<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
WHITMAN CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-6076573
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
3501 ALGONQUIN ROAD
ROLLING MEADOWS, ILLINOIS 60008
(708) 818-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
WILLIAM B. MOORE
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
WHITMAN CORPORATION
3501 ALGONQUIN ROAD
ROLLING MEADOWS, ILLINOIS 60008
(708) 818-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JIM L. KAPUT H. KURT VON MOLTKE
SIDLEY & AUSTIN KIRKLAND & ELLIS
ONE FIRST NATIONAL PLAZA 200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60603 CHICAGO, ILLINOIS 60601
----------------
APPROXIMATE DATE OF COMMENCEMENT OF SALE TO PUBLIC: From time to time after
the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Debt Securities......... $300,000,000 100% $300,000,000 $103,448
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</TABLE>
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(1) Includes Debt Securities issued with an original issue discount such that
the aggregate initial public offering price of all Debt Securities will not
exceed $300,000,000 (the initial public offering price of any Debt
Securities issued for any foreign currency or currency units shall be the
U.S. dollar equivalent thereof).
(2) Estimated solely for the purpose of calculating the registration fee.
----------------
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
constituting a part of this Registration Statement also relates to $13,000,000
principal amount of Debt Securities registered by the Registrant under the
Securities Act of 1933 in Registration Statement No. 33-50109 and this
Registration Statement constitutes Post-Effective Amendment No. 1 to such
Registration Statement.
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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PRELIMINARY PROSPECTUS DATED MARCH 24, 1995
SUBJECT TO COMPLETION
PROSPECTUS
LOGO
WHITMAN CORPORATION
$313,000,000
DEBT SECURITIES
-------------
Whitman Corporation ("Whitman" or the "Company") may offer from time to time
its unsecured debentures, notes or other evidences of indebtedness
("Securities"), in one or more series, in amounts, at prices and on terms to be
determined at the time of sale, from which the Company will receive up to an
aggregate of $313,000,000 in proceeds, or the equivalent thereof if any of the
Securities are denominated in one or more foreign currencies or currency units.
The Securities may be sold to underwriters, to or through dealers, acting as
principals or acting as agents, or directly to other purchasers (see "Plan of
Distribution").
The Securities may be issued in registered form without coupons, or in
unregistered form with or without coupons. In addition, all or a portion of the
Securities may be issued in temporary or definitive global form. Securities
which are book-entry Securities will be issued in registered global form.
The specific designation, aggregate principal amount, designated coin,
currency or currencies, or currency unit or units in which the principal, any
premium or any interest is payable, authorized denominations, purchase price,
maturity, interest rate (which may be fixed or variable) and time of payment of
any interest, any redemption terms or other special terms and the terms of the
offering in connection with the sale of the Securities in respect of which this
Prospectus is being delivered, together with the names of any underwriters,
dealers or agents, applicable commissions or discounts and net proceeds to the
Company from the sale thereof, are set forth in the accompanying Prospectus
Supplement ("Prospectus Supplement").
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
-------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-------------
THE DATE OF THIS PROSPECTUS IS , 1995.
<PAGE>
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IN CONNECTION WITH ANY OFFERING
CONTEMPLATED HEREBY OR THEREBY AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. NEITHER THIS
PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED
SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF OR THAT THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy statements and other information filed by
the Company with the Commission may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
regional offices of the Commission: New York Office, Seven World Trade Center,
13th Floor, New York, New York 10048; and Chicago Office, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can also
be obtained from the Public Reference Section of the Commission, at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
Such reports, proxy statements and other information concerning the Company
can be inspected at the offices of the national securities exchanges on which
the Company's Common Stock is listed: New York Stock Exchange, 20 Broad Street,
New York, New York 10005; Chicago Stock Exchange, 440 South LaSalle Street,
Chicago, Illinois 60605; and the Pacific Stock Exchange, 301 Pine Street, San
Francisco, California 94104. This Prospectus does not contain all the
information set forth in the Registration Statement and exhibits thereto which
the Company has filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"), to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1994, filed with the Commission, is incorporated by reference in this
Prospectus.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified and superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any and all of the information that has been incorporated by reference in this
Prospectus, excluding exhibits. Such requests should be directed to Corporate
Communications Department, Whitman Corporation, 3501 Algonquin Road, Rolling
Meadows, Illinois 60008, telephone: (708) 818-5000.
2
<PAGE>
THE COMPANY
Whitman is a holding company which conducts its business through three
principal subsidiaries: Pepsi-Cola General Bottlers, Inc. ("Pepsi General"),
Midas International Corporation ("Midas"), and Hussmann Corporation
("Hussmann"). The Company's principal executive offices are located at 3501
Algonquin Road, Rolling Meadows, Illinois 60008, telephone: (708) 818-5000.
In 1988, the Company changed its name from IC Industries, Inc. to Whitman
Corporation and sold its aerospace and defense subsidiary (Pneumo Abex
Corporation). In 1989, the Company spun off to its shareholders its railroad
operations (Illinois Central Railroad Company). In 1991, the Company spun off
to its shareholders all of the common stock of Pet Incorporated, a specialty
foods company.
PEPSI GENERAL
Pepsi General is the largest independent Pepsi bottler in the United States.
Pepsi General packages and distributes Pepsi-Cola products, including Pepsi,
Diet Pepsi, Caffeine Free Pepsi, Caffeine Free Diet Pepsi, Wild Cherry Pepsi,
Mountain Dew, Diet Mountain Dew, Slice and All Sport, under exclusive
franchises in markets in 12 states in the North-Central United States with a
population of approximately 25 million people. Pepsi General also packages and
sells other beverages in some markets, including Seven-Up, Dr Pepper, Dad's
Root Beer, A & W Root Beer, Canada Dry, Hawaiian Punch, Ocean Spray and
Lipton's Tea.
Pepsi General's franchises grant it the exclusive right to produce and sell
the products and use the related trade names and trademarks in the franchised
territories. The franchises require Pepsi General, among other things, to
purchase its concentrate requirements solely from the franchisor at prices
established by the franchisor, and to promote diligently the sale and
distribution of the franchised products. Packaging materials (bottles, bottle
caps, cans, cartons and cases) are obtained from manufacturers approved by the
franchisor and other items are purchased in the general market. The franchises
are for an indefinite term and are subject to termination upon failure to
comply with the provisions of the franchise agreement.
Products are distributed by Pepsi General to retail outlets primarily by
trucks operated by Pepsi General route salesmen. Pepsi General also owns,
leases or sells the vending machines which dispense its soft drink products in
factories, offices, schools, stores, gasoline stations and other locations.
Pepsi General's facilities include six bottling plants, three canning plants,
three combination bottling/canning plants and more than 60 warehouses and
distribution facilities.
As the result of an agreement entered into in 1987, Pepsi General is 80%
owned by Whitman and 20% owned by a subsidiary of PepsiCo, Inc. ("PepsiCo"),
which is the franchisor of Pepsi-Cola products. While Pepsi General manages all
phases of its operations, including pricing of its products, PepsiCo and Pepsi
General exchange production, marketing, and distribution information.
In 1994, PepsiCo granted Pepsi General a franchise for the distribution of
Pepsi-Cola products in the western and northern areas of Poland for an initial
term of 15 years. Pepsi General anticipates an investment of as much as $100
million over the next 5-8 years in Poland, and will in the near term incur
losses in Poland as this new venture is developed.
MIDAS
Midas operates the world's largest franchised dealer network specializing in
under-the-car services. Midas services automotive exhaust systems,
steering/suspension systems and brakes through approximately 2,575 franchised
and company-owned shops operating in 14 countries. Approximately 87% of the
shops are franchised and the remainder are company-owned.
Four domestic manufacturing plants produce nearly 1,800 different types of
mufflers and more than 2,700 types of exhaust and tail pipes which will fit
nearly 96% of the cars and light trucks -- both foriegn
3
<PAGE>
and domestic -- on the road today in the U.S. The principal source of Midas'
revenue is derived from its network of franchised and company-owned and
operated retail shops. Midas collects an initial franchise fee and receives
yearly royalties based upon the franchisees' gross revenues. In addition, Midas
generates revenues from the sale of manufactured mufflers and tubing, and from
the resale of purchased parts (primarily brakes, shocks and front-end alignment
components) to its franchisees. Midas also sells its manufactured exhaust
system parts under other brand names to automotive parts distributors, jobbers
and automobile accessory stores and its fabricated tube-bending equipment to
jobbers and retail installers.
Midas' warranty of mufflers, brakes and shocks is particularly important to
its marketing program. Competitors include automotive service centers of retail
chain stores, muffler shops, automotive dealers, gasoline stations and
independent repair shops.
HUSSMANN
Hussmann produces merchandising and refrigeration systems for supermarkets
and other food stores. Products include refrigerated display cases,
commercial/industrial refrigeration systems, storage coolers, bottle coolers,
walk-in coolers, and HVAC equipment. Hussmann is the market leader in North
America, and has substantial operations in the United Kingdom. Its customers
include independent and chain-owned supermarkets, other grocery stores and
convenience/specialty stores.
Hussmann operates 17 manufacturing facilities in the United States, Mexico,
Canada and the United Kingdom, and also operates a number of branch facilities
which sell, install and service Hussmann products. Hussmann products are
marketed internationally by both Hussmann sales personnel and independent
distributors.
In December, 1994, Hussmann established a joint venture in China with Luoyang
Refrigeration Machinery Factory to produce refrigeration systems and food
display cases. Hussmann has a 55% interest in the joint venture, and will
initially invest $5.5 million for state-of-the-art production systems in China.
It is expected that the joint venture will begin production of cases designed
by Hussmann in the spring of 1995.
RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges(1)............... 3.6x 3.0x 2.6x 2.2x 0.8x(2)
</TABLE>
--------
(1) The ratio of earnings to fixed charges for the Company is defined as income
before provision for income taxes and minority interest plus interest
expense (including amortization of debt issuance expense), and the portion
of rental expense which represents interest (deemed to be one-third of
rentals) divided by fixed charges. Fixed charges include interest expense
(including capitalized interest and amortization of debt issuance expense)
and the portion of rental expense which represents interest.
(2) In 1990, the ratio of earnings to fixed charges was less than one-to-one
coverage principally as a result of a $170.8 million restructuring charge.
The dollar amount of fixed charge coverage deficiency in 1990 was $39.3
million. Excluding the restructuring charge, the ratio of earnings to fixed
charges was 1.8x in 1990.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Securities will be used for general corporate
purposes, including the repayment of indebtedness.
4
<PAGE>
DESCRIPTION OF SECURITIES
The following description of the Securities sets forth certain general terms
and provisions to which any Prospectus Supplement may relate. The particular
terms of Securities being offered and the extent to which such general
provisions apply are described in the Prospectus Supplement relating thereto.
The Securities are to be issued under an Indenture dated as of January 15,
1993 (the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee ("Trustee"). The Indenture is filed as an exhibit to the
Registration Statement. The following summary of certain provisions of the
Securities and the Indenture does not purport to be complete and is subject to,
and is qualified in its entirety by, all of the provisions of the Indenture.
Article and section references in parentheses are to the Indenture. Wherever
particular provisions (including definitions) of the Indenture are referred to,
such provisions are incorporated by reference as a part of the statements made,
and the statements are qualified in their entirety by such reference.
GENERAL
The Securities will be unsecured and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. The Indenture
provides that the Securities may be issued thereunder from time to time in one
or more series and does not limit the aggregate principal amount of the
Securities or of any particular series of Securities.
The Securities may be issued in fully registered form without coupons or in
unregistered form with or without coupons. The Securities may also be issued in
the form of one or more temporary or definitive global securities (each a
"Global Security"). Registered Securities which are book-entry securities will
be issued as registered Global Securities. Unregistered Securities may also be
issued in the form of temporary or definitive Global Securities.
The Securities may be denominated in U.S. dollars, or in any other currency
or currency unit. If any of the Securities are sold for any foreign currency or
currency unit or if principal of (and premium, if any) and interest, if any, on
any of the Securities are payable in any foreign currency or currency unit, the
restrictions, elections, tax consequences, specific terms and other information
with respect to such issue of Securities and such foreign currency or currency
unit will be set forth in the Prospectus Supplement relating thereto.
Reference is made to the Prospectus Supplement for the following terms of a
series of Securities being offered: (a) the title of such Securities; (b) the
aggregate principal amount of Securities; (c) the rate or rates (which may be
fixed or variable) at which the Securities will bear interest, if any, or the
method of determining any interest, the date or dates from which any such
interest will accrue, the date or dates on which any such interest will be
payable, and the record date for the interest payable on any interest payment
date; (d) the date or dates of maturity; (e) the period or periods within
which, the price or prices at which, and the terms and conditions upon which,
the Company may redeem the Securities; (f) the obligation, if any, of the
Company to redeem the Securities pursuant to a sinking fund or at the option of
the holder and the period or periods within which, the price or prices at
which, and the terms and conditions upon which, the Securities will be
redeemed; (g) the portion of the principal amount of the Securities due upon
acceleration of maturity in the event of a default; (h) the denominations in
which the Securities will be issuable if other than denominations of $1,000 if
registered and $5,000 if unregistered; (i) the form used to evidence ownership
of the Securities; (j) information with respect to conversion of the
Securities, if convertible; (k) the places where the principal (and premium, if
any) and interest, if any, are payable; (1) additional offices or agencies for
registration of transfer and exchange and for payment of the principal (and
premium, if any) and interest, if any; (m) whether the Securities will be
issued as registered Securities, or as unregistered Securities, including
temporary and definitive Global Securities, the depositary for any Global
Security, and the circumstances, if any, upon which such Securities may be
exchanged for Securities issued in a different form; (n) if other than U.S.
dollars, the coin, currency or currencies, or currency unit or units for which
the Securities may be
5
<PAGE>
purchased and in which the payment of principal of (and premium, if any) and
interest, if any, on such Securities will be made; (o) if the Company or the
holders of such Securities may elect payment in a coin, currency or currencies,
or currency unit or units other than that in which such Securities are
denominated, then the period or periods within which, and the terms and
conditions upon which, such election may be made and any provision requiring
the holders to bear currency exchange costs; (p) if the amount of any payment
on the Securities may be determined with reference to a currency, currency
unit, commodity or financial or non-financial index or indices, then the manner
in which any such amount shall be determined; (q) whether and under what
circumstances the Company will pay additional amounts to any holder of such
Securities who is not a U.S. person in respect of any tax, assessment or
governmental charge required to be withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than pay any
additional amounts; (r) the person to whom any interest on a registered
Security will be payable if other than as registered on the record date, the
manner in which or person to whom any interest on an unregistered Security will
be payable if other than upon surrender of the appropriate coupon and the
manner in which any interest on a Global Security will be paid; (s) whether
defeasance and discharge provisions will not apply to the Securities; and (t)
any other terms not inconsistent with the Indenture. (Section 2.01)
Unless otherwise indicated in the Prospectus Supplement, principal (and
premium, if any) and interest, if any, will be payable, and the Securities
covered thereby may be registered for transfer or exchange, at the principal
corporate trust office of the Trustee in Chicago, Illinois, provided that at
the option of the Company, payment of interest on registered Securities may be
made by check mailed to the address of the person entitled thereto as it
appears on the Security Register or by wire transfer as instructed by the
person entitled thereto. (Sections 4.01 and 4.02) No service charge will be
made for any exchange or registration of transfer of the Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge. (Section 2.06)
Unless otherwise described in a Prospectus Supplement, there are no covenants
or provisions contained in the Indenture which may afford the holders of
Securities of a series protection in the event of a highly leveraged
transaction involving the Company.
GLOBAL SECURITIES
Securities of a series may be issued in whole or in part as one or more
Global Securities that will be deposited with, or on behalf of, a depositary
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued in either registered or unregistered form and in
either temporary or definitive form. (Section 2.01) The specific terms of the
depositary arrangement with respect to any Global Security of a series will be
described in the Prospectus Supplement relating to such series.
LIMITATION ON LIENS
The Indenture provides that neither the Company nor any Restricted Subsidiary
(as defined below) will issue, assume or guarantee any notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed ("Debt") secured
by a mortgage, security interest, lien, pledge or other encumbrance ("liens")
upon any Principal Property (as defined below), or on any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Principal Property,
shares of stock or indebtedness are now owned or hereafter acquired), without
effectively providing that the Securities (together with, if the Company so
determines, any other indebtedness or obligation then existing or thereafter
created, ranking equally with the Securities) shall be secured equally and
ratably with (or prior to) such Debt so long as such Debt is so secured. This
restriction will not apply to (a) liens affecting property of a corporation
existing at the time it becomes a Subsidiary (as defined below) of the Company
or at the time it is merged into or consolidated with or purchased by the
Company or a Subsidiary; (b) liens existing at the time of acquisition of the
property affected thereby or purchase money liens incurred within 180 days
after acquisition of the property; (c) liens to secure the cost of construction
of new plants or facilities, incurred within 180 days of completion of
construction; (d) liens
6
<PAGE>
which secure indebtedness owing by a Restricted Subsidiary to the Company or
another Restricted Subsidiary; (e) liens existing on the date of the Indenture;
(f) liens in connection with the issuance of certain pollution control or
industrial revenue bonds or similar financings; (g) certain statutory liens or
similar liens arising in the ordinary course of business; (h) certain liens in
connection with legal proceedings and government contracts and certain deposits
or liens made to comply with workers' compensation or similar legislation; (i)
liens existing on property acquired by the Company or a Restricted Subsidiary
through the exercise of rights arising out of defaults on receivables acquired
in the ordinary course of business; (j) liens for certain judgments and awards;
(k) liens for certain taxes, assessments, governmental charges or other liens
of a similar nature, which do not materially impair the use of such property in
the operation of the business of the Company or a Restricted Subsidiary or the
value of such property for the purposes of such business; and (l) certain
extensions, renewals or replacements of any liens referred to in the foregoing
clauses (a) through (k). (Section 4.05) See also "Exempted Indebtedness" below.
LIMITATION ON SALE AND LEASE-BACK
The Indenture provides that neither the Company nor any Restricted Subsidiary
will enter into any sale and lease-back transaction with respect to any
Principal Property (except for temporary leases of a term, including renewals,
not exceeding five years) unless either (a) the Company or such Restricted
Subsidiary would be entitled, pursuant to the provisions of Section 4.05, to
incur Debt secured by a lien on the property to be leased without equally and
ratably securing the Securities, or (b) the Company within 180 days after the
effective date of such transaction applies to the voluntary retirement of its
funded debt an amount equal to the value of such transaction, defined as the
greater of the net proceeds of the sale of the property leased in such
transaction or the fair value, in the opinion of the Board of Directors, of the
leased property at the time such transaction was entered into. (Section 4.06)
See also "Exempted Indebtedness" below.
