<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1998
REGISTRATION NO. 333-59543
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
UNITED STATES
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
---------------
FMC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-0479804
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
(312) 861-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
J. PAUL MCGRATH
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
FMC CORPORATION
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
(312) 861-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
STEVEN J. GAVIN DAVID A. SCHUETTE
WINSTON & STRAWN MAYER, BROWN & PLATT
35 WEST WACKER DRIVE 190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60601 CHICAGO, ILLINOIS 60603
(312) 558-5600 (312) 782-0600
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as the
Registrant shall determine.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
Company, except any underwriters' fees and expenses, in connection with the
sale of the Offered Securities being registered hereby. All of the amounts
shown are estimated, except the Securities and Exchange Commission
registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $100,300
Blue sky fees and expenses...................................... 5,000
Accounting fees and expenses.................................... 50,000
Legal fees and expenses......................................... 100,000
Printing expenses............................................... 100,000
Rating agency fees.............................................. 150,000
Trustee's fees and expenses..................................... 10,000
Miscellaneous................................................... 84,700
--------
Total....................................................... $600,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporation Law, as amended (the "GCL"), which provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation), by reason of the fact
that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at its request in such capacity of another
corporation or business organization against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interest of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe that such person's conduct was unlawful. A Delaware corporation may
indemnify officers and directors in an action by or in the right of a
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to
be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer or
director actually and reasonably incurred.
Article XI of the Company's Restated By-laws provides that the Company shall
indemnify its directors and officers to the full extent permitted by Section
145 of the GCL.
The Company's Restated Certificate of Incorporation provides that the
Company's directors will not be personally liable to the Company or its
stockholders for monetary damages resulting from breaches of their fiduciary
duty as directors, except (a) for any breach of the directors' duty of loyalty
to the Company or its stockholders, (b) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(c) for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the GCL or (d) for transactions from
which directors derive improper personal benefit.
Under the terms of the Equity Underwriting Agreement and the Debt
Underwriting Agreement filed as exhibits hereto, directors, certain officers
and controlling persons of the Company are entitled to indemnification under
certain circumstances including proceedings under the Securities Act of 1933
and the Securities Exchange Act of 1934.
II-1
<PAGE>
The Company maintains directors' and officers' liability insurance coverage.
ITEM 16. EXHIBITS
A list of exhibits included as part of this Registration Statement is set
forth in the Exhibit Index which immediately precedes such exhibits and is
incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described in Item 15
(other than the provisions relating to insurance), or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, FMC CORPORATION
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS POST-EFFECTIVE
AMENDMENT NO. 1 TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF CHICAGO, STATE OF
ILLINOIS, ON NOVEMBER 12, 1998.
FMC Corporation
/s/ Michael J. Callahan
By: _________________________________
Name: Michael J. Callahan
Title: Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS POST-
EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Chief November 12, 1998
____________________________________ Executive Officer and
Robert N. Burt Director
(Principal Executive
Officer)
* President and Director November 12, 1998
____________________________________
Larry D. Brady
/s/ Michael J. Callahan Executive Vice President and November 12, 1998
____________________________________ Chief Financial Officer
Michael J. Callahan (Principal Financial
Officer)
* Vice President and November 12, 1998
____________________________________ Controller (Principal
Ronald D. Mambu Accounting Officer)
* Director November 12, 1998
____________________________________
B.A. Bridgewater, Jr.
* Director November 12, 1998
____________________________________
Patricia A. Buffler
* Director November 12, 1998
____________________________________
Albert J. Costello
* Director November 12, 1998
____________________________________
Paul L. Davies, Jr.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director November 12, 1998
____________________________________
Jean A. Francois-Poncet
* Director November 12, 1998
____________________________________
Edward C. Meyer
* Director November 12, 1998
____________________________________
Edward J. Mooney
* Director November 12, 1998
____________________________________
William F. Reilly
* Director November 12, 1998
____________________________________
James R. Thompson
* Director November 12, 1998
____________________________________
Clayton Yeutter
*By: /s/ Michael J. Callahan
_______________________________
Michael J. Callahan,
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 Form of Equity Underwriting Agreement, as filed with the Securities
and Exchange Commission on September 7, 1995 as Exhibit 1.1 to the
Company's Registration Statement on Form S-3 (Registration No. 33-
62415) and incorporated herein by reference.
