at the option of the Issuer, as a whole or from time
to time in part, on any date on or after such Initial Redemption Date and prior
to maturity, upon mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to the holders of Notes to
be redeemed at their last registered addresses, all as further provided in the
Indenture, at the Optional Redemption Prices, if any, specified on the face
hereof (expressed in percentages of the principal amount) together, in each
case, with accrued interest to the date fixed for redemption.
If a Repayment Date is specified or Repayment Dates are
specified on the face hereof, this Note will be repayable at the option of the
holder, in whole or from time to time in part, on such Repayment Date or
Repayment Dates at 100% of the portion of the principal amount to be repaid,
together with interest accrued on such portion to the Repayment Date on which
repayment is sought. In order for this Note to be repaid, the Issuer must
receive at the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York, during the period from and including the first
day of the Repayment Option Period for the applicable Repayment Date to and
including the close of business on the last day of such Repayment Option Period
(or if such day is not a business day, the next succeeding business day): (i)
this Note with the form below entitled "Option to Elect Repayment" duly
completed, or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc., or a commercial bank or a trust company in the United
States of America, dated no later than the last day of such Repayment Option
Period (or if such day is not a business day, the next succeeding business day)
setting forth the name of the holder of the Note, the principal amount of the
Note, the portion of the principal amount of the Note to be repaid, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Note to be repaid in whole or in part (with the form entitled "Option
to Elect Repayment" on the reverse of the Note duly completed) will be received
at the Corporate Trust Office of the Trustee in the Borough of Manhattan, The
City of New York, not later than five business days after the date of such
telegram, telex, facsimile transmission or letter and such Note and form duly
completed must be received at the Corporate Trust Office of the Trustee in the
Borough of Manhattan, The City of New York, by such fifth business day.
Effective exercise of any repayment option by the holder of any Note shall be
irrevocable. No transfer or exchange of any Note (or, in the event that any Note
is to be repaid in part, such portion of the Note to be repaid) will be
permitted after exercise of a repayment option. A repayment option may be
exercised by the holder of a Note for less than the entire principal amount of
the Note, provided that the principal amount which is to be repaid is equal to
$1,000 or any integral multiple thereof for Notes denominated in U.S. Dollars or
10,000 units of the Specified Currency or any integral multiple thereof for
Notes denominated in a Specified Currency other than U.S. Dollars. All questions
as to the validity, eligibility (including time of receipt) and acceptance of
any Note for repayment will be determined by the Issuer, whose determination
will be final, binding and non-appealable. For purposes of this provision,
"business day" means any day other than Saturday and Sunday or a legal holiday
or any day on which banking institutions in New York, New York are authorized or
required by law or regulation to close.
Upon due presentment for registration of transfer of this Note
at the Corporate Trust Office of the Trustee or at such other office or agency
as is designated by the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount and like tenor will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith;
provided, however, that if this Note is a Global Note (as specified on the face
hereof), this Note is exchangeable only if (x) the Depositary notifies the
Issuer that it is unwilling or unable to continue as Depositary for this Note or
if at any time the Depositary ceases to be in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statutes or regulations,
and the Issuer does not appoint a successor Depositary within 90 days after the
Issuer received such notice or becomes aware of such ineligibility or (y) the
Issuer in its sole discretion determines that this Note shall be
5
<PAGE> 6
exchanged for certificated Notes in definitive form, provided that the
definitive Notes so issued in exchange for this Note shall be in authorized
denominations and be of like aggregate principal amount and tenure and terms as
the portion of this Note to be exchanged.
If "yes" is specified under 'U.S. Dollar Payments Option" on
the face hereof, the registered holder of this Note shall be entitled to receive
payments in U.S. Dollars at the Exchange Rate determined as set forth in the
Indenture by notifying the Trustee at the time and in the manner described
therein. Costs, if any, associated with the conversion of the Specified Currency
into U.S. Dollars shall be borne by such holder through deduction from payments
required to be made to such holder on this Note.
The Issuer will pay any administrative costs imposed by banks
in connection with making payments on this Note by wire transfer, but any tax,
assessment or governmental charge imposed upon payments will be borne by the
holder hereof.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may deem and treat the registered holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon) for the purpose of receiving
payment of or on account of the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest hereon, and for all other
purposes, and neither the Issuer nor the Trustee nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture or in any Note, or because of any
indebtedness evidenced thereby, shall be had against any incorporator,
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
Undefined terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or the portion hereof specified below) pursuant
to its terms at a price equal to 100% of the portion of the principal amount of
the Note to be repaid together with interest accrued thereon to the Repayment
Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have repaid
_____________________________________________; and specify the
denomination or denominations (which shall be authorized denominations) of the
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
________________________________________________________________________________
Date:______________________________ __________________________
(Signature)
6
<PAGE> 7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, 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 sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
the within Note of AIR PRODUCTS AND CHEMICALS, INC. and hereby does irrevocably
constitute and appoint
________________________________________________________________________Attorney
to transfer the said Note on the books of the within-named Issuer, with full
power of substitution in the premises.
Dated__________________________ __________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of the certificate in every
particular, without alteration or
enlargement or any change
whatever.
7
<PAGE> 1
Exhibit 4(c)
[FORM OF FACE OF NOTE]
AIR PRODUCTS AND CHEMICALS, INC.
MEDIUM-TERM NOTE, SERIES G
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
(FLOATING RATE)
Registered Principal Amount
No. FL- CUSIP
Global Note: ___ Yes ___ No
Depositary:
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), 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 is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), 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.]
[THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE
HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. ]
IF APPLICABLE THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL
BE COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
<TABLE>
<S> <C>
Issue Price: Base Rate:
Original Issue Date: Index Maturity:
Maturity Date: Reset Period:
Specified Currency: U.S. Dollars____ Spread (plus or minus):
Other: Spread Multiplier:
U.S. Dollar Payments Option: Maximum Interest Rate:
Initial Redemption Date: Minimum Interest Rate:
Interest Determination Dates: Initial Accrual Period OID:
Interest Reset Dates: Original Yield to Maturity:
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
Initial Interest Rate Interest Payment Dates:
Repayment Date(s): Total Amount of OID:
Repayment Option Period(s): Calculation Agent:
</TABLE>
If applicable as described above, the Optional Redemption Price initially
shall be ________% of the principal amount of this Note to be redeemed and shall
decline at each anniversary of the Initial Redemption Date by _________% of the
principal amount to be redeemed until the Optional Redemption Price is 100% of
such principal amount, together with interest thereon to the date fixed for
redemption.
AIR PRODUCTS AND CHEMICALS, INC., a Delaware corporation (the "Issuer"),
for value received, hereby promises to pay to or registered assigns, the
principal sum of
PRINCIPAL AMOUNT
on the Maturity Date specified above or upon earlier redemption or repayment at
the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City
of New York, State of New York, or such other location or locations as may be
provided for pursuant to the Indenture referred to herein in such coin, currency
or currency unit specified above as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest on said
principal sum from the most recent date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from the
Original Issue Date until the principal hereof becomes due and payable, at a
rate per annum equal to the Initial Interest Rate from the Original Issue Date
until the first Interest Reset Date following such Original Issue Date and
thereafter at a rate determined in accordance with the provisions on the reverse
hereof under the heading "Determination of Commercial Paper Rate,"
"Determination of LIBOR" or "Determination of Treasury Rate," depending upon
whether the Base Rate specified above is the Commercial Paper Rate, LIBOR or the
Treasury Rate, respectively. The Issuer will pay interest on this Note on each
Interest Payment Date commencing with the first Interest Payment Date next
succeeding the Original Issue Date, and on the Maturity Date or upon earlier
redemption or repayment; provided, however, that any payment of principal or
interest to be made on the Maturity Date, on a date fixed for redemption or on a
Repayment Date which is not a Business Day (as hereinafter defined) shall be
made on the next succeeding Business Day with the same force and effect as if
made on the Maturity Date, on the date fixed for redemption or on the Repayment
Date, as the case may be, and no additional interest shall accrue as a result of
such delayed payment. For purposes of this Note, "Business Day" means any day,
other than a Saturday or Sunday, that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or regulation to
close in New York, New York, or, if this Note is denominated in a Specified
Currency other than U.S. Dollars,
__________________________________________________________________
Principal Financial Center of Country of Specified Currency
or, if the Base Rate specified above is LIBOR, the City of London, England, or,
if this Note is denominated in European Currency Units, Brussels, Belgium.
"London Banking Day" means any day on which dealings in deposits in U.S. Dollars
are transacted in the London interbank market. Except as provided above and in
the Indenture referred to on the reverse hereof, interest payments will be made
on the Interest Payment Dates specified above. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will 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 15th day (whether or not a Business
Day) immediately preceding such Interest Payment Date (a "Record Date") and
interest payable on the Maturity Date or upon earlier redemption or repayment
will be payable to the person to whom principal is payable, except that, if this
Note is issued between a Record Date and the initial Interest Payment Date
relating to such Record Date, interest for the period beginning on the Original
Issue Date and ending on such initial Interest Payment Date shall be paid to the
person to whom this Note shall have been originally issued.