DEFINITIONS
The term "Principal Property" means any manufacturing plant or warehouse
owned or leased by the Company or any Subsidiary located within the United
States of America, the gross book value of which exceeds one percent of
Consolidated Net Worth (as defined below), other than manufacturing plants and
warehouses which the Board of Directors by resolution declares, together with
all other plants and warehouses previously so declared, is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety. The term "Restricted Subsidiary" is defined to
mean any Subsidiary which owns or leases a Principal Property and substantially
all the property of which is located, or substantially all of the business of
which is carried on, within the United States of America or which is
incorporated under the laws of any state of the United States of America. The
term "Subsidiary" means any corporation at least a majority of the outstanding
securities of which having ordinary voting power to elect a majority of the
board of directors of such corporation (whether or not any other class of
securities has or might have voting power by reason of the occurrence of a
contingency) is at the time owned or controlled, directly or indirectly, by the
Company, by one or more Subsidiaries or by the Company and one or more
Subsidiaries. (Article One). The term "Consolidated Net Worth" means the excess
of assets over liabilities of the Company and its consolidated Subsidiaries,
plus Minority Interests, as determined from time to time in accordance with
generally accepted accounting principles consistently applied. The term
"Minority Interest" is defined as any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares) that are not owned by the
Company or a Subsidiary. (Section 6.01)
EXEMPTED INDEBTEDNESS
Notwithstanding the foregoing limitations on liens and sale and lease-back
transactions, the Company and its Restricted Subsidiaries may issue, assume, or
guarantee Debt secured by a lien without securing the Securities, or may enter
into sale and lease-back transactions without retiring funded debt, or enter
into a combination of such transactions, if the sum of the principal amount of
all such Debt and the aggregate value of all such sale and lease-back
transactions does not at any such time exceed 10% of the consolidated total
7
<PAGE>
assets of the Company and its consolidated Subsidiaries as shown in the audited
consolidated balance sheet contained in the latest annual report to the
shareholders of the Company. (Section 4.07)
DEFEASANCE
Unless otherwise provided in the applicable Prospectus Supplement, the
following defeasance provisions will apply to the Securities being offered
thereby.
Satisfaction and Discharge. The Indenture provides that, unless inapplicable
to any series of Securities, the Company will be discharged from any and all
obligations in respect of the Securities of any series (except, among other
things, for certain obligations to register the transfer or exchange of
Securities of such series, to replace stolen, lost, destroyed or mutilated
Securities of such series, to maintain paying agencies and to hold monies for
payment in trust), if the Company shall deposit with the Trustee, in trust,
money and/or Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of (and premium, if any) and each
installment of interest on the Securities of such series on the due date of
such payments in accordance with the terms of the Indenture and the Securities
of such series. Such a trust may only be established if, among other things,
the Company has delivered to the Trustee an opinion of counsel of recognized
national standing to the effect that holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, satisfaction and discharge and will be subject to
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge
had not occurred. (Section 12.02(a)) The term "Government Obligations" with
respect to any series of Securities means direct noncallable obligations of the
government which issued the currency in which the Securities of that series are
denominated or noncallable obligations the payment of the principal of and
interest on which is fully guaranteed by such government and which, in either
case, are full faith and credit obligations of such government. (Article One)
Defeasance of Certain Covenants and Certain Events of Default. The Indenture
provides that, unless inapplicable to any series of Securities, the Company may
omit to comply with certain covenants in Sections 4.05 (Limitation on Liens),
4.06 (Limitation on Sale and Lease-back) and 4.07 (Exempted Indebtedness) and
Article Eleven (Consolidation, Merger, Sale, Conveyance or Lease) if the
Company shall deposit with the Trustee, in trust, money and/or Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and each installment
of interest on the Securities of such series on the due date of such payments
in accordance with the terms of the Indenture and the Securities of such
series. All obligations of the Company under the Indenture and the Securities
of such series other than with respect to the covenants referred to above and
all Events of Default other than with respect to such covenants shall remain in
full force and effect. Such a trust may only be established if, among other
things, the Company has delivered to the Trustee an opinion of counsel of
recognized national standing to the effect that the holders of the Securities
of such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain covenants and
Events of Default and will be subject to federal income tax on the same amount
and in the same manner and at the same times, as would have been the case if
such deposit and defeasance had not occurred. (Section 12.02(b))
Defeasance and Certain Other Events of Default. In the event the Company
exercises its option to omit to comply with Sections 4.05, 4.06 and 4.07 and
Article Eleven of the Indenture with respect to the Securities of any series as
described above and the Securities of such series are declared due and payable
because of the occurrence of any Event of Default other than default with
respect to Sections 4.05, 4.06 and 4.07 and Article Eleven as referred to
above, the amount of money and Government Obligations on deposit with the
Trustee will be sufficient to pay amounts payable on the Securities of such
series on their respective due dates without such acceleration, but may not be
sufficient to pay amounts due on the Securities of such series at the time of
the acceleration resulting from such Event of Default. However, the Company
would remain liable for such payments.
8
<PAGE>
MERGER AND CONSOLIDATION
The Company may consolidate with, or merge into, or sell, lease or convey all
or substantially all of its assets to, any person, if, among other things, (i)
the Company is the continuing corporation or the successor is a U.S.
corporation which assumes all the obligations of the Company under the
Securities and under the Indenture and (ii) after giving effect thereto, no
Event of Default under the Indenture or no event which, after notice or lapse
of time or both, would become an Event of Default shall have occurred and be
continuing. (Section 11.01)
EVENTS OF DEFAULT
An Event of Default with respect to any series of Securities is defined as
being: default for 30 days in payment of interest, if any, on any Security of
that series; default in payment of principal (or premium, if any) on any
Security of that series as and when the same becomes due; default by the
Company in the performance of any of the other covenants in Securities of that
series or in the Indenture relating to Securities of that series which shall
not have been remedied within a period of 90 days after notice to the Company
by the Trustee or holders of at least 25% in aggregate principal amount of the
Securities of that series then outstanding; certain events of bankruptcy,
insolvency or reorganization of the Company; or acceleration of any
indebtedness for money borrowed by the Company or any Restricted Subsidiary in
excess of the greater of $30,000,000 in aggregate principal amount or 5% of the
Consolidated Net Worth of the Company. (Section 6.01) No Event of Default with
respect to the Securities of a particular series constitutes an Event of
Default with respect to any other series. Additional Events of Default may be
prescribed for the benefit of holders of certain series of Securities and
described in the Prospectus Supplement relating to such Securities. The
Indenture provides that the Trustee will notify the holders of Securities of
each series of Events of Default known to it and affecting that series within
90 days after the occurrence thereof; provided that, except in the case of
default in the payment of principal (and premium, if any) and interest, if any,
or in the making of any sinking fund payment, the Trustee will be protected in
withholding such notice if it in good faith determines that the withholding of
such notice is in the interest of the holders of such Securities. (Section
7.02)
The Indenture provides that if an Event of Default with respect to any series
of Securities shall have occurred and be continuing, either the Trustee or the
holders of at least 25% in aggregate principal amount of Securities of that
series then outstanding may declare, upon written notice, the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all the Securities of that series to be immediately due and payable,
but upon certain conditions such declaration may be annulled and past defaults
(except, unless theretofore cured, a default in payment of principal of (and
premium, if any) and interest, if any, on Securities of that series) may be
waived by the holders of a majority in principal amount of the Securities of
that series then outstanding. (Section 6.02)
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default with respect to any series of Securities
shall occur and be continuing, the Trustee will be under no obligation to
exercise any of the rights or powers in the Indenture at the request or
direction of any of the holders of that series, unless such holders shall have
offered to the Trustee reasonable security or indemnity. (Sections 7.01 and
7.03) The holders of a majority in principal amount of the Securities of each
series affected by an Event of Default and then outstanding have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee under the Indenture or exercising any trust or power
conferred on the Trustee with respect to the Securities of that series.
(Section 6.12)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in principal amount
of the Securities of each series at the time outstanding, to execute
supplemental indentures adding any provisions to, or changing in any manner or
eliminating any
9
<PAGE>
of the provisions of, the Indenture or any supplemental indenture with respect
to the Securities of such series; provided that no such supplemental indenture
may, among other things (a) extend the maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
any interest thereon, or reduce any premium payable upon the redemption
thereof, or change the currency in which any Security is payable, without the
consent of the holder of each Security so affected, or (b) reduce the aforesaid
majority in principal amount of the Securities of such series, the consent of
the holders of which is required for any such supplemental indenture, without
the consent of the holders of all Securities of such series. (Section 10.02)
THE TRUSTEE
The First National Bank of Chicago (the "Trustee") has lending and other
customary banking relationships with the Company. First Chicago Capital
Markets, Inc., an affiliate of the Trustee, has from time to time acted as a
selling agent in the distribution of the Company's debt securities.
PLAN OF DISTRIBUTION
Whitman may sell Securities to underwriters, to or through dealers, acting as
principals or as agents, or directly to other purchasers. Securities also may
be sold by underwriters directly to other purchasers or through other dealers,
which may receive compensation from the underwriters in the form of discounts,
concessions or commissions. The Prospectus Supplement with respect to
Securities being offered sets forth the terms of the offering, including the
name or names of any underwriters or agents, any discounts, commissions and
other items constituting compensation from the Company and any discounts,
concessions or commissions allowed or reallowed or paid by any underwriters to
other dealers. Underwriters, dealers and agents that participate in the
distribution of the Securities may be deemed to be underwriters and any
discounts, concessions or commissions received by them and any profit on the
resale of Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act.
The Securities may be sold from time to time in one or more transactions at a
fixed price or prices, which may be changed, at market prices prevailing at the
time of sale, at prices related to such market prices or at negotiated prices.
The place and time of delivery of Securities in respect of which this
Prospectus is delivered are set forth in the Prospectus Supplement.
If so indicated in the Prospectus Supplement, the Company has authorized
underwriters or agents to solicit offers by certain specified institutions to
purchase Securities from the Company at the offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject only to those conditions set forth in the Prospectus Supplement and to
the condition that the purchase of such Securities shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. Any commission payable for solicitation of such contracts
is set forth in the Prospectus Supplement. The underwriters and such other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
Each series of Securities to be offered will be a new issue of securities
with no established trading market. Certain underwriters to whom Securities are
sold by the Company for public offering and sale may make a market in such
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Securities.
Underwriters and agents may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act. Such underwriters
and agents may be customers of, engage in transactions with, or perform
services for the Company in the ordinary course of business.
10
<PAGE>
LEGAL OPINIONS
Unless otherwise indicated in the Prospectus Supplement, certain legal
matters in connection with the Securities offered hereby will be passed upon
for the Company by William B. Moore, Vice President, Secretary and General
Counsel of the Company, and by Sidley & Austin, Chicago, Illinois, and for any
underwriters or agents by Kirkland & Ellis, Chicago, Illinois. Mr. Moore is an
officer and full-time employee of the Company and owns, and holds options to
purchase, shares of its common stock.
EXPERTS
The consolidated financial statements incorporated herein by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1994 have been so incorporated in reliance on the report of KPMG Peat Marwick
LLP, independent certified public accountants, given upon the authority of said
firm as experts in accounting and auditing.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the estimated expenses of the issuance and distribution of
the securities (other than underwriting discounts and commissions) being
registered, all of which will be paid by the Company:
<TABLE>
<S> <C>
SEC registration fee............................................ $103,448
Printing and engraving.......................................... 35,000
Trustee's fees and expenses..................................... 6,000
Legal fees and expenses......................................... 60,000
Accounting fees and expenses.................................... 30,000
Blue Sky fees and expenses...................................... 28,000
Rating Agency fees.............................................. 150,000
Miscellaneous................................................... 10,000
--------
Total....................................................... $422,448
========
</TABLE>
All of the above amounts, other than the SEC registration fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware permits
indemnification of directors, officers, employees and agents of corporations
under certain conditions and subject to certain limitations. Article V of the
Company's By-Laws provides for indemnification of any director, officer,
employee or agent of the Company, or any person serving in the same capacity in
any other enterprise at the request of the Company, under certain
circumstances. Article NINTH of the Company's Certificate of Incorporation
eliminates the liability of directors of the Company under certain
circumstances for breaches of fiduciary duty to the Company and its
shareholders.
Directors and officers of the Company are insured, at the expense of the
Registrant, against certain liabilities which might arise out of their
employment and which might not be subject to indemnification under the By-Laws.
ITEM 16. EXHIBITS.
The following documents are filed herewith or incorporated herein by
reference. Documents indicated by an asterisk (*) are incorporated herein by
reference to the file number indicated.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S> <C>
1(a) Form of Underwriting Agreement.
1(b) Form of Distribution Agreement.
*4 Indenture dated as of January 15, 1993 between Whitman
Corporation and The First National Bank of Chicago,
Trustee (incorporated by reference to File No. 1-4710, An-
nual Report on Form 10-K for the year ended December 31,
1992, Exhibit (4)a).
5 Opinion of Sidley & Austin.
*12 Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to File No. 1-4710, An-
nual Report on Form 10-K for the year ended December 31,
1994, Exhibit 12).
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Sidley & Austin (included in Exhibit 5).
24 Powers of Attorney.
25 Statement of Eligibility and Qualification on Form T-1 of
The First National Bank of Chicago, as Trustee under the
Indenture pursuant to which the Debt Securities
registered hereunder are to be issued.
</TABLE>
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
In addition, the Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, WHITMAN
CORPORATION CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING THIS REGISTRATION STATEMENT ON FORM S-3 AND
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ROLLING MEADOWS, STATE
OF ILLINOIS, ON MARCH 24, 1995.
WHITMAN CORPORATION
Frank T. Westover
By: _________________________________
Frank T. Westover
Senior Vice President-Controller
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED
ON MARCH 24, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Bruce S. Chelberg*
-------------------------------------------
Bruce S. Chelberg Chairman and Chief Executive Officer and
Director
Thomas L. Bindley*
-------------------------------------------
Thomas L. Bindley Executive Vice President (Principal
Financial Officer)
Frank T. Westover*
-------------------------------------------
Frank T. Westover Senior Vice President-Controller (Principal
Accounting Officer)
Richard G. Cline*
-------------------------------------------
Richard G. Cline Director
-------------------------------------------
James W. Cozad Director
-------------------------------------------
Pierre S. du Pont Director
Archie R. Dykes*
-------------------------------------------
Archie R. Dykes Director
Helen Galland*
-------------------------------------------
Helen Galland Director
Jarobin Gilbert, Jr.*
-------------------------------------------
Jarobin Gilbert, Jr. Director
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Victoria B. Jackson*
-------------------------------------------
Victoria B. Jackson Director
-------------------------------------------
Donald P. Jacobs Director
Charles S. Locke*
-------------------------------------------
Charles S. Locke Director
</TABLE>
Frank T. Westover
*By: ________________________________
Frank T. Westover
Attorney-in-Fact
II-4
<PAGE>
EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference. Documents indicated by an asterisk (*) are incorporated herein by
reference to the file number indicated.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
1(a) Form of Underwriting Agreement.
1(b) Form of Distribution Agreement.
*4 Indenture dated as of January 15, 1993 between Whitman Corpora-
tion and The First National Bank of Chicago, Trustee (incorpo-
rated by reference to File No. 1-4710, Annual Report on Form 10-
K for the year ended December 31, 1992, Exhibit (4)a).
5 Opinion of Sidley & Austin.
*12 Statement of Calculation of Ratio of Earnings to Fixed Charges
(incorporated by reference to File No. 1-4710, Annual Report on
Form 10-K for the year ended December 31, 1994, Exhibit 12).
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of Sidley & Austin (included in Exhibit 5).
24 Powers of Attorney.
25 Statement of Eligibility and Qualification on Form T-1 of The
First National Bank of Chicago, as Trustee under the Indenture
pursuant to which the Debt Securities registered hereunder are
to be issued.
</TABLE>
<PAGE>
EXHIBIT 1(a)
DRAFT 3/23/95
WHITMAN CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
__________, 1995
[Name and address of Underwriters]
Dear Sirs:
1. Introductory. Whitman Corporation, a Delaware corporation
("Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) ("Registered Securities"). The Registered Securities will be issued under
an indenture, dated as of January 15, 1993 ("Indenture"), between the Company
and The First National Bank of Chicago, as Trustee, in one or more series, which
series may vary as to interest rates, maturities, redemption provisions, selling
prices and other terms, with all such terms for any particular series of the
Registered Securities being determined at the time of sale. Particular series
of the Registered Securities will be sold pursuant to a Terms Agreement referred
to in Section 3, for resale in accordance with terms of offering determined at
the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b), 5(b)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (No. 33-50109), (the "First
Registration Statement"), as amended by Post-Effective Amendment No. 1 thereto,
and a registration statement on Form S-3 (No. 33- ) (the "Second
Registration Statement") (such Second Registration Statement also constituting
Post-Effective Amendment
<PAGE>
No. 1 to the First Registration Statement) including a prospectus, relating to
the Registered Securities has been filed with the Securities and Exchange
Commission ("Commission") and each such Registration Statement has become
effective. The First Registration Statement and the Second Registration
Statement (in each case as amended, if applicable) collectively and the
prospectus constituting part of such Registration Statements (including in each
case the information, if any, deemed to be part thereof pursuant to Rule 430A(b)
under the Securities Act of 1933, as amended ("Act")), including all material
incorporated therein by reference, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the Securities
and the terms of offering thereof, as first filed with the Commission pursuant
to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act, including
all material incorporated by reference therein, is hereinafter referred to as
the "Prospectus".
(b) On the respective effective dates of the First Registration
Statement and the Second Registration Statement relating to the Registered
Securities, such Registration Statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("Trust Indenture Act")
and the rules and regulations of the Commission ("Rules and Regulations") and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. On the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, and neither of such documents will include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, except that
the foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by any
Underwriter through the Representatives, if any, specifically for use therein.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of a
Terms Agreement substantially in the form of Annex I attached hereto ("Terms
Agreement") and a Letter of Acceptance substantially in the form of Annex II
attached hereto at the time the Company determines to sell the Securities. The
Terms Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms which
will be Underwriters, the names of any Representatives, the principal amount to
be purchased by each Underwriter, the purchase price to be paid by the
Underwriters and the terms of the Securities not already specified in the
Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions
-2-
<PAGE>
and any sinking fund requirements and whether any of the Securities may be sold
to institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time and date not later than five
full business days thereafter as the Representatives and the Company agree as
the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as set
forth in the Prospectus. The Securities delivered to the Underwriters on the
Closing Date will be in definitive, fully registered form, in such denominations
and registered in such names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex III attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be made only with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount of Securities to be sold pursuant to Delayed
Delivery Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each Underwriter's name in
such Terms Agreement, except to the extent that the Representatives determine
that such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to Kirkland & Ellis, counsel for the
Underwriters, one signed copy of the registration statement relating to the
Registered Securities, including all exhibits, in the form it became effective
and of all amendments thereto and that, in connection with each offering of
Securities:
-3-
<PAGE>
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to
by the Representatives, Rule 424(b)(5)) not later than the second business day
following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus and
will afford the Representatives a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise the
Representatives promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best efforts
to prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the
Act, the Company will, as soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the registration
statement relating to the Registered Securities, (ii) the effective date of the
most recent post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date of filing
with the Commission of the Company's most recent Annual Report on Form 10-K
prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
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(f) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as the Representatives shall reasonably designate and
will continue such qualifications in effect so long as required for the
distribution; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon request, to
each of the other Underwriters, if any, as soon as practicable after the end of
each fiscal year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representatives (i) as soon as available, a copy
of each report on Form 10-K or 10-Q or definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934 ("Exchange
Act") or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as the Representatives may reasonably
request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters for any
expenses (including fees and disbursements of counsel) incurred by them in
connection with qualification of the Registered Securities for sale under the
laws of such jurisdictions as the Representatives may reasonably designate and
the printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses and any preliminary
prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms
Agreement and ending one business day after the Closing Date, the Company will
not, without the prior consent of the Representatives, offer, sell, contract to
sell or otherwise dispose of any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of more
than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representa tions and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
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(a) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(b) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company
or its subsidiaries which, in the judgment of a majority in interest of the
Underwriters, including any Representatives, is so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the delivery
of the Securities or the Registered Securities as contemplated by the
Registration Statement and the Prospectus; (ii) any downgrading in the rating of
any debt securities of the Company by Standard & Poor's Corporation or Moody's
Investors Service, Inc., or any public announcement that either such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices or trading on
such exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgement of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Securities.