1.2 Form of Debt Underwriting Agreement, as filed with the Securities and
Exchange Commission on September 7, 1995 as Exhibit 1.2 to the
Company's Registration Statement on Form S-3 (Registration No. 33-
62415) and incorporated herein by reference.
1.3 U.S. Distribution Agreement dated November 12, 1998 between the
Company and Morgan Stanley & Co. Incorporated, J.P. Morgan Securities
Inc. and Salomon Smith Barney Inc.
4.1 Restated Certificate of Incorporation of the Company.*
4.2 Restated By-Laws of the Company, amended as of February 20, 1998, as
filed with the Securities and Exchange Commission on March 18, 1998 as
Exhibit 3.3 to the Company's Form 10-K for the fiscal year ended
December 31, 1997 (File No. 1-02376) and incorporated herein by
reference.
4.3 Amended and Restated Rights Agreement dated as of February 19, 1988
between the Company and Harris Trust and Savings Bank, as filed with
the Securities and Exchange Commission on March 25, 1993 as Exhibit 4
to the Company's Form SE (File No. 1-02376) and incorporated herein by
reference.
4.4 Amendment to Amended and Restated Rights Agreement dated February 9,
1996, as filed with the Securities and Exchange Commission on February
12, 1996 as Exhibit 1 to the Company's Form 8-K (File No. 1-02376) and
incorporated herein by reference.
4.5 Indenture dated as of July 1, 1996 between the Company and Harris
Trust and Savings Bank, as Trustee, as filed with the Securities and
Exchange Commission on January 27, 1997 as Exhibit 4-a to the
Company's Form 8-K (File No. 1-02376) and incorporated herein by
reference.
4.6 Form of Subordinated Indenture between the Company and Harris Trust
and Savings Bank, as Trustee, as filed with the Securities and
Exchange Commission on September 7, 1995 as Exhibit 4.6 to the
Company's Registration Statement on Form S-3 (Registration No. 33-
62415) and incorporated herein by reference.
4.7 Form of Standard Stock Warrant Provisions, as filed with the
Securities and Exchange Commission on September 7, 1995 as Exhibit 4.7
to the Company's Registration Statement on Form S-3 (Registration No.
33-62415) and incorporated herein by reference.
4.8 Form of Standard Debt Warrant Provisions, as filed with the Securities
and Exchange Commission on September 7, 1995 as Exhibit 4.8 to the
Company's Registration Statement on Form S-3 (Registration No. 33-
62415) and incorporated herein by reference.
5.1 Opinion of Winston & Strawn.*
12.1 Statement regarding Computation of Ratios of Earnings to Fixed
Charges.*
15.1 Letter from KPMG Peat Marwick LLP regarding Unaudited Interim
Financial Information.*
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of Winston & Strawn (included in its opinion previously filed
as Exhibit 5.1).*
24.1 Powers of Attorney.*
25.1 Statement of Eligibility of Trustee on Form T-1 for Harris Trust and
Savings Bank.*
</TABLE>
- --------
*Previously filed.