-2-
<PAGE> 3
Payment of principal and interest on this Note will be made, if at maturity or
upon earlier redemption, then on the Maturity Date or the date fixed for
redemption, as applicable, upon surrender of this Note at the Corporate Trust
Office of the Trustee in The City of New York, and if upon repayment prior to
maturity, then on the applicable Repayment Date, provided that the holder shall
have complied with the requirements for repayment set forth on the reverse
hereof. All such payments shall be made in immediately available funds, provided
that this Note is presented to the Corporate Trust Office of the Trustee in The
City of New York in time for the Trustee to make such payments in such funds in
accordance with its normal procedures. Any such payments made in a Specified
Currency other than U.S. Dollars shall be made by wire transfer to an account
maintained by the holder, as designated by the holder by written notice to the
Trustee at least 15 calendar days prior to the date fixed for payment, with a
bank located in the country of the Specified Currency. Payment of interest on
this Note (other than interest paid on the Maturity Date or upon earlier
redemption or repayment) will be made by check (from an account at a bank
outside of the United States if such check is payable in a Specified Currency
other than U.S. Dollars) mailed to the address of the person entitled thereto
appearing on the register for the Notes on the applicable Record Date. At the
option of the Issuer or a holder of Notes (as defined on the reverse hereof) in
an aggregate principal amount exceeding $5 million or the equivalent in a
Specified Currency, payment of interest on this Note (other than interest paid
on the Maturity Date or upon earlier redemption or repayment) will be made by
wire transfer to an account maintained by such holder with a bank located in the
United States for a payment in U.S. Dollars or with a bank located in the
country of the Specified Currency for other payments, provided that any such
holder selecting such option shall have designated such account by written
notice to the Trustee no later than the Record Date preceding the applicable
Interest Payment Date. Any interest not punctually paid or duly provided for
shall be payable as provided in the Indenture referred to on the reverse hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS ON THE REVERSE HEREOF,
WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH
FULLY SET FORTH AT THIS PLACE.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by or
on behalf of the Trustee under the Indenture referred to on the reverse hereof.
AGENCY FOR TRANSFER, EXCHANGE AND PAYMENT: FIRST UNION NATIONAL BANK
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed in
its name by the facsimile signatures of its duly authorized officers, and has
caused its corporate seal to be affixed hereunto or imprinted hereon by
facsimile.
Dated: AIR PRODUCTS AND CHEMICALS, INC.
------------------------
By:
-----------------------------------
Chairman of the Board
(CORPORATE SEAL)
Attest:
-----------------------------------
Vice President and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
-3-
<PAGE> 4
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION
NATIONAL BANK, as Trustee
By: ___________________________________
Authorized Officer
[FORM OF REVERSE OF NOTE]
AIR PRODUCTS AND CHEMICALS, INC.
This Note is one of a duly authorized issue of unsecured debentures, notes
or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of January 10, 1995 (the
"Indenture"), duly executed and delivered by the Issuer to First Union National
Bank (formerly First Fidelity Bank, National Association), as Trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder of the Securities). The Securities may be issued in one or
more series, which different series (and which securities issued within each
series) may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption or repayment provisions (if any), may be subject to
different sinking fund or analogous provisions (if any), may be subject to
different Events of Default (as defined in the Indenture) and may otherwise vary
as in the Indenture provided. This Note is one of a series designated as
"Medium-Term Notes, Series G, Due from 9 Months to 30 Years from Date of Issue"
(the "Notes") of the Issuer, limited in aggregate principal amount to U.S.
$300,000,000, or the equivalent thereof in the Specified Currency or Currencies.
The rate of interest on this Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually (such type of period being the "Reset
Period" for this Note, and the first day of each Reset Period being an "Interest
Reset Date"), as specified on the face hereof. The Interest Reset Dates will be,
if this Note has a daily Reset Period, each Business Day; if this Note has a
weekly Reset Period and a Base Rate other than the Treasury Rate, Wednesday of
each week; if this Note has a weekly Reset Period and the Base Rate is the
Treasury Rate, Tuesday of each week; if this Note has a monthly Reset Period,
the third Wednesday of each month; if this Note has a quarterly Reset Period,
the third Wednesday of each March, June, September and December; if this Note
has a semiannual Reset Period, the third Wednesday of each of two months of each
year specified on the face hereof under "Interest Reset Dates"; and if this Note
has an annual Reset Period, the third Wednesday of one month of each year
specified on the face hereof under "Interest Reset Dates". If an Interest Reset
Date would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next day that is a Business Day, except that, if
the Base Rate is LIBOR, as indicated on the face hereof, if such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day.
Except as provided below, interest on this Note will be payable, 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; if this Note resets quarterly, on the third
Wednesday of March, June, September and December of each year; if this Note
resets semiannually, on the third Wednesday of each of two months of each year
specified on the face hereof; and 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"). If an Interest Payment Date with respect to
this Note would otherwise fall on a day that is not a Business Day, such
Interest Payment Date will be the following day that is a Business Day, except
that, if the Base Rate is
-4-
<PAGE> 5
LIBOR, as indicated on the face hereof, if such Business Day falls in the next
calendar month, such Interest Payment Date will be the immediately preceding
Business Day.
Unless otherwise indicated on the face hereof, each payment of interest
hereon will include interest accrued to but excluding the applicable Interest
Payment Date. Accrued interest from the date of issue or from the last date to
which interest has been paid will be 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 (expressed as a
decimal rounded upward, if necessary, to the nearest one hundred-thousandth of a
percentage point) for each such day is computed by dividing the interest rate
(expressed as a decimal rounded upward, if necessary, to the nearest one
hundred-thousandth of a percentage point) applicable to such date by 360, if the
Base Rate is the Commercial Paper Rate or LIBOR, as indicated on the face
hereof, or by the actual number of days in the year if the Base Rate is the
Treasury Rate.
The interest rate on this Note during any Reset Period will in no event be
higher than the maximum rate permitted by New York law as the same may be
modified by United States law of general application or the Maximum Interest
Rate, if any, specified on the face hereof and will not be lower than the
Minimum Interest Rate, if any, specified on the face hereof.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate is the Commercial
Paper Rate, as indicated on the face hereof, the "Commercial Paper Rate" for
each Reset Period will be determined by the Calculation Agent as of the Business
Day prior to the Interest Reset Date that commences such Reset Period (a
"Commercial Paper Interest Determination Date") and shall be, with respect to
any Commercial Paper Interest Determination Date, the Money Market Yield (as
defined below) of the rate on that date for commercial paper having the Index
Maturity designated on the face hereof placed on behalf of industrial issuers
whose corporate bonds are rated "AA" or the equivalent, from a nationally
recognized securities rating agency as such rate is made available by the
Federal Reserve Bank of New York for such date. In the event that such rate is
not made available by the Federal Reserve Bank of New York by 3:00 P.M., New
York City time, on such Commercial Paper Interest Determination Date, 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 (each as rounded upward, if necessary, to the nearest one
hundred-thousandth of a percentage point) of the offered rates for such
commercial paper quoted as of 11:00 A.M., New York City time, on such Commercial
Paper Interest Determination Date by three leading dealers of commercial paper
in The City of New York selected, after consultation with the Issuer by the
Calculation Agent; 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 on such
Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
upwards, if necessary, to the nearest one hundred-thousandth of a percentage
point) 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 the commercial paper, quoted on a
bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
The interest rate for each Reset Period shall be determined by the
Calculation Agent and shall be the Commercial Paper Rate applicable to such
Reset Period plus or minus the Spread or multiplied by the Spread Multiplier, as
indicated on the face hereof; provided, however, that the interest rate in
effect for the period from the Original Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate in effect for the
ten days immediately prior to the Maturity Date, or, with respect to any portion
of the principal amount hereof to be redeemed or repaid, if applicable, the date
of redemption or Repayment Date, will be that in effect on the tenth day
preceding such Maturity Date or such date of redemption or Repayment Date.
-5-
<PAGE> 6
DETERMINATION OF LIBOR. If the Base Rate is LIBOR, as indicated on the
face hereof, "LIBOR" for each Reset Period will be determined by the Calculation
Agent as follows:
(i) On the second London Banking Day prior to the Interest Reset
Date that commences such Reset Period (the "LIBOR Interest Determination
Date"), LIBOR will be, as specified on the face hereof, either (a) the
arithmetic mean of the offered rates for deposits having the Index
Maturity designated on the face hereof, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date,
that appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time,
on such LIBOR Interest Determination Date, if at least two such offered
rates appear on the Reuters Screen LIBO Page ("LIBOR Reuters"), or (b) the
rate for deposits having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, that appears on Telerate Page 3750 as
of 11:00 A.M., London Time, on such LIBOR Interest Determination Date
("LIBOR Telerate"). "Reuters Screen LIBO Page" means the display
designated as page "LIBO" on the Reuters Monitor Money Rate Service (or
such other page as may replace page LIBO on that service for the purpose
of displaying London Interbank offered rates of major banks). "Telerate
Page 3750" means the display designated as page "3750" on the Telerate
Service (or such other page as may replace the 3750 page on that service
or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London Interbank
offered rates for deposits). If neither LIBOR Reuters nor LIBOR Telerate
is specified on the face hereof, LIBOR will be determined as if LIBOR
Telerate had been specified. If at least two such offered rates appear on
the Reuters Screen LIBO Page, the rate in respect of such LIBOR Interest
Determination Date will be the arithmetic mean of such offered rates as
determined by the Calculation Agent. If fewer than two offered rates
appear on the Reuters Screen LIBO Page, or if no rate appears on Telerate
Page 3750, as applicable, LIBOR in respect of such LIBOR Interest
Determination Date will be determined as if the parties had specified the
rate described in (ii) below.
(ii) On any LIBOR Interest Determination Date on which fewer than
two offered rates appear on the Reuters Screen LIBO Page as specified in
(i)(a) above, or on which no rate appears on Telerate Page 3750, as
specified in (i)(b) above, as applicable, LIBOR will be determined on the
basis of the rates at which deposits having the Index Maturity designated
on the face hereof are offered at approximately 11:00 A.M., London time,
on such LIBOR Interest Determination Date by four major banks in the
London Interbank market (the "Reference Banks") selected, after
consultation with the Issuer, by the Calculation Agent to prime banks in
the London Interbank market having the Index Maturity designated on the
face hereof, commencing on the second London Banking Day immediately
following such LIBOR Interest Determination Date and in a principal amount
equal to an amount of not less than $1,000,000 that is representative for
a single transaction in such market at such time. The Calculation Agent
will request the principal London office of each of such Reference Banks
to provide a quotation of its rate. If at least two such quotations are
provided, LIBOR in respect of such LIBOR Interest Determination Date will
be the arithmetic mean (rounded upward, if necessary, to the nearest one
hundred-thousandth of a percentage point) of such quotations. If fewer
that two quotations are provided, LIBOR in respect of such LIBOR Interest
Determination Date will be the arithmetic mean (rounded upward, if
necessary, to the nearest one hundred-thousandth of a percentage point) of
the rates quoted at approximately 11:00 A.M., New York City time, on such
LIBOR Interest Determination Date by three major banks in The City of New
York selected, after consultation with the Issuer, by the Calculation
Agent for loans in U.S. Dollars to leading European banks having the Index
Maturity designated on the face hereof, commencing on the second London
Banking Day immediately following such LIBOR Interest Determination Date
and in a principal amount equal to an amount of not less than $1,000,000
that is representative for a single transaction in such market at such
time; provided, however, that if the banks in The City of New York
selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR with respect to such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
The interest rate for each Reset Period shall be determined by the
Calculation Agent and shall be LIBOR plus or minus the Spread or multiplied by
the Spread Multiplier, as indicated on the face hereof; provided, however,
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<PAGE> 7
that the interest rate in effect for the period from the Original Issue Date to
the first Interest Reset Date will be the Initial Interest Rate and the interest
rate in effect for the ten days immediately prior to the Maturity Date, or, with
respect to any portion of the principal amount hereof to be redeemed or repaid,
if applicable, the date of redemption or Repayment Date, will be that in effect
on the tenth day preceding such Maturity Date or such date of redemption or
Repayment Date.
