<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 24, 1999
Post-Effective Amendment No. 1 to Registration Statement No. 333-84673
Post-Effective Amendment No. 2 to Registration Statement No. 333-66865
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
Post-effective Amendment No. 1
to
FORM S-3
Registration Statement
Under the
Securities Act Of 1933
------------------------
EMERSON ELECTRIC CO.
(Exact name of registrant as specified in its charter)
MISSOURI 43-0259330
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
8000 WEST FLORISSANT AVENUE, STATION 2431, P.O. BOX 4100
ST. LOUIS, MISSOURI 63136
(Address of principal executive offices)
Registrant's telephone number including area code: (314) 533-2000
HARLEY M. SMITH, ESQ.
Assistant General Counsel and Assistant Secretary
Emerson Electric Co.
8000 West Florissant Avenue, Station 2431, P.O. Box 4100
St. Louis, Missouri 63136
(314) 553-2431
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
THIS POST-EFFECTIVE AMENDMENT IS FILED PURSUANT TO RULE 462(D).
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
Reference is made to the Exhibit Index.
II-1
<PAGE> 3
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 the
requirements for filing on Form S-3 and has duly caused this post-effective
amendment to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the County of St. Louis, State of
Missouri, on September 23, 1999.
EMERSON ELECTRIC CO.
By: * W. J. Galvin
--------------------------------------------
W.J. Galvin
Senior Vice-President-Finance and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment, which also constitutes Post-Effective Amendment No. 1
to Registration Statement No. 333-66865, has been signed below on September 23,
1999 by the following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* C. F. Knight Chairman of the Board,
- -------------------------------------------------- Chief Executive Officer and Director
(C. F. Knight)
* W. J. Galvin Senior Vice President - Finance and Chief Financial
-------------------------------------------------- Officer (Principal Accounting Officer)
(W. J. Galvin)
* J. G. Berges Director
- --------------------------------------------------
(J. G. Berges)
* L. L. Browning, Jr. Director
- --------------------------------------------------
(L. L. Browning, Jr.)
* A. A. Busch III Director
- --------------------------------------------------
(A. A. Busch III)
* D. C. Farrell Director
- --------------------------------------------------
(D. C. Farrell)
* J. A. Frates Director
- --------------------------------------------------
(J. A. Frates)
</TABLE>
II-2
<PAGE> 4
<TABLE>
<S> <C>
* R. B. Horton Director
- --------------------------------------------------
(R. B. Horton)
* G. A. Lodge Director
- --------------------------------------------------
(G. A. Lodge)
* V. R. Loucks, Jr. Director
- --------------------------------------------------
(V. R. Loucks, Jr.)
* R. B. Loynd Director
- --------------------------------------------------
(R. B. Loynd)
* R. L. Ridgway Director
- --------------------------------------------------
(R. L. Ridgway)
* R. W. Staley Director
- --------------------------------------------------
(R. W. Staley)
* A. E. Suter Director
- --------------------------------------------------
(A. E. Suter)
* G. W. Tamke Co-Chief Executive Officer and Director
- --------------------------------------------------
(G. W. Tamke)
* W. M. Van Cleve Director
- --------------------------------------------------
(W. M. Van Cleve)
* E. E. Whitacre, Jr. Director
- --------------------------------------------------
(E. E. Whitacre, Jr.)
* By:
/s/ H. M. Smith.
- --------------------------------------------------
(H. M. Smith)
Attorney-in-Fact
</TABLE>
II-3
<PAGE> 5
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
1.3 - Form of Distribution Agreement
4.3 - Form of Fixed Rate Medium-Term Note
4.4 - Form of Floating Rate Medium-Term Note
8 - Opinion regarding tax matters
12.1 - Statement re computation of ratios of earnings to
fixed charges
II-4
<PAGE> 1
EXHIBIT 1.3
EMERSON ELECTRIC CO.
$2,000,000,000
MEDIUM-TERM NOTES
Due from 9 Months or more from Date of Issue
U.S. DISTRIBUTION AGREEMENT
September 23, 1999
MORGAN STANLEY & CO.
INCORPORATED
1585 Broadway
New York, New York 10036
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Dear Sirs:
EMERSON ELECTRIC CO., a Missouri corporation (the "COMPANY"), confirms
its agreement with each of you with respect to the issue and sale from time to
time by the Company of up to $2,000,000,000 (or the equivalent thereof in one or
more foreign currencies or composite currencies) aggregate initial public
offering price of its medium-term notes due from 9 months or more from date of
issue (the "Notes"). The Notes will be issued under an Indenture dated as of
December 10, 1998 (the "INDENTURE") between the Company and The Bank of New
York, as Trustee (the "TRUSTEE"), and will have the maturities, interest rates,
redemption provisions, if any, and other terms as set forth in supplements to
the Basic Prospectus referred to below.
The Company hereby appoints Morgan Stanley & Co. Incorporated ("Morgan
Stanley") and J.P. Morgan Securities Inc. ("J.P. Morgan") (individually, an
"AGENT" and collectively, the "AGENTS") as its non-exclusive agents, subject to
Sections 8 and 11, for the purpose of soliciting and receiving offers to
purchase Notes from the Company by others and, on the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees to use its best efforts to
solicit and receive offers to purchase Notes upon terms acceptable to the
Company at such times and in such amounts as the Company shall from time to time
specify. In addition, any Agent may also purchase Notes as principal pursuant to
the terms of
<PAGE> 2
a terms agreement relating to such sale (a "TERMS AGREEMENT") in accordance with
the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (File No. 333-84673) for
registration of the Notes under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the offering thereof from time to time in accordance with
Rule 415 of the Rules and regulations of the Commission promulgated pursuant to
the Securities Act. Such registration statement (and any further registration
statements which may be filed by the Company for the purpose of registering
additional Notes and in connection with which this Agreement is included or
incorporated therein by reference as an exhibit) including all documents
incorporated therein by reference, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), the Securities Act or otherwise, are referred to
herein as the "REGISTRATION STATEMENT." The Company proposes to file with the
Commission from time to time, pursuant to Rule 424 under the Securities Act of
1933, as amended (the "SECURITIES ACT"), supplements to the prospectus included
in the Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "BASIC PROSPECTUS." The term "PROSPECTUS" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "PROSPECTUS SUPPLEMENT") specifically relating to Notes, as filed with,
or transmitted for filing to, the Commission pursuant to Rule 424. As used
herein, the terms "Basic Prospectus" and "Prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"SUPPLEMENT," "AMENDMENT" and "AMEND" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each Agent as of the Commencement Date, as of each
date on which the Company accepts an offer to purchase Notes (including any
purchase by an Agent pursuant to a Terms Agreement), as of each date the Company
issues and delivers Notes and as of each date the Registration Statement or the
Basic Prospectus is amended or supplemented, as follows (it being understood
that such representations, warranties and agreements shall be deemed to relate
to the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
2
<PAGE> 3
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
applicable requirements of the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable,
will 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, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the applicable
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; except
that (A) the representations and warranties set forth in this paragraph
do not apply (1) to statements or omissions in the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto based upon information furnished to the Company in writing by
an Agent expressly for use therein, (2) to that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT"), of the Trustee, or (3) information, if any,
contained in the Registration Statement or Prospectus relating to the
Depository Trust Company or its book-entry system and (B) the
representations and warranties set forth in clauses 1(b)(iii) and
1(b)(iv) above, when made as of the Commencement Date or on which the
Company accepts an offer to purchase Notes, shall be deemed not to
cover information concerning an offering of particular Notes to the
extent such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(d) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable.
3
<PAGE> 4
(e) Each of this Agreement and any applicable Written Terms
Agreement (as hereinafter defined) has been duly authorized, executed
and delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will be entitled
to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general
principles of equity.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Notes, the Indenture and any applicable Written Terms Agreement
will not contravene any provision of applicable law or the restated
articles of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the
Indenture and any applicable Terms Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
4
<PAGE> 5
described in the Registration Statement or the Prospectus and are not
so described.
Notwithstanding the foregoing, the representations and warranties set
forth in clauses 1(b)(iii) and 1(b)(iv) and Sections 1(g) (except as to due
authorization of the Notes) and 1(h), when made as of the Commencement Date,
with respect to any Notes the payments of principal or interest on which will be
determined by reference to one or more currency exchange rates, commodity
prices, equity indices or other factors, shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's actions
as agent hereunder, such Agent agrees to use its best efforts to
solicit offers to purchase Notes upon the terms and conditions set
forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon receipt
of at least one business day's prior notice from the Company, the
Agents will forthwith suspend solicitations of offers to purchase Notes
from the Company until such time as the Company has advised the Agents
that such solicitation may be resumed. While such solicitation is
suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a),
5(b) and 5(c); provided, however, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension
(other than by an amendment or supplement providing solely for a change
in the interest rates, redemption provisions, amortization schedules,
maturities, issuance prices or other similar terms offered on the Notes
or for a change the Agents deem to be immaterial), no Agent shall be
required to resume soliciting offers to purchase Notes until the
Company has delivered such certificates, opinions and letters as such
Agent may reasonably request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Note equal to the percentage set forth
below of the purchase price of such Note:
5
<PAGE> 6
<TABLE>
<CAPTION>
COMMISSION
TERM RATE
--------------------------------------------------------------- ----------------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .525%
From 7 years to less than 8 years .550%
From 8 years to less than 9 years .575%
From 9 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .650%
From 20 years to less than 30 years .750%
30 years and beyond to be negotiated
</TABLE>
However, if the Company otherwise agrees in writing with one or more
Agents, then such other agreed to commission rates shall apply for such
Agents.
Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by such Agent as agent
that in its reasonable judgment should be considered by the Company.
The Company shall have the sole right to accept offers to purchase
Notes and may reject any offer in whole or in part. Each Agent shall
have the right in its discretion, reasonably exercised, to reject any
offer to purchase Notes that it considers to be unacceptable, and any
such rejection shall not be deemed a breach of its agreements contained
herein. The procedural details relating to the issue and delivery of
Notes sold by the Agents as agents and the payment therefor shall be as
set forth in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement.
In connection with each such sale, the Company will enter into a Terms
Agreement that will provide for the sale of such Notes to and the
purchase thereof by such Agent. Each Terms Agreement will take the form
of either (i) a written agreement between such Agent and the Company,
which may be substantially in the form of Exhibit A hereto (a "WRITTEN
TERMS AGREEMENT"), or (ii) an oral agreement between such Agent and the
Company confirmed in writing by such Agent and the Company.
6
<PAGE> 7
An Agent's commitment to purchase Notes pursuant to a Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Each
Terms Agreement shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date of such
Notes, the price to be paid to the Company for such Notes, the interest
rate and interest rate formula, if any, applicable to such Notes and
any other terms of such Notes. Each such Terms Agreement may also
specify any requirements for officers' certificates, opinions of
counsel and letters from the independent public accountants of the
Company pursuant to Section 4 hereof. A Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes by
such Agent.
Each Terms Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in a
Terms Agreement, the procedural details relating to the issue and
delivery of Notes purchased by an Agent as principal and the payment
therefor shall be as set forth in the Administrative Procedures. Each
date of delivery of and payment for Notes to be purchased by an Agent
pursuant to a Terms Agreement is referred to herein as a "SETTLEMENT
DATE."
Unless otherwise specified in a Terms Agreement, if an Agent
is purchasing Notes as principal such Agent may resell such Notes to
other dealers. Any such sales may be at a discount, which shall not
exceed the amount set forth in the Prospectus Supplement relating to
such Notes.
(c) Administrative Procedures. The Agents and the Company
agree to perform the respective duties and obligations specifically
provided to be performed in the Medium-Term Notes Administrative
Procedures (attached hereto as Exhibit B) (the "ADMINISTRATIVE
PROCEDURES"), as amended from time to time. The Administrative
Procedures may be amended only by written agreement of the Company and
the Agents.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to each Agent's
obligation to begin soliciting offers to purchase Notes as an agent of
the Company shall be delivered at the office of Davis Polk & Wardwell,
counsel for the Agents, not later than 5:00 p.m., New York City time,
on the date hereof, or at such other time and/or place as the Agents
and the Company may agree upon in writing, but in no event later than
the day prior to the earlier of (i) the date on which the Agents begin
soliciting offers to purchase Notes and (ii) the first date on which
the Company accepts any offer by an Agent to purchase Notes pursuant to
a Terms
7
<PAGE> 8
Agreement. The date of delivery of such documents is referred to herein
as the "COMMENCEMENT DATE."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not
joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not
file any Prospectus Supplement relating to the Notes or any amendment
to the Registration Statement unless the Company has previously
furnished to the Agents copies thereof for their review and will not
file any such proposed supplement or amendment to which the Agents
reasonably object; provided, however, that (i) the foregoing
requirement shall not apply to any of the Company's filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, copies of which filings the Company will
cause to be delivered to the Agents promptly after being transmitted
for filing with the Commission and (ii) any Prospectus Supplement that
merely sets forth the terms or a description of particular Notes shall
only be reviewed and approved by the Agent or Agents offering such
Notes. Subject to the foregoing sentence, the Company will promptly
cause each Prospectus Supplement to be filed with or transmitted for
filing to the Commission in accordance with Rule 424(b) under the
Securities Act. The Company will promptly advise the Agents (i) of the
filing of any amendment or supplement to the Basic Prospectus (except
that notice of the filing of an amendment or supplement to the Basic
Prospectus that merely sets forth the terms or a description of
particular Notes shall only be given to the Agent or Agents offering
such Notes), (ii) of the filing and effectiveness of any amendment to
the Registration Statement, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or, to
the knowledge of the Company, threatening of any proceeding for that
purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as reasonably possible
the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Notes so long as it is not
reasonably satisfied with such document.