<PAGE>
EXHIBIT 1.3
FMC CORPORATION
$500,000,000
Medium-Term Notes, Series B
Due more than 9 Months from Date of Issue
U.S. DISTRIBUTION AGREEMENT
November 12, 1998
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Salomon Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
FMC Corporation, a Delaware 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 $500,000,000 (or the equivalent thereof in one or more
foreign currencies or composite currencies) aggregate initial public offering
price of its Medium-Term Notes, Series B, due more than 9 months from date of
issue (the "Notes"). The Notes will be issued under an Indenture dated as of
July 1, 1996 (the "Indenture") between the Company and Harris Trust and Savings
Bank, 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"), J.P. Morgan Securities Inc. ("J.P. Morgan") and Salomon Smith Barney
Inc. ("Salomon") (individually, an "Agent" and collectively, the "Agents") as
its agents, subject to Section 11, for the purpose of soliciting and receiving
offers to purchase Notes from the Company by others and, on the basis of the
<PAGE>
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees to use reasonable 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 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, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto, as amended
at the Commencement Date (as hereinafter defined), is hereinafter referred to 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 on which 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, to
the knowledge of the Company, no proceedings for such purpose are pending before
or threatened by the Commission.
-2-
<PAGE>
(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 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
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 (1) the representations and warranties set forth in this Section
1(b) do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information furnished to the Company in writing by
an Agent expressly for use therein or (B) 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 and (2) the representations and warranties set forth in clauses (iii)
and (iv) above, when made as of the Commencement Date or as of any date 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 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 except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(d) There has not occurred any material adverse change in the condition,
financial or otherwise, or in the business or operations of the Company and its
subsidiaries, taken as a whole, from the information set forth in the
Registration Statement and Prospectus.
(e) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
-3-
<PAGE>
Notwithstanding the foregoing, the representations and warranties set forth
in Section 1(b)(iii) and (iv), and (c) (except as to due authorization of the
Notes), 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 reasonable 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 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 or maturities 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 request. The Company also reserves the right to sell,
solicit and accept offers to purchase Notes directly on its own behalf.
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:
-4-
<PAGE>
Term Commission Rate
---- ---------------
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 .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
Beyond 30 years To be negotiated
For purposes of the foregoing, the term of any Note that is repayable at
the option of the holder on a date prior to its stated maturity date shall be
measured by reference to the optional repayment date rather than the stated
maturity date.
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 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 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).
Subject to the provisions of this Section and to the Administrative
Procedures or such other procedures agreed upon in writing from time to time by
each Agent and the Company after notice to, and in the case of procedures which
affect the rights, duties or obligations of the Trustee, with the approval of,
the Trustee, offers for the purchase of Notes may be solicited by each Agent as
agent for the Company at such time and in such amounts as such Agent deems
advisable. The Company may from time to time sell Notes otherwise than through
an Agent; provided, however, that so long as this Agreement shall be in effect
the Company shall not solicit offers to purchase Notes through any agents other
than the Agents. It is understood that if from time to time the Company is
approached by a prospective agent offering a specific purchase of Notes, the
Company may engage such agent with respect to such specific purchase, provided
that (i) such agent is engaged on terms substantially similar (including the
same commission schedule) to
-5-
<PAGE>
the applicable terms of this Agreement and (ii) the Agents are given notice of
such purchase promptly after it is consummated.
(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 to the Company.
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 you are purchasing
Notes as principal you 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.
-6-
<PAGE>
(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 Mayer, Brown & Platt, counsel for the Agents, not
later than 5:00 p.m., New York 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 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 periodic 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 threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any
-7-
<PAGE>
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 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.
(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 it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable 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,
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 paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection
with the preparation and filing of such amendment or supplement are 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 Section 3(b), until the distribution of any Notes an Agent may own as
principal has been completed, if any event described above in this paragraph (b)
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,
satisfactory in all respects to such
-8-
<PAGE>
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 paragraph (f) below and Sections 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as it may request in connection with the
preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security holders and
to the Agents as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(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 qualify 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 in connection therewith the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified, to file a general consent to
service of process in any jurisdiction or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
subject.
(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 written notice of any intended or
potential downgrading or of any possible change that does not indicate the
direction of the possible change, in the
-9-
<PAGE>
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 fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Memoranda (up to $7,500), (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
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, (ix) the 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 reasonable out-of-pocket expenses incurred by the Agents; provided that any
advertising expenses incurred by the Agents shall have been approved by the
Company.