DETERMINATION OF TREASURY RATE. If the Base Rate is the Treasury Rate, as
indicated on the face hereof. the "Treasury Rate" with respect to any Treasury
Interest Determination Date (as defined below) will be the auction average rate
(expressed as a bond equivalent, rounded upward, if necessary, to the nearest
one hundred-thousandth of a percentage point on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) for the most recent
auction of direct obligations of the United States ("Treasury bills") having the
Index Maturity designated on the face hereof, as made available by the U.S.
Department of the Treasury. In the event that the results of the auction of
Treasury bills having the Index Maturity designated on the face hereof are not
made available as provided above by 3:00 P.M., New York City time, on such
Treasury Interest Determination Date or no such auction is held in a particular
week (or on the preceding Friday, if applicable), the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to maturity (expressed
as a bond equivalent, rounded upward, if necessary, to the nearest one
hundred-thousandth of a percentage point, 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 3:30 P.M. New York City time, on such Treasury
Interest Determination Date, of three leading primary U.S. government securities
dealers selected, after consultation with the Issuer, 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 on such Treasury Interest
Determination Date.
The "Treasury Interest Determination Date" will be the day of the week in
which the related 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 the 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 such an Interest Reset Date,
then such Interest Reset Date shall instead be the first Business Day
immediately following such auction date.
The interest rate for each Reset Period shall be determined by the
Calculation Agent and shall be the Treasury Rate plus or minus the Spread or
multiplied by the Spread Multiplier, as indicated on the face hereof, provided,
however, that the interest rate in effect for the period from the Original Issue
Date to the first Interest Reset Date will be the Initial Interest Rate and the
interest rate in effect for the ten days immediately prior to the Maturity Date,
or, with respect to any portion of the principal amount hereof to be redeemed or
repaid, if applicable, the date of redemption or Repayment Date, will be that in
effect on the tenth day preceding such Maturity Date or such date of redemption
or Repayment Date.
The Trustee shall be the Calculation Agent, unless another Calculation
Agent is specified on the face hereof. At the request of the holder hereof, the
Calculation Agent will provide the interest rate then in effect and, if
determined, the interest rate which will become effective on the next Interest
Reset Date.
In case an Event of Default with respect to the Notes shall have occurred
and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the holders of not less than 66 2/3% in aggregate principal
amount of the Securities at the time outstanding (as defined in the Indenture)
of all series to be affected (voting as one class), evidenced as in the
Indenture provided, to execute supplemental indentures adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of any supplemental indenture or modifying in any manner the rights of the
holders of the
-7-
<PAGE> 8
Securities of each such series; provided, however, that no such supplemental
indenture shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof pursuant to Section
5.1 of the Indenture or the amount thereof provable in bankruptcy pursuant to
Section 5.2 of the Indenture, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or the right of
repayment, if any, at the option of the Securityholder without the consent of
the holder of each Security so affected or (ii) reduce the aforesaid percentage
of Securities of any series, the consent of the holders of which is required for
any such supplemental indenture, without the consent of the holder of each
Security so affected. Any such consent or waiver by the holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such holder and upon all future holders and owners of this Note and any
Notes which may be issued in exchange or substitution therefor, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the place, at the respective times, at the rate and in the coin,
currency or currency unit herein prescribed unless in accordance with Section
10.1(c) or Section 10.2 of the Indenture the Issuer shall have irrevocably
deposited or caused to be deposited in trust with the Trustee funds in cash
and/or U.S. Government Obligations and/or Foreign Government Securities (each as
defined in the Indenture) as will be sufficient to pay interest due or to become
due on the Notes to, and the principal and any premium due on the Notes upon,
the Maturity Date or upon earlier redemption or repayment.
The Issuer shall be deemed to have paid the principal of, premium, if any,
and interest on the Notes when the same shall have become due and payable if in
accordance with Section 10.1(c) or Section 10.2(A), the Issuer shall have
irrevocably deposited or caused to be deposited in trust with the Trustee funds
in cash and/or U.S. Government Obligations and/or Foreign Government Securities
(each as defined in the Indenture) as will be sufficient to pay interest due or
to become due on the Notes to, and to pay the principal and premium due on the
Notes upon, the Maturity Date or upon earlier redemption or repayment of the
outstanding Notes.
The Notes are issuable in fully registered form without coupons in the
minimum denomination of U.S. $100,000 or the equivalent thereof in the Specified
Currency, and in integral multiples of U.S. $1,000 in excess thereof or 10,000
units of the Specified Currency.
If an Initial Redemption Date is specified on the face hereof, this Note
may be redeemed at the option of the Issuer as a whole, or from time to time in
part, on any date on or after such Initial Redemption Date and prior to
maturity, upon mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to the holders of Notes to
be redeemed at their last registered addresses, all as further provided in the
Indenture, at the Optional Redemption Prices, if any specified on the face
hereof (expressed in percentages of the principal amount) together, in each
case, with accrued interest to the date fixed for redemption.
If a Repayment Date is specified or Repayment Dates are specified on the
face hereof, this Note will be repayable at the option of the holder, in whole
or from time to time in part, on such Repayment Date or Repayment Dates at 100%
of the portion of the principal amount to be repaid, together with interest
accrued on such portion to the Repayment Date on which repayment is sought. In
order for this Note to be repaid, the Issuer must receive at the Corporate Trust
Office of the Trustee in the Borough of Manhattan, The City of New York, during
the period from and including the first day of the Repayment Option Period for
the applicable Repayment Date to and including the close of business on the last
day of such Repayment Option Period (or if such day is not a business day, the
next succeeding business day): (i) this Note with the form below entitled
"Option to Elect Repayment" duly completed, or (ii) a telegram, telex, facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc., or a commercial bank or a
trust company in the United States of America, dated no later than the last day
of such Repayment Option Period (or if such day is not a business day, the next
succeeding business day) setting forth the name of the holder of the Note, the
principal amount of the Note, the portion of the principal amount of the Note to
be repaid, a statement that the option to elect
-8-
<PAGE> 9
repayment is being exercised thereby and a guarantee that the Note to be repaid
in whole or in part (with the form entitled "Option to Elect Repayment" on the
reverse of the Note duly completed) will be received at the Corporate Trust
Office of the Trustee in the Borough of Manhattan, The City of New York, not
later than five business days after the date of such telegram, telex, facsimile
transmission or letter and such Note and form duly completed must be received at
the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City
of New York, by such fifth business day. Effective exercise of any repayment
option by the holder of any Note shall be irrevocable. No transfer or exchange
of any Note (or, in the event that any Note is to be repaid in part, such
portion of the Note to be repaid) will be permitted after exercise of a
repayment option. A repayment option may be exercised by the holder of a Note
for less than the entire principal amount of the Note, provided that the
principal amount which is to be repaid is equal to $1,000 or any integral
multiple thereof for Notes denominated in U.S. Dollars or 10,000 units of the
Specified Currency or any integral multiple thereof for Notes denominated in a
Specified Currency other than U.S. Dollars. All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Note for repayment
will be determined by the Issuer, whose determination will be final, binding and
non-appealable. For purposes of this provision, "business day" means any day
other than Saturday and Sunday or a legal holiday or any day on which banking
institutions in New York, New York are authorized or required by law or
regulation to close.
Upon due presentment for registration of transfer of this Note at the
Corporate Trust Office of the Trustee or at such other office or agency as is
designated by the Issuer in the Borough of Manhattan, The City of New York, a
new Note or Notes of authorized denominations for an equal aggregate principal
amount and like tenor will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Indenture, without charge except for
any tax or other governmental charge imposed in connection therewith; provided,
however, that if this Note is a Global Note (as specified on the face hereof),
this Note is exchangeable only if (x) the Depositary notifies the Issuer that it
is unwilling or unable to continue as Depositary for this Note or if at any time
the Depositary ceases to be in good standing under the Securities Exchange Act
of 1934, as amended, or other applicable statutes or regulations, and the Issuer
does not appoint a successor Depositary within 90 days after the Issuer received
such notice or becomes aware of such ineligibility, or (y) the Issuer in its
sole discretion determines that this Note shall be exchanged for certificated
Notes in definitive form, provided that the definitive Notes so issued in
exchange for this Note shall be in authorized denominations and be of like
aggregate principal amount and tenure and terms as the portion of this Note to
be exchanged.
If "yes" is specified under "U.S. Dollar Payments Option" on the face
hereof, the registered holder of this Note shall be entitled to receive payments
in U.S. Dollars at the Exchange Rate determined as set forth in the Indenture by
notifying the Trustee at the time and in the manner described therein. Costs, if
any, associated with the conversion of the Specified Currency into U.S. Dollars
shall be borne by such holder through deduction from payments required to be
made to such holder on this Note.