(c) The Representatives shall have received an opinion, dated the
Closing Date, of Sidley & Austin, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus;
(ii) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act; the
Securities have been duly authorized; the Indenture and the Securities other
than any Contract Securities constitute, and any Contract
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<PAGE>
Securities, when executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed Delivery Contracts,
will constitute, valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting the enforcement of
creditors' rights and by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
Securities other than any Contract Securities conform in all material
respects, and any Contract Securities, when so issued and delivered and
sold, will conform, in all material respects, to the description thereof
contained in the Prospectus;
(iii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the issuance
or sale of the Securities by the Company, except such as have been obtained
and made under the Act and the Trust Indenture Act and such as may be
required under state securities laws or Blue Sky laws of various
jurisdictions;
(iv) Each document filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus (other than the financial statements and the
notes thereto and the supporting schedules and other financial or
statistical data derived therefrom or included or incorporated by reference
therein, as to which no opinion need be given) complied when filed as to
form in all material respects with the Exchange Act and the Rules and
Regulations thereunder;
(v) The Registration Statement has become effective under the Act, the
Prospectus was duly filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified therein, and,
to the knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened under the Act, and (A) the First Registration Statement and the
Second Registration Statement relating to the Registered Securities, as of
their respective effective dates, the Registration Statement and the
Prospectus, as of the date of the Terms Agreement and the applicable Closing
Date, and any amendment or supplement thereto, as of its date (other than in
each case the financial statements and the notes thereto and the supporting
schedules and other financial or statistical data derived therefrom or
included or incorporated by reference therein, as to which no opinion need
be expressed), complied or comply, as the case may be, as to form in all
material
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<PAGE>
respects with the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; (B) nothing came to such counsels' attention which
causes them to believe that the First Registration Statement or the Second
Registration Statement, as of their respective effective dates, the
Registration Statement or the Prospectus as of the date of the Terms
Agreement and the applicable Closing Date, or any such amendment or
supplement, as of its date (other than in each case the financial statements
and the notes thereto and the supporting schedules and other financial or
statistical data derived therefrom or included or incorporated by reference
therein, as to which no belief need be expressed), contained or contains, as
the case may be, an untrue statement of a material fact or omitted or omits,
as the case may be, to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of the date of the Terms Agreement and the applicable Closing
Date, and any amendment or supplement thereto, as of its date (other than in
each case the financial statements and the notes thereto and the supporting
schedules and other financial or statistical data derived therefrom or
included or incorporated by reference therein, as to which no belief need be
expressed), included or includes, as the case may be, an untrue statement of
a material fact or omitted or omits, as the case may be, to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (C) the
information in the Prospectus under the caption "Description of Securities"
or a comparable section describing the Securities and the Indenture is
accurate in all material respects; and
(vi) This Agreement and any applicable Terms Agreement and any Delayed
Delivery Contracts have each been duly authorized, executed and delivered by
the Company.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of William B. Moore, General Counsel of the Company, to the effect
that:
(i) The Company is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or leases
substantial properties or in which the conduct of its business requires such
qualification, except where the failure to so qualify would not,
individually or in the aggregate, have a material adverse effect on the
properties, assets, operations, business or condition (financial or
otherwise) of the Company and its subsidiaries taken as a whole;
(ii) Each "significant subsidiary" (as defined in Regulation S-X of
the Commission) of the Company has been duly incorporated and is an existing
corporation in good standing
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<PAGE>
under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus;
(iii) Each such significant subsidiary of the Company is in good
standing and is duly qualified to do business as a foreign corporation in
all jurisdictions in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification, except where
the failure to be in good standing or so qualify would not, individually or
in the aggregate, have a material adverse effect on the properties, assets,
operations, business or condition (financial or otherwise) of the Company
and its subsidiaries taken as a whole; all of the issued and outstanding
capital stock of each such subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable, and all of such capital stock
is owned by the Company, directly or through subsidiaries, free and clear of
any mortgage, pledge, lien, encumbrance, claim or equity, except (a) as set
forth in Exhibit 21 of the Company's most recent Annual Report on Form 10-K
filed with the Commission and (b) 2,025 shares of non-voting preferred stock
of Pepsi-Cola General Bottlers, Inc. (constituting 100% of the issued shares
of such series of preferred stock) are owned by an affiliate of PepsiCo,
Inc.;
(iv) The execution, delivery and performance of the Indenture, this
Agreement, the Terms Agreement and Letter of Acceptance and any Delayed
Delivery Contracts and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not result in a breach
or violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental agency
or body or any court having jurisdiction over the Company or any subsidiary
of the Company or any of their properties or any agreement or instrument to
which the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, and the Company has the power and authority
to authorize, issue and sell the Securities as contemplated by this
Agreement and the Terms Agreement;
(v) To the best of such counsel's knowledge and information, (A) there
are no contracts, indentures, mortgages, loan agreements, notes, deeds of
trust, leases or other instruments required to be described or referred to
in the Registration Statement or to be filed as exhibits thereto, other than
those described or referred to therein or filed or incorporated by reference
as exhibits thereto, and (B) no default exists in the due performance or
observance of any obligation, agreement, covenant or condition contained in
any
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<PAGE>
contract, indenture, mortgage, loan agreement, note, deed of trust, lease or
other instrument which breach would, individually or in the aggregate, have
a material adverse effect on the properties, assets, operations, business or
condition (financial or otherwise) of the Company and its subsidiaries taken
as a whole; and
(vi) Nothing came to such counsel's attention which causes him to
believe that the First Registration Statement or the Second Registration
Statement, as of their respective effective dates, the Registration
Statement as of the date of the Terms Agreement and the applicable Closing
Date, or any such amendment or supplement, as of its date, contained or
contains an untrue statement of a material fact or omits or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of
the Terms Agreement and the applicable Closing Date, and any amendment or
supplement thereto, as of its date, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents constitute an accurate summary
of such statutes, proceedings, contracts and other documents in all material
respects; it being understood that such counsel need express no opinion as
to the financial statements and the notes thereto or the supporting
schedules and other financial or statistical data derived therefrom
contained in the Registration Statement or the Prospectus or incorporated by
reference therein.
(e) The Representatives shall have received from Kirkland & Ellis,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as they may require, and the Company shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the Chairman and Chief Executive Officer or any Vice President
and the principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date, that no stop order suspending the effectiveness of
the Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
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<PAGE>
Commission and that, subsequent to the date of the most recent financial
statements in or incorporated by reference in the Prospectus, there has been no
material adverse change in the financial position or results of operation of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of KPMG Peat Marwick LLP, confirming that they are independent
public accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and schedules
audited by them and included or incorporated by reference in the
Registration Statement and the Prospectus, comply in form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published Rules and Regulations;
(ii) they have performed specified procedures, not constituting an
audit, including a reading of the latest interim financial data of the
Company and its consolidated subsidiaries, a reading of the minute books of
the Board of Directors of the Company since the end of the most recent
fiscal year with respect to which an audit report has been issued, inquiries
of and discussions with certain officials of the Company responsible for
financial and accounting matters with respect to the unaudited consolidated
financial data included or incorporated by reference in the Prospectus and
the latest available unaudited interim financial data of the Company and its
consolidated subsidiaries, and such other inquiries and procedures as may be
specified in such letter;
(iii) on the basis of the procedures specified in (ii) above,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated financial statements, if any,
included or incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act
and the related published Rules and Regulations or any material
modification should be made to such unaudited financial statements for
them to be in conformity with generally accepted accounting principles;
(B) the unaudited summary financial information, if any,
included in the Prospectus does not agree with the amounts set forth in
the unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially
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<PAGE>
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus;
(C) at the date of the latest available balance sheet read by
such accountants, there was any change in the capital stock or any
increase in long-term debt, including current maturities, of the Company
and consolidated subsidiaries and at the date of the latest available
balance sheet read by such accountants, there was any decrease in total
shareholders' equity, in each case as compared with amounts shown on the
latest balance sheet included or incorporated by reference in the
Prospectus; and at a subsequent specified date not more than five days
prior to the Closing Date, there was any change greater than three
percent in the capital stock or any increase greater than five percent
in long-term debt, including current maturities, of the Company and
consolidated subsidiaries as compared with amounts shown on the latest
balance sheet included or incorporated by reference in the Prospectus;
and
(D) for the period from the date of the latest income
statement included or incorporated by reference in the Prospectus to the
closing date of the latest available income statement read by such
accountants there were any decreases, as compared with the corresponding
period of the preceding year, in consolidated sales and revenues,
operating income or net income; and for the period from the closing date
of the latest available income statement read by such accountants to a
subsequent specified date not more than five days prior to the Closing
Date, there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated sales and revenues,
operating income or net income;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) in addition to the procedures specified in (ii) above, they
have carried out certain other limited procedures of a nature customarily
the subject of independent auditors' comfort letters with respect to (A)
specified dollar amounts (or percentages derived from such dollar amounts)
and (B) other financial information of a nature customarily the subject of
independent auditors' comfort letters, which is contained in the Prospectus,
including without limitation the ratios of earnings to fixed charges, and
have found such dollar amounts, percentages and other financial information
to be in agreement with the relevant accounting and financial
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<PAGE>
records specified in such letter, except as otherwise specified in such
letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
The Company will furnish the Representatives with such additional copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expense reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the
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<PAGE>
Representatives, if any, specifically for use therein, and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
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information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made
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within 36 hours after such default, such Terms Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except as
provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
The respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specifies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters under the Terms Agreement is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 5(b),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their addresses furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Whitman Corporation, 3501
Algonquin Road, Rolling Meadows, Illinois 60008, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors
-16-
<PAGE>
and the officers and directors and controlling persons referred to in Section 6,
and no other person will have any right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
* * * *
-17-
<PAGE>
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
WHITMAN CORPORATION
By:___________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[Name and signature block of Underwriters]
-18-
<PAGE>
ANNEX I
WHITMAN CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
---------------
_____________, 199_
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
Attention:
Dear Sirs:
On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we offer to purchase, on and subject to the terms
and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration state ment on Form S-3 (No. 33-_____) ("Underwriting
Agreement"), the following securities ("Securities") on the following terms:
Title: [ %] [Floating Rate]--Notes,--Debentures--Bonds--Due
Principal Amount: $
Interest: % per annum, from , 19 , payable
semiannually on and , commencing 19 , to holders of
record on the preceding __________ or ________, as the case may be.] [Zero
coupon.]
Maturity: , 19 .
Optional Redemption:
Sinking Fund:
Delayed Delivery Contracts: [None.] [Delivery Date(s) shall be
19 . Underwriters' fee is % of the principal amount of the Contract
Securities.]
Purchase Price: % of principal amount, plus accrued interest
[, if any,] from 19 .
I-1
<PAGE>
Expected Reoffering Price: % of principal amount, subject to
change by the undersigned.
Closing: A.M. on , 19 , at ______ in New York Clearing
House (next day) funds.
Representative[s]: [Name and address of Underwriter(s)]
The respective principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
It is understood that we may, with your consent, amend this offer to
add additional Underwriters and reduce the aggregate principal amount to be
purchased by the Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional Underwriters.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
I-2
<PAGE>
Please signify your acceptance of the foregoing by return wire not
later than 3:00 P.M. today.
Very truly yours,
[Name and signature block
for Underwriter(s)]
I-3
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
<S> <C>
[Underwriter(s)].............................................. $
---------
Total $
=========
</TABLE>
I-4
<PAGE>
ANNEX II
To: [Underwriters]
[Insert name(s) of Representatives of Underwriters
As Representative of the Several Underwriter[s],
c/o]
We accept the offer contained in your letter, dated ______________,
19__, relating to $____ million principal amount of our [Insert title of
securities]. We also confirm that, to the best of our knowledge after
reasonable investigation, the repre sentations and warranties of the undersigned
in the Underwriting Agreement filed as an exhibit to the undersigned's
registration statement on Form S-3 (No. 33-_____) ("Underwriting Agreement") are
true and correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the Under signed, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent finan cial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the finan cial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
WHITMAN CORPORATION
By:________________________________
Its:_______________________________
II-1
<PAGE>
ANNEX III
___________, 1995
DELAYED DELIVERY CONTRACT
-------------------------
Whitman Corporation
c/o
Gentlemen:
The undersigned hereby agrees to purchase from Whitman Corporation,
a Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, as of the date hereof, for delivery on _______________, 199_
("Delivery Date").
$________________
principal amount of the Company's _______________ securities ("Securities"),
offered by the Company's Prospectus dated ________, 1995 and a Prospectus
Supplement dated ___________, 199_ relating thereto, receipt of copies of which
is hereby acknowledged, at ___% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
Payment for the Securities that the undersigned has agreed to purchase
for delivery on the Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House (next day) funds at
the office of ______________ at 10:00 A.M. on the Delivery Date upon delivery to
the undersigned of the Securities to be purchased by the undersigned for
delivery on such Delivery Date in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the under signed; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on the Delivery Date shall be
subject only to the conditions that (1) investment in the Securities shall not
at the Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the under-
III-1
<PAGE>
signed is subject and (2) the Company shall have sold to the Underwriters the
total principal amount of the Securities less the principal amount thereof
covered by this and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which governs
such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first--come, first--served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the
III-2
<PAGE>
Company and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
___________________________________
(Name of Purchaser)
By: _______________________________
___________________________________
(Title of Signatory)
___________________________________
___________________________________
(Address of Purchaser)
Accepted, as of the above date.
WHITMAN CORPORATION
By:___________________________
III-3
<PAGE>
EXHIBIT 1(b)
DRAFT 3/23/95
$___________
WHITMAN CORPORATION
Medium-Term Notes, Series C
---------------------------
DISTRIBUTION AGREEMENT
----------------------
__________, 1995
[Name and address of Distributor(s)]
Dear Sirs:
1. Introduction. Whitman Corporation, a Delaware corporation (the "Issuer"),
confirms its agreement with each of you (individually, a "Distributor" and
collectively, the "Distributors") with respect to the issue and sale from time
to time by the Issuer of its medium-term notes registered under the registration
statement referred to in Section 2(a) (any such medium-term notes being
hereinafter referred to as the "Securities," which expression shall, if the
context so admits, include any permanent global Security). Securities may be
sold pursuant to Section 3 of this Agreement in an aggregate amount not to
exceed the amount of Registered Securities (as defined in Section 2(a) hereof)
registered pursuant to such registration statement reduced by the aggregate
amount of any other Registered Securities sold otherwise than pursuant to
Section 3 of this Agreement. The Securities will be issued under an indenture,
dated as of January 15, 1993 (the "Indenture"), between the Issuer and The First
National Bank of Chicago, as trustee (the "Trustee").
The Securities shall have the terms described in the Prospectus
referred to in Section 2(a) as it may be amended or supplemented from time to
time, including any supplement to the Prospectus that sets forth only the terms
of a particular issue of the Securities (a "Pricing Supplement"). Securities
will be issued, and the terms thereof established, from time to time by the
Issuer in accordance with the Indenture and the Procedures (as defined in
Section 3(d) hereof).
2. Representations and Warranties of the Issuer. The Issuer
represents and warrants to, and agrees with, each Distributor as follows:
<PAGE>
a. A registration statement on Form S-3 (No. 33-50109), (the "First
Registration Statement"), as amended by Post-Effective Amendment No. 1 thereto,
and a registration statement on Form S-3 (No. 33- ) (the "Second
Registration Statement") (such Second Registration Statement also constituting
Post-Effective Amendment No. 1 to the First Registration Statement) including a
prospectus, relating to debt securities of the Issuer, including the Securities
("Registered Securities"), has been filed with the Securities and Exchange
Commission ("Commission") and each such Registration Statement has become
effective under the Securities Act of 1933 ("Act"). The First Registration
Statement and the Second Registration Statement, in each case as amended as of
the date hereof, collectively are hereinafter referred to as the "Registration
Statement," and the prospectus included in such Registration Statement, as
supplemented as of the Closing Date to reflect the terms of the offering of the
Securities, including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
amending or supplementing the Prospectus shall be deemed to include the filing
of materials incorporated by reference in the Prospectus after the Closing Date
and any reference in this Agreement to any amendment or supplement to the
Prospectus shall be deemed to include any such materials incorporated by
reference in the Prospectus after the Closing Date.
b. On the respective effective dates of the First Registration Statement
and the Second Registration Statement relating to the Registered Securities,
each such Registration Statement conformed in all respects to the requirements
of the Act, the Trust Indenture Act of 1939 ("Trust Indenture Act") and the
rules and regulations of the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and as of the date hereof and on the Closing Date, the
Registration Statement and the Prospectus, and at each of the times of
acceptance and of delivery referred to in Section 6(a) hereof and at each of the
times of amendment or supplementing referred to in Section 6(b) hereof (the
Closing Date and each such time being herein sometimes referred to as a
"Representation Date"), the Registration Statement and the Prospectus as then
amended or supplemented will conform in all respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or will omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents based
-2-
<PAGE>
upon written information furnished to the Issuer by any Distributor
specifically for use therein.
3. Appointment as Distributors; Agreement of Distributors;
-------------------------------------------------------
Solicitations.