(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,
which consent shall not be unreasonably withheld, 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
-10-
<PAGE>
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 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 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, as amended or supplemented at the time of such solicitation or
at the time such offer to purchase was made, that, in the judgment of the
relevant Agent, is material and adverse and that makes it, in the 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, either of the
New York Stock Exchange or the National Association of Securities Dealers,
Inc., (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 major
hostilities or any significant 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 (ii)(A)
through (D), such event, singly or together with any other such event,
makes it, in the judgment of such Agent, impracticable to market the Notes
substantially 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;
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading, 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; and
-11-
<PAGE>
(iv) no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission.
(A) except, in each case described in paragraph (i), (ii) or
(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 (B) unless in each case described in (ii)
above, the relevant event shall have occurred and been known to the
relevant Agent before such 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 Winston & Strawn, counsel
for the Company, to the effect that:
(A) the Indenture 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, as to
enforcement of remedies, to bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles regardless of whether such enforceability is
considered in a proceeding in equity or at law and has been duly
qualified under the Trust Indenture Act;
(B) 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 on the date of
such opinion, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms
subject, as to enforcement of remedies, to bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization and other laws of
general applicability relating to or affecting creditors' rights and
to general equity principles regardless of whether such enforceability
is considered in a proceeding in equity or at law and will be entitled
to the benefits of the Indenture;
-12-
<PAGE>
(C) each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company;
(D) the execution, delivery and performance of this Agreement,
the Notes, the Indenture and any applicable Terms Agreement by the
Company, and the issuance and sale of the Notes by the Company as
provided in this Agreement, any applicable Terms Agreement and the
Indenture, will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under, the certificate
of incorporation or by-laws of the Company, or the 5-Year Credit
Agreement dated as of December 6, 1996 among the Company, the lenders
listed therein and Morgan Guaranty Trust Company of New York, as
Agent, or the Amended and Restated 364-Day Credit Agreement dated as
of December 5, 1997 among the Company, the lenders listed therein and
Morgan Guaranty Trust Company of New York, as Agent;
(E) no authorization, consent, approval or order of any court or
governmental agency or body in the United States or any state or
political subdivision thereof is required for the issuance, sale or
performance of the Company's obligations with respect to the Notes, in
the manner contemplated by this Agreement, any applicable Terms
Agreement, the Notes and the Indenture, except such as are specified
and have been obtained and 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 in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes," "Plan of
Distribution" and "Description of the Debt Securities," and in the
Registration Statement in Item 15, insofar as such statements
constitute a summary 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;
(G) the statements in the Prospectus, as then amended or
supplemented, under the caption "United States Federal Taxation",
fairly summarize the material United States federal income tax
consequences of ownership and disposition of the Notes to initial
holders purchasing Notes at the issue price;
(H) such counsel is of the opinion that the Registration
Statement and Prospectus, as then amended or
-13-
<PAGE>
supplemented, if applicable (except for the documents incorporated by
reference therein, the financial statements and schedules and other
financial data and that part of the Registration Statement that
constitutes the Form T-1 of the Trustee as to which such counsel need
not express any opinion), comply as to form in all material respects
with the Securities Act and the rules and regulations of the
Commission thereunder;
Such counsel shall also have furnished to you a written
statement, in form and substance satisfactory to you, to the effect
that nothing has come to such counsel's attention that causes them to
believe that (except for financial statements and schedules and other
financial data 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 of the Trustee) each part of the Registration
Statement, as then amended, if applicable, at the time such part
became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as then amended or supplemented, if applicable, as of the
date such statement 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 light of the circumstances under which
they were made, not misleading.