The Issuer will pay any administrative costs imposed by banks in
connection with making payments on this Note by wire transfer, but any tax,
assessment or governmental charge imposed upon payments will be borne by the
holder hereof.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
deem and treat the registered holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and subject to the
provisions on the face hereof, interest hereon, and for all other purposes, and
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in any Note, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor, either directly or through
the Issuer or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
-9-
<PAGE> 10
Undefined terms used herein which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or the portion hereof specified below) pursuant to its
terms at a price equal to 100% of the portion of the principal amount of the
Note to be repaid together with interest accrued thereon to the Repayment Date,
to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid
___________________ ; and specify the denomination or denominations (which shall
be authorized denominations) of the Notes to be issued to the holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
________________________________________________________________________________
Date:______________________ ________________________________________
(Signature)
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<PAGE> 11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, 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 sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
the within Note of AIR PRODUCTS AND CHEMICALS, INC. and hereby does irrevocably
constitute and appoint
_______________________________________________________________ Attorney
to transfer the said Note on the books of the within-named Issuer, with full
power of substitution in the premises.
Dated:______________________
___________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the certificate in every
particular, without alteration or
enlargement or any change whatever.
-11-
<PAGE> 1
EXHIBIT 4(d)
[FORM OF FACE OF NOTE]
AIR PRODUCTS AND CHEMICALS, INC.
MEDIUM-TERM NOTE, SERIES G
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
(FIXED RATE CURRENCY INDEXED)
Registered Face Amount
No. FXCI- CUSIP
Global Note: ___ Yes ___ No
Depositary:
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
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 is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), 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.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE
INDENTURE HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY"
AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW
WILL BE COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX
ORIGINAL ISSUE DISCOUNT ("OID") RULES.
Issue Price: Initial Accrual Period OID:
Interest Rate: Specified Currency:
Interest Payment Dates: U.S. Dollars [ ]
Original Issue Date: Other:
Maturity Date: U.S. Dollar Payments Option:
Repayment Date(s): Indexed Currency:
Initial Redemption Date: Face Amount:
Determination Agent: Base Exchange Rate:
Repayment Option Period(s): Base Interest Rate:
Total Amount of OID: Reference Dealers:
Yield to Maturity: Other Provisions:
Record Dates:
1
<PAGE> 2
If applicable as described above, the Optional Redemption Price
initially shall be % of the principal amount of this Note to be redeemed and
shall decline at each anniversary of the Initial Redemption Date by % of the
principal amount to be redeemed until the Optional Redemption Price is 100% of
such principal amount, together with interest thereon to the date fixed for
redemption.
AIR PRODUCTS AND CHEMICALS, INC., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
(the "Face Amount") plus or minus an amount as determined in accordance with the
terms hereof on the Maturity Date specified above or upon earlier redemption or
repayment at the Corporate Trust office of the Trustee in the Borough of
Manhattan, The City of New York, State of New York, or such other locations as
may be provided for pursuant to the Indenture referred to on the reverse hereof,
in such coin, currency or currency unit specified above as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest semiannually on each Interest Payment Date in each year and on
the Maturity Date or upon earlier redemption or repayment, commencing with the
first Interest Payment Date next succeeding the Original Issue Date specified
above upon the Face Amount at the Interest Rate or, if a Base Interest Rate is
specified above, at the Base Interest Rate multiplied by an amount as determined
in accordance with the terms hereof from the most recent date to which interest
has been paid or duly provided for, or, if no interest has been paid or duly
provided for, from the Original Issue Date, until the principal hereof becomes
due and payable; provided, however, that any payment of principal or interest to
be made on an Interest Payment Date, on the Maturity Date, on a date fixed for
redemption or on a Repayment Date which is not a Business Day shall be made on
the next succeeding Business Day (as hereinafter defined) with the same force
and effect as if made on the Interest Payment Date, on the date fixed for
redemption or on the Repayment Date, as the case may be, and no additional
interest shall accrue as a result of such delayed payment. For purposes of this
Note, "Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in New York, New York, or if this Note
is denominated in a Specified Currency other than U.S. Dollars,
___________________________________________________________
Principal Financial Center of Country of Specified Currency
or, if this Note is denominated in European Currency Units, Brussels, Belgium.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will 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 Record
Date (whether or not a Business Day) immediately preceding such Interest Payment
Date and interest payable on the Maturity Date or upon earlier redemption or
repayment will be payable to the person to whom principal is payable, except
that, if this Note is issued between a Record Date and the initial Interest
Payment Date relating to such Record Date, interest for the period beginning on
the Original Issue Date and ending on such initial Interest Payment Date shall
be paid to the person to whom this Note shall have been originally issued. The
principal amount payable at the Maturity Date or upon earlier redemption or
repayment will be determined by the rate of exchange between the Specified
Currency and the Indexed Currency. the holder of this Note will be entitled to
receive principal in an amount exceeding the amount designated as the Face
Amount, if, at the Maturity Date or upon earlier redemption or repayment, the
rate at which the Specified Currency can be exchanged for the Indexed Currency
is greater than the rate of such exchange designated above as the Base Exchange
Rate expressed in units of the Indexed Currency per one unit of the Specified
Currency, and will be entitled to receive principal in an amount less than the
Face Amount if, at the Maturity Date or upon earlier redemption or repayment,
the rate at which the Specified Currency can be exchanged for the Indexed
Currency is less than the Base Exchange Rate. If a Base Interest Rate is
specified above, the interest payable on each Interest Payment Date will be
determined by the Base Interest Rate and the rate of exchange between the
Specified Currency and the Indexed Currency. The holder of this Note will be
entitled to receive an interest payment exceeding the amount based on the Face
Amount and the Interest Rate if, on an Interest Payment
2
<PAGE> 3
Date, the rate at which the Specified Currency can be exchanged for the Indexed
Currency is greater than the rate of such exchange designated above as the Base
Exchange Rate, expressed in units of the Indexed Currency per one unit of the
Specified Currency, and will be entitled to receive an interest payment below
the amount based on the Face Amount and the Interest Rate if, on an Interest
Payment Date, the rate at which the Specified Currency can be exchanged for the
Indexed Currency is less than the Base Exchange Rate. Payment of principal and
interest on this Note will be made, if at maturity or upon earlier redemption,
than on the Maturity Date or the date fixed for redemption, as applicable, upon
surrender of this Note at the Corporate Trust Office of the Trustee in The City
of New York, and if upon repayment prior to maturity, than on the applicable
Repayment Date, provided that the holder shall have complied with the
requirements for repayment set forth on the reverse hereof. All such payments
shall be made in immediately available funds, provided that this Note is
presented to the Corporate Trust Office of the Trustee in The City of New York
in time for the Trustee to make such payments in such funds in accordance with
its normal procedures. Any such payments made in a Specified Currency other than
U.S. Dollars shall be made by wire transfer to an account maintained by the
holder, as designated by the holder by written notice to the Trustee at least 15
calendar days prior to the date fixed for payment, with a bank located in the
country of the Specified Currency. Payment of interest on this Note (other than
interest paid on the Maturity Date or upon earlier redemption or repayment) will
be made by check (from an account at a bank outside of the United States if such
check is payable in a Specified Currency other than U.S. Dollars) mailed to the
address of the person entitled thereto appearing on the register for the Notes
on the applicable Record Date. At the option of the Issuer or a holder of Notes
(as defined on the reverse hereof) in an aggregate principal amount exceeding $5
million or the equivalent in a Specified Currency, payment of interest on this
Note (other than interest paid on the Maturity Date or upon earlier redemption
or repayment) will be made by wire transfer to an account maintained by such
holder with a bank located in the United States for a payment in U. S. Dollars
or with a bank located in the country of the Specified Currency for other
payments, provided that any such holder selecting such option shall have
designated such account by written notice to the Trustee no later than the
Record Date preceding the applicable Interest Payment Date. Any interest not
punctually paid or duly provided for shall be payable as provided in the
Indenture referred to on the reverse hereof.
Interest will be computed on the basis of a 360-day year of twelve
30-day months.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL HAVE THE SAME EFFECT
AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by or
on behalf of the Trustee under the Indenture referred to on the reverse hereof.
AGENCY FOR TRANSFER, EXCHANGE AND PAYMENT: FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
in its name by the facsimile signatures of its duly authorized officers, and has
caused its corporate seal to be affixed hereunto or imprinted hereon by
facsimile.
3
<PAGE> 4
Dated: _______________________ AIR PRODUCTS AND CHEMICALS, INC.
By:
__________________________________
Chairman of the Board
(CORPORATE SEAL) Attest:
__________________________________
Vice President and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture
FIRST UNION
NATIONAL BANK, as Trustee
By: _____________________________
Authorized Officer
[FORM OF REVERSE OF NOTE]
AIR PRODUCTS AND CHEMICALS, INC.
This Note is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of January 10, 1995 (the
"Indenture"), duly executed and delivered by the Issuer to First Union National
Bank (formerly First Fidelity Bank, National Association), as Trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder of the Securities). The Securities may be issued in one or
more series, which different series (and which securities issued within each
series) may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption or repayment provisions (if any), may be subject to
different sinking fund or analogous provisions (if any), may be subject to
different Events of Default and may otherwise vary as in the Indenture provided.
This Note is one of a series designated as "Medium-Term Notes, Series G, Due
from 9 Months to 30 Years from Date of Issue" (the "Notes") of the Issuer,
limited in aggregate principal amount to U.S. $300,000,000, or the equivalent
thereof in the Specified Currency or Currencies.
4
<PAGE> 5
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the holders of not less than 66 2/3% in
aggregate principal amount of the Securities at the time outstanding (as defined
in the Indenture) of all series to be affected (voting as one class), evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Securities of each such series: provided, however,
that no such supplemental indenture shall (i)extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 of the Indenture or the amount thereof
provable in bankruptcy pursuant to Section 5.2 of the Indenture, or impair or
affect the right of any Securityholder to institute suit for the payment thereof
or the right of repayment, if any, at the option of the Securityholder without
the consent of the holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities of any series, the consent of the holders of
which is required for any such supplemental indenture, without the consent of
the holder of each Security so affected. Any such consent or waiver by the
holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Note and any Notes which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Note at the place, at the respective times, at the rate and in
the coin, currency or currency unit herein prescribed unless in accordance with
Section 10.1(c) or Section 10.2 of the Indenture the Issuer shall have
irrevocably deposited or caused to be deposited in trust with the Trustee funds
in cash and/or U.S. Government Obligations and/or Foreign Government Securities
(each as defined in the Indenture) as will be sufficient to pay interest due or
to become due on the Notes to, and to pay the principal and any premium due on
the Notes upon, the Maturity Date or upon earlier redemption or repayment.