-------------
a. Subject to the terms and conditions stated herein, the Issuer hereby
appoints each of the Distributors as an agent of the Issuer for the purpose
of soliciting or receiving offers to purchase the Securities from the Issuer
by others. So long as this Agreement shall remain in effect with respect to
any Distributor, the Issuer shall not, without the consent of any such
Distributor, solicit or accept offers to purchase Securities otherwise than
through one of the Distributors; provided, however, that, subject to all of
the terms and conditions of this Agreement, the foregoing shall not be
construed to prevent the Issuer from selling at any time any Registered
Securities in a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of such Registered
Securities; and provided, further, that the Issuer reserves the right from
time to time (i) to sell Securities directly to an investor, and (ii) to
accept a specific offer to purchase Securities solicited by, and made by the
Issuer to or through, a dealer or other qualified person other than the
Distributors (each an "Other Dealer"), without obtaining the prior consent
of any of the Distributors, provided that (x) the Issuer shall give each of
the Distributors notice of its decision to accept such an offer to purchase
Securities promptly after such acceptance, (y) any Other Dealer shall agree
to be bound by and subject to the terms and conditions of this Agreement
binding on the Distributors (including the commission schedule set forth on
Exhibit B), and (z) so long as this Agreement remains in effect, the Issuer
shall not appoint any other agent or dealer for the purpose of soliciting or
receiving offers to purchase Securities on a continuous basis.
b. On the basis of the representations and warranties contained herein,
but subject to the terms and conditions herein set forth, each Distributor
agrees, as an agent of the Issuer, to use reasonable efforts when requested
by the Issuer to solicit offers to purchase the Securities upon the terms
and conditions set forth in the Prospectus, as from time to time amended or
supplemented. In placing any Securities pursuant to an offer accepted by the
Issuer, the Distributor that solicited or received such offer (the
"Presenting Distributor") may act as agent or purchase such Securities from
the Issuer as principal for resale. The Distributors may use dealer groups
and may reallow concessions in the sale of any Securities and, unless
otherwise specified in an applicable Pricing Supplement, such concessions
will not be in excess of the discount to be received by such Distributor
from the Issuer. Upon acceptance by the Issuer of an offer to
-3-
<PAGE>
purchase Securities, the Presenting Distributor shall complete either (i) its
standard form of confirmation, or (ii) a Terms Agreement substantially in the
form of Exhibit A hereto (a "Terms Agreement") and shall transmit the completed
confirmation or Terms Agreement, as the case may be, to the Issuer by hand or by
facsimile or other similar means of telecommunication. Unless the Issuer
promptly notifies the Presenting Distributor in writing that the Issuer does not
agree to the terms set forth in such confirmation or Terms Agreement, such
confirmation or Terms Agreement, as the case may be, shall constitute an
agreement between the Presenting Distributor and the Issuer for the sale and
purchase of such Securities upon the terms set forth therein and in this
Agreement (whether or not such confirmation or Terms Agreement, as the case may
be, shall have been executed by the Issuer or the Presenting Distributor) and if
such confirmation or Terms Agreement contemplates that the Securities described
therein shall be purchased by the Presenting Distributor as principal, then, the
provisions in this Agreement relating to a Terms Agreement shall apply to such
sale and purchase of such Securities.
Upon receipt of notice from the Issuer as contemplated by Section 4(b)
hereof, each Distributor shall suspend its solicitation of offers to purchase
Securities until such time as the Issuer shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as the
case may be, contemplated by Section 4(b) and shall have advised such
Distributor that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time for any
period of time or permanently. Upon receipt of at least one Business Day's prior
notice from the Issuer, the Distributors will forthwith suspend the solicitation
of offers to purchase Securities from the Issuer until such time as the Issuer
has advised the Distributors that such solicitation may be resumed. For the
purpose of the foregoing sentence, "Business Day" shall mean any day that is not
a Saturday or Sunday, and that in The City of New York is not a day on which
banking institutions generally are authorized or obligated by law or executive
order to close.
The Distributors are authorized to solicit offers to purchase Securities as
described in the Prospectus, as amended or supplemented, and only in a minimum
aggregate amount of $100,000 (or the equivalent thereof in one or more
currencies or currency units other than U.S. dollars). Each Distributor shall
communicate to the Issuer, orally or in writing, each reasonable offer to
purchase Securities received by it as agent. The Issuer shall have the sole
right to accept offers to purchase the Securities and may reject any such offer,
in
-4-
<PAGE>
whole or in part. If the Issuer accepts or rejects an offer, in whole or in
part, the Issuer will promptly notify the Presenting Distributor. Each
Distributor shall have the right, in its discretion reasonably exercised,
without notice to the Issuer, to reject any offer to purchase Securities
received by it, in whole or in part, and any such rejection shall not be deemed
a breach of its agreement contained herein. All Securities sold through a
Distributor as agent will be sold at 100% of their principal amount unless
otherwise specified in a Pricing Supplement.
No Security which the Issuer has agreed to sell pursuant to this Agreement
shall be deemed to have been purchased and paid for, or sold by the Issuer,
until such Security shall have been delivered to the purchaser thereof against
payment by such purchaser.
c. At the time of delivery of, and payment for, any Securities sold by the
Issuer as a result of a solicitation made by, or offer to purchase received by,
a Distributor, acting on an agency basis, the Issuer agrees to pay such
Distributor a commission in accordance with the schedule set forth in Exhibit B
hereto. The Issuer agrees that each Distributor that purchases Securities as
principal for resale shall receive such compensation, in the form of a discount
or otherwise, as shall be indicated in the applicable confirmation or Terms
Agreement, as the case may be, or, if no compensation is indicated therein, a
commission in accordance with Exhibit B hereto.
d. Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by the Distributors and the
Issuer. The initial Procedures, which are set forth in Exhibit C hereto, shall
remain in effect until changed by agreement among the Issuer and the
Distributors. Each Distributor and the Issuer agree to perform the respective
duties and obligations specifically provided to be performed by each of them
herein and in the Procedures. The Issuer will furnish to the Trustee a copy of
the Procedures as from time to time in effect.
e. The documents required to be delivered by Section 5 hereof shall be
delivered at the office of Kirkland & Ellis, 200 East Randolph Drive, Chicago,
Illinois 60601, not later than 10:00 A.M., New York City time, on ___________,
1995, or at such later time as may be mutually agreed by the Issuer and the
Distributors, which in no event shall be later than the time at which the
Distributors commence solicitation of offers to purchase Securities hereunder,
such time and date being herein called the "Closing Date."
f. If the Issuer and a Presenting Distributor agree to provide for sales of
Securities pursuant to delayed delivery
-5-
<PAGE>
contracts, the Issuer will authorize the Distributors to solicit offers to
purchase Securities pursuant to delayed delivery contracts substantially in
the form of Exhibit D attached hereto ("Delayed Delivery Contracts") with
such changes therein as the Issuer and the Presenting Distributor may
authorize or approve. Delayed Delivery Contracts are to be made only with
institutional investors, including, without limitation, commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. On the date of the execution of a
Delayed Delivery Contract, the Issuer and the Presenting Distributor shall
agree upon the date of payment of compensation to the Distributor in the
amount set forth in the applicable confirmation or Terms Agreement, as the
case may be, or if no compensation is indicated therein, a commission in
accordance with Exhibit B hereto, in respect of the principal amount of
Securities to be sold pursuant to Delayed Delivery Contracts. The
Distributors will not have any responsibility in respect of the validity or
the performance of Delayed Delivery Contracts.
4. Certain Agreements of the Issuer. The Issuer has furnished to Kirkland &
Ellis, counsel for the Distributors, one signed copy of the Regi stration
Statement, including all exhibits, in the form in which it became effective and
agrees to furnish all amendments thereto and that, in connection with each
offering of Securities:
a. The Issuer will advise each Distributor promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and will
afford the Distributors a reasonable opportunity to comment on any such
proposed amendment or supplement (other than any periodic report of the
Issuer filed pursuant to Section 13 or Section 14 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or any Pricing Supplement that
relates to Securities not purchased through or by such Distributor); and the
Issuer will also advise each Distributor of the filing and effectiveness of
any such amendment or supplement and of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if
issued.
b. If, at any time when (i) a prospectus relating to the Securities is
required to be delivered under the Act and (ii) no suspension of
solicitation of offers to purchase Securities pursuant to Section 3(b) or
this Section 4(b) shall be in effect (any such time referred to in clause
(ii) or any time when either any Distributor shall have purchased any
Securities as principal as indicated in the applicable confirmation or Terms
Agreement and holds such Securities with
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<PAGE>
the intention of reselling them or the Issuer has accepted an offer to purchase
Securities but the related settlement has not occurred being referred to herein
as a "Marketing Time"), any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statement therein,
in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or if it is necessary at any such time
to amend the Prospectus to comply with the Act, the Issuer will promptly notify
each Distributor to suspend solicitation of offers to purchase the Securities;
and if the Issuer shall decide to amend or supplement the Registration Statement
or the Prospectus, it will promptly advise each Distributor by telephone (with
confirmation in writing) and, subject to the provisions of subsection (a) of
this Section, will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance. Notwithstanding the foregoing, if, during a
Marketing Time any such event occurs or it becomes necessary to amend the
Prospectus to comply with the Act, the Issuer, subject to the provisions of
subsection (a) of this Section, will prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the Distributors consent
to, nor their delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
c. The Issuer will timely file all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
In addition, during any Marketing Time, on or as soon as practicable after the
date on which the Issuer issues a press release concerning earnings or
concerning any other event which is required to be described, or which the
Issuer proposes to describe, in a document filed pursuant to the Exchange Act,
the Issuer will furnish the press release to each Distributor and, subject to
the provisions of subsections (a) and (b) of this Section, will cause the
Prospectus to be amended or supplemented to reflect the information contained in
such press release. The Issuer also will furnish each Distributor during any
Marketing Time, with copies of all other press releases. The Issuer will
immediately notify each Distributor of any downgrading in the rating of any debt
securities of the Issuer or any proposal to downgrade the rating of any debt
securities of the Issuer by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Issuer (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading of such rating), as soon
-7-
<PAGE>
as the Issuer learns of such downgrading, proposal to downgrade or public
announcement.
d. In order to comply with the provisions of Section 11(a) of the Act, the
Issuer will, as soon as practicable, but not later than 16 months after the date
of each acceptance by the Issuer of an offer to purchase Securities hereunder,
make generally available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the effective date
of the registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of such acceptance and (iii) the
date of the Issuer's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such acceptance.
e. The Issuer will furnish to each Distributor copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any
related preliminary prospectus supplement, the Prospectus and all amendments and
supplements to such documents (including any Pricing Supplement), in each case
as soon as available and in such quantities as are reasonably requested.
f. The Issuer will arrange for the qualification of the Securities for sale
under the laws of such jurisdictions as the Distributors designate and will
continue such qualifications in effect so long as required for the distribution;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified.
g. During the period of five years after the date of the last issuance of
Securities pursuant to this Agreement, the Issuer will furnish to the
Distributors, (i) as soon as available after the end of each fiscal year, a copy
of its annual report to stockholders for such year, (ii) as soon as available, a
copy of each report on Form 10-K or 10-Q or definitive proxy statement of the
Issuer filed with the Commission under the Exchange Act or mailed to
stockholders, and (iii) from time to time, such other information concerning the
Issuer as the Distributors may reasonably request.
h. The Issuer will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse each Distributor for all
reasonable expenses (including reasonable disbursements of counsel and fees of
counsel not to exceed $12,000) incurred by it in connection with qualification
of the Securities for sale under the laws of such jurisdictions as such
Distributor may designate and the printing of memoranda relating thereto, for
any fees
-8-
<PAGE>
charged by investment rating agencies for the rating of the Securities, for
any filing fee of the National Association of Securities Dealers, Inc.
relating to the Securities, for reasonable expenses incurred by each
Distributor in distributing the Prospectus and all supplements thereto
(including any Pricing Supplement), any preliminary prospectuses and any
preliminary prospectus supplements to such Distributor, for reasonable costs
incurred by each Distributor in any customary advertising of any offering of
Securities and for each Distributor's reasonable expenses (including the
reasonable fees and disbursements of counsel to the Distributors) incurred
in connection with the establishment or maintenance of the program
contemplated by this Agreement or otherwise in connection with the
activities of the Distributors under this Agreement.
i. If required pursuant to a Terms Agreement, for a period beginning at
the time of execution of a Terms Agreement and ending on the date of
delivery of the Securities covered thereby, the Issuer will not, without the
prior consent of the Distributors party to such Terms Agreement, offer,
sell, contract to sell or otherwise dispose of any United States dollar-
denominated debt securities issued or guaranteed by the Issuer and having a
maturity of more than one year from the date of issue, other than borrowings
under the Issuer's revolving credit facility or unless otherwise specified
in such Terms Agreement, pursuant to a transaction exempt from registration
under the Act.
5. Conditions of Obligations. The obligations of each Distributor,
as agent of the Issuer, under this Agreement at any time to solicit offers to
purchase the Securities and to purchase Securities from the Issuer as principal
is subject to the accuracy, on the date hereof, on each Representation Date and
on the date of each such solicitation, of the representations and warranties of
the Issuer herein, to the accuracy, on each such date, of the statements of the
Issuer's officers made pursuant to the provisions hereof, to the performance, on
or prior to each such date, by the Issuer of its obligations hereunder, and to
each of the following additional conditions precedent:
a. The Prospectus, as amended or supplemented as of any Representation
Date or date of such solicitation, as the case may be, shall have been filed
with the Commission in accordance with the Rules and Regulations and no stop
order suspending the effectiveness of the Registration Statement or of any
part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Issuer or any
Distributor, shall be contemplated by the Commission.
b. Neither the Registration Statement nor the Prospectus, as amended or
supplemented as of any
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<PAGE>
Representation Date or date of such solicitation, as the case may be, shall
contain any untrue statement of fact which, in the reasonable opinion of any
Distributor, is material or omits to state a fact which, in the reasonable
opinion of any Distributor, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
c. There shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Issuer or its subsidiaries which, in the judgment of such
Distributor, is so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitations of offers to purchase or the
delivery of the Securities, (ii) any downgrading in the rating of any debt
securities of the Issuer by Standard & Poor's Corporation or Moody's Investors
Service, Inc., or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Issuer (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Issuer on any exchange or in the over-the-
counter market; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or intentional calamity or emergency if, in the judgment of
such Distributor, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
solicitations of offers to purchase, or sales of, Securities.
d. At the Closing Date and, if specified in a Terms Agreement, if any, at
the time of delivery of the Securities described in such Terms Agreement, the
Distributors or the Distributor purchasing such Securities (the "Purchasing
Distributor"), as the case may be, shall have received an opinion, dated the
Closing Date, or such date of delivery, as the case may be, of Sidley & Austin,
counsel for the Company, to the effect that:
(i) The Issuer has been duly incorporated and is an existing corporation
in good sta nding under the laws of the State of Delaware, with corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus;
(ii) The Securities have been duly authorized by the Issuer and, when
the terms thereof have been established in accordance with the Indenture
and when the
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Securities have been duly executed, authenticated, issued and delivered in
accordance with the Indenture, this Agreement and any applicable Terms Agreement
against payment of the agreed upon consideration therefor, will constitute valid
and legally binding obligations of the Issuer enforceable against the Issuer in
accordance with their respective terms, subject to (a) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting the enforcement of creditors' rights, (b)
to general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law), (c) any requirement that a
claim with respect to any Security denominated in other than U.S. dollars (or a
judgment denominated in other than U.S. dollars in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined in accordance with applicable law and (d) governmental authority to
limit, delay or prohibit the making of payments outside of the United States or
in a foreign currency or currency unit, it being understood that such counsel
may (A) assume that at the time of the issuance, sale and delivery of each
Security the authorization of such series will not have been modified or
rescinded and there will not have occurred any change in law affecting the
validity, legally binding character or enforceability of such Security and (B)
assume that neither the issuance, sale and delivery of any Security, nor any of
the terms of such Security, nor compliance by the Issuer with such terms, will
violate any applicable law, any agreement or instrument then binding upon the
Issuer or any restriction imposed by any court or governmental body having
jurisdiction over the Issuer;
(iii) The Securities conform in all material respects to the description
thereof contained in the Prospectus;
(iv) The Indenture has been duly authorized, executed and delivered by
the Issuer, has been duly qualified under the Trust Indenture Act and,
assuming the due authorization, execution and delivery by the Trustee, the
Indenture constitutes a valid and legally binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms, subject to (a)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, (b) to general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law), (c) any requirement that a claim with respect to any
Security denominated in other than U.S. dollars (or a judgment denominated
in other than
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U.S. dollars in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined in accordance with
applicable law and (d) governmental authority to limit, delay or prohibit
the making of payments outside of the United States or in a foreign
currency or currency unit;
(v) Each document filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus (other than the financial statements and the
notes thereto and the supporting schedules and other financial or
statistical data derived therefrom or included or incorporated by reference
therein, as to which no opinion need be given) complied when filed as to
form in all material respects with the Exchange Act and the Rules and
Regulations thereunder;
(vi) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement (including,
if applicable, the provisions of any Terms Agreement) in connection with
the issuance or sale of the Securities by the Issuer, except such as have
been obtained and made under the Act (other than the filing of the
applicable Pricing Supplement) and the Trust Indenture Act and such as may
be required under state securities or Blue Sky laws of various
jurisdictions;
(vii) The Registration Statement has become effective under the Act,
the Prospectus was duly filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date specified
therein, and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Act, and (A) the First Registration
Statement and the Second Registration Statement relating to the Registered
Securities, as of their respective effective dates, the Registration
Statement and the Prospectus, as of the Closing Date and the date of any
applicable Terms Agreement, and any amendment or supplement thereto, as of
its date, complied and comply as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; (B) nothing came to such counsels' attention that causes them
to believe that the First Registration Statement or the Second Registration
Statement, as of their respective effective dates, or the Registration
Statement, as of the date hereof, the Closing Date and the date of any
applicable Terms Agreement, or any such amendment or supplement, as of its
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date, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the Closing
Date and the date of any applicable Terms Agreement, or any such amendment
or supplement, as of its date, includes or included any untrue statement of
a material fact or omits or omitted to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and (C) the
statements set forth in the Prospectus under the captions "Description of
the Notes" and "Description of Securities" or a comparable section
describing the Securities and the Indenture constitute an accurate summary
of the terms of the Securities in all material respects; it being
understood that such counsel need express no opinion or belief as to the
financial statements and the notes thereto and the supporting schedules and
other financial or statistical data derived therefrom contained in the
Registration Statement or the Prospectus or incorporated by reference
therein; and
(viii) This Agreement and any applicable Terms Agreement have each been
duly authorized, executed and delivered by the Issuer;
provided, however, that, in the case of each such opinion delivered pursuant to
a Terms Agreement, (x) the statements made in clause (ii) shall state that the
terms of the Securities have been duly established in accordance with the
Indenture, (y) the statements contained in such opinion relating to the
Registration Statement or the Prospectus shall relate to the Registration
Statement or the Prospectus, as the case may be, as amended or supplemented as
of the date of the Issuer's acceptance of the offer to purchase such Securities
and as of the time of delivery of such Securities; and (z) such opinion shall
relate to the Securities being delivered on the date of such opinion and not to
other Securities as well.
e. At the Closing Date and, if specified in a Terms Agreement, if any, at
the time of delivery of the Securities described in such Terms Agreement, the
Distributors or the Purchasing Distributor, as the case may be, shall have
received an opinion, dated the Closing Date or the date of delivery, as the case
may be, of William B. Moore, General Counsel of the Issuer, to the effect that:
(i) The Issuer is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification, except where the failure to
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so qualify would not, individually or in the aggregate, have a material
adverse effect on the properties, assets, operations, business or condition
(financial or otherwise) of the Issuer and its subsidiaries, taken as a
whole;
(ii) Each "significant subsidiary" (as defined in Regulation S-X of the
Commission) of the Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Prospectus.