(ii) The opinion, dated as of such date, of the General Counsel or
Assistant General Counsel for the Company, to the effect that:
(A) the Company is validly existing as a corporation in good
standing under the laws of Delaware and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or the ownership or leasing of property
requires such qualification, 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,
and has all corporate power and authority under its certificate of
incorporation, bylaws and the laws of the State of Delaware to own,
lease and operate its properties and conduct its business as described
in the Prospectus as then amended or supplemented;
(B) each Significant Subsidiary (as defined in Regulation S-X
promulgated by the Commission) of the
-14-
<PAGE>
Company organized under the laws of any state of the United States is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership or leasing of
property requires such qualification, 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
whole;
(C) neither the Company nor any subsidiary is in violation of its
certificate of incorporation or by-laws or, to the best of such
counsel's knowledge after due inquiry, in default in the performance
of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any
indenture, lease, loan agreement or other instrument governing any
indebtedness to which the Company or any subsidiary is a party or by
which the Company or any subsidiary or their property or claims is
bound, except to the extent that such violation or default would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(D) such counsel is not aware after due inquiry of the Company's
failure to possess or to be in compliance with any franchises, grants,
authorizations, licenses, permits, easements, consents, certificates
or orders required for the conduct of the business of the Company or
any subsidiary, except to the extent that the failure to so possess or
comply would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(E) except as disclosed in the Prospectus, as then amended or
supplemented, the securities of each direct or indirect subsidiary of
the Company listed on Exhibit 21 to the Company's most recent Annual
Report on Form 10-K which is a Significant Subsidiary (as defined
above) are owned by the Company or a subsidiary of the Company to the
extent described therein free and clear of all liens and encumbrances
and any other adverse claims;
(F) the execution, delivery and performance of this Agreement,
the Notes, the Indenture and any applicable Terms Agreement by the
Company and the issuance and sale of the Notes by the Company as
provided in this Agreement, any applicable Terms Agreement and the
Indenture, will not result in a breach or violation of any of the
terms or provisions of, or constitute a
-15-
<PAGE>
default under, the certificate of incorporation of the Company or any
Significant Subsidiary, or any provision of applicable law or
administrative regulation known to such counsel or any agreement or
other instrument known to such counsel binding upon the Company or any
subsidiary and which is material to the Company and its subsidiaries
taken as a whole or any decree of any court known to such counsel
applicable to the Company or any subsidiaries or any of their
properties;
(G) such counsel does not know of any action, suit or proceeding
pending or threatened against or affecting the Company or any of its
properties before or by any court, governmental official, commission,
board or other administrative agency or arbitrator that has a
reasonable probability (taking into account the exhaustion of all
appeals) of having a material adverse effect on the business,
operations, properties, consolidated financial condition, consolidated
results of operations or business prospects of the Company, except as
disclosed in the Prospectus, as then amended or supplemented, or that
in any manner questions the validity of this Agreement, any applicable
Terms Agreement, the Indenture or the Notes;
(H) such counsel does not know of any legal or governmental
proceeding 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 is subject that is required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, and is not so described or of any contract or other
document which is required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required;
(I) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended; and
(J) such counsel is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented, if applicable (except for
financial statements and schedules and other financial data and that
part of the Registration Statement that constitutes the Form T-1 of
the Trustee as to which such counsel need not express any opinion)
complied as to form when filed with the Commission in all material
respects with the
-16-
<PAGE>
Exchange Act, and the rules and regulations of the Commission
thereunder.
Such counsel shall also have furnished to you a written statement
in form and substance satisfactory to you, to the effect that nothing
has come to such counsel's attention that causes him or her to believe
that (except for financial statements and schedules and other
financial data 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 of the Trustee) each part of the Registration
Statement, as then amended, if applicable, at the time such part
became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as then amended or supplemented, if applicable, as of the
date such statement 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 light of the circumstances under which
they were made, not misleading.
(iii) The opinion, dated as of such date, of Mayer, Brown & Platt,
counsel for the Agents, covering the matters in subparagraphs (A), (B),
(C), (F) (but only as to the statements in the Prospectus, as then amended
or supplemented, under the captions "Description of Notes," "Plan of
Distribution" and "Description of the Debt Securities"), and (H) in
paragraph (b)(i) above. Such counsel shall also have furnished to you a
written statement to the same effect as the last sentence of paragraph
(b)(i) above.