The Issuer shall be deemed to have paid the principal of,
premium, if any, and interest on the Notes when the same shall have become due
and payable if in accordance with Section 10.1(c) or Section 10.2(A) the Issuer
shall have irrevocably deposited or caused to be deposited in trust with the
Trustee funds in cash and/or U.S. Government Obligations and/or Foreign
Government Securities (each as defined in the Indenture) as will be sufficient
to pay interest due or to become due on the Notes to, and to pay the principal
and any premium due on the Notes upon, the Maturity Date or upon earlier
redemption or repayment the outstanding Notes.
The Notes are issuable in fully registered form without
coupons in the minimum denominations of U.S. $100,000 or the equivalent thereof
in the Specified Currency, and in integral multiples of U.S. $1,000 in excess
thereof or 10,000 units of the Specified Currency.
If an Initial Redemption Date is specified on the face hereof,
this Note may be redeemed at the option of the Issuer, as a whole or from time
to time in part, on any date on or after such Initial Redemption Date and prior
to maturity, upon mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to the holders of the Notes
to be redeemed at their last registered addresses, all as further provided in
the Indenture, at the Optional Redemption Prices, if any, specified on the face
hereof (expressed in percentages of the principal amount) together in each case
with accrued interest to the date fixed for redemption.
If a Repayment Date is specified or Repayment Dates are
specified on the face hereof, this Note will be repayable at the option of the
holder, in whole or from time to time in part, on such Repayment Date or
Repayment Dates at 100% of the portion of the principal amount to be repaid,
together with interest accrued on such portion to the Repayment Date on which
repayment is sought. In order for this Note to be repaid, the Issuer must
receive at
5
<PAGE> 6
the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City
of New York, during the period from and including the first day of the Repayment
Option Period for the applicable Repayment Date to and including the close of
business on the last day of such Repayment Option Period (or if such day is not
a business day, the next succeeding business day): (i) this Note with the form
below entitled "Option to Elect Repayment" duly completed, or (ii) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc., or a
commercial bank or a trust company in the United States of America, dated no
later than the last day of such Repayment Option Period (or if such day is not a
business day, the next succeeding business day) setting forth the name of the
holder of the Note, the principal amount of the Note, the portion of the
principal amount of the Note to be repaid, a statement that the option to elect
repayment in being exercised thereby and a guarantee that the Note to be repaid
in whole or in part (with the form entitled "Option to Elect Repayment" on the
reverse of the Note duly completed) will be received at the Corporate Trust
Office of the Trustee in the Borough of Manhattan, The City of New York, no
later the five business days after the date of such telegram, telex, facsimile
transmission or letter and such Note and form duly completed must be received at
the Corporate Trust Office in the Borough of Manhattan, The City of New York, by
such fifth business day. Effective exercise of any repayment option by the
holder of any Note shall be irrevocable. No transfer or exchange of any Note
(or, in the event that any Note is to be repaid in part, such portion of the
Note to be repaid) will be permitted after exercise of a repayment option. A
repayment option may be exercised by the holder of a Note for less than the
entire principal amount of the Note, provided that the principal amount which is
to be repaid is equal to $1,000 or any integral multiple thereof for Notes
denominated in U.S Dollars or 10,000 units of the Specified Currency or any
integral multiple thereof for Notes denominated in a Specified Currency other
than U.S. Dollars. All question as to the validity, eligibility (including time
of receipt) and acceptance of any Note for repayment will be determined by the
Issuer, whose determination will be final, binding and non-appealable. For
purposes of this provision, "business day" means any day other than Saturday and
Sunday or a legal holiday or any day on which banking institutions in New York,
New York are authorized or required by law or regulation to close.
Upon due presentment for registration of transfer of this Note
at the Corporate Trust Office of the Trustee or at such other office or agency
as is designated by the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount and like tenor will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith;
provided, however, that if this Note is a Global Note (as specified on the face
hereof), this Note is exchangeable only if (x) the Depositary notifies the
Issuer that it is unwilling or unable to continue as Depositary for this Note or
if at any time the Depositary ceases to be in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statutes or regulations,
and the Issuer does not appoint a successor Depositary within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, or (y) the
Issuer in its sole discretion determines that this Note shall be exchanged for
certified Notes in definitive form, provided that the definitive Notes so issued
in exchange for this Note shall be in authorized denominations and be of like
aggregate principal amount and tenor and terms as the portion of this Note to be
exchanged.
Unless otherwise specified on the face hereof, principal of
this Note will be payable by the Issuer in the Specified Currency (except as set
forth herein) at the Maturity Date in an amount equal to the Face Amount plus or
minus an amount determined by the Determination Agent by reference to the
difference between the Base Exchange Rate and the rate at which the Specified
Currency can be exchanged for the Indexed Currency as determined on the second
Exchange Rate Day (the "Determination Date") prior to the Maturity Date by the
Determination Agent based upon the arithmetic mean of the open market spot offer
quotations for the Indexed Currency obtained by the Determination Agent from the
Reference Dealers in The City of New York at 11:00 a.m., New York City time, on
the Determination Date, for an amount of the Indexed Currency equal to the Face
Amount multiplied by the Base Exchange rate, for settlement on the Maturity Date
(such rate of exchange, as so determined and expressed in units of the Indexed
Currency per one unit of Specified Currency, is hereafter referred to as the
"Spot Rate"). If such quotations from the Reference Dealers are not available on
the Determination Date due to circumstances beyond the control of the Issuer or
the Determination Agent, the Spot Rate will be determined on the basis of the
most recently available quotations from the Reference Dealers. If any of the
Reference Dealers shall be unwilling or unable to provide the requested
quotations, such other major money center bank or banks in The City of New York
as shall be selected by the Issuer, in consultation with the Determination
Agent, shall act as Reference Dealer or Reference
6
<PAGE> 7
Dealers in replacement therefor. In the absence of manifest error, the
determination by the Determination Agent of the Spot Rate and the principal
amount of this Note payable at the Maturity Date shall be final and binding on
the Issuer and the holder of this Note.
Unless otherwise specified on the face hereof, the formulae to be used
by the Determination Agent to determine the principal amount payable at the
Maturity Date will be as follows: If the Spot Rate exceeds or equals the Base
Exchange Rate, the principal amount payable at the Maturity Date shall equal:
Face Amount + (Face Amount x Spot Rate - Base Exchange Rate)
______________________________
Spot Rate.
If the Base Exchange Rate exceeds the Spot Rate, the principal amount payable at
the Maturity Date (which shall, in no event, be less than zero) shall equal:
Face Amount - (Face Amount x Base Exchange Rate - Spot Rate )
_______________________________
Spot Rate.
If the formulae set forth above are applicable hereto, the maximum principal
amount payable at the Maturity Date in respect hereof would be an amount equal
to twice the Face Amount and the minimum principal amount payable would be zero.
Unless otherwise specified above, the term "Exchange Rate Day" shall mean any
day which is a Business Day in The City of New York and (i) if the Specified
Currency or Indexed Currency is any currency or currency unit other than the
U.S. Dollar or the ECU, a Business Day in the principal financial center of the
country of such Specified Currency or Indexed Currency or (ii) in the case of
the ECU, a day which is not a non-ECU clearing day as determined by the ECU
Banking Association in Paris.
Unless otherwise specified on the face hereof, on the basis of
the aforesaid determination by the Determination Agent and the formulae and
limitations set forth above, (i) if the Base Exchange Rate equals the Spot Rate,
then the principal amount of this Note payable at the Maturity Date will be
equal to the Face Amount; (ii) if the Spot Rate exceeds the Base Exchange Rate,
then the principal amount so payable will be greater than the Face Amount hereof
up to an amount equal to twice the Face Amount hereof; (iii) if the Spot Rate is
less than the Base Exchange Rate but is greater than one-half of the Base
Exchange Rate, then the principal amount so payable will be less than the Face
Amount hereof; and (iv) if the Spot Rate is less than or equal to one-half of
the Base Exchange Rate, then the Spot Rate will be deemed to be one-half of the
Base Exchange Rate and no principal amount in respect of this Note will be
payable at the Maturity Date. In the event of any redemption or repayment, the
term "Maturity Date" used above also refers to the redemption date or Repayment
Date, if applicable.
Unless a Base Interest Rate is specified on the face hereof,
interest will be payable on the Face Amount at the Interest Rate. In the event
that a Base Interest Rate is specified on the face hereof, interest shall be
payable on each Interest Payment Date at a rate per annum equal to the Base
Interest Rate multiplied by an Interest Index Factor. The "Interest Index
Factor" shall be an amount determined by the Determination Agent by reference to
the following formula:
Interest Spot Rate
__________________
Base Exchange Rate
where "Interest Spot Rate" is (i) if at an Interest Payment Date, the rate at
which the Specified Currency can be exchanged for the Indexed Currency, as
determined on the second Exchange Rate Day prior to such Interest Payment Date
(the "Interest Determination Date") by the Determination Agent, on such Interest
Determination Date, (ii) if at the Maturity Date, the Spot Rate. The amount of
interest determined by the Determination Agent to be payable on any Interest
Payment Date and at the Maturity Date in respect of the Securities will be
payable to the holders thereof in the manner set forth herein. In the absence of
manifest error, the determination by the Determination Agent of the Interest
Index Factor, the Interest Spot Rate on each Interest Payment Date, the interest
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<PAGE> 8
payments payable and the Spot Rate at the Maturity Date on the Securities shall
be final and binding on the Issuer and the holders of such Securities.
If "yes" is specified under "U.S. Dollar Payments Option" on
the face hereof, the registered holder of this Note shall be entitled to receive
payments in U.S. Dollars at the Exchange Rate determined as set forth in the
Indenture by notifying the Trustee at the time and in the manner described
therein. Costs, if any, associated with the conversion of the Specified Currency
into U.S. Dollars shall be borne by such holder through deduction from payments
required to be made to such holder of this Note.