8
<PAGE> 9
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended
or supplemented, would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus, as then
amended or supplemented, is delivered to a purchaser, not misleading,
or if, in the reasonable opinion of the Agents communicated to the
Company or in the opinion of the Company, it is necessary at any time
to amend or supplement the Prospectus, as then amended or supplemented,
to comply with applicable securities law, the Company will immediately
notify the Agents by telephone (with confirmation in writing) to
suspend solicitation of offers to purchase Notes and, if so notified by
the Company, the Agents shall forthwith suspend such solicitation and
cease using the Prospectus, as then amended or supplemented. If the
Company shall decide to amend or supplement the Registration Statement
or Prospectus, as then amended or supplemented, it shall so advise the
Agents promptly by telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, reasonably satisfactory in
all respects to the Agents, that will correct such statement or
omission or effect such compliance and will supply such amended or
supplemented Prospectus to the Agents in such quantities as they may
reasonably request. If any documents, certificates, opinions and
letters furnished to the Agents pursuant to Sections 3(f), 5(a), 5(b)
and 5(c) in connection with the preparation and filing of such
amendment or supplement are reasonably satisfactory in all respects to
the Agents, upon the filing with the Commission of such amendment or
supplement to the Prospectus or upon the effectiveness of an amendment
to the Registration Statement, the Agents will resume the solicitation
of offers to purchase Notes hereunder. Notwithstanding any other
provision of this paragraph, until the distribution of any Notes an
Agent may own as principal has been completed, if any event described
above in this paragraph occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as
then amended or supplemented, reasonably satisfactory in all respects
to such Agent, will supply such amended or supplemented Prospectus to
such Agent in such quantities as it may reasonably request and shall
furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b) and 5(c)
such documents, certificates, opinions and letters as it may reasonably
request in connection with the preparation and filing of such amendment
or supplement.
(c) As soon as practicable, the Company will make generally
available to its security holders and to each of the Agents an earnings
9
<PAGE> 10
statement or statements (which need not be audited) of the Company and
its subsidiaries that will satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.
(d) The Company will furnish to each Agent, without charge, a
signed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as such Agent may reasonably request.
(e) The Company will endeavor to arrange for the qualification
of the Notes for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Agents shall reasonably request and to
maintain such qualifications for as long as the Agents shall reasonably
request; provided, however, that the Company shall not be required to
(i) qualify as a foreign corporation or as a dealer in securities; (ii)
file a general consent to service of process; or (iii) subject itself
to taxation in any such jurisdiction.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to the
business, operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or supplements thereto,
the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of
its obligations hereunder or thereunder as the Agents may from time to
time reasonably request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including:
(i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the
Trustee and its counsel, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of
Section 3(e), including filing fees and the reasonable fees and
disbursements of counsel
10
<PAGE> 11
for the Agents in connection therewith and in connection with the
preparation of any Blue Sky or legal investment memoranda, (v) the
printing and delivery to the Agents in quantities as hereinabove stated
of copies of the Registration Statement and all amendments thereto and
of the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Agents of copies of any Blue Sky or legal
investment memoranda, (vii) any fees charged by rating agencies for the
rating of the Notes, (viii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors and
(ix) the reasonable fees and disbursements of counsel for the Agents
incurred in connection with the offering and sale of the Notes,
including any opinions to be rendered by such counsel hereunder, and
(x) any out-of-pocket expenses incurred by the Agents; provided that
any advertising expenses incurred by the Agents shall have been
approved by the Company. Further provided, except as set forth above,
the Agents will pay all of their own costs and expenses.
(i) During the period beginning the date of any Terms
Agreement and continuing to and including the Settlement Date with
respect to such Terms Agreement, the Company will not, without such
Agent's prior written consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company substantially similar to such
Notes (other than (i) the Notes that are to be sold pursuant to such
Terms Agreement, (ii) Notes previously agreed to be sold by the Company
and (iii) commercial paper issued in the ordinary course of business),
except as may otherwise be provided in such Terms Agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company, each
Agent's obligation to purchase Notes pursuant to any Terms Agreement and the
obligation of any other purchaser to purchase Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in each
certificate furnished pursuant to the provisions hereof and to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed (in the case of an Agent's obligation
to solicit offers to purchase Notes, at the time of such solicitation, and, in
the case of an Agent's or any other purchaser's obligation to purchase Notes, at
the time the Company accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
11
<PAGE> 12
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, as amended or
supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in the reasonable
judgment of the relevant Agent, is material and adverse and
that makes it, in the reasonable judgment of such Agent,
impracticable to market the Notes on the terms and in the
manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension
or material limitation of trading generally on or by, as the
case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (B)
suspension of trading of any securities of the Company on any
exchange or in any over-the-counter market, (C) declaration of
a general moratorium on commercial banking activities in New
York by either Federal or New York State authorities or (D)
any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the
judgment of the relevant Agent, is material and adverse and,
in the case of any of the events described in clauses
4(a)(ii)(A) through 4(a)(ii)(D), such event, singly or
together with any other such event, makes it, in the
reasonable judgment of such Agent, impracticable to market the
Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made;
and
(iii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(X) except, in each case described in Section 4(a)(i),
4(a)(ii) or 4(a)(iii) above, as disclosed to the relevant
Agent in writing by the Company prior to such solicitation or,
in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was
made, or (Y) unless, in each case described in Section
4(a)(ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such
12
<PAGE> 13
solicitation or, in the case of a purchase of Notes, before
the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received:
(i) The opinion, dated as of such date, of counsel
for the Company, which may be the General Counsel or any
Assistant General Counsel of the Company, to the effect that:
(A) the Company has been duly incorporated,
is validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, has the corporate power and authority
to own its property and to conduct its business as
described in the Prospectus, as then amended or
supplemented, except to the extent that the failure
to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(B) each of this Agreement and any
applicable Written Terms Agreement has been duly
authorized, executed and delivered by the Company;
(C) the Indenture has been duly qualified
under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general
principles of equity;
(D) the Notes have been duly authorized and,
if executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid
for by the purchasers thereof on the date of such
opinion, would be entitled to the benefits of the
Indenture and would be valid and binding obligations
of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors'
rights generally and general principles of equity;
(E) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, the Notes, the
Indenture and any
13
<PAGE> 14
applicable Written Terms Agreement will not
contravene any provision of applicable law or the
restated articles of incorporation or by-laws of the
Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge,
any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the
performance by the Company of its obligations under
this Agreement, the Notes, the Indenture and any
applicable Terms Agreement, except such as may be
required by the securities or Blue Sky laws of the
various states in connection with the offer and sale
of the Notes;
(F) the statements (1) in the Prospectus, as
then amended or supplemented, under the captions
"Description of the Debt Securities," (2) in the
Registration Statement under Item 15, (3) in "Item 3
- Legal Proceedings" of the Company's most recent
annual report on Form 10-K incorporated by reference
in the Prospectus and (4) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly
reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements
constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present,
in all material respects, the information called for
with respect to such legal matters, documents and
proceedings and fairly summarize, in all material
respects, the matters referred to therein;
(G) to the best of such counsel's knowledge,
there are no legal or governmental proceedings
pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries
is subject that are required to be described in the
Registration Statement or the Prospectus, as then
amended or supplemented, and are not so described or
of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus, as then
amended or supplemented, or to be filed or
incorporated by reference as
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<PAGE> 15
exhibits to such Registration Statement that are not
described, filed or incorporated as required;
(H) such counsel (1) is of the opinion that
each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus,
as then amended or supplemented (except for financial
statements and schedules included therein as to which
such counsel need not express any opinion) complied
when so filed as to form in all material respects
with the applicable requirements of the Exchange Act
and the applicable rules and regulations of the
Commission thereunder, (2) has no reason to believe
that (except for financial statements and schedules
as to which such counsel need not express any belief
and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement,
as then amended, if applicable, when such part became
effective, contained and as of the date such opinion
is delivered, contains any untrue statement of a
material fact or omitted or omits to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading, (3) is of
the opinion that the Registration Statement and
Prospectus, as then amended or supplemented, if
applicable (except for financial statements and
schedules included therein as to which such counsel
need not express any opinion) comply as to form in
all material respects with the applicable
requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder
and (4) has no reason to believe that (except for
financial statements and schedules as to which such
counsel need not express any belief) the Prospectus,
as then amended or supplemented, if applicable, as of
the date such opinion is delivered contains any
untrue statement of a material fact or omits to state
a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided
that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the
opinion and belief set forth in clauses 4(b)(i)(H)(3)
and 4(b)(i)(H)(4) above shall be deemed not to cover
information concerning an offering of particular
Notes to the extent such information will be set
forth in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk
& Wardwell, counsel for the Agents, covering the matters in
Sections
15
<PAGE> 16
4(b)(i)(C), 4(b)(i)(D) and 4(b)(i)(F) (but only as to the
statements in the Prospectus, as then amended or supplemented,
under the captions "Description of the Debt Securities,"
"Supplemental Plan of Distribution," and "Plan of
Distribution"), and clauses 4(b)(i)(H)(2), 4(b)(i)(H)(3) and
4(b)(i)(H)(4).
Notwithstanding the foregoing, the opinions described
in Sections 4(b)(i)(D) (except as to due authorization of the
Notes) and 4(b)(i)(E) and clauses 4(b)(i)(F)(1), 4(b)(i)(H)(3)
and 4(b)(i)(H)(4), when contained in an opinion delivered on
the Commencement Date or pursuant to Section 5(b), shall be
deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission to
Notes the payments of principal or interest on which will be
determined by reference to one or more currency exchange
rates, commodity prices, equity indices or other factors.
With respect to Section 4(b)(i)(H) above, such
counsel may state that their opinion and belief are based upon
their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With
respect to clauses 4(b)(i)(H)(2), 4(b)(i)(H)(3) and
4(b)(i)(H)(4), Davis Polk & Wardwell may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents
incorporated therein by reference), but are without
independent check or verification, except as specified.
The opinion of counsel for the Company described in
Section 4(b)(i) above shall be rendered to the Agents at the
request of the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer
of the Company, to the effect set forth in Section 4(a)(iii) and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of such date and that the
Company has
16
<PAGE> 17
complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the Company's
independent public accountants shall have furnished to the relevant
Agents a letter or letters, dated the Commencement Date or such
Settlement Date, as the case may be, in form and substance satisfactory
to such Agents containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may reasonably
request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
(i) an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules, maturities, issuance
prices or other similar terms offered on the Notes or for a change the Agents
deem to be immaterial, or (ii) an amendment or supplement by filing of a
Quarterly Report on Form 10-Q or a Current Report on Form 8-K which the Company
deems to be immaterial), the Company will deliver or cause to be delivered
forthwith to each Agent a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to the Agents, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company will furnish or cause to be furnished forthwith to each Agent
a written opinion of the general counsel or the assistant general counsel for
the Company. Any such opinion shall be dated the date of such amendment or
supplement, as the case may be, shall be in a form satisfactory to the Agents
and shall be of the same tenor as the opinion referred to in Section 4(b)(i),
but modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion. In lieu of
such opinion, counsel last furnishing such an opinion to an Agent may furnish to
each Agent a letter to the effect that such Agent may rely on such last opinion
to the same extent as though it were dated the date of such letter (except that
statements in
17
<PAGE> 18
such last opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information or
such amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent public accountants forthwith
to furnish such Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agent, of the same
tenor as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter; provided, however, that each time amended or supplemented
financial information is incorporated by reference in the Prospectus to the
Company's Quarterly Report on Form 10-Q or a Current Report on Form 8-K, the
letter required to be delivered pursuant to this Section 5(c) shall be delivered
to an Agent only upon its reasonable request.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls any
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any such Agent or controlling person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Company in writing by such Agent expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information furnished to the Company in writing by such
Agent expressly for use in the Registration Statement or the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
18
<PAGE> 19
sought pursuant to either Section 6(a) or 6(b) above, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such separate counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Morgan Stanley and J.P.
Morgan or, if neither Morgan Stanley nor J.P. Morgan is reasonably likely to
become an indemnified party, by the Agents that are indemnified parties, in the
case of parties indemnified pursuant to Section 6(a) above, and by the Company,
in the case of parties indemnified pursuant to Section 6(b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 6(a) or
6(b) is unavailable to an indemnified party or insufficient in respect of any
losses,
19
<PAGE> 20
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and each Agent on the other hand from the offering of such Notes or
(ii) if the allocation provided by clause 6(d)(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 6(d)(i) above but also the relative
fault of the Company on the one hand and each Agent on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and each Agent on the other hand in connection with the offering of such Notes
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Company bear to the total discounts and commissions received by each Agent
in respect thereof. The relative fault of the Company on the one hand and each
Agent on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each Agent's obligation to contribute pursuant to this
Section 6 shall be several in the proportion that the principal amount of the
Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes referred to in Section 6(d) that were offered and
sold to the public through such Agent exceeds the amount of any damages that
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent
20
<PAGE> 21
misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the Company, its
officers and the Agents set forth in or made pursuant to this Agreement or any
Terms Agreement will remain in full force and effect regardless of (i) any
termination of this Agreement or any such Terms Agreement, (ii) any
investigation made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent of
the Company and does not assume any obligation towards or relationship of agency
or trust with any purchaser of Notes. An Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason not attributable to the Agent. If the
Company shall default in its obligations to deliver Notes to a purchaser whose
offer it has accepted, the Company shall hold the relevant Agent harmless
against any loss, claim, damage or liability arising from or as a result of such
default that is not attributable to the Agent and shall, in particular, pay to
such Agent the commission it would have received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time by the
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7,
9, 10 and 13 shall survive; provided that if at the time of termination an offer
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 1, 2(b), 2(c), 3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also
survive until such delivery has been made.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Morgan Stanley, will be mailed,
delivered
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<PAGE> 22
or telefaxed and confirmed to Morgan Stanley at 1585 Broadway, New York, New
York, 10036, Attention: Manager, Credit Department (telefax number:
212-761-0780), with a copy to 1585 Broadway, New York, New York, 10036,
Attention: Managing Director, Debt Syndicate, or, if sent to J.P. Morgan, will
be mailed, delivered or telefaxed and confirmed to J.P. Morgan at 60 Wall
Street, New York, New York, 10260, Attention: Medium-Term Note Trading Desk, 3rd
Floor (telefax number: 212-648-5909), or, if sent to the Company, will be
mailed, delivered or telefaxed and confirmed to the Company at 8000 W.
Florissant, P. O. Box 4100, St. Louis, Missouri, 63136, Attention: Assistant
General Counsel (telefax number: 314-553-3713).
10. Successors. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
11. Amendments. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the Company
and each Agent; provided that the Company may from time to time, but without the
consent of any Agent, (i) amend this Agreement to add as a party hereto one or
more additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto, or (ii) appoint one or more firms as a
dealer on a reverse inquiry basis, whereupon such firm shall become an Agent
hereunder on the same terms and conditions as the other Agents that are parties
hereto but only to the extent and for the purpose of an individual reverse
inquiry transaction or as otherwise agreed to between the Company and such
reverse inquiry dealer. The Company shall give reasonably prompt notice to the
other Agents of each additional Agent. The additional Agent(s) shall sign any
agreement, amendment or supplement giving effect to the addition of any such
firm as an Agent under this Agreement in accordance with the provisions of
Section 11.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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[THIS SPACE IS INTENTIONALLY LEFT BLANK.]