(iii) Each such significant subsidiary of the Company is in good
standing and is duly qualified to do business as a foreign corporation in
all jurisdictions in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification, except where
the failure to be in good standing or so qualify would not, individually or
in the aggregate, have a material adverse effect on the properties, assets,
operations, business or condition (financial or otherwise) of the Issuer
and its subsidiaries, taken as a whole; all of the issued and outstanding
capital stock of each such subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable, and all of such capital stock
is owned by the Issuer, directly or through subsidiaries, free and clear of
any mortgage, pledge, lien, encumbrance, claim or equity, except (a) as set
forth in Exhibit 21 to the Issuer's most recent Annual Report on Form 10-K
filed with the Commission, and (b) 2,025 shares of non-voting preferred
stock of Pepsi-Cola General Bottlers, Inc. (constituting 100% of the issued
shares of such series of preferred stock) are owned by an affiliate of
PepsiCo, Inc.;
(iv) The execution, delivery and performance of the Indenture, this
Agreement (including any provisions of any applicable Terms Agreement) and
the issuance and sale of the Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any court
having jurisdiction over the Issuer or any subsidiary of the Issuer or any
of their properties or any agreement or instrument to which the Issuer or
any such subsidiary is a party or by which the Issuer or any such
subsidiary is bound or to which any of the properties of the Issuer or any
such subsidiary is subject; nor will such action result in any violation of
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the provisions of the charter or by-laws of the Issuer or any such subsidiary;
the Issuer has the power and authority to authorize, issue and sell the
Securities as contemplated by this Agreement (including the provisions of any
applicable Terms Agreement);
(v) To the best of such counsel's knowledge and information, (A) there are
no contracts, indentures, mortgages, loan agreements, notes, deeds of trust,
leases or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto, other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and (B) no default exists in the due performance or observance
of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, deed of trust, lease or other
instrument which breach would, individually or in the aggregate, have a material
adverse effect on the properties, assets, operations, business or condition
(financial or otherwise) of the Issuer and its subsidiaries taken as a whole;
and
(vi) Nothing came to such counsel's attention that causes him to believe
that the First Registration Statement or the Second Registration Statement, as
of their respective effective dates, or the Registration Statement, as of the
date hereof, the Closing Date or the date of any applicable Terms Agreement, or
any such amendment or supplement, as of its date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of the Closing Date and the date of any applicable Terms
Agreement, or any such amendment or supplement, as of its date, includes or
included any untrue statement of a material fact or omits or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and contracts and
other documents constitute an accurate summary of such statutes, proceedings,
contracts and other documents in all material respects; it being understood that
such counsel need express no opinion or belief as to the financial statements
and the notes thereto or the supporting schedules and other financial or
statistical data derived therefrom contained in the Registration Statement or
the Prospectus or incorporated by reference therein;
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provided, however, that, in the case of each such opinion delivered pursuant
to a Terms Agreement, (x) the statements contained in such opinion relating to
the Registration Statement or the Prospectus shall relate to the Registration
Statement or the Prospectus, as the case may be, as amended or supplemented as
of the date of the Issuer's acceptance of the offer to purchase such Securities
and as of the time of delivery of such Securities; and (y) such opinion shall
relate to the Securities being delivered on the date of such opinion and not to
other Securities as well.
f. At the Closing Date and, if specified in a Terms Agreement, if any, at
the time of delivery of the Securities described in such Terms Agreement, the
Distributors or the Purchasing Distributor, as the case may be, shall have
received a certificate on behalf of the Issuer, dated the Closing Date or such
date of delivery, as the case may be, of the Chairman and Chief Executive
Officer or any Vice President and the principal financial or accounting officer
of the Issuer in which such officers, to the best of their knowledge after
reasonable investigation, shall state that (i) the representations and
warranties of the Issuer in this Agreement are true and correct, (ii) the Issuer
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date or such date of
delivery, as the case may be, (iii) no stop order suspending the effectiveness
of the Registration Statement or of any part thereof has been issued and no
proceedings for that purposes have been instituted or are contemplated by the
Commission, and (iv) subsequent to the date of the most recent financial
statements in or incorporated by reference in the Prospectus, there has been no
material adverse change in the financial position or results of operations of
the Issuer and its subsidiaries, taken as a whole, except as set forth in or
contemplated by the Prospectus or as described in such certificate. In the case
of each such certificate delivered pursuant to a Terms Agreement, the statements
contained in such certificate relating to the Registration Statement or the
Prospectus shall relate to the Registration Statement or the Prospectus, as the
case may be, as amended or supplemented as of the date of the Issuer's
acceptance of the offer to purchase such Securities and as of the time of
delivery of such Securities.
g. At the Closing Date and, if specified in a Terms Agreement, if any, at
the time of delivery of the Securities described in such Terms Agreement, the
Distributors or the Purchasing Distributor, as the case may be, shall have
received a letter, dated the Closing Date or such date of delivery, as the case
may be, of KPMG Peat Marwick LLP, confirming that they are independent public
accountants within the meaning of the Act and applicable published Rules and
Regulations thereunder and stating in effect that:
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(i) in their opinion, the financial statements and schedules audited by
them and included or incorporated by reference in the Registration Statement and
the Prospectus, comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published Rules and Regulations;
(ii) they have performed specified procedures, not constituting an audit,
including a reading of the latest interim financial data of the Issuer and its
consolidated subsidiaries, a reading of the minute books of the Board of
Directors of the Issuer since the end of the most recent fiscal year with
respect to which an audit report has been issued, inquiries of and discussions
with certain officials of the Issuer responsible for financial and accounting
matters with respect to the unaudited consolidated financial data included or
incorporated by reference in the Prospectus and the latest available unaudited
interim financial data of the Issuer and its consolidated subsidiaries, and such
other inquiries and procedures as may be specified in such letter;
(iii) on the basis of the procedures specified in (ii) above, nothing came
to their attention that caused them to believe that:
(A) the unaudited consolidated financial statements, if any, included or
incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with applicable accounting
requirements of the Act and the Exchange Act and the related published Rules and
Regulations or any material modification should be made to such unaudited
financial statements for them to be in conformity with generally accepted
accounting principles;
(B) the unaudited summary financial information, if any, included in the
Prospectus does not agree with the amounts set forth in the unaudited
consolidated financial statements from which it was derived or was not
determined on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus;
(C) at the date of the latest available balance sheet read by such
accountants, there was any change in the capital stock or any increase in long-
term debt, including current maturities, of the Issuer and consolidated
subsidiaries and at the
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date of the latest available balance sheet read by such accountants, there
was any decrease in total shareholders' equity, in each case as compared
with amounts shown on the latest balance sheet included or incorporated by
reference in the Prospectus and at a subsequent specified date not more than
five days prior to the Closing Date, there was any change greater than three
percent in the capital stock or any increase greater than five percent in
long-term debt, including current maturities, of the Issuer and consolidated
subsidiaries as compared with amounts shown on the latest balance sheet
included or incorporated by reference in the Prospectus; and
(D) for the period from the date of the latest income statement
included or incorporated by reference in the Prospectus to the closing date
of the latest available income statement read by such accountants there were
any decreases, as compared with the corresponding period of the preceding
year, in consolidated sales and revenues, operating income or net income;
and for the period from the closing date of the latest available income
statement read by such accountants to a subsequent specified date not more
than five days prior to the Closing Date, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated sales and revenues, operating income or net income;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) in addition to the procedures specified in (ii) above, they have
carried out certain other limited procedures of a nature customarily the subject
of independent auditors' comfort letters with respect to (A) specified dollar
amounts (or percentages derived from such dollar amounts) and (B) other
financial information of a nature customarily the subject of independent
auditors' comfort letters, which is contained in the Prospectus, including
without limitation the ratios of earnings to fixed charges, and have found such
dollar amounts, percentages and other financial information to be in agreement
with the relevant accounting and financial records specified in such letter,
except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated
by reference into the Prospectus shall
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be deemed included in the Prospectus for purposes of this subsection.
In the case of each such letter delivered pursuant to a Terms Agreement,
the statements contained in such letter relating to the Registration
Statement or the Prospectus shall relate to the Registration Statement or
the Prospectus, as the case may be, as amended or supplemented as of the
date of the Issuer's acceptance of the offer to purchase such securities and
as of the time of delivery of such Securities.
h. At the Closing Date and, if specified in a Terms Agreement, if any,
at the time of delivery of the Securities described in such Terms Agreement,
the Distributors or the Purchasing Distributor, as the case may be, shall
have received from Kirkland & Ellis, counsel for the Distributors, such
opinion or opinions, dated the Closing Date or such date of delivery, as the
case may be, with respect to the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as they may
require, and the Issuer shall have furnished to such counsel such documents
as they may reasonably request for the purpose of enabling them to pass upon
such matters.
The Issuer will furnish the Distributors with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Additional Covenants of the Issuer. The Issuer agrees that:
a. Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the time of
such acceptance and a covenant that such representations and warranties will
be true and correct at the time of delivery to the purchaser of the
Securities as though made at and as of each such time, it being understood
that such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented at each such time.
Each such acceptance by the Issuer of an offer to purchase Securities shall
be deemed to constitute an additional representation, warranty and agreement
by the Issuer that, as of the date of delivery of such Securities to the
purchaser thereof, after giving effect to the issuance of such Securities,
of any other Securities to be issued on or prior to such delivery date and
of any other Registered Securities to be issued and sold by the Issuer on or
prior to such delivery date, the aggregate amount of Registered Securities
(including any Securities) which have been issued and sold by the Issuer
will not exceed the amount of Registered Securities registered pursuant to
the Registration Statement.
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b. Each time that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement) (the date of any
such amendment or supplement being referred to herein as a "Representation
Date"), the Issuer shall (in the case of a Current Report on Form 8-K, upon the
reasonable request of the Distributors), (A) concurrently with such amendment or
supplement, if such amendment or supplement shall occur during a Marketing Time,
or (B) immediately upon the commencement of the next Marketing Time if such
amendment or supplement shall not occur during a Marketing Time, furnish the
Distributors with a certificate on behalf of the Issuer, dated the date of
delivery thereof, of the Chairman and Chief Executive Officer or any Vice
President and the principal financial or accounting officer of the Issuer, in
form satisfactory to the Distributors, to the effect that the statements
contained in the certificate covering the matters set forth in Section 5(f)
hereof which was last furnished to the Distributors pursuant to this Section
6(b) are true and correct at the time of such amendment or supplement, as though
made at and as of such time or, in lieu of such certificate, a certificate of
the same tenor as the certificate referred to in Section 5(f); provided,
however, that any certificate furnished under this Section 6(b) shall relate to
the Registration Statement and the Prospectus as amended or supplemented at the
time of delivery of such certificate and, in the case of the matters set forth
in clause (iii) of Section 5(f), to the time of delivery of such certificate.
c. At each Representation Date referred to in Section 6(b), the Issuer
shall, (A) concurrently if such Representation Date shall occur during a
Marketing Time, or (B) immediately upon the commencement of the next Marketing
Time if such Representation Date shall not occur during a Marketing Time,
furnish the Distributors with a written opinion, dated the date of such
Representation Date, of William B. Moore, General Counsel of the Issuer (or at
the option of the Issuer, the opinion of Sidley & Austin), in form satisfactory
to the Distributors, covering the matters set forth in Sections 5(d) and 5(e)
hereof; provided, however, that to the extent appropriate such opinion may
reconfirm matters set forth in a prior opinion delivered at the Closing Date or
under this Section 6(c); provided further, however, that any opinion furnished
under this Section 6(c) shall relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation Date and shall
state that the Securities sold in the relevant Applicable Period (as defined
below) have been duly executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Issuer enforceable in
accordance with their terms, subject only to the exceptions set forth in clause
(ii) of Section 5(d) hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization,
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moratorium and similar laws of general applicability relating to or affecting
creditors' rights and general equity principles, and conform to the description
thereof contained in the Prospectus as amended or supplemented at the relevant
date or dates for the delivery of such Securities to the purchaser or purchasers
thereof. For the purpose of this Section 6(c), "Applicable Period" shall mean
with respect to any opinion delivered on a Representation Date the period
commencing on the date as of which the most recent prior opinion delivered at
the Closing Date or under this Section 6(c) speaks and ending on such
Representation Date.
d. At each Representation Date referred to in Section 6(b) on which the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information, the Issuer shall cause KPMG Peat
Marwick LLP, (A) concurrently if such Representation Date shall occur during a
Marketing Time, or (B) immediately upon the commencement of the next Marketing
Time if such Representation Date shall not occur during a Marketing Time, to
furnish the Distributors with a letter, addressed jointly to the Issuer and the
Distributors and dated the date of such Representation Date, in form and
substance satisfactory to the Distributors, to the effect set forth in Section
5(g) hereof; provided, however, that to the extent appropriate such letter may
reconfirm matters set forth in a prior letter delivered at the Closing Date or
pursuant to this Section 6(d); provided further, however, that any letter
furnished under this Section 6(d) shall relate to the Registration Statement and
the Prospectus as amended or supplemented at such Representation Date, with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Issuer.
e. The Issuer agrees that any obligation of a person who has agreed to
purchase Securities to make payment for and take delivery of such Securities
shall be subject to (i) the accuracy, on the related settlement date fixed
pursuant to the Procedures, of the Issuer's representation and warranty deemed
to be made to the Distributors pursuant to the last sentence of subsection (a)
of this Section 6, and (ii) the satisfaction, on such settlement date, of each
of the conditions set forth in Sections 5(a), (b) and (c), it being understood
that under no circumstance shall any Distributor have any duty or obligation to
exercise the judgment permitted under Section 5(b) or (c) on behalf of any such
person.
7. Indemnification and Contribution.
--------------------------------
a. The Issuer will indemnify and hold harmless each Distributor against any
losses, claims, damages or liabilities, joint or several, to which such
Distributor may become subject, under the Act or otherwise, insofar as such
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losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Distributor for any
legal or other expenses reasonably incurred by such Distributor in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Issuer will
not be liable to such Distributor in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any of such documents in reliance upon and in conformity with written
information furnished to the Issuer by such Distributor specifically for use
therein, unless such loss, claim damage or liability arises out of the offer or
sale of Securities occurring after the Distributor has notified the Issuer in
writing that such information should no longer be used therein.
b. Each Distributor will indemnify and hold harmless the Issuer against any
losses, claims, damages or liabilities to which the Issuer may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by such Distributor
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Issuer in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
unless such loss, claim, damage or liability arises out of the offer or sale of
Securities occurring after the Distributor has notified the Issuer in writing
that such information should no longer be used therein.
c. Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is
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to be made against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under subsection (a) or (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonably
costs of investigation.
d. If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Issuer on the
one hand and any Distributor on the other from the offering pursuant to this
Agreement of the Securities which are the subject of the action or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuer on the
one hand and any Distributor on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Issuer on the one hand and any Distributor on the other shall be deemed
to be in the same proportions as the total net proceeds from the offering
pursuant to this Agreement of the Securities which are the subject of the action
(before deducting expenses) received by the Issuer bear to the total discounts
and commissions received by such Distributor from the offering of such
Securities pursuant to this Agreement. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuer or such Distributor
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent
-23-
<PAGE>
such untrue statement or omission. The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Distributor shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities which
are the subject of the action and which were distributed to the public
through it pursuant to this Agreement or upon resale of Securities purchased
by it from the Issuer exceeds the amount of any damages which such
Distributor has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of each Distributor in
this subsection (d) to contribute are several, in the same proportion which
the amount of the Securities which are the subject of the action and which
were distributed to the public through such Distributor pursuant to this
Agreement bears to the total amount of such Securities distributed to the
public through all of the Distributors pursuant to this Agreement, and not
joint.
e. The obligations of the Issuer under this Section 7 shall be in
addition to any liability which the Issuer may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls each Distributor within the meaning of the Act; and the obligations
of each Distributor under this Section 7 shall be in addition to any
liability which each Distributor may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Issuer, to each
officer of the Issuer who has signed the Registration Statement and to each
person, if any, who controls the Issuer within the meaning of the Act.
8. Status of Each Distributor. In soliciting offers to purchase
the Securities from the Issuer pursuant to this Agreement and in assuming its
other obligations hereunder (other than any obligation to purchase Securities
pursuant to Section 3 hereof), each Distributor is acting individually and not
jointly and is acting solely as agent for the Issuer and not as principal. In
connection with the placement of any Securities by a Distributor, acting as
agent, (a) each Distributor will make reasonable efforts to assist the Issuer in
obtaining performance by each purchaser whose offer to purchase Securities from
the Issuer has been solicited by such Distributor and accepted by the Issuer,
but such Distributor shall have no liability to the Issuer in the event any such
purchase is not consummated for any reason; and (b) if the
-24-
<PAGE>
Issuer shall default on its obligations to deliver Securities to a purchaser
whose offer it has accepted, the Issuer (i) shall hold the Distributors harmless
against any loss, claim or damage arising from or as a result of such default by
the Issuer, and (ii) in particular, shall pay to the Distributors any commission
to which they would be entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of the Distributors set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Distributor, the Issuer or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 10 or for any other reason or if for any reason
the sale of Securities described in a confirmation or Terms Agreement referred
to in Section 3 by the Issuer to a Distributor is not consummated, the Issuer
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4(h) and the obligations of the Issuer under Sections 4(d)
and 4(g) and the respective obligations of the Issuer and the Distributors
pursuant to Section 7 shall remain in effect. In addition, if any such
termination of this Agreement shall occur during a Marketing Time, the
obligations of the Issuer under the second sentence of Section 4(b), under
Sections 4(a), 4(c), 4(e), 4(f) and 4(i) and, in the case of a termination
occurring as described in (ii) above, under Sections 3(c), 6(a) and 6(e) and
under the last sentence of Section 8, shall also remain in effect.
10. Termination. This Agreement may be terminated for any reason at
any time by the Issuer as to any Distributor or by such Distributor insofar as
this Agreement relates to such Distributor, upon the giving of one day's written
notice of such termination to the other parties hereto; provided, however, that
this Agreement may not be terminated with respect to a Distributor by the giving
of such notice following receipt by the Issuer of a confirmation or Terms
Agreement referred to in Section 3 relating to the purchase of Securities by
such Distributor and prior to delivery of the Securities described in such
confirmation or Terms Agreement, unless the sale and purchase of Securities
contemplated thereby is rejected by the Issuer in accordance with Section 3. Any
settlement with respect to Securities placed by a Distributor on an agency basis
occurring after termination of this Agreement shall be made in accordance with
the Procedures and each Distributor agrees, if requested by the Issuer, to take
the steps therein provided to be taken by such Distributor in connection with
such settlement.
11. Sales of Securities Denominated in a Currency other than U.S.
Dollars or of Indexed Securities. If at any time the Issuer and any of the
Distributors shall determine to issue and
-25-
<PAGE>
sell Securities denominated in a currency other than U.S. dollars, which other
currency may include a currency unit, or with respect to which an index is used
to determine the amounts of payments of principal and any premium and interest,
the Issuer and any such Distributor may execute and deliver a supplement to this
Agreement for the purpose of making any appropriate additions to and
modifications of the terms of this Agreement (and the Procedures) applicable to
such Securities and the offer and sale thereof. The Distributors are authorized
to solicit offers to purchase Securities with respect to which an index is used
to determine the amounts of payments of principal and any premium and interest,
and the Issuer shall agree to any sales of such Securities (whether offered on
an agency or principal basis), only in a minimum aggregate amount of $2,500,000.