The Issuer will pay any administrative costs imposed by banks
in connection with making payments on this Note by wire transfer, but any tax,
assessment or governmental charge imposed upon payments will be borne by the
holder hereof.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may deem and treat the registered holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon) for the purpose of receiving
payment of or on account of the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest hereon, and for all other
purposes, and neither the Issuer nor the Trustee nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture or in any Note, or because of any
indebtedness evidenced thereby, shall be had against any incorporator,
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the Issuer hereof.
Undefined terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or the portion hereof specified below) pursuant
to its terms at a price equal to 100% of the portion of the principal amount of
the Note to be repaid together with interest accrued thereon to the Repayment
Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have repaid
_______________; and specify the denomination or denominations (which shall be
authorized denominations) of the Notes to be issued to the holder for the
portion of the within the Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
________________________________________________________________________________
Date:_______________ _________________________________
(Signature)
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<PAGE> 9
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Note, 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
Additional abbreviations may also be used though not in the above list.
__________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
the within Note of AIR PRODUCTS AND CHEMICALS, INC. and hereby does irrevocably
constitute and appoint
_____________________________________ Attorney to transfer the said Note on the
books of the within-named Issuer, with full power of substitution in the
premises.
Dated_________________________________
____________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
certificate in every particular,
without alteration or enlargement or
any change whatever.
9
<PAGE> 1
EXHIBIT 4(e)
[FORM OF FACE OF NOTE]
AIR PRODUCTS AND CHEMICALS, INC.
MEDIUM-TERM NOTE, SERIES G
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
(S&P 500 LINKED)
Registered Face Amount $
Original Issue Date: Interest Rate: %
No. S&PL- CUSIP
Global Note: ___ Yes ___ No
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation (the
"DTC"), 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 is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), 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.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE
INDENTURE HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
AIR PRODUCTS AND CHEMICALS, INC., a Delaware corporation
(herein called the "Issuer"), for value received, hereby promises to pay to
, or registered assigns, the Maturity Amount (as defined below) on
________________ (the "Maturity Date"), at the Corporate Trust Office of the
Trustee in the Borough of Manhattan, The City of New York, State of New York, or
such other location or locations as may be provided for pursuant to the
Indenture (as defined below), in such coin, currency or currency unit of the
________________ as at the time of payment shall be legal tender for the payment
of public and private debts. No periodic payments of interest will be payable in
respect of this Note.
Maturity Amount
The amount payable on the Maturity Date in respect of this
Note (the "Maturity Amount") will be equal to the greater of (i) the Minimum
Maturity Amount and (ii) the Index Maturity Amount.
The "Minimum Maturity Amount" with respect to this Note means
_____% of the principal amount hereof (the "Principal Amount"). The "Index
Maturity Amount" with respect to this Note means an amount equal to the sum of
(i) the Principal Amount and (ii) the product of (x) the Principal Amount, (y)
the Index Appreciation Ratio and (z) the Participation Rate. Where:
"Index Appreciation Ratio" means:
1
<PAGE> 2
Final Average Index Value-Initial Index Value
Initial Index Value
"Participation Rate" means _____%.
The "Initial Index Value" equals __________, the closing value
of the S&P 500 Index on___________________.
The "Final Average Index Value" of the S&P 500 Index will be
determined by ________________ (the "Calculation Agent") and will equal the
arithmetic average (mean) of the Annual Values (as defined below) for _____,
_____ and _____. The "Annual Value" for any year will be calculated during the
"Calculation Period" for such year, which will be from and including __________
in _____, __________ in _____ and __________ in _____ to and including the fifth
scheduled Business Day (as hereinafter defined) after such date. The Annual
Value for each year will equal the arithmetic average (mean) of the closing
values of the S&P 500 Index on the first day in the applicable Calculation
Period (provided that a Market Disruption Event (as defined below) shall not
have occurred on such day) and on each succeeding Business Day (provided that a
Market Disruption Event shall not have occurred on the applicable day) up to and
including the last Business Day in the applicable Calculation Period (each, a
"Calculation Date") until the Calculation Agent has so determined such closing
values for five Business Days. If a Market Disruption Event occurs on two or
more of the Business Days during a Calculation Period, the Annual Value for the
relevant year will equal the average of the values on Business Days on which a
Market Disruption Event did not occur during such Calculation Period or, if
there is only one such Business Day, the value on such day. If Market Disruption
Events occur on all of such Business Days during a Calculation Period, the
Annual Value for the relevant year shall equal the closing value of the S&P 500
Index on the last Business Day of the Calculation Period regardless of whether a
Market Disruption Event shall have occurred on such day.
For purposes of determining the Final Average Index Value, a
"Business Day" is a day on which The New York Stock Exchange is open for
trading.
"Market Disruption Event" means either of the following
events, as determined by the Calculation Agent:
(i) the suspension or material limitation
(limitations pursuant to New York Stock Exchange Rule 80A (or
any applicable rule or regulation enacted or promulgated by
the New York Stock Exchange, any other self-regulatory
organization or the Securities and Exchange Commission of
similar scope as determined by the Calculation Agent) on
trading during significant market fluctuations shall be
considered "material" for purposes of this definition), in
each case, for more than two hours of trading in 100 or more
of the securities included in the S&P 500 Index, or
(ii) the suspension or material limitation,
in each case, for more than two hours of trading (whether by
reason of movements in price otherwise exceeding levels
permitted by the relevant exchange or otherwise) in (A)
futures contracts related to the S&P 500 Index which are
traded on the Chicago Mercantile Exchange or (B) option
contracts related to the S&P 500 Index which are traded on the
Chicago Board Options Exchange, Inc.
For purposes of this definition, a limitation on the hours in
a trading day and/or number of days of trading will not constitute a Market
Disruption Event if it results from an announced change in the regular business
hours of the relevant exchange.
All determinations made by the Calculation Agent shall be at
the sole discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes and
binding on the Issuer and beneficial owner of this Note.
2
<PAGE> 3
Discontinuance of the S&P 500 Index and Successor Index
If Standard & Poor's Corporation ("S&P") discontinues
publication of the S&P 500 Index and S&P or another entity publishes a successor
or substitute index that the Calculation Agent determines, in its sole
discretion, to be comparable to the S&P 500 Index (any such index being referred
to hereinafter as a "Successor Index"), then, upon the Calculation Agent's
notification of such determination to the Trustee and the Issuer, the
Calculation Agent will substitute the Successor Index as calculated by S&P or
such other entity for the S&P 500 Index.
If S&P discontinues publication of the S&P 500 Index and a
Successor Index is not selected by the Calculation Agent or is no longer
published on any of the Calculation Dates, the value to be substituted for the
S&P 500 Index for any such Calculation Date will be calculated as described
below.
If a Successor Index is selected or the Calculation Agent
calculates a value as a substitute for the S&P 500 Index as described below,
such Successor Index or value shall be substituted for the S&P 500 Index for all
purposes, including for purposes of determining whether a Market Disruption
Event exists.
If at any time the method of calculating the S&P 500 Index, or
the value thereof, is changed in a material respect, or if the S&P 500 Index is
in any other way modified such that in the opinion of the Calculation Agent, the
S&P 500 Index does not fairly represent the value of the S&P 500 Index had such
change or modification not been made, then, from and after such time, the
Calculation Agent shall on each Calculation Date make such adjustments as, in
the good faith judgment of the Calculation Agent, may be necessary in order to
arrive at a calculation of a stock index comparable to the S&P 500 Index as if
such change or modification had not been made. For example, if the method of
calculating the S&P 500 Index is modified so that the value of such S&P 500
Index is a fraction or a multiple of what it would have been if it had not been
modified (e.g., due to a split in the S&P 500 Index), then the Calculation Agent
shall adjust the S&P 500 Index in order to arrive at a value of the S&P 500
Index as if it had not been modified (e.g., as if such split had not occurred).
If S&P discontinues publication of the S&P 500 Index and a
Successor Index is available, then the Maturity Amount will be determined by
reference to the Successor Index, as provided above.
If the publication of the S&P 500 Index is discontinued and
S&P or another entity does not publish a Successor Index on any of the
Calculation Dates, the index to be substituted for the S&P 500 Index for any
such Calculation Date will be computed by the Calculation Agent for each such
Calculation Date in accordance with the following procedures:
(1) identifying the component stocks of the
S&P 500 Index or any Successor Index as of the last date on
which either of such indices was calculated by S&P or another
entity and published by S&P or such other entity (each such
component stock is an "Index Component Stock");
(2) for each Index Component Stock,
calculating as of each such Calculation Date the product of
the market price per share and the number of the
then-outstanding shares (such product referred to as the
"Market Value" of such Index Component Stock), by reference to
(a) the closing market price per share of such Index Component
Stock as quoted by the New York Stock Exchange or the American
Stock Exchange or any other registered national securities
exchange that is the primary market for such Index Component
Stock, or if no such quotation is available, then the closing
market price as quoted by any other registered national
securities exchange or the National Association of Securities
Dealers Automated Quotation National Market System ("NASDAQ"),
or if no such price is quoted, then the market price from the
best available source as determined by the Calculation Agent
(collectively, the "Exchanges") and (b) the most recent
publicly available statement of the number of outstanding
shares of such Index Component Stock;
(3) aggregating the Market Values obtained
in clause (2) for all Index Component Stocks;
3
<PAGE> 4
(4) ascertaining the Base Value (as defined
below) in effect as of the last day on which either the S&P
500 Index or any Successor Index was published by S&P or
another entity (adjusted as described below);
(5) dividing the aggregate Market Value of
all Index Component Stocks by the Base Value (adjusted as
described below);
(6) multiplying the resulting quotient
(expressed in decimals) by ten.
"Base Value" shall mean the aggregate of the mean average
Market Value of the common stock of each company in a group of 500 companies
substantially similar to the current S&P 500 group over the base period of the
years 1941 through 1943.