23
<PAGE> 24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
EMERSON ELECTRIC CO.
By: /s/ Walter J. Galvin
-------------------------------------
Name: Walter J. Galvin
Title: Sr. Vice President, Finance
And Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
MORGAN STANLEY & CO.
INCORPORATED
By: /s/ Mike Fusco
-----------------------------------
Name: Mike Fusco
Title: Vice President
J.P. MORGAN SECURITIES INC.
By: /s/ Maria Sramek
-----------------------------------
Name: Maria Sramek
Title: Vice President
24
<PAGE> 25
EXHIBIT A
EMERSON ELECTRIC CO.
MEDIUM-TERM NOTES
TERMS AGREEMENT
-----------------, ----
[NAME OF ISSUER]
[ADDRESS]
Attention:
Re: DISTRIBUTION AGREEMENT DATED , 1999 (THE "DISTRIBUTION
----------
AGREEMENT")
We agree to purchase your Medium-Term Notes having the following terms:
[We agree to purchase, severally and not jointly, the principal amount
of Notes set forth below opposite our names:
NAME PRINCIPAL AMOUNT OF
NOTES
- --------------------------------------------------------- ---------------------
[Agent]
[Insert syndicate list](1)
---------------------
Total................................ $
==================
- ----------------------------------
(1) Delete if the transaction will not be syndicated.
<PAGE> 26
The Notes shall have the following terms:
<TABLE>
<CAPTION>
ALL NOTES: FIXED RATE NOTES: FLOATING RATE NOTES:
<S> <C> <C>
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability of modified Index maturity:
payment upon
acceleration:
Price to public: Issue price: Spread:
Settlement date and time: Amortization schedule: Spread multiplier:
Place of delivery: Alternate rate event spread:
Specified currency: Initial interest rate:
Maturity date: Initial interest reset date:
Initial accrual period OID: Interest reset dates:
Total amount of OID: Interest reset period:
Original yield to maturity: Maximum interest rate:
Optional repayment date(s): Minimum interest rate:
Optional redemption date(s): Interest payment period:
Initial redemption date: Interest payment dates:
Initial redemption percentage: Calculation agent:
Annual redemption percentage
decrease:
Other terms:
</TABLE>
Exhibit A - Page 2
<PAGE> 27
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9
through 14, as applicable, of the Distribution Agreement and the related
definitions are incorporated by reference herein and shall be deemed to have the
same force and effect as if set forth in full herein.
[If on the Settlement Date any one or more of the Agents shall
fail or refuse to purchase Notes that it has or they have agreed to purchase on
such date, and the aggregate amount of Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase is not more than one-tenth of
the aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as may specify, to purchase the Notes which such
defaulting Agent or Agents agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Notes that any Agent has
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or Agents
shall fail or refuse to purchase Notes and the aggregate amount of Notes with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Notes to be purchased on such date, and arrangements satisfactory to
and the Company for the purchase of such Notes are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Agent or the Company. In any such case either
or the Company shall have the right to postpone the Settlement Date
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Agent from liability in respect of any default
of such Agent under this Agreement.] (2)
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 9, 10 and 13 of the Distribution Agreement shall
survive for the purposes of this Agreement.
- ----------------------------------
(2) Delete if the transaction will not be syndicated.
<PAGE> 28
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required: ________________
[NAME OF RELEVANT
AGENT(S)]
By:
----------------------------------
Name:
Title:
Accepted:
EMERSON ELECTRIC CO.
By:
----------------------------------
Name:
Title:
<PAGE> 29
EXHIBIT B
EMERSON ELECTRIC CO.
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
---------------------------------
Explained below are the administrative procedures and specific terms
of the offering of Medium-Term Notes (the "Notes"), on a continuous basis by
EMERSON ELECTRIC CO. (the "Company") pursuant to the Distribution Agreement,
dated as of September 23, 1999 (the "Distribution Agreement") among the Company
MORGAN STANLEY & CO. INCORPORATED and J.P. MORGAN SECURITIES INC. (the
"Agents"). The Notes will be issued under an Indenture dated as of December 10,
1998 (the "Indenture") between the Company and THE BANK OF NEW YORK, as trustee
(the "Trustee"). In the Distribution Agreement, the Agents have agreed to use
best efforts to solicit purchases of the Notes, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
sold through an Agent, as agent of the Company. An Agent, as principal, may also
purchase Notes for its own account, and if requested by such Agent, the Company
and such Agent will enter into a terms agreement (a "Terms Agreement"), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes purchased
by an Agent, as principal, unless otherwise specified in the applicable Terms
Agreement.
The Trustee will be the Registrar, Authenticating Agent, Calculation
Agent, Exchange Rate Agent and Paying Agent for the Notes and will perform the
duties specified herein. Each Note will be represented by either a Global
Security (as defined below) delivered to the Trustee, as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to the holder
thereof or a person designated by such holder (a "Certificated Note"). Except as
set forth in the Indenture, an owner of a Book-Entry Note will not be entitled
to receive a Certificated Note.
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof as they may subsequently be amended as the
result of changes in DTC'S operating procedures. Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Notes or any
prospectus supplement relating to the Notes shall be used herein as therein
defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
B-1
<PAGE> 30
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of September 23, 1999, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC, dated as of
August 17, 1989 (the "MTN Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") representing up to U.S. $200,000,000
principal amount of all such Notes that have the same
Original Issue Date, Maturity Date and other terms.
Each Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each Global
Security will bear an "Interest Accrual Date," which
will be (i) with respect to an original Global Security
(or any portion thereof), its original issuance date
and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security (or if
no such payment or provision has been made, the
original issuance date of the predecessor Global
Security), regardless of the date of authentication of
such subsequently issued Global Security. No Global
Security will represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in principal amounts
of (i) with respect to Notes denominated in U.S.
dollars, $1,000 or any amount in excess thereof which
is an integral multiple of $1,000 and (ii) with respect
to Notes denominated in a specified currency other than
U.S. dollars, the equivalent of U.S. $1,000 (rounded to
an integral multiple of 1,000 units of such specified
currency), or any amount in excess thereof which is an
integral multiple of 1,000 units of such specified
currency, as determined by reference to the noon dollar
buying rate in New York City for cable transfers of
such specified currency as published by the Federal
Reserve Bank of New York on the Business Day
immediately preceding the date of issuance. Global
Securities will be denominated in principal amounts not
in excess of U.S.
B-2
<PAGE> 31
$200,000,000. If one or more Book-Entry Notes having an
aggregate principal amount in excess of $200,000,000
would, but for the preceding sentence, be represented
by a single Global Security, then one Global Security
will be issued to represent each U.S. $200,000,000
principal amount of such Book-Entry Note or Notes and
an additional Global Security will be issued to
represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the
Global Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Preparation If any offer to purchase a Book-Entry Note is accepted
of Pricing by or on behalf of the Company, the Company will
Supplement: prepare a pricing supplement (a "Pricing Supplement")
reflecting the terms of such Note. The Company (i) will
arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424(b) under the Act and (ii) will, as soon as
possible and in any event not later than the later of
(x) the date on which such Pricing Supplement is filed
with the Commission or (y) the date of settlement,
deliver the number of copies of such Pricing Supplement
to the relevant Agent as such Agent shall reasonably
request.
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. All offers accepted by the
Company will be settled on the third Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on
another day, which shall be no earlier than the next
Business Day.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Note sold by the Company to or through an Agent (unless
otherwise specified pursuant to a Terms Agreement)
shall be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Book-Entry Note
B-3
<PAGE> 32
and of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed-Rate Book-Entry Note, the
Interest Rate, whether such Note will pay interest
annually or semi-annually and whether such Note is
an Amortizing Note, and, if so, the amortization
schedule, or, in the case of a Floating Rate
Book-Entry Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent, Base
Rate, Index Maturity, Interest Reset Period,
Initial Interest Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any), and the Maximum Interest
Rate (if any).
4. Redemption or repayment provisions (if any).
5. Settlement date and time (Original Issue Date).
6. Interest Accrual Date.
7. Price.
8. Agent's commission (if any) determined as
provided in the Distribution Agreement.
9. Whether the Note is an Original Issue Discount
Note (an "OID Note"), and if it is an OID Note, the
total amount of OID, the yield to maturity, the
initial accrual period OID and the applicability of
Modified Payment upon Acceleration (and, if so, the
Issue Price).
10. Whether the Note is a Renewable Note, and if it
is a Renewable Note, the Initial Maturity Date and
the Final Maturity Date.
11. Whether the Company has the option to extend
the Original Maturity Date of the Note, and, if so,
the Final Maturity Date of such Note.
12. Whether the Company has the option to reset the
Interest Rate, the Spread or the
B-4
<PAGE> 33
Spread Multiplier of the Note.
13. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission(s) (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above. The Trustee will then
assign a CUSIP number to the Global Security
representing such Note and will notify the Company and
the relevant Agent of such CUSIP number by telephone as
soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
relevant Agent and the CUSIP Service Bureau of Standard
& Poor's Corporation:
1. The information set forth in Settlement
Procedure "A".
2. The Initial Interest Payment Date for such Note,
the number of days by which such date succeeds the
related DTC Record Date (such Record Date shall be
the date fifteen calendar days immediately
preceding the applicable Interest Payment Date
unless otherwise defined in the Note) and, if
known, the amount of interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at such
time).
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of DTC's
Participant Terminal System).
6. The number of participant accounts to be
maintained by DTC on behalf of the relevant Agent
and the Trustee.
D. The Trustee will complete and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver
B-5
<PAGE> 34
order through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to the
relevant Agent's participant account and (ii) debit
such Agent's settlement account and credit the
Trustee's settlement account for an amount equal to the
price of such Note less such Agent's commission (if
any). The entry of such a deliver order shall
constitute a representation and warranty by the Trustee
to DTC that (a) the Global Security representing such
Book-Entry Note has been issued and authenticated and
(b) the Trustee is holding such Global Security
pursuant to the MTN Certificate Agreement.
G. Unless the relevant Agent is the end purchaser of
such Note, such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing
DTC (i) to debit such Note to such Agent's participant
account and credit such Note to the participant
accounts of the Participants with respect to such Note
and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such
Agent for an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. The Trustee will credit to the account of the
Company maintained at Chase Manhattan Bank, New York,
New York, ABA # 021000021, Acct # 144-0-60598 or such
other bank as specified by the Company, in immediately
available funds the amount transferred to the Trustee
in accordance with Settlement Procedure "F".
J. Unless the relevant Agent is the end purchaser of
such Note, such Agent will confirm the purchase of such
Note to the purchaser either by transmitting to the
Participants with respect to such Note a confirmation
order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such
purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth a brief description of any sales of which
the Company has advised the Trustee that have not yet
been
B-6
<PAGE> 35
settled.
Settlement For sales by the Company of Book-Entry Notes to or
Procedures through an Agent (unless otherwise specified pursuant
Timetable: to a Terms Agreement) for settlement on the first
Business Day after the sale date, Settlement Procedures
"A" through "J" set forth above shall be completed as
soon as possible but not later than the respective
times in New York City set forth below:
Settlement
Procedure Time
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M., 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12:00
Noon and 2:00 P.M., respectively, on the first Business
Day before the settlement date. Settlement Procedure
"H" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date.
Failure If the Trustee fails to enter an SDFS deliver order
to Settle with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account,
provided that the Trustee's participant account
B-7
<PAGE> 36
contains a principal amount of the Global Security
representing such Note that is at least equal to the
principal amount to be debited. If a withdrawal message
is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will mark
such Global Security "canceled," make appropriate
entries in the Trustee's records and send such canceled
Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance
with the procedures of the CUSIP Service Bureau of
Standard & Poor's Corporation, be canceled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security,
the Trustee will exchange such Global Security for two
Global Securities, one of which shall represent such
Book-Entry Note or Notes and shall be canceled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F"
and "G", respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect.
In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedures "D"
and "F", for the authentication and issuance of a
Global Security representing the Book-Entry Notes to be
represented by such Global Security and will make
appropriate entries in its records.
B-8
<PAGE> 37
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon transfer
or exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note, the
original issuance date of the predecessor Certificated
Note, regardless of the date of authentication of such
subsequently issued Certificated Note.
Preparation If any offer to purchase a Certificated Note is
of Pricing accepted by or on behalf of the Company, the Company
Supplement: will prepare a Pricing Supplement reflecting the terms
of such Note. The Company (i) will arrange to file such
Pricing Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b) under the
Act and (ii) will, as soon as possible and in any event
not later than the later of (x) the date on which such
Pricing Supplement is filed with the Commission or (y)
the date of settlement, deliver the number of copies of
such Pricing Supplement to the relevant Agent as such
Agent shall reasonably request.
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All offers accepted by the
Company will be settled on the third Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on
another date, which date shall be no earlier than the
next Business Day.
B-9
<PAGE> 38
Settlement Settlement Procedures with regard to each Certificated
Procedures: Note sold by the Company to or through an Agent
(unless otherwise specified pursuant to a Terms
Agreement) shall be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Certificated Note and
of the following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note,
the Interest Rate, whether such Note will pay
interest annually or semi-annually and whether such
Note is an Amortizing Note and, if so, the
amortization schedule, or, in the case of a
Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread Multiplier
(if any), Minimum Interest Rate (if any), and the
Maximum Interest Rate (if any).
7. Redemption or repayment provisions (if any)
8. Settlement date and time (Original Issue Date).
9. Interest Accrual Date.
10. Price.
11. Agent's commission (if any) determined as
provided in the Distribution Agreement.
B-10
<PAGE> 39
12. Denominations.
13. Specified Currency.
14. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon Acceleration
(and if so, the Issue Price).
15. Whether the Note is a Renewable Note, and if it
is a Renewable Note, the Initial Maturity Date and
the Final Maturity Date.
16. Whether the Company has the option to extend
the Original Maturity Date of the Note, and, if so,
the Final Maturity Date of such Note.
17. Whether the Company has the option to reset the
Interest Rate, the Spread or the Spread Multiplier
of the Note.
18. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission(s) (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee, in
forms that have been approved by the Company, the
relevant Agent and the Trustee:
1 the form of Note for Authentication with
customer confirmation.
2. one copy of the Note for the Trustee ("Stub
One").
3. one copy of the Note for the relevant Agent
("Stub Two").
4. one copy of the Note for the Company ("Stub
Three").