12. Notices. Except as other wise provided herein, all notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to [name and address of Distributor(s)]; and notices
to the Issuer shall be directed to it at Whitman Corporation, 3501 Algonquin
Road, Rolling Meadows, Illinois 60008, Attention: Secretary; or in the case of
any party hereto, to such other address or person as such party shall specify to
each other party by a notice given in accordance with the provisions of this
Section 12. Any such notice shall take effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the officers and
directors and controlling persons referred to in Section 7 and, to the extent
provided in Section 6(e), any person who has agreed to purchase Securities from
the issuer, and no other person will have any right or obligation hereunder.
-26-
<PAGE>
14. Governing Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such executed counterparts shall together
constitute one and the same Agreement.
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
WHITMAN CORPORATION
By: __________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[Name and signature block of each Distributor]
-27-
<PAGE>
DRAFT: MARCH 23, 1995
EXHIBIT A
WHITMAN CORPORATION
("COMPANY")
MEDIUM-TERM NOTES, SERIES ____
DUE FROM NINE MONTHS TO 30 YEARS FROM DATE OF ISSUE
TERMS AGREEMENT
---------------
, 19__
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
Attention:
Dear Sirs:
We offer to purchase, on and subject to the terms and conditions of
the Distribution Agreement filed as an exhibit to the Company's Registration
Statement on Form S-3 (No. 33-_______)("Distribution Agreement"), the following
Notes ("Notes") on the following terms:
Title:
Currency or Currency Units:
Stated Maturity:
Principal Amount:
Public Offering Price: [___%, subject to change by the
undersigned - The Agent proposes to
reoffer the above Notes from time to time
at market prices prevailing at the time of
sale, at prices related to such prevailing
market prices or at negotiated prices]
Original Issue Discount Security: Yes ____ No ____
A-1
<PAGE>
Purchase Price (to be paid in [New York Clearing House (next day) -
immediately available] funds): ____% [, plus accrued interest, if
any, from the Trade Date to the Settlement Date]
Underwriting Discount or Commission (%):
Proceeds to Company (If different from Public Offering Price) (%):
In the case of Fixed Rate Notes, the Interest Rate and the Interest
Payment Date or Dates and corresponding Regular Record Date or
Dates:
In the case of Floating Rate Notes, the Interest Rate Formula,
Initial Interest Rate, the Index Maturity, the Spread and/or Spread
Multiplier (if any), the maximum or minimum Interest Rate
Limitations (if any), the Interest Reset Dates, the Interest
Determination Dates, the Calculation Agent, the Calculation Dates,
the Interest Payment Dates and the Record Dates, in each case to the
extent applicable:
Optional Redemption (option of the Company):
Redemption Date(s):
Redemption Prices(s)(%):
Notice Period:
Optional Redemption (option of the Holder):
Redemption Date(s):
Redemption Price(s)(%):
Notice Period:
Sinking Fund:
Trade Date:
Settlement Date (Issue Date):
Delayed Delivery Contracts:
Standoff Agreement: Yes ___ No ___
A-2
<PAGE>
Private Offering Exception: Yes ___ No ___
* * * * *
Details for Settlement
----------------------
(Additional Purchase Information - to be completed by Distributor, if
desired, to the extent available):
Exact name in which the Note or Notes are to be registered
("registered owner"):
Exact address of registered owner and, if different, the address for
delivery of notices and payment of principal and any premium and
interest:
Taxpayer identification number of registered owner:
Principal amount of each Note in authorized denominations to be
delivered to registered owner:
Exchange rate applicable to purchase Foreign Currency Notes to be paid
for in U.S. dollars:
* * * * *
Our agreement to purchase the Notes hereunder is subject to the
conditions set forth in the Distribution Agreement, [ -including - other than -]
the conditions set forth in paragraphs (d), (e), (f), (g) and (h) of Section 5
thereof [-, and [specify additional conditions, if any] -]. If for any reason
the purchase by the undersigned of the Notes is not consummated other than
because of a default by the undersigned or a failure to satisfy a condition set
forth in clause (iii), (iv) or (v) of Section 5(c) of the Distribution
Agreement, the Issuer shall reimburse the undersigned for all out-of-pocket
expenses reasonably incurred by the undersigned in connection with the offering
of the Notes and not otherwise required to be reimbursed pursuant to Section 4
of the Distribution Agreement.
[Insert any additional agreements, conditions, etc.]
--------------------------------------------------
A-3
<PAGE>
Unless the undersigned has received notification from the Company
within one Business Day (as defined in the Distribution Agreement) prior to the
scheduled date of delivery of the Notes after receipt of such notice in
accordance with Section 12 of the Distribution Agreement, that the Company does
not agree to the terms set forth herein, this Terms Agreement shall constitute
an agreement between the Company and the undersigned for the sale and purchase
of the Notes upon the terms set forth herein and in the Distribution Agreement.
Very truly yours,
[Name and signature block
of each Distributor]
Accepted and agreed to
as of the date set forth above.
WHITMAN CORPORATION
[By: __________________________]
[Insert Title]
A-4
<PAGE>
DRAFT: MARCH 23, 1995
EXHIBIT B
The Issuer agrees to pay each Distributor a commission equal to the
following percentage of the principal amount of Securities sold to purchasers
solicited by such Distributor:
<TABLE>
<CAPTION>
COMMISSION RATE
(AS A PERCENTAGE OF
TERM PRINCIPAL AMOUNT)
---- -------------------
<S> <C>
9 months to less than 12 months .125%
12 months to less than 18 months .150
18 months to less than 24 months .200
24 months to less than 30 months .250
30 months to less than 3 years .300
3 years to less than 4 years .350
4 years to less than 5 years .450
5 years to less than 7 years .500
7 years to less than 10 years .550
10 years to less than 20 years .600
20 years to less than 30 years .750
</TABLE>
B-1
<PAGE>
DRAFT: MARCH 23, 1995
EXHIBIT C
ADMINISTRATIVE PROCEDURES
-------------------------
The Medium-Term Notes due from nine months to 30 years from their
issue date (the "Notes"), are to be offered on a continuing basis by Whitman
Corporation (the "Issuer"). [Name of Distributor(s)] (individually, a
"Distributor" and collectively, the "Distributors"), have each agreed to use
reasonable efforts to solicit offers to purchase the Notes. The Distributors
may, but will not be obligated to, purchase Notes for their own account. The
Notes are being sold pursuant to a Distribution Agreement, dated _________, 1995
(the "Distribution Agreement"), among the Issuer and the Distributors, and will
be issued pursuant to an Indenture, dated as of January 15, 1993 (the
"Indenture"), between the Issuer and The First National Bank of Chicago, as
trustee (the "Trustee"). The Notes will rank equally and ratably with all other
unsecured and unsubordinated indebtedness of the Issuer and will have been
registered under the Securities Act of 1933 (the "Act"). For a description of
the terms of the Notes and the offering and sale thereof, see the sections
entitled "Description of Notes", "Special Provisions Relating to Foreign
Currency Notes", "Plan of Distribution of Notes" and "Glossary" in the
Prospectus Supplement relating to the Notes, dated __________, 1995, attached
hereto and hereinafter referred to as the "Prospectus Supplement", and the
sections entitled "Description of Securities", and "Plan of Distribution" in the
Prospectus relating to the Notes, dated ______________, 1995, attached hereto
and hereinafter referred to as the "Prospectus." Defined terms used herein but
not defined herein shall have the meanings assigned to them in the Distribution
Agreement, the Prospectus or the Prospectus Supplement.
The Notes will be represented either by Global Notes delivered to The
Depository Trust Company ("DTC") or its nominee and recorded in the book-entry
system maintained by DTC or such nominee ("Book-Entry Notes") or by certificates
delivered to the Holders thereof or Persons designated by such Holders
("Certificat ed Notes"). Notes for which interest is calculated on the basis of
a fixed interest rate are referred to herein as "Fixed Rate Notes." Notes for
which interest is calculated at a rate or rates deter mined by reference to an
interest rate formula are referred to herein as "Floating Rate Notes."
Notes which are issued at a price lower than the principal amount
thereof and which provide that upon redemption or acceleration of the Maturity
thereof an amount less than the principal thereof shall become due and payable
are referred to herein as "Original Issue Discount Notes." For special
provisions relating to Original Issue Discount Notes and other Notes issued at
C-1
<PAGE>
a discount for tax purposes, see the section entitled "United States Holders --
Original Issue Discount" in the Prospectus.
Unless otherwise indicated in the applicable Pricing Supplement, the
Notes will be denominated in U.S. dollars and payments of principal of and any
premium and interest on the Notes will be made in U.S. dollars in the manner
indicated in the Prospectus and the Prospectus Supplement. Notes denominated in
one or more currencies or currency units other than U.S. dollars are referred to
herein as "Foreign Currency Notes." For special provisions relating to Foreign
Currency Notes, see the sections entitled "Special Provisions Relating to
Foreign Currency Notes" in the Prospectus Supplement. Specific information
concerning the foreign currency or currency unit in which a particular Foreign
Currency Note is denominated, including historical exchange rates and a
description of the currency and any exchange controls, shall be contained in a
Pricing Supplement to the Prospectus Supplement reflecting the terms of such
Note.
Notes which provide that amounts payable by the Issuer in respect of
principal of or any premium or interest on the Notes shall be determined by
reference to the value, rate or price of one or more specified indices, are
referred to herein as "Indexed Notes." Specific information pertaining to the
method for determining the principal amounts payable, a historical comparison of
the value, rate or price of the specified index, indices and the face amount of
the Indexed Note and certain additional tax considerations will be described in
the applicable Pricing Supplement.
Administrative procedures and specific terms of the offering are
explained below. Part I indicates procedures applicable to all Notes; Part II
indicates specific procedures for Certificated Notes; and Part III indicates
specific procedures for Book-Entry Notes. Administrative and record-keeping
responsibilities will be handled for the Issuer by its Treasury Department. The
Issuer will advise the Distributors in writing of those persons handling
administrative responsibilities with whom the Distributors are to communicate
regarding offers to purchase Notes and the details of their delivery.
PART I: PROCEDURES APPLICABLE TO ALL NOTES
-------------------------------------------
ISSUE DATE
----------
Each Note will be dated the date of its authentication. Each Note will
also bear an original issue date (the "Issue Date") which, with respect to any
such Notes (or portion thereof), shall mean the date of its original issuance
and shall be specified therein. The Issue Date will remain the same for all
Notes subsequently issued upon transfer, exchange or substitution of a Note,
regardless of their dates of authentication.
C-2
<PAGE>
PRICE TO PUBLIC
---------------
Except as otherwise specified in a Pricing Supplement, each Note will
be issued at 100% of principal amount.
MATURITIES; MINIMUM PURCHASE
----------------------------
Each Note will mature on a date, selected by the purchaser and agreed
to by the Issuer, which will be at least nine months but not more than 30 years
after its Issue Date. The minimum aggregate amount of Notes which may be
offered to any purchaser will be $100,000.
INTEREST PAYMENTS
-----------------
Interest on each interest-bearing Note will be calculated and paid in
the manner described in such Note and in the Prospectus Supplement and the
applicable Pricing Supplement. Unless otherwise set forth therein, interest on
Fixed Rate Notes (including interest for partial periods) will be calculated on
the basis of a 360-day year of twelve 30-day months and will not accrue on the
31st day of any month. Interest on Floating Rate Notes, except as otherwise set
forth therein, will be calculated on the basis of actual days elapsed and a year
of 360 days, except that in the case of a Floating Rate Note for which the Base
Rate is the Treasury Rate, interest will be calculated on the basis of the
actual number of days in the year.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Trustee will furnish the Issuer with the total amount of interest
payments (whether in U.S. dollars or other currencies or currency units) to be
made on such Interest Payment Date. The Trustee will provide monthly, to the
Issuer's Treasury Department, a list of the principal and any premium and
interest to be paid on Notes maturing in the next succeeding month. The Trustee
will assume responsibility for withholding taxes on interest paid as required by
law.
REDEMPTION/REPAYMENT
--------------------
If indicated in the applicable Pricing Supplement, the Notes of a
particular tenor will be subject to redemption in whole or in part (subject to
applicable minimum denominations), at the option of the Issuer on and after an
initial redemption date as set forth in the applicable Pricing Supplement and in
the applicable Note. The redemption price will be set forth in the applicable
Pricing Supplement and in the applicable Note.
C-3
<PAGE>
If indicated in the applicable Pricing Supplement, the Notes of a
particular tenor will be subject to repayment at the option of the Holders
thereof in accordance with the terms of the Notes on a repayment date as set
forth in the applicable Pricing Supplement and in the applicable Note. The
repayment date or dates and repayment price will be set forth in the applicable
Pricing Supplement and in the applicable Note.
PROCEDURES FOR ESTABLISHING THE TERMS OF THE NOTES
--------------------------------------------------
The Issuer and the Distributors will discuss from time to time the
rates to be borne by the Notes that may be sold as a result of the solicitation
of offers by the Distributors. Once any Distributor has recorded any indication
of interest in Notes upon certain terms, and communicated with the Issuer, if
the Issuer plans to accept an offer to purchase Notes upon such terms, it will
prepare a Pricing Supplement to the Prospectus, as then amended or supplemented,
reflecting the terms of such Notes and, after approval from the Distributors,
will arrange to have a copy of the Pricing Supplement filed with, or transmitted
by a means reasonably calculated to result in filing with, the Securities and
Exchange Commission (the "Commission") pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Act").* The Issuer will supply at least 10
copies of the Prospectus, as then amended or supplemented, and bearing such
Pricing Supplement, to the Distributor who presented the offer (the "Presenting
Distributor"). No settlements with respect to Notes upon such terms may occur
prior to such transmitting or filing and the Distributors will not, prior to
such transmitting or filing, mail confirmations to customers who have offered to
purchase Notes upon such terms. After such transmitting or filing, sales,
mailing of confirmations and settlements may occur with respect to Notes upon
such terms, subject to the provisions of "Delivery of Prospectus" below.
If the Issuer decides to post rates and a decision has been reached to
change interest rates, the Issuer will promptly notify each Distributor. Each
Distributor will forthwith suspend solicitation of purchases. At that time, the
Distributors will recommend and the Issuer will establish rates to be so
"posted." Following establishment of posted rates and prior to the transmit-
-------------------
* If clause (b)(3) of Rule 424 is applicable, such filing shall be
made no later than the fifth business day following the earlier of
the date of determination of the settlement information described
below or the date such Pricing Supplement is first used. If clause
(b)(2) or (b)(5) of Rule 424 is applicable, such filing shall be
made no later than the second business day following the earlier of
the date of determination of the settlement information or the date
such Pricing Supplement is first used.
C-4
<PAGE>
ting or filing described in the preceding paragraph, the Distribu tors may only
record indications of interest in purchasing Notes at the posted rates. Once any
Distributor has recorded any indication of interest in Notes at the posted rates
and communicated with the Issuer, if the Issuer plans to accept an offer at the
posted rate, it will prepare a Pricing Supplement reflecting such posted rates
and, after approval from the Distributors, will arrange to have a copy of the
Pricing Supplement filed with, or transmitted by means reasonably calculated to
result in filing with, the Commission and will supply at least 10 copies of the
Prospectus, as then amended or supplemented, and bearing such Pricing
Supplement, to the Presenting Distributor. No settlements at the posted rates
may occur prior to such transmitting or filing and the Distributors will not,
prior to such transmitting or filing, mail confirmations to customers who have
offered to purchase Notes at the posted rates. After such transmitting or
filing, sales, mailing of confirmations and settlements may resume, subject to
the provisions of "Delivery of Prospectus" below.
Outdated Pricing Supplements, and copies of the Prospec tus to which
they are attached (other than those retained for files), will be destroyed.
SUSPENSION OF SOLICITATION: AMENDMENT OR SUPPLEMENT
----------------------------------------------------
As provided in the Distribution Agreement, the Issuer may instruct the
Distributors to suspend solicitation of offers to purchase at any time, and upon
receipt of at least one Business Day's prior notice from the Issuer, the
Distributors will each forthwith suspend solicitation until such time as the
Issuer has advised them that solicitation of offers to purchase may be resumed.
If the Distributors receive the notice from the Issuer contemplated by
Section 3(b) or 4(b) of the Distribution Agreement, they will promptly suspend
solicitation and will only resume solicitation as provided in the Distribution
Agreement. If the Issuer is required, pursuant to Section 4(b) of the
Distribution Agreement, to prepare an amendment or supplement, it will promptly
furnish each Distributor with the proposed amendment or supplement; if the
Issuer decides to amend or supplement the Registration Statement or the
Prospectus relating to the Notes, it will promptly advise each Distributor and
will furnish each Distributor with the proposed amendment or supplement in
accordance with the terms of the Distribution Agreement. The Issuer will file
such amendment or supplement with the Commission, provide the Distributors with
copies of any such amendment or supplement, confirm to the Distributors that
such amendment or supplement has been filed with the Commission and advise the
Distributors that solicitation may be resumed.
C-5
<PAGE>
Any such suspension shall not affect the Issuer's obligations under
the Distribution Agreement; and in the event that at the time the Issuer
suspends solicitation of offers to purchase there shall be any offers already
accepted by the Issuer outstand ing for settlement, the Issuer will have the
sole responsibility for fulfilling such obligations. The Issuer will in
addition promptly advise the Distributors and the Trustee if such offers are not
to be settled and if copies of the Prospectus as in effect at the time of the
suspension may not be delivered in connection with the settlement of such
offers.
ACCEPTANCE OF OFFERS
--------------------
Each Distributor will promptly advise the Issuer, at its option orally
or in writing, of each reasonable offer to purchase Notes received by it, other
than those rejected by such Distribu tor. Each Distributor may, in its
discretion reasonably exercised, without notice to the Issuer, reject any offer
received by it, in whole or in part. The Issuer will have the sole right to
accept offers to purchase Notes and may reject any such offer, in whole or in
part. If the Issuer accepts or rejects an offer, in whole or in part, the Issuer
will promptly so notify the Presenting Distributor.
CONFIRMATION
------------
For each accepted offer, the Presenting Distributor will issue a
confirmation to the purchaser, with a separate confirmation to the Issuer's
Treasury Department, setting forth the Purchase Information (as defined under
Part II below with respect to Certificated Notes and Part III below with respect
to Book-Entry Notes) and delivery and payment instructions; provided, however,
that, in the case of the confirmation issued to the purchaser, no confirmation
shall be delivered to the purchaser prior to the delivery of the Prospectus
referred to below.
DETERMINATION OF SETTLEMENT DATE
--------------------------------
The receipt of immediately available or next-day funds by the Issuer
in payment for a Note and (i) in the case of Certificated Notes, the
authentication and issuance of such Note and (ii) in the case of Book-Entry
Notes, entry by the Presenting Distributor of an SDFS delivery order through
DTC's Participant Terminal System to credit such Note to the account of a
Participant purchasing, or acting for the purchase of, such Note, shall, with
respect to such Note, constitute "settlement." All offers accepted by the
Issuer will be settled on the fifth Business Day next succeeding the date of
acceptance unless otherwise agreed by the purchaser and the Issuer. The
settlement date shall be specified upon receipt of an offer to purchase. Prior
to 11:00 a.m., New
C-6
<PAGE>
York City time, on the settlement date, the Issuer will instruct the Trustee to
authenticate and deliver the Notes no later than 2:15 p.m., New York City time,
on that date.