If any Index Component Stock is no longer publicly traded on
any registered national securities exchange or in the over-the-counter market,
the last available market price per share for such Index Component Stock as
quoted by any registered national securities exchange or in the over-the-counter
market, and the number of outstanding shares thereof at such time, will be used
in computing the last available Market Value of such Index Component Stock. Such
Market Value will be used in all computations of the S&P 500 Index thereafter.
If a company that has issued an Index Component Stock and
another company that has issued an Index Component Stock are consolidated to
form a new company, the common stock of such new company will be considered an
Index Component Stock and the common stocks of the constituent companies will no
longer be considered Index Component Stocks. If any company that has issued an
Index Component Stock merges with, or acquires, a company that has not issued an
Index Component Stock, the common stock of the surviving corporation will, upon
the effectiveness of such merger or acquisition, be considered an Index
Component Stock. In each such case, the Base Value will be adjusted so that the
Base Value immediately after such consolidation, merger or acquisition will
equal (a) the Base Value immediately prior to such event, multiplied by (b) the
quotient of the aggregate Market Value of all Index Component Stocks immediately
after such event, divided by the aggregate Market Value for all Index Component
Stocks immediately prior to such event.
If a company that has issued an Index Component Stock issues a
stock dividend, declares a stock split or issues new shares pursuant to the
acquisition of another company, then, in each case, the Base Value will be
adjusted so that the Base Value immediately after the time the particular Index
Component Stock commences trading ex-dividend, the effectiveness of the stock
split or the time new shares of such Index Component Stock commence trading
equals (a) the Base Value immediately prior to such event, multiplied by (b) the
quotient of the aggregate Market Value for all Index Component Stocks
immediately after such event, divided by the aggregate Market Value of all Index
Component Stocks immediately prior to such event. The Base Value used by the
Calculation Agent to calculate the value described above will not necessarily be
adjusted in all cases in which S&P, in its discretion, might adjust the Base
Value.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by or on behalf of the Trustee under the Indenture referred to below.
AGENCY FOR TRANSFER, EXCHANGE AND PAYMENT:
FIRST UNION NATIONAL BANK
4
<PAGE> 5
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed in its name by the facsimile signatures of its duly authorized
officers, and has caused its corporate seal to be affixed hereunto or imprinted
hereon by facsimile.
Dated: ____________________ AIR PRODUCTS AND CHEMICALS, INC.
By:______________________________
Chairman of the Board
Attest:
(Corporate Seal) _________________________________
Vice President and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the Series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION
NATIONAL BANK, as Trustee
By:__________________________
Authorized Officer
5
<PAGE> 6
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of January 10, 1995 (the
"Indenture"), duly executed and delivered by the Issuer to First Union National
Bank (formerly First Fidelity Bank, National Association), as Trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder of the Securities). The Securities may be issued in one or
more series, which different series (and which securities issued within each
series) may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption or repayment provisions (if any), may be subject to
different sinking fund or analogous provisions (if any), may be subject to
different Events of Default (as defined in the Indenture) and may otherwise vary
as in the Indenture provided. This Note is one of a series designated as
"Medium-Term Notes, Series G, Due from 9 Months to 30 Years from Date of Issue"
(the "Notes") of the Issuer, limited in aggregate principal amount to U.S.
$300,000,000, or the equivalent thereof in the Specified Currency or Currencies.
This Note is not subject to redemption by the Issuer or at the
option of the holders prior to maturity.
In case an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture. The amount payable in
respect hereof upon any acceleration permitted by the Indenture, with respect to
each $1,000 principal amount thereof, will be equal to the greater of (i) the
Principal Amount plus an amount equal to the interest which would have accrued
hereon from and including the date of original issuance to but excluding the
date of early redemption at an annualized rate of _____%, calculated on a
semiannual bond equivalent basis and (ii) the Index Maturity Amount calculated
as described above under "Maturity Amount" with the following modifications. The
Calculation Period used to calculate the final Annual Value of this Note so
accelerated will begin on the eighth scheduled Business Day next preceding the
scheduled date for such early redemption. If such final Annual Value is the only
Annual Value which shall have been calculated with respect to this Note, such
final Annual Value will be the Final Average Index Value. If one or two other
Annual Values shall have been calculated with respect to this Note for prior
years when this Note shall have been outstanding, the average of the final
Annual Value and such one other Annual Value or such two other Annual Values, as
the case may be, will be the Final Average Index Value. If a bankruptcy
proceeding is commenced in respect of the Issuer, the claim with respect to this
Note may be limited, under Section 502(b)(2) of Title 11 of the United States
Code, to the Principal Amount plus an additional amount of contingent interest
calculated as though the date of the commencement of the proceeding were the
Maturity Date.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the holders of not less than 66 2/3% in
aggregate principal amount of the Securities at the time outstanding (as defined
in the Indenture) of all series to be affected (voting as one class), evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Securities of each such series; provided, however,
that no such supplemental indenture shall (i) extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 of the Indenture or the amount thereof
provable in bankruptcy pursuant to Section 5.2 of the Indenture, or impair or
affect the right of any Securityholder to institute suit for the payment thereof
or the right of repayment, if any, at the option of the Securityholder without
the consent of the holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities of any series, the consent of the holders of
which is required for any such supplemental indenture, without the consent of
the holder of each Security so affected. Any such consent or waiver by the
holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Note and any Notes which may be issued in
6
<PAGE> 7
exchange or substitution herefor, irrespective of whether or not any notation
thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the Maturity Amount on this Note at
the place, at the respective times, at the rate and in the coin, currency or
currency unit herein prescribed unless in accordance with Section 10.1(c) or
Section 10.2 of the Indenture, the Issuer shall have irrevocably deposited or
caused to be deposited in trust with the Trustee funds in cash and/or U.S.
Government Obligations and/or Foreign Government Securities (as defined in the
Indenture) as will be sufficient to retire this Note at maturity or upon earlier
redemption or repayment.
The Issuer shall be deemed to have paid the Maturity Amount on
this Note when the same shall have become due and payable if in accordance with
Section 10.1(c) or Section 10.2(A) the Issuer shall have irrevocably deposited
or caused to be deposited in trust with the Trustee funds in cash and/or U.S.
Government Obligations and/or Foreign Government Securities (as defined in the
Indenture) as will be sufficient to retire at maturity or upon earlier
redemption or repayment of the outstanding Notes.
The Notes are issuable in fully registered form without
coupons in the minimum denomination of U.S. $100,000 or the equivalent thereof
in the Specified Currency, and in integral multiples of U.S. $1,000 in excess
thereof or 10,000 units of the Specified Currency.
Upon due presentment for registration of transfer of this Note
at the Corporate Trust Office of the Trustee or at such other office or agency
as is designated by the Issuer in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount and like tenor will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith;
provided, however, that if this Note is a Global Note, this Note is exchangeable
only if (x) the Depositary notifies the Issuer that it is unwilling or unable to
continue as Depositary for this Note or if at any time the Depositary ceases to
be in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statutes or regulations, and the Issuer does not appoint a
successor Depositary within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, or (y) the Issuer in its sole discretion
determines that this Note shall be exchanged for certificated Notes in
definitive form, provided that the definitive Notes so issued in exchange for
this Note shall be in authorized denominations and be of like aggregate
principal amount and tenor and terms as the portion of this Note to be
exchanged.
The Issuer will pay any administrative costs imposed by banks
in connection with making payments on this Note by wire transfer, but any tax,
assessment or governmental charge imposed upon payments will be borne by the
holder hereof.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may deem and treat the registered holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the Maturity Amount, and for all other purposes, and
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement contained in the Indenture or in any Note, or because of any
indebtedness evidenced thereby, shall be had against any incorporator,
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer of any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the Issuer hereof.
Undefined terms used herein which are defined in the Indenture
shall have the respective meanings assigned thereto in the Indenture.
7
<PAGE> 8
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Note, 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 sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE______________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
______________________ the within Note of AIR PRODUCTS AND CHEMICALS, INC. and
hereby does irrevocably constitute and appoint
_________________________________Attorney to transfer the said Note on the books
of the within-named Issuer, with full power of substitution in the premises.
Dated_____________________________________
___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
certificate in every particular,
without alteration or enlargement or
any change whatever.
8
<PAGE> 1
EXHIBIT 5
August 18, 1997
Air Products and Chemicals, Inc.
7201 Hamilton Boulevard
Allentown, PA 18195-1501
RE: Air Products and Chemicals, Inc. -- Registration Statement on Form S-3
for $300,000,000 Principal Amount of Medium-Term Notes, Series G
Ladies and Gentlemen:
I am an Assistant General Counsel of Air Products and Chemicals, Inc., a
Delaware corporation (the "Company"), and have acted in such capacity in
connection with the proposed issuance and sale by the Company of up to
$300,000,000 aggregate principal amount of its debt securities (the
"Securities") as described in the Registration Statement on Form S-3, filed by
the Company pursuant to the Securities Act of 1933 on August 18, 1997 (the
"Registration Statement"). The Securities are to be issued under an Indenture
dated as of January 10, 1995 (the "Indenture"), between the Company and First
Union National Bank (formerly First Fidelity Bank, National Association), as
Trustee.
I or members of the Company's legal staff have examined original or copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other instruments as
were deemed necessary or advisable for the purpose of enabling me to render this
opinion.
Based upon the foregoing, in my capacity as an Assistant General Counsel of
the Company, I am of the opinion that when the Registration Statement has become
effective, and the Securities have been duly executed by the Company, duly
authenticated by the Trustee and delivered by the Company against payment
therefor in accordance with the terms of the Indenture, the Securities will be
legally issued and will constitute valid and binding obligations of the Company
in accordance with their terms (except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability).
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ ROBERT F. GERKENS
--------------------------------------
Robert F. Gerkens
Assistant General Counsel
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To: Air Products and Chemicals, Inc.:
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our reports dated 1 November 1996
included and incorporated by reference in Air Products and Chemicals, Inc.'s
Form 10-K for the year ended 30 September 1996 and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, Pennsylvania
August 15, 1997
<PAGE> 1
EXHIBIT 23(b)
August 18, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
RE: Air Products and Chemicals, Inc.