D. The Trustee will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the relevant Agent, and such Agent
will acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such
acknowledgment of receipt and evidence that
B-11
<PAGE> 40
instructions have been given by such Agent for payment
to the account of the Company at Chase Manhattan Bank,
New York, New York, ABA # 021000021, Acct #
144-0-60598, or to such other account as the Company
shall have specified to such Agent and the Trustee, in
immediately available funds, of an amount equal to the
price of such Note less such Agent's commission (if
any).
E. Unless the relevant Agent is the end purchaser of
such Note, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain the
acknowledgment of receipt of such Note by retaining
Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Monthly, the Trustee will also send
to the Company a statement setting forth the principal
amount of the Notes outstanding as of that date under
the Indenture and setting forth a brief description of
any sales of which the Company has advised the Trustee
that have not yet been settled.
Settlement For sales by the Company of Certificated Notes to or
Procedures through an Agent (unless otherwise specified pursuant
Timetable: to a Terms Agreement), Settlement Procedures "A"
through "F" set forth above shall be completed on or
before the respective times in New York City set forth
below:
Settlement
Procedure Time
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure If a purchaser fails to accept delivery of and make
to Settle: payment for any Certificated Note, the relevant Agent
will notify the Company and the Trustee by telephone
and return such Note to the Trustee. Upon receipt of
such notice, the Company will immediately wire transfer
to the account of such Agent an amount equal to the
price of such Note less such Agent's commission in
respect of such Note (if any). Such wire
B-12
<PAGE> 41
transfer will be made on the settlement date, if
possible, and in any event not later than the Business
Day following the settlement date. If the failure shall
have occurred for any reason other than a default by
such Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then
the Company will reimburse such Agent or the Trustee,
as appropriate, on an equitable basis for its loss of
the use of the funds during the period when they were
credited to the account of the Company. Immediately
upon receipt of the Certificated Note in respect of
which such failure occurred, the Trustee will mark such
Note "canceled," make appropriate entries in the
Trustee's records and send such Note to the Company.
B-13
<PAGE> 1
EXHIBIT 4.3
[FORM OF FACE OF SECURITY]
EMERSON ELECTRIC, CO.
MEDIUM-TERM NOTE
[Global] Fixed Rate Note
[REGISTERED REGISTERED
No. FXR-] [PRINCIPAL
AMOUNT]
CUSIP:
Unless and until this Note is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by The
Depository Trust Company, a New York corporation ("DTC" or the "Depositary"), to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any nominee to a successor Depositary or a nominee of any successor
Depositary. Unless this certificate is presented by an authorized representative
of 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
in 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 inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
<TABLE>
<S> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------
ORIGINAL INITIAL REDEMPTION INTEREST RATE: ORIGINAL MATURITY DATE:
ISSUE DATE: PERCENTAGE:
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
INTEREST ANNUAL FINAL MATURITY
ACCRUAL DATE: REDEMPTION DATE:
PERCENTAGE
REDUCTION:
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
TOTAL AMOUNT OPTIONAL
OF OID: REPAYMENT
DATES:
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
ORIGINAL YIELD SPECIFIED APPLICABILITY
TO MATURITY: CURRENCY: OF ANNUAL
INTEREST
PAYMENTS:
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
INITIAL ACCRUAL
REDEMPTION DATE:
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
INITIAL EXCHANGE RATE RECORD DATES
REDEMPTION DATE: AGENT: (IF OTHER THAN MAY 1 AND
NOVEMBER 1):
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
OTHER TERMS: REDEMPTION NOTICE PERIOD:
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 2
Emerson Electric, Co., a Missouri corporation (together with its
successors and assigns, the "ISSUER"), for value received, hereby promises to
pay to [Cede & Co.] or registered assignees, the principal sum of , on the
Original Maturity Date specified above (except to the extent redeemed or repaid
prior to the Original Maturity Date) or, if the maturity hereof is extended in
accordance with the procedures set forth below to an Extended Maturity Date, as
defined below, on such Extended Maturity Date (except to the extent previously
redeemed or repaid) (Original Maturity Date and Extended Maturity Date both a
"MATURITY DATE") and to pay interest thereon at the Interest Rate per annum
specified above or, if the interest rate herein is reset or re-established in
connection with an extension of maturity in accordance with the procedures
specified on the reverse hereof, at the interest rate per annum determined
pursuant to such procedures, from and including the Interest Accrual Date
specified above until the principal hereof is paid or duly made available for
payment (except as provided below), semiannually (unless otherwise specified on
the face hereof) in arrears on the fifteenth day of May and November in each
year (unless otherwise specified on the face hereof) (each such date an
"INTEREST PAYMENT DATE") commencing on the Interest Payment Date next succeeding
the Interest Accrual Date specified above, and at maturity (or on any redemption
or repayment date); provided, however, that if the Interest Accrual Date is less
than fifteen calendar days before an Interest Payment Date, interest payments
will commence on the second Interest Payment Date succeeding the Interest
Accrual Date to the holder of record of this Note on the Record Date with
respect to such second Interest Payment Date; provided, further, that if this
Note is subject to "Annual Interest Payments," interest payments shall be made
annually in arrears and the term "Interest Payment Date" shall be deemed to mean
the fifteenth day of November in each year; provided, further, that if an
Interest Payment Date (other than the Maturity Date or redemption or repayment
date) would fall on a day that is not a Business Day, as defined below, such
Interest Payment Date shall be the following day that is a Business Day, and no
interest on such payment will accrue for the period from and after the Interest
Payment Date; and provided, further, that if the Maturity Date or redemption or
repayment date would fall on a day that is not a Business Day, such payment
shall be made on the following day that is a Business Day and no interest shall
accrue for the period from and after such Maturity Date or redemption or
repayment date.
Interest on this Note will accrue from the most recent Interest Payment
Date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from and including the Interest Accrual
Date, until the principal hereof has been paid or duly made available for
payment (except as provided below). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, 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
date 15 calendar days prior to such Interest Payment Date (whether or not a
Business Day) unless otherwise provided on the face hereof (each such date a
"RECORD DATE"); provided, however, that interest payable at maturity (or on any
redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
2
<PAGE> 3
"BUSINESS DAY" means any day, other than a Saturday or Sunday that is
not a day on which banking institutions are authorized or required by law or
regulation to be closed in The City of New York, New York, or St. Louis,
Missouri, and, with respect to Notes denominated in a Specified Currency other
than U.S. dollars, is (a) not a day on which banking institutions are authorized
or required by law or regulation to close in the financial center of the country
issuing the Specified Currency (which in the case of the lawful currency of the
member states of the European Union that adopt the single currency in accordance
with the Treaty establishing the European Community, as amended by the Treaty on
European Union (the "EURO"), shall be London and Luxembourg) and (b) a day on
which banking institutions in such financial center are carrying out
transactions in such Specified Currency, and (c) with respect to LIBOR Notes, a
London Banking Day. Unless otherwise specified on the face hereof, "LONDON
BANKING DAY" means any day (i) if the Index Currency is other than the euro, on
which dealings in deposits in such Index Currency are transacted in the London
interbank market or (ii) if the Index Currency is the euro, any day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open ("TARGET SETTLEMENT DAY").
Payment of the principal of this Note, any premium and the interest due
at maturity (or any redemption or repayment date), unless this Note is
denominated in a Specified Currency other than U.S. dollars and/or is to be paid
in whole or in part in such Specified Currency, will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Paying Agent, as defined on the reverse hereof, maintained for that purpose in
the Borough of Manhattan, The City of New York, or at such other paying agency
as the Issuer may determine, in U.S. dollars. U.S. dollar payments of interest,
other than interest due at maturity or any date of redemption or repayment, will
be made by U.S. dollar check mailed to the address of the person entitled
thereto as such address shall appear in the Note register. Notwithstanding the
foregoing, (a) the Depositary, as holder of Book-Entry Notes, will be entitled
to receive payment of interest by wire transfer of immediately available funds
and (b) a holder of U.S. $10,000,000 (or the equivalent in a Specified Currency)
or more in aggregate principal amount of certificated Notes having the same
Interest Payment Date, the interest on which is payable in U.S. dollars, shall
be entitled to receive payments of interest, other than interest due at maturity
or on any date of redemption or repayment, by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received by
the Paying Agent in writing not less than 15 calendar days prior to the
applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S.
dollars, and the holder does not elect (in whole or in part) to receive payment
in U.S. dollars pursuant to the next succeeding paragraph, payments of interest,
principal or any premium with regard to this Note will be made by wire transfer
of immediately available funds to an account maintained by the holder hereof
with a bank located outside the United States if the holder is eligible to
receive payments by wire transfer and if appropriate wire transfer instructions
have been received by the Paying Agent in writing [not less than 15 calendar
days prior to the applicable payment date](1) [, with respect to payments of
interest, on or prior to the fifth Business Day after the applicable
- ----------------
(1) Applies for a Registered Note that is not in global form.
3
<PAGE> 4
Record Date and, with respect to payments of principal or any premium, at least
ten Business Days prior to the Maturity Date or any redemption or repayment
date, as the case may be](2) provided that, if payment of interest, principal or
any premium with regard to this Note is payable in euros, the account must be a
euro account in a country for which the euro is the lawful currency, provided,
further, that if such wire transfer instructions are not received or if such
holder is not eligible to receive payment by wire transfer, such payments will
be made by check payable in such Specified Currency mailed to the address of the
person entitled thereto as such address shall appear in the Note register; and
provided, further, that payment of the principal of this Note, any premium and
the interest due at maturity (or on any redemption or repayment date) will be
made upon surrender of this Note at the office or agency referred to in the
preceding paragraph.
If so indicated on the face hereof, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the fifth
Business Day after such Record Date, for payments of interest, and at least ten
Business Days prior to the Maturity Date or any redemption or repayment date,
for payment of principal or premium, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the Paying
Agent as to all or a portion of payments on this Note at least five Business
Days prior to such Record Date, for payments of interest, or at least ten days
prior to the Maturity Date or any redemption or repayment date, for payments of
principal, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate
Agent (as defined on the reverse hereof) will convert such payments into U.S.
dollars. In the event of such an election, payment in respect of this Note will
be based upon the exchange rate as determined by the Exchange Rate Agent based
on the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the applicable payment date from three recognized foreign
exchange dealers (one of which may be the Exchange Rate Agent unless such
Exchange Rate Agent is an affiliate of the Issuer) for the purchase by the
quoting dealer of U.S. dollars for the Specified Currency for settlement on such
payment date in the amount of the Specified Currency payable in the absence of
such an election to such holder and at which the applicable dealer commits to
execute a contract. If such bid quotations are not available, such payment will
be made in the Specified Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions
- ----------------
(2) Applies only for a Registered Global Security.
4
<PAGE> 5
within the international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments in
U.S. dollars on the basis of the Market Exchange Rate (defined on the reverse
hereof) on the second Business Day immediately preceding the payment date;
provided, however, that if the euro has been substituted for such Specified
Currency, the Issuer may at its option (or shall, if so required by applicable
law) without the consent of the holder of this Note effect the payment of
principal of, premium, if any, or interest on, any Note denominated in such
Specified Currency in euro in lieu of such Specified Currency in conformity with
legally applicable measures taken pursuant to, or by virtue of, the treaty
establishing the European Community, as amended by the treaty. Any payment made
under such circumstances in U.S. dollars or euro where the required payment is
in an unavailable Specified Currency will not constitute an Event of Default. If
such Market Exchange Rate is not then available to the Issuer or is not
published for a particular Specified Currency, the Market Exchange Rate will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "EXCHANGE DEALERS") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which the
applicable Exchange Dealer commits to execute a contract. One of the Exchange
Dealers providing quotations may be the Exchange Rate Agent unless the Exchange
Rate Agent is an affiliate of the Issuer. If those bid quotations are not
available, the Exchange Rate Agent shall determine the market exchange rate at
its sole discretion.
The "EXCHANGE RATE AGENT" shall be The Bank of New York, unless
otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's
sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and binding on holders of Notes and coupons.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, as defined on the
reverse hereof, or be valid or obligatory for any purpose.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
5
<PAGE> 6
IN WITNESS WHEREOF, Emerson Electric Co. has caused this instrument to
be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
EMERSON ELECTRIC CO.
[SEAL]
By:
-------------------------------
By:
-------------------------------
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
AS TRUSTEE
By:
------------------------------
Authorized Signatory
6
<PAGE> 7
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes having
maturities nine months or more from the date of issue of the Issuer (the
"Notes") [of the series hereinafter specified]. The Notes are issued under and
pursuant to an indenture dated as of December 10, 1998 (the "Indenture"), duly
executed and delivered by the Issuer to The Bank of New York, 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 of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Notes may be issued in one or more series,
which different 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 provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any), and may otherwise vary as
provided in the Indenture. This Note is [one of a series] designated as the %
[Notes] due [maturity date] of the Issuer, limited in aggregate principal amount
to $ . The Issuer has appointed The Bank of New York at its corporate
trust office in The City of New York as the paying agent (the "PAYING AGENT,"
which term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Notes.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise provided on the face hereof in
accordance with the provisions of the following two paragraphs, will not be
redeemable or subject to repayment at the option of the holder prior to
maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof, together
with interest accrued and unpaid hereon to the date of redemption. If this Note
is subject to "ANNUAL REDEMPTION PERCENTAGE REDUCTION," the Initial Redemption
Percentage indicated on the face hereof will be reduced on each anniversary of
the Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is 100% of
the principal amount hereof, together with interest accrued and unpaid hereon to
the date of redemption. Except as otherwise provided herein, notice of
redemption shall be mailed, by first class mail, postage prepaid, to each holder
of the Notes designated for redemption at their addresses as the same shall
appear upon the books maintained by the Paying Agent not less than 30 nor more
than 60 days prior to the date fixed for redemption or within the Redemption
Notice Period specified on the face hereof, subject to all the conditions and
provisions of the Indenture. In the event of redemption of this Note in part
only, a new Note or Notes for the amount of the unredeemed portion hereof shall
be issued in the name of the holder hereof upon the cancellation hereof, but in
any event, the principal amount of the Note remaining outstanding after
redemption must be an Authorized Denomination (as defined herein).