Notwithstanding the foregoing, the opinions described in subparagraphs
(B) (except as to due authorization of the Notes), (E) and (F) of paragraph
(b)(i) above, 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 the last sentence of paragraph (b)(ii) above, such
counsel may state that his opinion and belief is based upon his
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated therein by
-17-
<PAGE>
reference and review and discussion of the contents thereof, but is without
independent check or verification, except as specified. With respect to
the last sentence of paragraph (b)(i) above, Winston & Strawn and Mayer,
Brown & Platt 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 opinions of Winston & Strawn and the General Counsel or the
Assistant General Counsel of the Company described in paragraphs (b)(i) and
(b)(ii) 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 subparagraphs (a)(iii) and (a) (iv) above 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 complied with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder 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, KPMG Peat Marwick LLP 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
-18-
<PAGE>
(other than by an amendment or supplement providing solely for a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes or for a change the Agents deem 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
written opinions of counsel for the Company. Any such opinions 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 opinions
referred to in Sections 4(b)(i) and (ii), 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 opinions, counsel last
furnishing such opinions to an Agent may furnish to each Agent a letter to the
effect that such Agent may rely on such counsel's last opinion to the same
extent as though it were dated the date of such letter (except that statements
in 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 each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, 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.
6. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls any 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 Agent or any such 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
-19-
<PAGE>
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
relating to such Agent 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 relating to such Agent 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 sought
pursuant to either paragraph (a) or (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 reasonable
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 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 or, if Morgan Stanley is not an
indemnified party and is not reasonably likely to become an indemnified party,
by the Agents
-20-
<PAGE>
that are indemnified parties, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (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 to the extent set
forth above from and against any loss or liability by reason of such settlement
or judgment. 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 paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes, 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 (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and 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
-21-
<PAGE>
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 paragraph (d) of this Section 6. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) of this Section 6 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 paragraph (d) of this Section 6 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 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
-22-
<PAGE>
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. 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 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, 11, 13 and 14 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 2(b), 2(c), 3(a), 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, J.P. Morgan or
Salomon will be mailed, delivered or telefaxed and confirmed to Morgan Stanley
at 1251 Avenue of the Americas, New York, New York 10020, Attention: Manager,
Credit Department (telefax number: 212-703-4575), with a copy to 1221 Avenue of
the Americas, New York, New York 10020, Attention: Managing Director, Debt
Syndicate (telefax number: 212-764-7490), to J.P. Morgan at 60 Wall Street, New
York, New York 10260, Attention: MTN Desk (telefax number: 212-648-5909) or to
Salomon at Seven World Trade Center, New York, New York 10048, Attention: MTN
Department (telefax number: 212-783-2274), respectively or, if sent to the
Company, will be mailed, delivered or telefaxed and confirmed to the Company at
200 East Randolph Drive, Chicago, Illinois 60601, Attention: Ruud P. Roggekamp
(telefax number: 312-861-6144) with a copy to Steven H. Shapiro (telefax number:
312-861-7127).
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
-23-
<PAGE>
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, on one day
prior written notice to the Agents but without the consent of any Agent, 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.
The Agents shall sign any amendment or supplement giving effect to the addition
of any such firm as an Agent under this Agreement.
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.
-24-
<PAGE>
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,
FMC CORPORATION
By________________________________
Title:
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above written.
MORGAN STANLEY & CO. INCORPORATED
By_______________________________
Title:
J.P. MORGAN SECURITIES INC.
By_______________________________
Title:
SALOMON SMITH BARNEY INC.
By_______________________________
Title:
-25-
<PAGE>
EXHIBIT A
FMC CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
______________, 19__
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Ruud P. Roggekamp
Re: Distribution Agreement dated
November 12, 1998
(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:
Principal Amount
Name of Notes
- ---- ----------------
Morgan Stanley & Co.