Registration Statement on Form S-3
for $300,000,000 Principal Amount of Medium-Term Notes, Series G
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 of Air Products and
Chemicals, Inc. (the "Company"), filed pursuant to the Securities Act of 1933 on
August 18, 1997 (the "Registration Statement"), in connection with the proposed
issuance and sale by the Company of up to $300,000,000 aggregate principal
amount of its Debt Securities and the prospectus included in the Registration
Statement that refers to us under the caption "Legal Opinions."
The undersigned hereby consent to the reference to us in such prospectus
under the caption "Legal Opinions."
Very truly yours,
/s/ JAMES H. AGGER
--------------------------------------
James H. Agger
Senior Vice President, General Counsel
and Secretary
/s/ ROBERT F. GERKENS
--------------------------------------
Robert F. Gerkens
Assistant General Counsel
/s/ KENNETH R. PETRINI
--------------------------------------
Kenneth R. Petrini
Vice President -- Taxes
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints HAROLD A. WAGNER or ARNOLD H. KAPLAN or JAMES H.
AGGER, acting severally, his/her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him/her and in his/her
name, place and stead, in any and all capacities, to sign a Registration
Statement for the registration of up to $300,000,000 aggregate principal amount
of debt securities of Air Products and Chemicals, Inc., and any and all
amendments thereto, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he/she might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities and Exchange Act of 1933,
this Power of Attorney has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------- --------------------------------- --------------
<C> <S> <C>
Director and Chairman of the July 17, 1997
/s/ HAROLD A. WAGNER Board (Principal Executive
- ----------------------------------------------- Officer)
(Harold A. Wagner)
/s/ DEXTER F. BAKER Director July 17, 1997
- -----------------------------------------------
(Dexter F. Baker)
/s/ TOM H. BARRETT Director July 17, 1997
- -----------------------------------------------
(Tom H. Barrett)
/s/ L. PAUL BREMER, III Director July 17, 1997
- -----------------------------------------------
(L. Paul Bremer, III)
/s/ ROBERT CIZIK Director July 17, 1997
- -----------------------------------------------
(Robert Cizik)
/s/ RUTH M. DAVIS Director July 17, 1997
- -----------------------------------------------
(Ruth M. Davis)
/s/ EDWARD E. HAGENLOCKER Director July 17, 1997
- -----------------------------------------------
(Edward E. Hagenlocker)
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------- --------------------------------- --------------
<C> <S> <C>
/s/ JAMES F. Director July 17, 1997
HARDYMON
- -----------------------------------------------
(James F. Hardymon)
/s/ JOSEPH J. Director July 17, 1997
KAMINSKI
- -----------------------------------------------
(Joseph J. Kaminski)
/s/ TERRY R. Director July 17, 1997
LAUTENBACH
- -----------------------------------------------
(Terry R. Lautenbach)
/s/ RUDOLPHUS F. N. Director July 17, 1997
LUBBERS
- -----------------------------------------------
(Rudolphus F. N. Lubbers)
/s/ TAKEO Director July 17, 1997
SHIINA
- -----------------------------------------------
(Takeo Shiina)
/s/ LAWRASON D. Director July 17, 1997
THOMAS
- -----------------------------------------------
(Lawrason D. Thomas)
</TABLE>
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(I.R.S. Employer Identification No.)
102 PENNSYLVANIA AVENUE, AVONDALE, PENNSYLVANIA
(Address of Principal Executive Offices)
19311
(Zip Code)
AIR PRODUCTS AND CHEMICALS, INC.
(Exact name of registrants as specified in their charters)
DELAWARE
(State of Incorporation)
23-1274455
(I.R.S. Employer Identification No.)
7201 HAMILTON BOULEVARD
ALLENTOWN, PA 18195-1501
(610) 481-7351
(Address of Principal Executive Offices)
DEBT SECURITIES
Application relates to all securities registered pursuant to the delayed
offering registration statement (Title of Indenture Securities)
<PAGE> 2
1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY
AUTHORITY TO WHICH IT IS SUBJECT:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank (3rd District)
Philadelphia, Pennsylvania 19106
Federal Deposit Insurance Corporation
Washington, D.C. 20429
(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.
3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
Not applicable - see answer to item 13.
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER
WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
Not applicable - see answer to item 13.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
2
<PAGE> 3
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS
OF THE TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY
EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH
CONNECTION.
Not applicable - see answer to item 13.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES
OF THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER, AND
EXECUTIVE OFFICER OF THE OBLIGOR:
Not applicable - see answer to item 13.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR
THEIR OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES
OF THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER:
Not applicable - see answer to item 13.
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE
OBLIGOR OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE:
Not applicable - see answer to item 13.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF
SUCH UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE:
Not applicable - see answer to item 13.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE
KNOWLEDGE OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING STOCK OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
3
<PAGE> 4
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
Not applicable - see answer to item 13.
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A
PERSON OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF
THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE
KNOWLEDGE OF THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF
THE OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF
SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE:
Not applicable - see answer to item 13.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS
INDEBTED TO THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
Not applicable - see answer to item 13.
13. DEFAULTS BY THE OBLIGOR.
(a) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT
TO THE SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None.
(b) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER
WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN
ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE
HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None
14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE
EACH SUCH AFFILIATION.
Not applicable - see answer to item 13.
15. FOREIGN TRUSTEE.
4
<PAGE> 5
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable - trustee is a national banking association
organized under the laws of the United States.
16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
1. Copy of Articles of Association of the trustee as now in
- ---- effect.**
2. Copy of the Certificate of the Comptroller of the Currency
- ---- dated January 11, 1994, evidencing the authority of the
trustee to transact business.*
3. Copy of the authorization of the trustee to exercise fiduciary
- ---- powers.*
4. Copy of existing by-laws of the trustee.**
- ----
5. Copy of each indenture referred to in Item 4, if the obligor
- ---- is in default, not applicable.
X 6. Consent of the trustee required by Section 321(b) of the
- ---- Act.
X 7. Copy of report of condition of the trustee at the close of
- ---- business on March 31, 1997, published pursuant to the
requirements of its supervising authority.
8. Copy of any order pursuant to which the foreign trustee is
- ---- authorized to act as sole trustee under indentures qualified
or to be qualified under the Act, not applicable.
9. Consent to service of process required of foreign trustees
- ---- pursuant to Rule 10a-4 under the Act, not applicable.
5
<PAGE> 6
*Previously filed with the Securities and Exchange Commission on February 11,
1994 as an exhibit to Form T-1 in connection with Registration Statement No.
22-73340 and ** previously filed with the the Securities and Exchange Commission
on May 5, 1997 as an exhibit to Form T-1 in connection with Registration
Statement No. 333-23791 and incorporated herein by reference.
NOTE
The trustee disclaims responsibility for the accuracy or
completeness of information contained in this Statement of Eligibility and
Qualification not known to the trustee and not obtainable by it through
reasonable investigation and as to which information it has obtained from the
obligor and has had to rely or will obtain from the principal underwriters and
will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the trustee, First Union National Bank, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Philadelphia and
Commonwealth of Pennsylvania, on the 25th day of June, 1997.
FIRST UNION NATIONAL BANK
By: s/John H. Clapham
_______________________
John H. Clapham
Vice President
6
<PAGE> 7
EXHIBIT 4
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, and in connection with the proposed issue of Air Products and
Chemicals, Inc. we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ John H. Clapham
-------------------
John H. Clapham
Vice President
Philadelphia, PA
June 25, 1997
<PAGE> 8
EXHIBIT 7
Consolidating domestic and foreign subsidiaries of the First Union National
Bank, Avondale, Pennsylvania, at the close of business on March 31, 1997,
published in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161. Charter Number 33869 Comptroller of the
Currency Northeastern District.
STATEMENT OF RESOURCES AND LIABILITIES
<TABLE>
<CAPTION>
ASSETS
Thousands of Dollars
<S> <C>
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin........ 1,589,725
Interest-bearing balances................................. 144,932
Securities.................................................. /////////
Hold-to maturity securities............................... 406,600
Available-for-sale securities............................. 2,331,814
Federal funds sold and securities purchased under agreements /////////
to resell................................................. 2,102,868
Loans and lease financing receivables:
Loan and leases, net of unearned income......19,281,909
LESS: Allowance for loan and lease losses.......243,522
LESS: Allocated transfer risk reserve.................0
Loans and leases, net of unearned income, allowance, and
reserve................................................. 19,038,387
Assets held in trading accounts......................... 0
Premises and fixed assets (including capitalized leases).. 405,170
Other real estate owned................................... 49,059
Investment in unconsolidated subsidiaries and associated /////////
companies................................................. 32,905
Customer's liability to this bank on acceptances outstanding. 45,474
Intangible assets........................................... 411,739
Other assets................................................ 642,043
Total assets................................................ 27,200,716
LIABILITIES
Deposits:
In domestic offices..................................... 21,310,047
Noninterest-bearing......................4,381,335
interest bearing........................16,928,712
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.............................................. 519,225
Noninterest-bearing............................215
Interest-bearing...........................519,010
Federal funds purchased and securities sold under agreements
to repurchase 1,771,997
Demand notes issued to the U.S. Treasury................... 99,991
Trading liabilities........................................ 0
Other borrowed money....................................... /////////
With original maturity of one year or less................. 12,151
With original maturity of more than one year........... 14,852
Not Applicable /////////
Bank's liability on acceptances executed and outstanding.... 43,884
Subordinated notes and debentures........................... 450,000
Other liabilities........................................... 642,872
Total liabilities........................................... 24,867,019
Limited-life preferred stock and related surplus............ 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............... 160,540
Common Stock................................................ 452,156
Surplus..................................................... 1,300,080
Undivided profits and capital reserves...................... 452,724
Net unrealized holding gains (losses) on available-for-sale /////////
securities................................................ (31,803)
Cumulative foreign currency translation adjustments......... 0
Total equity capital........................................ 2,333,697
Total liabilities, limited-life preferred stock and equity.. /////////
capital................................................... 27,200,716
</TABLE>