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the
7
<PAGE> 8
terms set forth herein. On any Optional Repayment Date, this Note will be
repayable in whole or in part in increments of $1,000 or, if this Note is
denominated in a Specified Currency other than U.S. dollars, in increments of
1,000 units of such Specified Currency (provided that any remaining principal
amount hereof shall not be less than the minimum Authorized Denomination hereof)
at the option of the holder hereof at a price equal to 100% of the principal
amount to be repaid (unless this Note was issued with original issue discount,
in which case the amount payable will otherwise be provided for), together with
interest accrued and unpaid hereon to the date of repayment. Except as otherwise
provided herein, for this Note to be repaid at the option of the holder hereof,
the Paying Agent must receive at its corporate trust office in the Borough of
Manhattan, The City of New York, at least 30 but not more than 60 days prior to
the date of repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a 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 setting forth the name of the holder of this Note,
the principal amount hereof, the certificate number of this Note or a
description of this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, together with the form entitled "Option
to Elect Repayment" duly completed, will be received by the Paying Agent not
later than the third Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and form
duly completed are received by the Paying Agent by such third Business Day.
Except as otherwise provided herein, exercise of such repayment option by the
holder hereof shall be irrevocable. In the event of repayment of this Note in
part only, the principal amount remaining after repayment must be an Authorized
Denomination and a new Note or Notes for the amount of the unpaid portion hereof
shall be issued in the name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this note is a Renewable Note
that will bear interest at the interest rate specified in this Note. This
Renewable Note will mature on the "Initial Maturity Date" specified on the face
hereof which will also be an Interest Payment Date, unless the Issuer extends
the maturity of all or any portion of the principal amount in accordance with
the procedures described below, which will apply unless we specify otherwise
herein.
On specified "Election Dates," which will be the May 15 and November 15
Interest Payment Dates in each year, unless otherwise specified herein, the
Issuer will extend the maturity of the Renewable Notes to the Interest Payment
Date occurring twelve months after such Election Date. However, the Issuer will
not so extend the maturity date if the holder thereof elects to terminate the
automatic extension of the maturity of the Renewable Notes or of any portion of
the Notes in the amount of an Authorized Denomination. To terminate the
automatic extension, a holder must deliver a notice to such effect to the Paying
Agent not less than nor more than a number of days prior to such Election Date,
as specified herein. A holder may exercise this option with respect to less than
the entire principal amount of the Renewable Notes; provided that the remaining
principal amount is at least in the amount of an Authorized Denomination.
8
<PAGE> 9
Notwithstanding the foregoing, the Issuer may not extend the maturity
of the Renewable Notes beyond the "Final Maturity Date," as specified herein. If
the holder elects to terminate the automatic extension of the maturity of any
portion of the principal amount of the Renewable Notes and does not revoke this
election, such portion will become due and payable on the Interest Payment Date
falling six months (unless another period is specified herein) after the
Election Date prior to which the holder made such election. To revoke an
election to terminate the automatic extension of maturity as to any portion of
the Renewable Notes having a principal amount in an Authorized Denomination a
holder must deliver a notice to such effect to the Paying Agent on any day
following the effective date of the election to terminate the automatic
extension of maturity and prior to the date 15 days before the date on which
such portion would otherwise mature. A holder may make such a revocation for
less than the entire principal amount of the Renewable Notes for which the
automatic extension of maturity has been terminated; provided that the principal
amount of the Renewable Notes for which the automatic extension of maturity has
been terminated and for which such a revocation has not been made is at least in
the amount of an Authorized Denomination. Notwithstanding the foregoing, a
holder may not make a revocation during the period from and including a Record
Date to but excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the maturity of the
Renewable Notes, if not revoked as described above by the holder making the
election or any subsequent holder, will be binding upon such subsequent holder.
The Issuer may redeem the Renewable Notes in whole or in part at its
option on the Interest Payment Dates in each year specified herein, commencing
with the Interest Payment Date specified herein, at a redemption price as stated
herein, together with accrued and unpaid interest to the date of redemption.
Notwithstanding anything to the contrary herein, notice of redemption will be
provided by mailing a notice of such redemption to each holder by first class
mail, postage prepaid, at least 180 days prior to the date fixed for redemption.
If so indicated on the face of this Note, the Issuer has the option to
extend the Original Maturity Date hereof for one or more periods of one or more
whole years (each an "EXTENSION PERIOD") up to but not beyond the Final Maturity
Date specified on the face hereof and in connection therewith to establish a new
interest rate and new redemption provisions for the Extension Period.
The Issuer may exercise such option by notifying the Paying Agent of
such exercise at least 45 but not more than 60 days prior to the Original
Maturity Date or, if the maturity hereof has already been extended, prior to the
maturity date then in effect (an "EXTENDED MATURITY DATE"), such notice to be
accompanied by the form of the Extension Notice referred to below. No later than
38 days prior to the Original Maturity Date or an Extended Maturity Date, as the
case may be (each, a "MATURITY DATE"), the Paying Agent will mail to the holder
hereof a notice (the "EXTENSION NOTICE") relating to such Extension Period, by
first class mail, postage prepaid, setting forth (a) the election of the Issuer
to extend the maturity of this Note; (b) the new Extended Maturity Date; (c) the
interest rate applicable to the Extension Period; and (d) the provisions, if
any, for redemption during the Extension Period, including the date or dates on
9
<PAGE> 10
which, the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the Paying
Agent of an Extension Notice to the holder of this Note, the maturity hereof
shall be extended automatically, and, except as modified by the Extension Notice
and as described in the next paragraph, this Note will have the same terms it
had prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New York City
time, on the twentieth calendar day prior to the Maturity Date in effect
immediately preceding the mailing of the applicable Extension Notice (or if such
day is not a Business Day, not later than 10:00 A.M., New York City time, on the
immediately succeeding Business Day), the Issuer may, at its option, revoke the
interest rate provided for in such Extension Notice and establish a higher
interest rate, if any, for the Extension Period by causing the Paying Agent to
send notice of such higher interest rate, if any, to the holder of this Note by
first class mail, postage prepaid, or by such other means as shall be agreed
between the Issuer and the Paying Agent. Such notice shall be irrevocable. All
Notes with respect to which the Maturity Date is extended in accordance with an
Extension Notice will bear such higher interest rate (or, in the case of a
Floating Rate Note, such higher Spread and/or Spread Multiplier) if any, for the
Extension Period, whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder of this
Note will have the option to require the Issuer to repay this Note on the
Maturity Date in effect immediately preceding the mailing of the applicable
Extension Notice at a price equal to the principal amount hereof plus any
accrued and unpaid interest to such date. In order for this Note to be so repaid
on such Maturity Date, the holder hereof must follow the procedures set forth
above for optional repayment, except that the period for delivery of this Note
or notification to the Paying Agent shall be at least 25 but not more than 35
days prior to the Maturity Date in effect immediately preceding the mailing of
the applicable Extension Notice and except that if the holder hereof has
tendered this Note for repayment pursuant to this paragraph he may, by written
notice to the Paying Agent, revoke any such tender for repayment until 3:00
P.M., New York City time, on the twentieth calendar day prior to the Maturity
Date then in effect (or, if such day is not a Business Day, until 3:00 P.M., New
York City time, on the immediately succeeding Business Day).
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified on
the face hereof, interest payments for this Note will be computed and paid on
the basis of a 360-day year of twelve 30-day months.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable (i)
10
<PAGE> 11
only in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in
excess thereof, and (ii) if this Note is denominated in a Specified Currency
other than U.S. dollars, then, unless a higher minimum denomination is required
by applicable law, it is issuable only in denominations of the equivalent of
U.S. $1,000 (rounded to an integral multiple of 1,000 units of such Specified
Currency), or any amount in excess thereof which is an integral multiple of
1,000 units of such Specified Currency, as determined by reference to the noon
dollar buying rate in The City of New York for cable transfers of such Specified
Currency published by the Federal Reserve Bank of New York (the "MARKET EXCHANGE
RATE") on the Business Day immediately preceding the date of issuance (the
"AUTHORIZED DENOMINATIONS").
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 a majority in
aggregate principal amount of the Notes 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 Notes of each such series; provided, however, that
no such supplemental indenture shall (i) extend the final maturity of any Note,
or reduce the principal amount thereof or any premium thereon, or reduce the
rate or extend the time of payment of any interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Note (as defined in the Indenture) payable upon
acceleration thereof or the amount thereof provable in bankruptcy, or impair or
affect the rights of any Holder to institute suit for the payment thereof, or,
if the Notes provide therefor, any right of repayment or redemption at the
option of the Holder, without the consent of the Holder of each Note so
affected, or (ii) reduce the aforesaid percentage of Notes, the Holders of which
are required to consent to any such supplemental indenture, without the consent
of the Holder of each Note affected. It is also provided in the Indenture that,
with respect to certain defaults or Events of Default regarding the Notes of any
series, prior to any declaration accelerating the maturity of such Notes, the
Holders of a majority in aggregate principal amount Outstanding of the Notes of
such series (or, in the case of certain defaults or Events of Default, all or
certain series of the Notes) may on behalf of the Holders of all the Notes of
such series (or all or certain series of the Notes, as the case may be) waive
any such past default or Event of Default and its consequences. The preceding
sentence shall not, however, apply to a default in the payment of the principal
of or premium, if any, or interest on any of the Notes. 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.
11
<PAGE> 12
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 in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Notes may be represented by one or more Global Securities (each, a
"GLOBAL NOTE") deposited with the Depositary and registered in the name of the
nominee of the Depositary, with certain limited exceptions. So long as DTC or
any successor Depositary or its nominee is the registered Holder of a Global
Note, DTC, such Depositary or such nominee, as the case may be, will be
considered the sole owner or Holder of the Notes represented by such Global Note
for all purposes under the Indenture and the Notes. Beneficial interest in the
Notes will be evidenced only by, and transfer thereof will be effected only
through, records maintained by DTC and its participants. Except as provided
below, an owner of a beneficial interest in a Global Note will not be entitled
to have Notes represented by such Global Note registered in such owner's name,
will not receive or be entitled to receive physical delivery of the Notes in
certificated form and will not be considered the owner or Holder thereof under
the Indenture.
No Global Note may be transferred except as a whole by the Depositary
to a nominee of the Depositary. Global Notes are exchangeable for certificated
Notes only if (x) the Depositary notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Global Notes or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and the Issuer fails within 90 days thereafter
to appoint a successor, (y) the Issuer in its sole discretion determines that
such Global Notes shall be so exchangeable or (z) there shall have occurred and
be continuing an Event of Default or an event which with the giving of notice or
lapse of time or both would constitute an Event of Default with respect to the
Notes represented by such Global Notes. In such event, the Issuer will issue
Notes in certificated form in exchange for such Global Notes. In any such
instance, an owner of a beneficial interest in the Global Notes will be entitled
to physical delivery in certificated form of Notes equal in principal amount to
such beneficial interest and to have such Notes registered in its name. Notes so
issued in certificated form will be issued in denominations of $1,000 or any
integral multiple thereof, and will be issued in registered form only, without
coupons.
The Issuer, the Trustee and any authorized 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 authorized 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 of the
Issuer in the Indenture or any indenture supplemental thereto or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, of the
Issuer or of any successor corporation, either directly or through the Issuer or
any successor corporation, under any rule of law, statute or constitutional
provision or
12
<PAGE> 13
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.
The acceptance of this Note shall be deemed to constitute the consent
and agreement of the Holder hereof to all of the terms and provisions of the
Indenture. Terms used herein which are defined in the Indenture but which are
not otherwise defined herein shall have the respective meanings assigned thereto
in the Indenture.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF.
13
<PAGE> 14
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument shall be construed as though they were written out
in full according to applicable laws or regulations;
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - Custodian
--------------------- ------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------------
State
Additional abbreviations may also be used though not in the above list.
-------------------------------------------
14
<PAGE> 15
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:
---------------------------
---------------------------
NOTICE: The signature to this assignment
must correspond to the name as written upon
the face of this Note in every particular,
without alteration or any change whatsoever;
signature(s) must be guaranteed by an
eligible guarantor institution (banks, stock
brokers, savings and loan associations and
credit unions with membership in an approved
signature guarantee medallion program)
pursuant to Securities and Exchange
Commission Rule 17Ad-15.
15
<PAGE> 16
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant to
its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name,
address and telephone number of the undersigned,
and name of contact person, if any)
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 not be
less than the minimum authorized denomination) of the Notes to be issued to the
holder for the portions 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): .
--------------------
Dated:
---------------------------
---------------------------
NOTICE: The signature to the foregoing Election must correspond to the name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever; signature(s) must be guaranteed by an eligible guarantor
institution (banks, stock brokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program)
pursuant to Securities and Exchange Commission Rule 17Ad-15.
16
<PAGE> 1
EXHIBIT 4.4
[FORM OF FACE OF SECURITY]
EMERSON ELECTRIC CO.
MEDIUM-TERM NOTE
[GLOBAL] FLOATING RATE NOTE
[REGISTERED [PRINCIPAL AMOUNT]
NO. FLR] CUSIP:
Unless and until this Note is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by The
Depository Trust Company, a New York corporation ("DTC" or the "Depositary"), to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any nominee to a successor Depositary or a nominee of any successor
Depositary. Unless this certificate is presented by an authorized representative
of 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
in 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 inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
<TABLE>
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: ORIGINAL MATURITY DATE:
FINAL MATURITY DATE:
- --------------------------------------------------------------------------------------------------------------
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
- --------------------------------------------------------------------------------------------------------------
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
- --------------------------------------------------------------------------------------------------------------
SPREAD MULTIPLIER: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
- --------------------------------------------------------------------------------------------------------------
REPORTING SERVICE: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
- --------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE> 2
<TABLE>
<S> <C> <C>
INDEX CURRENCY: MINIMUM INTEREST RATE: CALCULATION AGENT:
- --------------------------------------------------------------------------------------------------------------
EXCHANGE RATE AGENT: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
- --------------------------------------------------------------------------------------------------------------
INITIAL REDEMPTION PERCENTAGE:
- --------------------------------------------------------------------------------------------------------------
ANNUAL REDEMPTION PERCENTAGE DESIGNATED CMT TELERATE PAGE:
REDUCTION:
- --------------------------------------------------------------------------------------------------------------
OPTIONAL REPAYMENT DATE(S): DESIGNATED CMT MATURITY INDEX:
- --------------------------------------------------------------------------------------------------------------
OTHER PROVISIONS: REDEMPTION NOTICE PERIOD:
- --------------------------------------------------------------------------------------------------------------
</TABLE>
EMERSON ELECTRIC CO., a Missouri corporation (together with its
successors and assigns, the "ISSUER"), for value received, hereby promises to
pay to [Cede & Co.], or registered assignees, the principal sum of on the
Original Maturity Date specified above (except to the extent redeemed or repaid
prior to the Original Maturity Date) or, if the maturity hereof is extended in
accordance with the procedures set forth below to an Extended Maturity Date, as
defined below, on such Extended Maturity Date (except to the extent previously
redeemed or repaid) (Original Maturity Date and Extended Maturity Date both a
"Maturity Date") and to pay interest thereon from and including the Interest
Accrual Date specified above at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date specified above, and
thereafter at a rate per annum determined in accordance with the provisions
specified on the reverse hereof until the principal hereof is paid or duly made
available for payment. The Issuer will pay interest in arrears weekly, monthly,
quarterly, semiannually or annually as specified above as the Interest Payment
Period on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Interest Accrual Date specified
above, and on the Maturity Date (or any redemption or repayment date); provided,
however, that if the Interest Accrual Date is less than fifteen calendar days
before an Interest Payment Date interest payments will commence on the second
Interest Payment Date succeeding the Interest Accrual Date to the holder of
record of this Note on the Record Date with respect to such second Interest
Payment Date; and provided,
2
<PAGE> 3
further, that if an Interest Payment Date (other than the Maturity Date or
redemption or repayment date) would fall on a day that is not a Business Day, as
defined on the reverse hereof, such Interest Payment Date shall be the following
day that is a Business Day, and no interest on such payment will accrue for the
period from and after the Interest Payment Date, except that if the Base Rate
specified above is LIBOR or EURIBOR and such next Business Day falls in the next
calendar month, such Interest Payment Date shall be the immediately preceding
day that is a Business Day; and provided, further, that if the Maturity Date or
redemption or repayment date would fall on a day that is not a Business Day,
such payment shall be made on the following day that is a Business Day and no
interest shall accrue for the period from and after such Maturity Date or
redemption or repayment date.