Incorporated
[Insert syndicate list]/1/
Total . . . . . . . . . . $
================
The Notes shall have the following terms:
- ------------
/1/ Delete if the transaction will not be syndicated.
A-1
<PAGE>
<TABLE>
<CAPTION>
All Notes: Fixed Rate Notes: Floating Rate Notes:
- --------- ---------------- -------------------
<S> <C> <C>
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability Index maturity:
of modified
Price to public: payment upon Spread:
acceleration:
Settlement date If yes, state Spread multiplier:
and time: issue price:
Alternate rate
event spread:
Place of Amortization Initial interest
delivery: schedule: rate:
Specified
currency:
Maturity date: Initial interest
reset date:
Initial accrual Interest reset
period OID: dates:
Total amount Interest reset
of OID: period:
Original yield to Maximum interest
maturity: rate:
Optional repayment Minimum interest
date(s): rate:
Optional redemption Interest payment
date(s): period:
Initial redemption Interest payment
date: dates:
Initial redemption Calculation
agent:
percentage:
Annual redemption
percentage
decrease:
Other terms:
</TABLE>
A-2
<PAGE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6, 9, 10, 11 and
14 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 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 subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of
Sections 3(h), 6, 9, 11, 13 and 14 of the Distribution Agreement shall survive
for the purposes of this Agreement.
- ------------
/2/ Delete if the transaction will not be syndicated.
A-3
<PAGE>
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
------------------------
Title:
Accepted:
FMC CORPORATION
By
------------------------
Title:
A-4
<PAGE>
EXHIBIT B
FMC CORPORATION
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 FMC
Corporation (the "Company") pursuant to the Distribution Agreement, dated as of
November 12, 1998 (the "Distribution Agreement") among the Company and Morgan
Stanley & Co. Incorporated, J.P. Morgan Securities Inc. and Salomon Smith Barney
Inc. (the "Agents"). The Notes will be issued under an Indenture dated as of
July 1, 1996 (the "Indenture") between the Company and Harris Trust and Savings
Bank, as trustee (the "Trustee"). In the Distribution Agreement, the Agents
have agreed to use reasonable 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, Calculation Agent, Authenticating
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, which may be payable only in U.S. dollars, 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
<PAGE>
procedures set forth in Part II hereof. Unless otherwise defined herein, terms
defined in the Indenture, 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.
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 Representations
from the Company and the Trustee to DTC, dated as of January 24, 1997, confirmed
in a Bring-Down Letter of Representations to DTC dated November 12, 1998, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC, dated as of
July 2, 1990 (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
B-2
<PAGE>
Global Security. Book-Entry Notes may be
payable only in U.S. dollars. No Global
Security will represent any Certificated
Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of U.S. $100,000 or
any amount in excess thereof that is an
integral multiple of U.S. $1,000. Global
Securities will be denominated in
principal amounts not in excess of U.S.
$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
of Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a
pricing supplement (a "Pricing
Supplement") reflecting the terms of
such Note. The Company (i) will arrange
to file a copy of 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 date on which
such Pricing Supplement is filed with
the Commission, deliver the number of
copies of such Pricing Supplement to the
relevant Agent as such Agent shall
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
B-3
<PAGE>
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
Procedures: each Book-Entry 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 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 semiannually 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), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if
any).
4. Redemption or repayment
provisions (if any).
5. Settlement date and time
(Original Issue Date).
B-4
<PAGE>
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 PERLS
Note, and if it is a PERLS Note, the
Denominated Currency, the Indexed
Currency or Currencies, the Payment
Currency, the Exchange Rate Agent,
the Reference Dealers, the Face
Amount, the Fixed Amount of each
Indexed Currency, the Aggregate
Fixed Amount of each Indexed
Currency and the Authorized
Denominations (if other than U.S.
dollars).
11. Whether the Note is a Renewable
Note, and if it is a Renewable Note,
the Initial Maturity Date and the
Final Maturity Date.