DELIVERY OF PROSPECTUS
----------------------
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof (except as provided below) must be delivered to a
purchaser prior to or together with the earlier of the delivery of (i) the
written confirmation provided for above, and (ii) any Note purchased by such
purchaser. (For this purpose, entry of an SDFS delivery order through DTC's
Participant Terminal System to credit a Note to the account of a Participant
purchasing, or acting for the purchaser of, a Note shall be deemed to constitute
delivery of such Note.) Subject to the foregoing, it is anticipated that
delivery of the Prospectus, confirmation and Notes to the purchaser will be made
simultaneously at settlement. The Issuer shall ensure that the Presenting
Distributor receives copies of the Prospectus and each amendment or supplement
thereto (including appropriate Pricing Supplements) in such quantities and
within such time limits as will enable the Presenting Distributor to deliver
such confirmation or Note to a purchaser as contemplated by these procedures and
in compliance with the first sentence of this paragraph. If, since the date of
acceptance of a purchaser's offer, the Prospectus shall have been supplemented
solely to reflect any sale of Notes on terms different from those agreed to
between the Issuer and such purchaser or a change in posted rates not applicable
to such purchaser, such purchaser shall not receive the Prospectus as
supplemented by such new supplement, but shall receive the Prospectus as
supplemented to reflect the terms of the Notes being purchased by such purchaser
and otherwise as most recently amended or supplemented on the date of delivery
of the Prospectus.
The Issuer shall have delivered a completed Pricing Supplement, via
next day mail or telecopy to arrive no later than 11:00 a.m. on the Business Day
preceding the settlement date for the applicable Note, to the Presenting Agent
at the following locations:
[Name and address of each Distributor]
AUTHENTICITY OF SIGNATURES
--------------------------
The Issuer will cause the Trustee to furnish the Distributors from
time to time with the specimen signatures of each of the Trustee's officers,
employees or agents who have been authorized by the Trustee to authenticate
Notes, but no Distributor will have any obligation or liability to the Issuer or
the Trustee in respect of the authenticity of the signature of any officer,
employee or agent of the Issuer or the Trustee on any Note or the Global Note
(as defined in Part III).
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<PAGE>
ADVERTISING EXPENSES
--------------------
The Issuer will determine with the Distributors the amount of
advertising that may be appropriate in offering the Notes. Advertising expenses
will be paid by the Issuer.
MARKET DAY
----------
"Market Day" means (a) with respect to any Note, any day that is not a
Saturday or Sunday and that, in Chicago and The City of New York, is not a day
on which banking institutions generally are authorized or obligated by law or
executive order to close, and (b) with respect to LIBOR Notes only, any such day
on which dealings in deposits in U.S. dollars are transacted in the London
interbank market, and (c) with respect to Foreign Currency Notes only, any such
day that is not a Saturday or Sunday and that, in the capital city of the
country of the Specified Currency or, with respect to Foreign Currency Notes
denominated in European Currency Units, Brussels, is not a day on which banking
institutions generally are authorized or obligated by law or executive order to
close.
TRUSTEE NOT TO RISK FUNDS
-------------------------
Nothing herein shall be deemed to require the Trustee to risk or
expend its own funds in connection with any payment made to the Issuer, the
Distributors, DTC or any Holder of a Note, it being understood by all parties
that payments made by the Trustee to the Issuer, the Distributors, DTC or any
Holder of a Note shall be made only to the extent that funds are provided to the
Trustee for such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
----------------------------------------------------------
FORM AND DENOMINATIONS
----------------------
The Certificated Notes shall be issued only in fully registered form
in denominations of $100,000 and integral multiples of $1,000 in excess thereof,
or, in the case of Foreign Currency Notes, in such minimum denomination, not
less than the equivalent of $100,000, and such great denomination or
denominations in excess thereof, as shall be set forth in the applicable Pricing
Supple ment.
TRANSFERS AND EXCHANGES
-----------------------
A Certificated Note may be presented for transfer or exchange at the
principal corporate trust office of the Trustee in
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<PAGE>
The City of New York. Certificated Notes will be exchangeable for other
Certificated Notes of any authorized denominations and of like tenor and in a
like aggregate principal amount, upon surrender of the Certificated Notes to be
exchanged at the corporate trust office of the Trustee. Certificated Notes will
not be exchangeable for Book-Entry Notes.
PAYMENT AT MATURITY
-------------------
Upon presentation of each Certificated Note at Maturity, the Trustee
(or a duly authorized Paying Agent) will pay the principal amount thereof,
together with any premium and accrued interest due at Maturity. Such payment
will be made in immediately available funds, provided that the Certificated Note
is presented in time for the Paying Agent to make payment in such funds in
accordance with its normal procedures. The Issuer will provide the Trustee (and
any Paying Agent) with funds available for immediate use for such purpose.
Certificated Notes presented at Maturity will be canceled by the Trustee as
provided in the Indenture. For special provisions relating to Foreign Currency
Notes, see the section entitled "Special Provisions Relating to Foreign Currency
Notes" in the Prospectus Supplement.
DETAILS FOR SETTLEMENT
----------------------
For each offer for Certificated Notes accepted by the Issuer, the
Presenting Distributor shall communicate to the Issuer's Treasury Department
prior to 3:00 p.m., New York City time, on the Business Day preceding the
settlement date, by telephone, telex, facsimile transmission or other acceptable
means, the following information (the "Purchase Information"):
1. Exact name in which the Note or Notes are to be registered
("registered owner").
2. Exact address of registered owner and, if different, the address
for delivery, notices and payment of principal and any premium and
interest.
3. Taxpayer identification number of registered owner.
4. Principal amount of each Note in authorized denominations to be
delivered to registered owner.
5. Stated Maturity of each Note.
6. In the case of Fixed Rate Notes, the interest rate of each Note;
in the case of Floating
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Rate Notes, the interest rate formula, the Spread or Spread Multiplier
(if any), the maximum or minimum interest rate limitation (if any),
the Calculation Agent, the Calcula tion Dates, the Initial Interest
Rate, the Interest Payment Dates, the Record Dates, the Index
Maturity, the Interest Determination Dates and the Interest Reset
Dates, in each case, to the extent applicable with respect to each
Note.
7. Redemption and/or repayment provisions, if any, of each Note.
8. Trade date of each Note.
9. Settlement date (Issue Date) of each Note.
10. Presenting Distributor's commission (to be paid in the form of a
discount from the pro ceeds remitted to the Issuer upon settlement).
11. Price.
12. Currency or currency unit in which each Note is to be denominated
and exchange rate appli cable to purchase Foreign Currency Notes to
be paid for in U.S. dollars.
13. Any additional applicable terms of each Note.
The Issue Date of, and the settlement date for, Certificated Notes
will be the same. Before accepting any offer to purchase Certificated Notes to
be settled in less than three Business Days, the Issuer shall verify that the
Trustee will have adequate time to prepare and authenticate the Notes.
Immediately after receiving the details for each offer for Certified
Notes from the Presenting Distributor, the Issuer will, after recording the
details and any necessary calculations, communicate the Purchase Information by
telephone, telex, facsimile transmission or other acceptable means, to the
Trustee. Each such instruction given by the Issuer to the Trustee shall
constitute a continuing representation and warranty by the Issuer to the Trustee
and the Distributors that (i) the issuance and delivery of such Notes have been
duly and validly authorized by the Issuer and (ii) such Notes, when completed,
authenticated and delivered, shall constitute the valid and legally binding
obligation of the Issuer. The Trustee will assign to and enter on each Note a
transaction number.
The Issuer will deliver to the Trustee a pre-printed four-ply packet
for such Certificated Note, which packet will
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<PAGE>
contain the following documents in forms that have been approved by the Issuer,
the Distributors and the Trustee:
1. Certificated Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the Presenting Distributor.
4. Stub Three - For the Issuer.
The Trustee will complete such Certificated Note and will authenticate
such Certificated Note and deliver it (with the confirmation) and Stubs One and
Two to such Distributor, and such Distributor will acknowledge receipt of the
Note by stamping or otherwise marking Stub One and returning it to the Trustee.
The Trustee will send Stub Three to the Issuer by first-class mail. The Trustee
shall deliver such Notes to the Presenting Distributor at the following
addresses:
[Name and address of each Distributor]
SETTLEMENT: NOTE DELIVERIES AND CASH PAYMENT
---------------------------------------------
The Issuer will deliver to the Trustee at the commence ment of the
program and from time to time thereafter a supply of duly executed Certificated
Notes with pre-printed control numbers adequate to implement the program. Upon
the receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Officers' Certificate and verification thereof,
the Trustee will cause the Certificated Notes to be completed and authenticated
and hold the Certificated Notes for delivery against payment.
The Trustee will deliver the Certificated Notes, in accordance with
instructions from the Issuer, to the Presenting Distributor. If the Distributor
is placing such Certificated Notes as agent, such delivery will be made for the
benefit of the purchaser only against receipt and the Presenting Distributor
will acknowledge receipt of the Notes through a broker's receipt. Delivery of
the Certificated Notes by the Trustee will be made only against such
acknowledgment of receipt from the Presenting Distributor. Upon the Presenting
Distributor's determination that such Note has been authenticated, delivered and
completed as aforesaid, the Presenting Distributor will make, or cause to be
made, payment to the Issuer at such account of the Issuer as it may specify in
writing, in immediately available funds, of an amount equal to the principal
amount of such Notes, less the applicable commission. If the Presenting
Distributor in any instance advances its own funds, the Issuer shall not use any
of the proceeds of such sale to acquire securities.
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<PAGE>
If the Distributor is placing such Certificated Notes as agent, the
Presenting Distributor, as the Issuer's agent, will deliver the Notes (with the
written confirmation provided for above) to the purchaser thereof against
payment therefor by such purchaser in immediately available funds.
Delivery of any confirmation or Note to a purchaser thereof by a
Distributor, acting as agent or principal, will be made in compliance with
"Delivery of Prospectus" in Part I above.
FAILS (DISTRIBUTOR ACTING AS AGENT)
-----------------------------------
In the event that a purchaser shall fail to accept delivery of and
make payment for a Certificated Notes on the settlement date, the Presenting
Distributor will notify the Trustee and the Issuer, by telephone, confirmed in
writing. If such Certificated Note has been delivered to the Presenting
Distributor, as the Issuer's agent, the Presenting Distributor shall return such
Note to the Trustee. If funds have been advanced for the purchase of such Note,
the Trustee will, immediately upon receipt of such Note, debit the account of
the Issuer for the amount so advanced and the Trustee shall refund the payment
previously made by the Presenting Distributor in immediately available funds.
Such payments will be made on the settlement date, if possible, and in any event
not later than the Business Day following the settlement date. If the fail
shall have occurred for any reason other than the failure of the Presenting
Distributor to provide the Purchase Information to the Issuer or to provide a
confirmation to the purchaser, the Issuer will reimburse the Presenting
Distributor on an equitable basis for its loss of the use of funds during the
period when the funds were credited to the account of the Issuer.
Immediately upon receipt of the Certificated Note in respect of which
the fail occurred, the Trustee will make appro priate entries in its records to
reflect the fact that the Note was never issued and the Note will be canceled
and disposed of as provided in the Indenture.
PART III: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
---------------------------------------------------------
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its obligations under a Letter of Representations (the "Letter")
from the Issuer and the Trustee to DTC dated as of __________, 1995, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC dated as of
May 26, 1989, as amended, and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
C-12
<PAGE>
FORM, DENOMINATIONS AND REGISTRATION
------------------------------------
All Book-Entry Notes of the same tenor and having the same issue Date,
will be represented initially by a single Note (a "Global Note") in fully
registered form without coupons. Book-Entry Notes will represent Notes
denominated in U.S. dollars. Global Notes will be issued in denominations of
$100,000 and integral multiples of $1,000 in excess thereof. Each Global Note
will be registered in the name of Cede & Co., as nominee for DTC, on the
Security Register maintained under the Indenture. The beneficial owner of a
Book-Entry Note (or one or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with respect to such
Note, the "Partici pants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions provided by such Participants,
a credit balance with respect to such Note in the account of such Participants.
The ownership interest of such beneficial owner in such Note will be recorded
through the records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
CUSIP NUMBERS
-------------
The Issuer has arranged with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the reservation of a series
of CUSIP numbers (including tranche numbers), such series consisting of
approximately 900 CUSIP numbers and relating to Global Notes representing Book-
Entry Notes. The Issuer has obtained from the CUSIP Service Bureau a written
list of such reserved CUSIP numbers and has delivered it to the Trustee and DTC.
The Trustee will assign CUSIP numbers serially to Global Notes as described
below under "Details for Settlement". DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Trustee has assigned to Global Notes.
The Trustee will notify the Issuer at the time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to the Global Notes; and the Issuer
will reserve an additional 900 CUSIP numbers for assignment to Global Notes
representing Book-Entry Notes. Upon obtaining such additional CUSIP numbers,
the Issuer shall deliver a list of such additional CUSIP numbers to the Trustee
and DTC.
TRANSFERS AND EXCHANGES FOR THE PURPOSE OF CONSOLIDATION
--------------------------------------------------------
Transfers of a Book-Entry Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and, in certain cases, one or more
indirect participants in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
The Trustee may upon notice to the Issuer deliver to DTC and the CUSIP
Service Bureau at any time a written notice (a copy
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<PAGE>
of which shall be attached to the Global Note resulting from such exchange)
specifying (i) the CUSIP numbers of two or more outstand ing Global Notes that
represent Book-Entry Notes of the same tenor and having the same Issue Date, and
for which interest (if any) has been paid to the same date, (ii) a date
occurring at least thirty days after such written notice is delivered and at
least thirty days before the next Interest Payment Date (if any) for such Notes,
on which such Global Notes shall be exchanged for a single replacement Global
Note and (iii) a new CUSIP number to be assigned to such replacement Global
Note. Upon receipt of such a notice, DTC will send to its Participants
(including the Trustee) a written reorganization notice to the effect that such
exchange will occur on such date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau a written notice setting forth
such exchange date and the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global Notes to be exchanged will no
longer be valid. On the specified exchange date, the Trustee will exchange such
Global Notes for a single Global Note bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Notes will, in accordance with the CUSIP Service
Bureau procedures, be canceled and not immediately reassigned.
NOTICE OF INTEREST PAYMENT DATES AND REGULAR RECORD DATES
---------------------------------------------------------
To the extent then known, on the first Business Day of March, June,
September, and December of each year, the Trustee will deliver to the Issuer and
DTC a written list of Record Dates and Interest Payment Dates that will occur
with respect to Floating Rate Book-Entry Notes during the six-month period
beginning on such first Business Day.
PAYMENTS OF PRINCIPAL AND INTEREST
----------------------------------
(a) Payments of Interest Only. Promptly after each Record Date, the
Trustee will deliver to the Issuer and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each Global Note on the following
Interest Payment Date (other than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. The Issuer will confirm with the
Trustee the amount payable on each Global Note on such Interest Payment Date.
DTC will confirm the amount payable on each Global Note on such Interest Payment
Date by reference to the daily or weekly bond reports published by Standard &
Poor's Corporation. The Issuer will pay to the Trustee the total amount of
interest due on such Interest Payment Date (other than at Maturity), and the
Trustee will pay such amount to DTC at the times and in the manner set forth
below under "Manner of Payment".
(b) Payments at Stated Maturity. On or about the first Business day
of each month, the Trustee will deliver to the Issuer
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<PAGE>
and DTC a written list of principal and interest to be paid on each Global Note
maturing in the following month. The Issuer, the Trustee and DTC will confirm
the amounts of such principal and interest payments with respect to each such
Global Note on or about the fifth Business Day preceding the Stated Maturity of
such Global Note. The Issuer will pay to the Trustee, as the paying agent, the
principal amount of such Global Note, together with interest due at such Stated
Maturity. Upon surrender of a Global Note, the Trustee will pay such amounts to
DTC at the times and in the manner set forth below under "Manner of Payment".
If any Stated Maturity of a Global Note representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such payment for the period from
and after such Stated Maturity. Promptly after payment to DTC of the principal
and any interest due at the Stated Maturity of such Global Note, the Trustee
will cancel such Global Note and return such Global Note to the Issuer in
accordance with the terms of the Indenture.
(c) Payment upon Redemption. The Trustee will comply with the terms
of the Letter with regard to redemptions or repayments of the Book-Entry Notes.
In the case of Book-Entry Notes stated by their terms to be redeemable prior to
Stated Maturity, at least 60 calendar days before the date fixed for redemption
(the "Redemption Date"), the Issuer shall notify the Trustee of the Issuer's
election to redeem such Book-Entry Notes in whole or in part and the principal
amount of such Book-Entry Notes to be so redeemed. At least 30 calendar days
but not more than 60 calendar days prior to the Redemption Date, the Trustee
shall notify DTC of the Issuer's election to redeem such Book-Entry Notes. The
Trustee shall notify the Issuer and DTC of the CUSIP numbers of the particular
Book-Entry Notes to be redeemed either in whole or in part. The Issuer, the
Trustee and DTC will confirm the amounts of such principal and any premium and
interest payable with respect to each such Book-Entry Note on or about the fifth
Business Day preceding the Redemption Date of such Book-Entry Note. The Issuer
will pay the Trustee, in accordance with the terms of the Indenture, the amount
necessary to redeem each such Book-Entry Note or the applicable portion of each
such Book-Entry Note. The Trustee will pay such amount to DTC at the times and
in the manner set forth herein. Promptly after payment to DTC of the amount due
on the Redemption Date for such Book-Entry Note, the Trustee shall cancel any
such Book-Entry Note redeemed in whole and shall deliver it to the Issuer with
an appropriate debit advice. If a Global Note is to be redeemed in part, the
Trustee will cancel such Global Note and issue a Global Note which shall
represent the remaining portion of such Global Note and shall bear the CUSIP
number of the canceled Global Note.
(d) Manner of Payment. The total amount of any principal and interest
due on Global Notes on any Interest Payment Date or at Maturity shall be paid by
the Issuer to the Trustee in immediately available funds on such date. The
Issuer will make
C-15
<PAGE>
such payment on such Global Notes by wire transfer to the Trustee no later than
9:30 a.m., New York City time, on such date. The Issuer will confirm
instructions regarding payment in writing to the Trustee. Prior to 10:00 a.m.,
New York City time, on each date of Maturity of a Book-Entry Note or as soon as
possible thereafter, the Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York previously specified by DTC in
funds available for immediate use by DTC, each payment of principal (together
with interest thereon) due at Maturity on Book-Entry Notes. On each Interest
Payment Date, interest payment shall be made to DTC in same day funds in
accordance with existing arrangements between the Trustee and DTC. Thereafter,
on each such date, DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds available for immediate use to
the respective Participants in whose names the Book-Entry Notes represented by
such Global Notes are recorded in the book-entry system maintained by DTC.