Interest on this Note will accrue from and including 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 and including the Interest Accrual
Date, until but excluding the date the principal hereof has been paid or duly
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, 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 date 15
calendar days prior to such Interest Payment Date (whether or not a Business
Day) (each such date a "RECORD DATE"); provided, however, that interest payable
at maturity (or any redemption or repayment date) will be payable to the person
to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the interest due
at maturity (or any redemption or repayment date), unless this Note is
denominated in such Specified Currency other than U.S. dollars and/or is to be
paid in whole or in part in a Specified Currency, will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Paying Agent, as defined on the reverse hereof, maintained for that purpose in
the Borough of Manhattan, The City of New York, or at such other paying agency
as the Issuer may determine, in U.S. dollars. U.S. dollar payments of interest,
other than interest due at maturity or any date of redemption or repayment, will
be made by U.S. dollar check mailed to the address of the person entitled
thereto as such address shall appear in the Note register. Notwithstanding the
foregoing, (a) the Depositary, as holder of Book-Entry Notes, will be entitled
to receive payment of interest by wire transfer of immediately available funds
and (b) a holder of U.S. $10,000,000 (or the equivalent in a Specified Currency)
or more in aggregate principal amount of certificated Notes having the same
Interest Payment Date, the interest on which is payable in U.S. dollars, shall
be entitled to receive payments of interest, other than interest due at maturity
or on any date of redemption or repayment, by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received by
the Paying Agent in writing not less than 15 calendar days prior to the
applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S.
dollars, and the holder does not elect (in whole or in part) to receive payment
in U.S. dollars pursuant to the next succeeding paragraph, payments of interest,
principal or any premium with regard to this Note will be made by wire transfer
of immediately available funds to an account maintained by
3
<PAGE> 4
the holder hereof with a bank located outside the United States if the holder
is eligible to receive payments by wire transfer and if appropriate wire
transfer instructions have been received by the Paying Agent in writing [not
less than 15 calendar days prior to the applicable payment date] (1) [, with
respect to payments of interest, on or prior to the fifth Business Day after the
applicable Record Date and, with respect to payments of principal or any
premium, at least ten Business Days prior to the Maturity Date or any redemption
or repayment date, as the case may be] (2) provided that, if payment of
interest, principal or any premium with regard to this Note is payable in euros,
the account must be a euro account in a country for which the euro is the lawful
currency, provided, further, that if such wire transfer instructions are not
received or if such holder is not eligible to receive payment by wire transfer,
such payments will be made by check payable in such Specified Currency mailed to
the address of the person entitled thereto as such address shall appear in the
Note register; and provided, further, that payment of the principal of this
Note, any premium and the interest due at maturity (or on any redemption or
repayment date) will be made upon surrender of this Note at the office or agency
referred to in the preceding paragraph.
If so indicated on the face hereof, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the fifth
Business Day after such Record Date, for payments of interest, or at least ten
Business Days prior to the Maturity Date or any redemption or repayment date,
for payments of principal or premium, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the Paying
Agent as to all or a portion of payments on this Note at least five Business
Days prior to such Record Date, for payments of interest, or at least ten days
prior to the Maturity Date or any redemption or repayment date, for payments of
principal, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate
Agent (as defined on the reverse hereof) will convert such payments into U.S.
dollars. In the event of such an election, payment in respect of this Note will
be based upon the exchange rate as determined by the Exchange Rate Agent based
on the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the applicable payment date from three recognized foreign
exchange dealers (one of which may be the Exchange Rate Agent unless such
Exchange Rate Agent is an affiliate of the Issuer) for the purchase by the
quoting dealer of U.S. dollars for the Specified Currency for settlement on such
payment date in the amount of the Specified Currency payable in the absence of
such an election to such holder and at which the applicable dealer commits to
execute a contract. If such bid quotations are not available, such payment will
be made in the Specified Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments.
- -----------------
(1) Applies for a Registered Note that is not in global form.
(2) Applies only for Registered Global Security.
4
<PAGE> 5
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate (defined on the reverse hereof) on the second Business Day
immediately preceding the payment date; provided, however, that if the euro has
been substituted for such Specified Currency, the Issuer may at its option (or
shall, if so required by applicable law) without the consent of the holder of
this Note effect the payment of principal of, premium, if any, or interest on,
any Note denominated in such Specified Currency in euro in lieu of such
Specified Currency in conformity with legally applicable measures taken pursuant
to, or by virtue of, the treaty establishing the European Community, as amended
by the treaty. Any payment made under such circumstances in U.S. dollars or euro
where the required payment is in an unavailable Specified Currency will not
constitute an Event of Default. If such Market Exchange Rate is not then
available to the Issuer or is not published for a particular Specified Currency,
the Market Exchange Rate will be based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent at approximately 11:00 a.m., New
York City time, on the second Business Day preceding the date of such payment
from three recognized foreign exchange dealers (the "EXCHANGE DEALERS") for the
purchase by the quoting Exchange Dealer of the Specified Currency for U.S.
dollars for settlement on the payment date, in the aggregate amount of the
Specified Currency payable to those holders or beneficial owners of Notes and at
which the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless the
Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are
not available, the Exchange Rate Agent shall determine the market exchange rate
at its sole discretion.
The "EXCHANGE RATE AGENT" shall be The Bank of New York, unless
otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's
sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and binding on holders of Notes and coupons.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, as defined on the
reverse hereof, or be valid or obligatory for any purpose.
5
<PAGE> 6
IN WITNESS WHEREOF, Emerson Electric Co. has caused this instrument to
be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
EMERSON ELECTRIC CO.
[SEAL]
By:
---------------------------------
By:
---------------------------------
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
AS TRUSTEE
By:
---------------------------------
Authorized Signatory
6
<PAGE> 7
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes having
maturities nine months or more from the date of issue of the Issuer (the
"Notes") [of the series hereinafter specified]. The Notes are issued under and
pursuant to an indenture dated as of December 10, 1998 (the "Indenture"), duly
executed and delivered by the Issuer to The Bank of New York, 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 of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Notes may be issued in one or more series,
which different 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 provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any), and may otherwise vary as
provided in the Indenture. This Note is [one of a series] designated as the %
[Notes] due [maturity date] of the Issuer, limited in aggregate principal amount
to $ . The Issuer has appointed The Bank of New York at its corporate trust
office in The City of New York as the paying agent (the "PAYING AGENT," which
term includes any additional or successor Paying Agent appointed by the Issuer)
with respect to the Notes.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise provided on the face hereof in
accordance with the provisions of the following two paragraphs, will not be
redeemable or subject to repayment at the option of the holder prior to
maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof, together
with interest accrued and unpaid hereon to the date of redemption. If this Note
is subject to "ANNUAL REDEMPTION PERCENTAGE REDUCTION," the Initial Redemption
Percentage indicated on the face hereof will be reduced on each anniversary of
the Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is 100% of
the principal amount hereof, together with interest accrued and unpaid hereon to
the date of redemption. Except as otherwise provided herein, notice of
redemption shall be mailed, by first class mail, postage prepaid, to each holder
of the Notes designated for redemption at their addresses as the same shall
appear upon the books maintained by the Paying Agent not less than 30 nor more
than 60 days prior to the date fixed for redemption or within the Redemption
Notice Period specified on the face hereof, subject to all the conditions and
provisions of the Indenture. In the event of redemption of this Note in part
only, a new Note or Notes for the amount of the unredeemed portion hereof shall
be issued in the name of the holder hereof upon the cancellation hereof, but in
any event, the principal amount of the Note remaining outstanding after
redemption must be an Authorized Denomination (as defined herein).
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the
7
<PAGE> 8
terms set forth herein. On any Optional Repayment Date, this Note will be
repayable in whole or in part in increments of $1,000 or, if this Note is
denominated in a Specified Currency other than U.S. dollars, in increments of
1,000 units of such Specified Currency (provided that any remaining principal
amount hereof shall not be less than the minimum Authorized Denomination hereof)
at the option of the holder hereof at a price equal to 100% of the principal
amount to be repaid (unless this Note was issued with original issue discount,
in which case the amount payable will otherwise be provided for), together with
interest accrued and unpaid hereon to the date of repayment. Except as otherwise
provided herein, for this Note to be repaid at the option of the holder hereof,
the Paying Agent must receive at its corporate trust office in the Borough of
Manhattan, The City of New York, at least 30 but not more than 60 days prior to
the date of repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, telex, facsimile
transmission or a 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 setting forth the name of the holder of this Note,
the principal amount hereof, the certificate number of this Note or a
description of this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, together with the form entitled "Option
to Elect Repayment" duly completed, will be received by the Paying Agent not
later than the third Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and form
duly completed are received by the Paying Agent by such third Business Day.
Except as otherwise provided herein, exercise of such repayment option by the
holder hereof shall be irrevocable. In the event of repayment of this Note in
part only, the principal amount remaining after repayment must be an Authorized
Denomination and a new Note or Notes for the amount of the unpaid portion hereof
shall be issued in the name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this note is a Renewable Note
that will bear interest at the interest rate specified in this Note. This
Renewable Note will mature on the "Initial Maturity Date" specified on the face
hereof which will also be an Interest Payment Date, unless the Issuer extends
the maturity of all or any portion of the principal amount in accordance with
the procedures described below, which will apply unless we specify otherwise
herein.
On specified "Election Dates," which will be the May 15 and November 15
Interest Payment Dates in each year, unless otherwise specified herein, the
Issuer will extend the maturity of the Renewable Notes to the Interest Payment
Date occurring twelve months after such Election Date. However, the Issuer will
not so extend the maturity date if the holder thereof elects to terminate the
automatic extension of the maturity of the Renewable Notes or of any portion of
the Notes in the amount of an Authorized Denomination. To terminate the
automatic extension, a holder must deliver a notice to such effect to the Paying
Agent not less than nor more than a number of days prior to such Election Date,
as specified herein. A holder may exercise this option with respect to less than
the entire principal amount of the Renewable Notes; provided that the remaining
principal amount is at least in the amount of an Authorized Denomination.
8
<PAGE> 9
Notwithstanding the foregoing, the Issuer may not extend the maturity
of the Renewable Notes beyond the "Final Maturity Date," as specified herein. If
the holder elects to terminate the automatic extension of the maturity of any
portion of the principal amount of the Renewable Notes and does not revoke this
election, such portion will become due and payable on the Interest Payment Date
falling six months (unless another period is specified herein) after the
Election Date prior to which the holder made such election. To revoke an
election to terminate the automatic extension of maturity as to any portion of
the Renewable Notes having a principal amount in an Authorized Denomination a
holder must deliver a notice to such effect to the Paying Agent on any day
following the effective date of the election to terminate the automatic
extension of maturity and prior to the date 15 days before the date on which
such portion would otherwise mature. A holder may make such a revocation for
less than the entire principal amount of the Renewable Notes for which the
automatic extension of maturity has been terminated; provided that the principal
amount of the Renewable Notes for which the automatic extension of maturity has
been terminated and for which such a revocation has not been made is at least in
the amount of an Authorized Denomination. Notwithstanding the foregoing, a
holder may not make a revocation during the period from and including a Record
Date to but excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the maturity of the
Renewable Notes, if not revoked as described above by the holder making the
election or any subsequent holder, will be binding upon such subsequent holder.
The Issuer may redeem the Renewable Notes in whole or in part at its
option on the Interest Payment Dates in each year specified herein, commencing
with the Interest Payment Date specified herein, at a redemption price as stated
herein, together with accrued and unpaid interest to the date of redemption.
Notwithstanding anything to the contrary herein, notice of redemption will be
provided by mailing a notice of such redemption to each holder by first class
mail, postage prepaid, at least 180 days prior to the date fixed for redemption.
If so indicated on the face of this Note, the Issuer has the option to
extend the Original Maturity Date hereof for one or more periods of one or more
whole years (each an "EXTENSION PERIOD") up to but not beyond the Final Maturity
Date specified on the face hereof and in connection therewith to establish a new
interest rate (calculated with reference to a Base Rate and the Spread and/or
Spread Multiplier, if any) and new redemption provisions for the Extension
Period.