12. 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.
13. Whether the Company has the
option to reset the Interest Rate,
the Spread or the Spread Multiplier
of the Note.
14. Any other applicable terms.
B. The Company will advise the
Trustee by telephone or electronic
transmission (confirmed in writing at
any time on the
B-5
<PAGE>
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
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 (which in the case
of Floating Rate Notes which reset
daily or weekly, shall be the date
five calendar days immediately
preceding the applicable Interest
Payment Date and, in the case of all
other Notes, shall be the Record
Date as 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.
B-6
<PAGE>
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 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
Bank of America Illinois, Chicago,
Illinois,
B-7
<PAGE>
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 settled.
Settlement For sales by the Company of Book-Entry
Procedures Notes to or through an Agent (unless
Timetable: otherwise specified pursuant 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
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
B-8
<PAGE>
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.
If settlement of a Book-Entry Note is
rescheduled or cancelled, the Trustee,
after receiving notice from the Company
or the relevant Agent, will deliver to
DTC, through DTC's Participant Terminal
System, a cancellation message to such
effect by no later than 2:00 P.M. on the
Business Day immediately preceding the
scheduled settlement date.
Failure If the Trustee fails to enter an SDFS
to Settle: deliver order 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 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 "cancelled," make
appropriate entries in the Trustee's
records and send such cancelled 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 cancelled 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
B-9
<PAGE>
Securities, one of which shall represent
such Book-Entry Note or Notes and shall
be cancelled immediately after issuance
and the other of which shall represent
the remaining Book-Entry Notes
previously represented by the
surrendered Global 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-10
<PAGE>
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
of Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a
Pricing Supplement reflecting the terms
of such Note. The Company (i) will
arrange to file a copy of 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 date on which
such Pricing Supplement is filed with
the Commission, deliver the number of
copies of such Pricing Supplement to the
relevant Agent as such Agent shall
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
B-11
<PAGE>
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.
Settlement Settlement Procedures with regard to
Procedures: each Certificated 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 semiannually
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), Maximum
B-12
<PAGE>
Interest Rate (if any) and the
Alternate Rate Event Spread (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.
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 PERLS
Note, and if it is a PERLS Note, the
Denominated Currency, the Indexed
Currency or Currencies, the Payment
Currency, the Exchange Rate Agent,
the Reference Dealers, the Face
Amount, the Fixed Amount of each
Indexed Currency, the Aggregate
Fixed Amount of each Indexed
Currency and the Authorized
Denominations (if other than U.S.
dollars).
16. Whether the Note is a Renewable
Note, and if it is a Renewable Note,
the Initial Maturity Date and the
Final Maturity Date.
17. Whether the Company has the
option to extend the Original
Maturity Date of the Note, and, if
B-13
<PAGE>
so, the Final Maturity Date of such
Note.
18. Whether the Company has the
option to reset the Interest Rate,
the Spread or the Spread Multiplier
of the Note.
19. Any other applicable terms.
B. The Company will advise the Trustee
by telephone or electronic
transmission (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 a pre-printed four-ply
packet for such Note, which packet
will contain the following documents
in forms that have been approved by
the Company, the relevant Agent and
the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant
Agent.
4. Stub Three - For the Company.
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
instructions have been given by such
Agent for payment to the account of
the Company at Bank of America
Illinois, Chicago, Illinois, 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).
B-14
<PAGE>
In the event that the instructions
given by such Agent for payment to the
account of the Company are revoked,
the Company will as promptly as
possible wire transfer to the account
of such Agent an amount of immediately
available funds equal to the amount of
such payment made.
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
Procedures Notes to or through an Agent (unless
Timetable: otherwise specified pursuant 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
to Settle: of and make 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
B-15
<PAGE>
price of such Note less such Agent's
commission in respect of such Note (if
any). Such wire 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 "cancelled," make
appropriate entries in the Trustee's
records and send such Note to the
Company.
B-16