NEITHER THE ISSUER NOR THE TRUSTEE SHALL HAVE ANY DIRECT RESPONSIBILITY OR
LIABILITY FOR THE PAYMENT BY DTC TO SUCH PARTICIPANTS OF THE PRINCIPAL OF AND
ANY PREMIUM AND INTEREST ON THE BOOK-ENTRY NOTES.
(e) Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a Book-Entry Note
will be determined and withheld by the Participant, indirect participant in DTC
or other person responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
DETAILS FOR SETTLEMENT
----------------------
For each offer for Book-Entry Notes accepted by the Issuer, the
Presenting Distributor shall communicate to the Issuer's Treasury Department
prior to 11:00 a.m., New York City time, on the first Business Day after the
sale date (or on the sale date if such sale is to be settled within one Business
Day), by telephone, telex, facsimile transmission or other acceptable means, the
following information (the "Purchase Information"):
1. Exact name in which the Notes are to be registered
("registered owner").
2. Exact address of registered owner and, if different,
the address for delivery, notices and payment of
principal and any premium and interest.
3. Taxpayer identification number of registered owner.
4. Principal amount of the Notes.
5. Stated Maturity of the Notes.
C-16
<PAGE>
6. In the case of Fixed Rate Notes, the interest rate of the Notes;
in the case of Floating Rate Notes, the Interest rate formula,
the Spread and/or Spread Multiplier (if any), the maximum or
minimum Interest rate limitation (if any), the Calculation
Agent, the Calculation Dates, the Initial Interest Rate, the
Interest Payment Dates, the Record Dates, the Index Maturity, the
Interest Determination Dates and the Interest Reset Dates, in
each case, to the extent applicable with respect to the Notes.
7. Redemption and/or repayment provisions, if any, of the Notes.
8. Trade date of the Notes.
9. Settlement date (Issue Date) of the Notes.
10. Presenting Distributor's commission (to be paid in the form of a
discount from the proceeds remitted to the Issuer upon
settlement).
11. Price.
12. Currency or currency unit in which the Notes are to be
denominated and exchange rate applicable to purchase Foreign
Currency Notes payable in U.S. dollars.
13. Any additional applicable terms of the Notes.
The Issue Date of, and the settlement date for, Book-Entry Notes will
be the same. Before accepting any offer to purchase Book-Entry Notes to be
settled in less than three Business Days, the Issuer shall verify that the
Trustee will have adequate time to prepare and authenticate the Global Notes.
If the initial interest rate for a Floating Rate Book-Entry Note has
not been determined at the time that the foregoing procedure is completed, the
procedures described in the following two paragraphs shall be completed as soon
as such rate has been determined but no later than 12:00 Noon and 2:00 p.m., as
the case may be, on the Business Day before the settlement date.
Immediately after receiving the details for each offer for Book-Entry
Notes from the Presenting Distributor and in any event no later than 12:00 Noon
on the first Business Day after the sale date (or on the sale date if such sale
is to be settled within one Business Day), the Issuer will, after recording the
details and any necessary calculations, communicate the Purchase Information by
telephone, telex, facsimile transmission or other acceptable means, to the
Trustee. Each such instruction given by the Issuer to the Trustee shall
constitute a continuing representation and warranty
C-17
<PAGE>
by the Issuer to the Trustee and the Distributors that (i) the issuance and
delivery of such Note have been duly and validly authorized by the Issuer and
(ii) such Note, when duly issued, shall constitute the valid and legally binding
obligation of the Issuer.
Immediately after receiving the Purchase Information from the Issuer
and in any event no later than 2:00 P.M. on the first Business Day after the
sale date (or on the sale date if such sale is to be settled within one Business
Day), the Trustee will assign a CUSIP number to the Global Note representing
such Book-Entry Note and will telephone the Issuer and advise the Issuer of such
CUSIP number and, as soon thereafter as practicable, the Issuer shall notify the
Presenting Distributor of such CUSIP number.
Transmission of information to S&P. Standard & Poor's Corporation
will use the information received in the pending deposit message to include the
amount of any interest payable and certain other information regarding the
related Global Note in the appropriate daily or weekly bond report published by
Standard & Poor's Corporation.
SETTLEMENT: GLOBAL NOTE DELIVERY AND CASH PAYMENT
--------------------------------------------------
The Issuer will deliver to the Trustee at the commence ment of the
program and from time to time thereafter a supply of duly executed Global Notes
with preprinted control numbers adequate to implement the program. Upon the
receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Officers' Certificate and verification thereof,
the Trustee will cause the Global Note to be completed and authenticat ed and
hold the Global Note for delivery against payment.
Prior to 2:00 P.M. on the Settlement Date, the Trustee will enter
instructions through DTC's Participant Terminal System, using the function MT
II, and DTC will credit such Note to the Trustee's participant account at DTC
and thereafter will (i) debit such Note to the Trustee's participant account and
credit such Note to the Presenting Distributor's participant account and (ii)
debit the Presenting Distributor's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Note less such
Distributor's commission (in accordance with SDFS operating procedures in effect
on the Settlement Date).
Simultaneously with the giving of such instructions by the Trustee,
the Presenting Distributor will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Note to such
Distributor's participant account and credit such Note to the Participant
accounts of the Participants with respect to such Note and (ii) to debit the
settlement accounts of such Participants and credit the settlement account of
such Distributor for an amount equal to the price of such Note (in
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<PAGE>
accordance with SDFS operating procedures in effect on the settlement date).
Transfers of funds are subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement date.
The Trustee, upon confirming receipt of such funds, will wire transfer
the amount transferred to the Trustee, in funds available for immediate use, for
the account of the Issuer, to account no. 74-20927 at Bank of America Illinois,
Chicago, Illinois (ABA No. 071000039).
FAILS
-----
If settlement of a Book-Entry Note is rescheduled or cancelled, the
Issuer shall notify the Trustee, and upon receipt of such notice, the Trustee
will deliver to DTC, through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled settlement date.
If the Trustee has not entered an SDFS deliver order with respect to a
Book-Entry Note, then upon written request (which may be evidenced by telecopy
transmission) of the Issuer, the Trustee shall deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable, but no later than 2:00 p.m.
on any Business Day, a withdrawal message instructing DTC to debit such Note to
the Trustee's participant account. DTC will process the withdrawal message,
provided that the Trustee's participant account contains a principal amount of
the Global Note representing such Note that is at least equal to the principal
amount to be debited. If withdrawal messages are processed with respect to all
the Book-Entry Notes represented by a Global Note, the Trustee will mark such
Global Note "cancelled," make appropriate entries in the Trustee's records and
send such cancelled Global Note to the Issuer. The CUSIP number assigned to
such Global Note shall, in accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If withdrawal messages are processed
with respect to one or more, but not all, of the Book-Entry Notes represented by
a Global Note, the Trustee will exchange such Global Note for two Global Notes,
one of which shall represent such Book-Entry Note or Notes and shall be
cancelled immediately after issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the surrendered Global Note
and shall bear the CUSIP number of the surrendered Global Note.
If the purchase price for any Book-Entry Note is not timely paid to
the Participants with respect to such Note by the beneficial purchaser thereof
(or a person, including an indirect participant in DTC, acting on behalf of such
purchaser), such
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<PAGE>
Participants and, in turn, the Presenting Distributor may enter an SDFS deliver
order through DTC's Participant Terminal System debiting such Note to such
Distributor's participant account and crediting such Note (free) to the
participant account of the Trustee and shall notify the Trustee and the Issuer
thereof. Thereafter, the Trustee, (i) will immediately notify the Issuer, once
the Trustee has confirmed that such Note has been credited to its participant
account, and the Issuer shall immediately transfer by Fedwire (in immediately
available funds) to the Presenting Distributor an amount equal to the price of
such Note which was previously sent by wire transfer to the account of the
Issuer maintained at Bank of America Illinois, Chicago, Illinois, and (ii) the
Trustee will deliver the withdrawal message and take the related actions
described in the preceding paragraph. Such debits and credits will be made on
the settlement date, if possible, and in any event not later than 5:00 p.m. on
the following Business Day. If the fail shall have occurred for any reason
other than failure of the Presenting Distributor to provide the Purchase
Information to the Issuer or to provide a confirmation to the purchaser, the
Issuer will reimburse the Presenting Distributor on an equitable basis for its
loss of the use of funds during the period when the funds were credited to the
account of the Issuer.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Note, the Trustee will provide for the authentication
and issuance of a Global Note representing the other Book-Entry Notes to have
been represented by such Global Note and will make appropriate entries in its
records.
C-20
<PAGE>
DRAFT: MARCH 23, 1995
EXHIBIT D
___________, 199_
DELAYED DELIVERY CONTRACT
-------------------------
Whitman Corporation
c/o [Name and address of each Distributor]
Gentlemen:
The undersigned hereby agrees to purchase from Whitman Corporation, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, as of the date hereof, for delivery on __________, 199_ ("Delivery
Date"),
$__________________
principal amount of the Company's ______________ securities ("Securities"),
offered by the Company's Prospectus dated __________, 1995 and a Prospectus
Supplement dated __________, 1995 relating thereto, receipt of copies of which
is hereby acknowledged, at __% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
Payment for the Securities that the undersigned has agreed to purchase
for delivery on the Delivery Date shall be made to the Company [or its order by
certified or official bank check in New York Clearing House (next day)] [in
immediately available] funds at the office of _______________________ at 10:00
A.M. on the Delivery Date upon delivery to the undersigned of the Securities to
be purchased by the undersigned for delivery on such Delivery Date in definitive
fully registered form and in such denominations and registered in such names as
the undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on the Delivery Date shall be
subject only to the condition[s] that (1) investment in the Securities shall not
at the Delivery Date be prohibited
D-1
<PAGE>
under the laws of any jurisdiction in the United States to which the undersigned
is subject [and (2) the Company shall have sold to the Underwriters the total
principal amount of the Securities less the principal amount thereof covered by
this and other similar Contracts.] The undersigned represents that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which governs
such investment.
[Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.]
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first--come, first--served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver
D-2
<PAGE>
one of the counterparts hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
______________________________
(Name of Purchaser)
By:___________________________
______________________________
(Title of Signatory)
______________________________
______________________________
(Address of Purchaser)
Accepted, as of the above date.
WHITMAN CORPORATION
By:___________________________
D-3
<PAGE>
SIDLEY & AUSTIN
One First National Plaza
Chicago, Illinois 60603
March 24, 1995
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
Re: $300,000,000 Principal Amount of Debt Securities of Whitman
-----------------------------------------------------------
Corporation
-----------
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by Whitman Corporation (the "Company") with the
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "Securities Act"), relating to the shelf registration of
$300,000,000 principal amount of the Company's debt securities (the "Debt
Securities"). The Debt Securities are to be issued under an Indenture, dated as
of January 15, 1993 (the "Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Trustee").
In rendering this opinion, we have examined and relied upon a copy of
the Indenture and the Registration Statement, including the related preliminary
prospectus dated the date hereof. We have also examined and relied upon
originals, or copies of originals, of such agreements, documents, certificates
and other statements of governmental officials and other instruments, and
examined such questions of law and satisfied ourselves as to such matters of
fact, as we have considered relevant and necessary as a basis for this opinion.
We have assumed the authenticity of all documents submitted to us as originals,
the genuineness of all signatures, the legal capacity of all natural persons and
the conformity with the original documents of any copies thereof submitted to us
for our examination.
<PAGE>
Sidley & Austin Chicago
Whitman Corporation
March 24, 1995
Page 2
Based on the foregoing and subject to the qualifications set forth
below, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Delaware.
2. The Company had the corporate power and authority to execute and
deliver the Indenture and has the corporate power and authority to authorize and
sell the Debt Securities.
3. Each series of Debt Securities will be legally issued and binding
obligations of the Company (except to the extent enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and by the
effect of general principles of equity, regardless of whether enforceability is
considered a proceeding in equity or at law) when (i) the Registration
Statement, as finally amended (including any necessary post-effective
amendments), shall have become effective under the Securities Act and any
necessary supplemental indenture to the Indenture shall have been qualified
under the Trust Indenture Act of 1939, as amended, and duly executed and
delivered by the Company and the Trustee; (ii) a Prospectus Supplement with
respect to such series of Debt Securities shall have been filed (or mailed for
filing) with the SEC pursuant to Rule 424 under the Securities Act; (iii) the
Company shall have taken appropriate corporate action authorizing the issuance
and sale of such series of Debt Securities as contemplated by the resolutions
heretofore adopted by the Board of Directors of the Company and the Indenture;
and (iv) such series of Debt Securities shall have been duly executed and
authenticated as provided in the Indenture and shall have been duly delivered to
the purchasers thereof against payment of the agreed consideration therefor.
This opinion is limited to the General Corporation Law of the State of
Delaware and the laws of the United States of America. We do not find it
necessary for the purposes of this opinion to cover, and accordingly we express
no opinion as to, the application of the securities or blue sky laws of the
various states to the sales of the Debt Securities.
For purposes of this opinion, we have assumed that there will be no
changes in the laws currently applicable to the Company and that such laws will
be the only laws applicable to the Company.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to all references to
<PAGE>
KPMG Peat Marwick LLP
The Board of Directors of Whitman Corporation:
We consent to incorporation by reference in this Registration Statement on Form
S-3 of Whitman Corporation of our report dated January 16, 1995, relating to the
consolidated balance sheets of Whitman Corporation and Subsidiaries as of
December 31, 1994 and 1993 and the related consolidated statements of income,
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1994, which report appears in the December 31, 1994,
annual report on Form 10-K of Whitman Corporation and to the reference to our
firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Chicago, Illinois
March 24, 1995
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 23rd day of
March, 1995.
Bruce S. Chelberg
-----------------------------------
Bruce S. Chelberg
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th
day of March, 1995.
Thomas L. Bindley
-----------------------------------
Thomas L. Bindley
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 23rd
day of March, 1995.
Frank T. Westover
-----------------------------------
Frank T. Westover
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 23rd
day of March, 1995.
Richard G. Cline
-----------------------------------
Richard G. Cline
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 17th
day of March, 1995.
Archie R. Dykes
-----------------------------------
Archie R. Dykes
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 17th
day of March, 1995.
Helen Galland
-----------------------------------
Helen Galland
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th
day of March, 1995.
Jarobin Gilbert, Jr.
-----------------------------------
Jarobin Gilbert, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 21st
day of March, 1995.
Victoria B. Jackson
-----------------------------------
Victoria B. Jackson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
Officer of WHITMAN CORPORATION, a Delaware corporation (the "Company"), which
intends to file with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, a Registration Statement on Form S-3
for the registration of up to $300,000,000 of debt securities of the Company,
hereby constitutes and appoints THOMAS L. BINDLEY, WILLIAM B. MOORE, AND FRANK
T. WESTOVER and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments), and to
file such Registration Statement and amendments, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do if personally present, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 23rd
day of March, 1995.
Charles S. Locke
-----------------------------------
Charles S. Locke
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
WHITMAN CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-6076573
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
3501 ALGONQUIN ROAD
ROLLING MEADOWS, ILLINOIS 60008
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 17th day of March, 1995.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
By R. D. Manella
R. D. Manella
Vice President and Senior Counsel
Corporate Trust Services Division
* EXHIBIT 1,2,3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 12 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 26 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE
CIT GROUP HOLDINGS, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
FEBRUARY 16, 1993 (REGISTRATION NO. 33-58418).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 17, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Whitman Corporation
and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: R. D. Manella
R. D. Manella
Vice President and Senior Counsel
Corporate Trust Services Division
4
<PAGE>
EXHIBIT 7
A copy of the latest report of conditions of the trustee published pursuant
to law or the requirements of its supervising or examining authority.
5
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
C400 .-
DOLLAR AMOUNTS IN ------------ -----
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).............. 0081 3,776,149 1.a.
b. Interest-bearing balances(2)....................................... 0071 7,670,634 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).......... 1754 163,225 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)....... 1773 533,857 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold................................................. 0276 4,037,205 3.a.
b. Securities purchased under agreements to resell.................... 0277 423,381 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C).............................................................. RCFD 2122 15,617,618 4.a.
b. LESS: Allowance for loan and lease losses.......................... RCFD 3123 351,191 4.b.
c. LESS: Allocated transfer risk reserve.............................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)............................... 2125 15,266,427 4.d.
5. Assets held in trading accounts....................................... 3545 8,227,304 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 512,222 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 46,996 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 7,571 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 507,151 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 120,504 10.
11. Other assets (from Schedule RC-F)..................................... 2160 1,250,306 11.
12. Total assets (sum of items 1 through 11).............................. 2170 42,542,932 12.
------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
6
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................. RCON 2200 15,103,504 13.a.
(1) Noninterest-bearing(1).................................. RCON 6631 6,129,078 13.a.(1)
(2) Interest-bearing........................................ RCON 6636 8,974,426 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II).......................... RCFN 2200 10,633,999 13.b.
(1) Noninterest bearing..................................... RCFN 6631 460,916 13.b.(1)
(2) Interest-bearing RCFN 6636 10,173,083 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased..................................... RCFD 0278 2,883,499 14.a.
b. Securities sold under agreements to repurchase.............. RCFD 0279 502,401 14.b.
15. a. Demand notes issued to the U.S. Treasury.................... RCON 2840 112,289 15.a.
b. Trading Liabilities......................................... RCFD 3548 4,798,720 15.b.
16. Other borrowed money:
a. With original maturity of one year or less.................. RCFD 2332 2,355,421 16.a.
b. With original maturity of more than one year................ RCFD 2333 382,801 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases......................................................... RCFD 2910 275,794 17.
18. Bank's liability on acceptance executed and outstanding........ RCFD 2920 507,151 18.
19. Subordinated notes and debentures.............................. RCFD 3200 1,225,000 19.
20. Other liabilities (from Schedule RC-G)......................... RCFD 2930 860,989 20.
21. Total liabilities (sum of items 13 through 20)................. RCFD 2948 39,641,568 21.
22. Limited-Life preferred stock and related surplus............... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................. RCFD 3838 0 23.
24. Common stock................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)....... RCFD 3839 2,273,657 25.
26. a. Undivided profits and capital reserves...................... RCFD 3632 431,545 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................. RCFD 8434 [ 4,184) 26.b.
27. Cumulative foreign currency translation adjustments............ RCFD 3284 (512) 27.
28. Total equity capital (sum of items 23 through 27).............. RCFD 3210 2,901,364 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).......................... RCFD 3300 42,542,932 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1993 . . . . . . . . . . . . .RCFD 6724 N/A
M.1.
1 = Independent audit of the bank conducted in 4 = Directors' examination of the bank
accordance with generally accepted auditing performed by other external auditors (may
standards by a certified public accounting be required by state chartering authority)
firm which submits a report on the bank 5 = Review of the bank's financial statements by
2 = Independent audit of the bank's parent external auditors
holding company conducted in accordance with 6 = Compilation of the bank's financial
generally accepted auditing standards by a statements by external auditors
certified public accounting firm which submits 7 = Other audit procedures (excluding tax
a report on the consolidated holding company preparation work)
(but not on the bank separately) 8 = No external audit work
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing
standards
</TABLE>
_______________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
7