The Issuer may exercise such option by notifying the Paying Agent of
such exercise at least 45 but not more than 60 days prior to the Original
Maturity Date or, if the maturity hereof has already been extended, prior to the
maturity date then in effect (an "EXTENDED MATURITY DATE"), such notice to be
accompanied by the form of the Extension Notice referred to below. No later than
38 days prior to the Original Maturity Date or an Extended Maturity Date, as the
case may be (each, a "MATURITY DATE"), the Paying Agent will mail to the holder
hereof a notice (the "EXTENSION NOTICE") relating to such Extension Period, by
first class mail, postage prepaid,
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<PAGE> 10
setting forth (a) the election of the Issuer to extend the maturity of this
Note; (b) the new Extended Maturity Date; (c) the interest rate applicable to
the Extension Period (calculated with reference to a Base Rate and the Spread
and/or Spread Multiplier, if any); and (d) the provisions, if any, for
redemption during the Extension Period, including the date or dates on which,
the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the Paying
Agent of an Extension Notice to the holder of this Note, the maturity hereof
shall be extended automatically, and, except as modified by the Extension Notice
and as described in the next paragraph, this Note will have the same terms it
had prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New York City
time, on the twentieth calendar day prior to the Maturity Date in effect
immediately preceding the mailing of the applicable Extension Notice (or if such
day is not a Business Day, not later than 10:00 A.M., New York City time, on the
immediately succeeding Business Day), the Issuer may, at its option, revoke the
interest rate provided for in such Extension Notice and establish a higher
interest rate (or a higher Spread and/or Spread Multiplier), if any, for the
Extension Period by causing the Paying Agent to send notice of such higher
interest rate (or a higher Spread and/or Spread Multiplier), if any, to the
holder of this Note by first class mail, postage prepaid, or by such other means
as shall be agreed between the Issuer and the Paying Agent. Such notice shall be
irrevocable. All Notes with respect to which the Maturity Date is extended in
accordance with an Extension Notice will bear such higher interest rate (or such
higher Spread and/or Spread Multiplier) if any, for the Extension Period,
whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder of this
Note will have the option to require the Issuer to repay this Note on the
Maturity Date in effect immediately preceding the mailing of the applicable
Extension Notice at a price equal to the principal amount hereof plus any
accrued and unpaid interest to such date. In order for this Note to be so repaid
on such Maturity Date, the holder hereof must follow the procedures set forth
above for optional repayment, except that the period for delivery of this Note
or notification to the Paying Agent shall be at least 25 but not more than 35
days prior to the Maturity Date in effect immediately preceding the mailing of
the applicable Extension Notice and except that if the holder hereof has
tendered this Note for repayment pursuant to this paragraph he may, by written
notice to the Paying Agent, revoke any such tender for repayment until 3:00
P.M., New York City time, on the twentieth calendar day prior to the Maturity
Date then in effect (or, if such day is not a Business Day, until 3:00 P.M., New
York City time, on the immediately succeeding Business Day).
This Note will bear interest at the rate determined in accordance with
the applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or
minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier, if
any, specified on the face hereof. Commencing with the Initial Interest Reset
Date specified on the face hereof, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified on the face
hereof (as used herein, the term "INTEREST RESET DATE" shall include the Initial
Interest Reset Date). The determination
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<PAGE> 11
of the rate of interest at which this Note will be reset on any Interest Reset
Date shall be made on the Interest Determination Date (as defined below)
pertaining to such Interest Reset Dates. The Interest Reset Dates will be the
Interest Reset Dates specified on the face hereof; provided, however, that (a)
the interest rate in effect for the period from the Interest Accrual Date to the
Initial Interest Reset Date will be the Initial Interest Rate and (b) unless
otherwise specified on the face hereof, the interest rate in effect for the ten
calendar days immediately prior to maturity, redemption or repayment will be
that in effect on the tenth calendar day preceding such maturity, redemption or
repayment date. If any Interest Reset Date would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if the Base Rate specified on
the face hereof is LIBOR or EURIBOR and such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law or other applicable state law,
as the same may be modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will provide
to the holder hereof the interest rate hereon then in effect and, if determined,
the interest rate that will become effective as of the next Interest Reset Date.
Unless otherwise specified on the face hereof, the Calculation Agent will be The
Bank of New York.
Unless otherwise indicated on the face hereof, interest payments on
this Note shall be the amount of interest accrued from and including the
Interest Accrual Date or from and including the last date to which interest has
been paid or duly provided for to, but excluding the Interest Payment Dates or
the Maturity Date (or any earlier redemption or repayment date), as the case may
be. Accrued interest hereon shall be an amount calculated by multiplying the
face amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day in the
period for which interest is being paid. The interest factor for each such date
shall be computed by dividing the interest rate applicable to such day (i) by
360 if the Base Rate is CD Rate, Commercial Paper Rate, EURIBOR, Federal Funds
Rate, Prime Rate or LIBOR (except if the Index Currency is pounds sterling);
(ii) by 365 if the Base Rate is LIBOR and the Index Currency is pounds sterling;
or (iii) by the actual number of days in the year if the Base Rate is the
Treasury Rate or the CMT Rate. All percentages resulting from any calculation of
the rate of interest on this Note will be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point (.0000001), with five
one-millionths of a percentage point rounded upward, and all currency amounts
used in or resulting from such calculation on this Note will be rounded to the
nearest minimum unit of such currency (e.g., nearest cent), with with one-half
of such unit (e.g., one-half cent) rounded upward. The interest rate in effect
on any Interest Reset Date will be the applicable rate as reset on such date.
The interest rate applicable to any other day is the interest rate from the
immediately
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<PAGE> 12
preceding Interest Reset Date (or, if none, the Initial Interest Rate). However,
the interest rate in effect for the ten calendar days immediately prior to
maturity, redemption, or repayment will be that in effect on the tenth calendar
day preceding such maturity, redemption, or repayment date.
"BUSINESS DAY" means any day, other than a Saturday or Sunday that is
not a day on which banking institutions are authorized or required by law or
regulation to be closed in The City of New York, New York, or St. Louis,
Missouri, and, with respect to Notes denominated in a Specified Currency other
than U.S. dollars, is (a) not a day on which banking institutions are authorized
or required by law or regulation to close in the financial center of the country
issuing the Specified Currency (which in the case of the lawful currency of the
member states of the European Union that adopt the single currency in accordance
with the Treaty establishing the European Community, as amended by the Treaty on
European Union (the "EURO"), shall be London and Luxembourg) and (b) a day on
which banking institutions in such financial center are carrying out
transactions in such Specified Currency, and (c) with respect to LIBOR Notes, a
London Banking Day. Unless otherwise specified on the face hereof, "LONDON
BANKING DAY" means any day (i) if the Index Currency is other than the euro, on
which dealings in deposits in such Index Currency are transacted in the London
interbank market or (ii) if the Index Currency is the euro, any day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open ("TARGET SETTLEMENT DAY").
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the second
Business Day immediately preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to EURIBOR (or to LIBOR when the Index Currency
is euros) shall be the second TARGET Settlement Day immediately preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to LIBOR (other
than for LIBOR Notes for which the Index Currency is euros) shall be the second
London Banking Day immediately preceding such Interest Reset Date, except that
the Interest Determination Date pertaining to an Interest Reset Date for a LIBOR
Note for which the Index Currency is pounds sterling will be such Interest Reset
Date. The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to the Treasury Rate shall be the
day of the week in which such Interest Reset Date falls on which Treasury bills
normally would be auctioned; provided, however, that if as a result of a legal
holiday an auction is held on the Friday of the week preceding such Interest
Reset Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any Interest
Reset Date, then the Interest Reset Date shall instead be the first Business Day
following the date of such auction.
Unless otherwise specified on the face hereof, the "CALCULATION DATE"
pertaining to an Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity Date (or, with
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<PAGE> 13
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face hereof
is the "CD RATE," for any Interest Determination Date, the CD Rate with respect
to this Note shall be the rate on that date for negotiable certificates of
deposit having the Index Maturity specified on the face hereof as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates," or any successor publication of the Board
of Governors of the Federal Reserve System ("H.15(519)") under the heading "CDs
(Secondary Market)."
The following procedures shall be followed if the CD Rate cannot be
determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m., New
York City time, on the Calculation Date, the CD Rate shall be the rate on that
Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 DAILY UPDATE") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the CD Rate to be the arithmetic mean of the
secondary market offered rates as of 10:00 a.m., New York City time, on that
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent (after consultation with the Issuer) for negotiable
certificates of deposit of major United States money center banks of the highest
credit standing in the market for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity specified on the face hereof in
an amount that is representative for a single transaction in that market at that
time.
(iii) If the dealers selected by the Calculation Agent are not quoting
as described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable shall be the Initial Interest Rate.
Determination of Commercial Paper Rate. If the Base Rate specified on
the face hereof is the "COMMERCIAL PAPER RATE," for any Interest Determination
Date, the Commercial Paper Rate with respect to this Note shall be the Money
Market Yield (as defined herein), calculated as described below, of the rate on
that date for commercial paper having the Index Maturity specified on the face
hereof, as that rate is published in H.15(519), under the heading "Commercial
Paper--Nonfinancial."
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<PAGE> 14
The following procedures shall be followed if the Commercial Paper Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate shall be the Money
Market Yield of the rate on that Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in the
H.15 Daily Update under the heading "Commercial Paper--Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation Date the
rate is not yet published in either H.15(519) or the H.15 Daily Update, then the
Calculation Agent shall determine the Commercial Paper Rate to be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on that Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) for commercial paper of the Index Maturity
specified on the face hereof, placed for an industrial issuer whose bond rating
is "AA," or the equivalent, from a nationally recognized statistical rating
agency.
(iii) If the dealers selected by the Calculation Agent are not quoting
as mentioned above, the Commercial Paper Rate for that Interest Determination
Date shall remain the Commercial Paper Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "MONEY MARKET YIELD" shall be a yield calculated in accordance with
the following formula:
Money Market Yield = D x 360 x 100
-------------------
360 - (D x M)
where "D" refers to the applicable per year rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of EURIBOR Notes. If the Base Rate specified on the face
hereof is "EURIBOR," for any Interest Determination Date, EURIBOR with respect
to this Note shall be the rate for deposits in euros as sponsored, calculated
and published jointly by the European Banking Federation and ACI - The Financial
Market Association, or any company established by the joint sponsors for
purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Bridge
Telerate, Inc., or any successor service, on page 248 or any other page as may
replace page 248 on that service ("TELERATE PAGE 248") as of 11:00 a.m.
(Brussels time).
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<PAGE> 15
The following procedures shall be followed if the rate cannot be
determined as described above:
(i) If the above rate does not appear, the Calculation Agent shall
request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the applicable
Interest Reset Date, and in a principal amount not less than the equivalent of
U.S.$1 million in euro that is representative of a single transaction in euro,
in that market at that time. If at least two quotations are provided, EURIBOR
shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii) If the banks so selected by the Calculation Agent are not quoting
as described in (ii) above, the EURIBOR rate in effect for the applicable period
shall be the same as the EURIBOR rate then in effect on the Interest
Determination Date.
"EURO-ZONE" means the region comprised of member states of the European
Union that adopt the single currency in accordance with the treaty establishing
the European Community (the "EC"), as amended by the treaty on European Union
(as so amended, the "TREATY").
Determination of the Federal Funds Rates. If the Base Rate specified on
the face hereof is the "FEDERAL FUNDS RATE," for any Interest Determination
Date, the Federal Funds Rate with respect to this Note shall be the rate on that
date for federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" as displayed on Bridge Telerate, Inc., or any successor
service, on page 120 or any other page as may replace page 120 on that service
("TELERATE PAGE 120").
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate shall be the rate on that
Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds (Effective)."
(ii) If that rate is not yet published in either H.15(519) or the H.15
Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight
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<PAGE> 16
federal funds by each of three leading brokers of federal funds transactions in
The City of New York selected by the Calculation Agent (after consultation with
the Issuer) prior to 9:00 a.m., New York City time, on that Interest
Determination Date.
(iii) If the brokers selected by the Calculation Agent are not quoting
as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
Determination of LIBOR. If the Base Rate specified on the face hereof
is "LIBOR," LIBOR with respect to this Note shall be based on London interbank
offered rate. The Calculation Agent shall determine "LIBOR" for each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either (a)
if "LIBOR REUTERS" is specified as the Reporting Service on the face hereof, the
arithmetic mean of the offered rates for deposits in the Index Currency having
the Index Maturity designated on the face hereof, commencing on the second
London Banking Day immediately following that Interest Determination Date, that
appear on the Designated LIBOR Page, as defined below, as of 11:00 a.m., London
time, on that Interest Determination Date, if at least two offered rates appear
on the Designated LIBOR Page; except that if the specified Designated LIBOR
Page, by its terms provides only for a single rate, that single rate shall be
used; or (b) if "LIBOR TELERATE" is specified as the Reporting Service on the
face hereof, the rate for deposits in the Index Currency having the Index
Maturity designated on the face hereof, commencing on the second London Banking
Day immediately following that Interest Determination Date or, if pounds
sterling is the Index Currency, commencing on that Interest Determination Date,
that appears on the Designated LIBOR Page at approximately 11:00 a.m., London
time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is
specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation Agent
(after consultation with the Issuer) to provide the Calculation Agent with its
offered quotation for deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof commencing on the second London Banking
Day immediately following the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined on that
Interest Determination Date shall be the arithmetic mean of those quotations. If
fewer than two quotations are provided, LIBOR shall be determined for the
Interest Determination Date as the
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arithmetic mean of the rates quoted at approximately 11:00 a.m., London time, or
some other time specified on the face hereof, in the applicable principal
financial center for the country of the Index Currency on that Interest
Determination Date, by three major banks in that principal financial center
selected by the Calculation Agent (after consultation with the Issuer) for loans
in the Index Currency to leading European banks, having the Index Maturity
specified on the face hereof and in a principal amount that is representative of
a single transaction in that Index Currency in that market at that time.
(iv) If the banks so selected by the Calculation Agent are not quoting
as described in (iii) above, LIBOR in effect for the applicable period shall be
the same as the LIBOR rate then in effect on that Interest Determination Date.
The "INDEX CURRENCY" means the currency specified on the face hereof as
the currency for which LIBOR shall be calculated, or, if the euro is substituted
for that currency, the Index Currency shall be the euro. If that currency is not
specified on the face hereof, the Index Currency shall be U.S. dollars.
"DESIGNATED LIBOR PAGE" means either: (a) if LIBOR Reuters is
designated as the Reporting Service on the face hereof, the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency or its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that service, for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR
Telerate were specified, and, if the U.S. dollar is the Index Currency, as if
Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is "PRIME RATE," for any Interest Determination Date, the Prime Rate with
respect to this Note shall be the rate on that date as published in H.15(519)
under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be
determined as described above:
- If the rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate will be the
rate on such Prime Interest Determination Date as published in
H.15 Daily Update opposite the caption "Bank Prime Loan."
- If the rate is not published prior to 3:00 p.m., New York City
time, on the Calculation Date, in either H.15(519) or H.15
Daily Update then the Calculation Agent will determine the
Prime Rate to be the arithmetic mean of the rates of interest
publicly announced by each
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<PAGE> 18
bank that appears on the Reuters Screen US Prime 1 Page (as defined
below) as such bank's prime rate or base lending rate as in effect for
that Prime Interest Determination Date.
- If fewer than four such rates but more than one such rate appear on the
Reuters Screen US Prime 1 Page for the Prime Interest Determination
Date, the Calculation Agent will determine the Prime Rate to be the
arithmetic mean of the prime rates quoted on the basis of the actual
number of days in the year divided by 360 as of the close of business
on such Prime Interest Determination Date by at least two major money
center banks in New York City selected by the Calculation Agent (after
consulting with Emerson).
- If fewer than two such rates appear on the Reuters Screen US Prime 1
Page, the Calculation Agent will determine the Prime Rate on the basis
of the rates furnished in New York City by three substitute banks or
trust companies organized and doing business under the laws of the
United States, or any State thereof, in each case having total equity
capital of at least $500,000,000 and being subject to supervision or
examination by Federal or State authority, selected by the Calculation
Agent (after consulting with Emerson) to provide such rate or rates.
- If the banks selected are not quoting as mentioned above, the Prime
Rate will remain the Prime Rate in effect on such Prime Interest
Determination Date.
"Reuters Screen US Prime 1 Page" means the display designated as page "US
Prime 1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the US Prime 1 Page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Determination of Treasury Rate. If the Base Rate specified on the face
hereof is "TREASURY RATE," the Treasury Rate with respect to this Note shall be
(i) the rate from the auction held on the applicable Interest
Determination Date (the "AUCTION") of direct obligations of the United States
("TREASURY BILLS") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "TELERATE PAGE 56") or page 57 or any other
page as may replace page 57 on that service ( "TELERATE PAGE 57"); or
(ii) if the rate described in (i) above is not published by 3:00 p.m.,
New York City time, on the Calculation Date, the Bond Equivalent Yield (as
defined below) of the rate for the applicable Treasury Bills as published in the
H.15 Daily Update, or other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S. Government
Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by 3:00
p.m., New York City time, on the related Calculation Date, the Bond Equivalent
Yield of the Auction rate of the applicable Treasury Bills, announced by the
United States Department of the Treasury; or
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(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, selected by
the Calculation Agent, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; or
(vii) if the dealers selected by the Calculation Agent are not quoting
as described in (vi), the Treasury Rate will remain the Treasury Rate then in
effect on that Interest Determination Date.
The "BOND EQUIVALENT YIELD" means a yield calculated in accordance with
the following formula:
Bond Equivalent Yield = D x N
----- x 100
360- (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the "CMT RATE," for any Interest Determination Date, the CMT Rate with
respect to this Note shall be the rate displayed on the Designated CMT Telerate
Page (as defined below) under the caption "... Treasury Constant Maturities ...
Federal Reserve Board Release H.15... Mondays Approximately 3:45 p.m.," under
the column for the Designated CMT Maturity Index, as defined below, for:
(1) the rate on that Interest Determination Date, if the Designated CMT
Telerate Page is 7051; and
19
<PAGE> 20
(2) the week or the month, as applicable, ended immediately preceding the
week in which the related Interest Determination Date occurs, if the Designated
CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate cannot be
determined as described above:
(i) If that rate is no longer displayed on the relevant page, or if not
displayed by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) is no longer published, or if not
published by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519).
(iii) If the information described in (ii) is not provided by 3:00 p.m., New
York City time, on the related Calculation Date, then the Calculation Agent
shall determine the CMT Rate to be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately 3:30
p.m., New York City time, on the Interest Determination Date, reported,
according to their written records, by three leading primary United States
government securities dealers ("REFERENCE DEALERS") in The City of New York,
which may include an agent or other affiliates of the Issuer, selected by the
Calculation Agent as described in the following sentence. The Calculation Agent
shall select five reference dealers (after consultation with the Issuer) and
shall eliminate the highest quotation or, in the event of equality, one of the
highest, and the lowest quotation or, in the event of equality, one of the
lowest, for the most recently issued direct noncallable fixed rate obligations
of the United States ("TREASURY NOTES") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above have remaining terms
to maturity equally close to the Designated CMT Maturity Index, the quotes for
the Treasury Note with the shorter remaining term to maturity shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 p.m., New York City
time, on the Interest Determination Date of three Reference Dealers in The City
of New York, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than the Designated
20
<PAGE> 21
CMT Maturity Index and a remaining term to maturity closest to the Designated
CMT Maturity Index and in an amount of at least $100,000,000.
(v) If three or four (but not five) of the Reference Dealers are quoting as
described in (iv) above, then the CMT Rate shall be based on the arithmetic mean
of the offer prices obtained and neither the highest nor the lowest of those
quotes shall be eliminated.
(vi) If fewer than three Reference Dealers selected by the Calculation Agent
are quoting as described in (iv) above, the CMT Rate shall be the CMT Rate for
the immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable shall be the Initial Interest Rate.
"DESIGNATED CMT TELERATE PAGE" means the display on Bridge Telerate, Inc.,
or any successor service, on the page designated on the face hereof or any other
page as may replace that page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no page is specified
on the face hereof, the Designated CMT Telerate Page shall be 7052, for the most
recent week.
"DESIGNATED CMT MATURITY INDEX" means the original period to maturity of the
U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10, 20 or 30 years,
specified on the face hereof for which the CMT Rate shall be calculated.
If no maturity is specified on the face hereof, the Designated CMT Maturity
Index shall be two years.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is
issuable only in fully registered form, without coupons, and, if denominated in
U.S. dollars, is issuable (i) only in denominations of U.S. $1,000 and any
integral multiple of U.S. $1,000 in excess thereof, and (ii) if this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in denominations of the equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such Specified Currency), or any amount in excess
thereof which is an integral multiple of 1,000 units of such Specified Currency,
as determined by reference to the noon dollar buying rate in The City of New
York for cable transfers of such Specified Currency published by the Federal
Reserve Bank of New York (the "MARKET EXCHANGE RATE") on the Business Day
immediately preceding the date of issuance (the "AUTHORIZED DENOMINATIONS").
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.
21
<PAGE> 22
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes 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 Notes of each such series; provided, however, that no such
supplemental indenture shall (i) extend the final maturity of any Note, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of any interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Note (as defined in the Indenture) payable upon
acceleration thereof or the amount thereof provable in bankruptcy, or impair or
affect the rights of any Holder to institute suit for the payment thereof, or,
if the Notes provide therefor, any right of repayment or redemption at the
option of the Holder, without the consent of the Holder of each Note so
affected, or (ii) reduce the aforesaid percentage of Notes, the Holders of which
are required to consent to any such supplemental indenture, without the consent
of the Holder of each Note affected. It is also provided in the Indenture that,
with respect to certain defaults or Events of Default regarding the Notes of any
series, prior to any declaration accelerating the maturity of such Notes, the
Holders of a majority in aggregate principal amount Outstanding of the Notes of
such series (or, in the case of certain defaults or Events of Default, all or
certain series of the Notes) may on behalf of the Holders of all the Notes of
such series (or all or certain series of the Notes, as the case may be) waive
any such past default or Event of Default and its consequences. The preceding
sentence shall not, however, apply to a default in the payment of the principal
of or premium, if any, or interest on any of the Notes. 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 in the manner, at the respective times, at the rate and in the coin or
currency herein prescribed.
The Notes may be represented by one or more Global Securities (each, a
"GLOBAL NOTE") deposited with the Depositary and registered in the name of the
nominee of the Depositary, with certain limited exceptions. So long as DTC or
any successor Depositary or its nominee is the registered Holder of a Global
Note, DTC, such Depositary or such nominee, as the case may be, will be
considered the sole owner or Holder of the Notes represented by such Global Note
for all purposes under the Indenture and the Notes. Beneficial interest in the
Notes will be evidenced only by, and transfer thereof will be effected only
through, records maintained by DTC and its participants. Except as provided
below, an owner of a beneficial interest in a Global Note will not be entitled
to have Notes represented by such Global Note registered in such owner's name,
22
<PAGE> 23
will not receive or be entitled to receive physical delivery of the Notes in
certificated form and will not be considered the owner or Holder thereof under
the Indenture.
No Global Note may be transferred except as a whole by the Depositary to a
nominee of the Depositary. Global Notes are exchangeable for certificated Notes
only if (x) the Depositary notifies the Issuer that it is unwilling or unable to
continue as Depositary for such Global Notes or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and the Issuer fails within 90 days thereafter to appoint a
successor, (y) the Issuer in its sole discretion determines that such Global
Notes shall be so exchangeable or (z) there shall have occurred and be
continuing an Event of Default or an event which with the giving of notice or
lapse of time or both would constitute an Event of Default with respect to the
Notes represented by such Global Notes. In such event, the Issuer will issue
Notes in certificated form in exchange for such Global Notes. In any such
instance, an owner of a beneficial interest in the Global Notes will be entitled
to physical delivery in certificated form of Notes equal in principal amount to
such beneficial interest and to have such Notes registered in its name. Notes so
issued in certificated form will be issued in denominations of $1,000 or any
integral multiple thereof, and will be issued in registered form only, without
coupons.
The Issuer, the Trustee and any authorized 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 authorized 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 of the
Issuer in the Indenture or any indenture supplemental thereto or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, of the
Issuer or of any successor corporation, either directly or through the Issuer or
any successor corporation, 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.
The acceptance of this Note shall be deemed to constitute the consent and
agreement of the Holder hereof to all of the terms and provisions of the
Indenture. Terms used herein which are defined in the Indenture but which are
not otherwise defined herein shall have the respective meanings assigned thereto
in the Indenture.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THEREOF.
23
<PAGE> 24
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - Custodian
--------------------------------
(Minor) (Cust)
Under Uniform Gifts to Minors Act
-------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
24
<PAGE> 25
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
- ---------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
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 within Note in every particular
without alteration or enlargement or any change whatsoever.
25
<PAGE> 26
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its terms
at a price equal to the principal amount thereof, together with interest to the
Optional 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 not be less than the minimum authorized denomination) 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):
.
Dated:
-------------------------------
NOTICE: The signature on this
Option to Elect Repayment
must correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.
26
<PAGE> 1
EXHIBIT 8
September 23, 1999
Emerson Electric Co.
8000 W. Florissant
St. Louis, Missouri 63136
Ladies and Gentlemen:
We have acted as counsel to Emerson Electric Co., a
Missouri corporation (the "Company"), in connection with the filing of a
Prospectus Supplement dated September 23, 1999 (the "Prospectus Supplement") to
the Prospectus contained in the Company's Registration Statement under the
Securities Act of 1933 (File No. 333-84673). The Prospectus Supplement provides
the Company may offer from time to time its Medium-Term Notes. Except as
otherwise indicated herein, all capitalized terms used in this letter have the
same meaning assigned to them in the Prospectus Supplement.
In rendering our opinion, we have examined and relied upon
without independent investigation as to matters of fact the Prospectus
Supplement and such other documents, certificates and instruments as we have
considered relevant for purposes of this opinion. We have assumed without
independent verification that the Prospectus Supplement is accurate and complete
in all material respects, and our opinion is conditioned expressly on, among
other things, the accuracy as of the date hereof, and the continuing accuracy,
of all of such facts, information, covenants, statements and representations
through and as of the date of consummation of the filing. Any material changes
in the facts referred to, set forth or assumed herein or in the Prospectus
Supplement may affect the conclusions stated herein.
In rendering our opinion, we have considered the applicable
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury Regulations promulgated thereunder (the "Regulations"), pertinent
judicial authorities, rulings of the Internal Revenue Service and such other
authorities as we have considered relevant. It should be noted that such laws,
Code, Regulations, judicial decisions and administrative interpretations are
subject to change at any time and, in some circumstances, with retroactive
effect. A material change in any of the authorities upon which our opinion is
based could affect our conclusions herein.
<PAGE> 2
Page 2
Based solely upon the foregoing and in reliance thereon and
subject to the exceptions, limitations and qualifications stated herein, we
confirm that the statements contained in the Prospectus Supplement under the
caption "United States Federal Income Tax Consequences to Holders" insofar as
such statements constitute matters of law or legal conclusions, as qualified
therein, are our opinion and that such statements fairly describe the material
federal income tax consequences of the offering of the Medium-Term Notes and are
true, correct and complete in all material respects.
Except as expressly set forth above, we express no other
opinion. We consent to the reference to this firm in the Prospectus Supplement
under the caption "United States Federal Income Tax Consequences to Holders"
and to the filing of this opinion as an exhibit to the Registration Statement.
In giving such consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act of 1933
or the rules and regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Bryan Cave LLP
<PAGE> 1
EXHIBIT 12.1
EMERSON ELECTRIC CO. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED SEPTEMBER 30, JUNE 30,
------------------------------------------------------------------------ ------------
1994 1995 1996 1997 1998 1999
------------ ------------ ----------- ----------- ---------- ------------
Earnings:
<S> <C> <C> <C> <C> <C> <C>
Income before income taxes (a) $ 1,423.4 (b) 1,457.2 (b) 1,611.3 1,821.7 2,002.3 1,544.6
Fixed charges 141.8 168.4 182.2 176.5 218.2 188.3
----------- ----------- ---------- ---------- ---------- ------------
Earnings, as defined $ 1,565.2 1,625.6 1,793.5 1,998.2 2,220.5 1,732.9
=========== =========== ========== ========== ========== ============
Fixed Charges:
Interest expense $ 101.9 123.0 132.3 124.2 161.4 145.7
One-third of all rents 39.9 45.4 49.9 52.3 56.8 42.6
----------- ----------- ---------- ---------- ---------- ------------
Total fixed charges $ 141.8 168.4 182.2 176.5 218.2 188.3
=========== =========== ========== ========== ========== ============
Ratio of Earnings to Fixed Charges 11.0 x 9.7 x 9.8 x 11.3 x 10.2 x 9.2 x
=========== =========== ========== ========== ========== ============
</TABLE>
(a) Represents income before income taxes, cumulative effects of changes in
accounting principles, and minority interests in the income of
consolidated subsidiaries with fixed charges.
(b) Includes non-recurring items of $192.0 million and $34.3 million in 1994
and 1995, respectively. Excluding these items, the ratio of earnings to
fixed charges would have been 9.7x and 9.4x in 1994 and 1995,
respectively.
