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REGISTRATION NO. 33-64459
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IBP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 42-0838666
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
IBP AVENUE
POST OFFICE BOX 515
DAKOTA CITY, NEBRASKA 68731
(402) 494-2061
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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LONNIE O. GRIGSBY, ESQ.
EXECUTIVE VICE PRESIDENT-GENERAL COUNSEL
IBP, INC.
IBP AVENUE
POST OFFICE BOX 515
DAKOTA CITY, NEBRASKA 68731
(402) 494-2061
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
<TABLE>
<S> <C>
JAMES L. PURCELL, ESQ. ROBERT M. CHILSTROM, ESQ.
JOHN P. MCENROE, ESQ. JEFFREY W. TINDELL, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON SKADDEN, ARPS, SLATE, MEAGHER & FLOM
1285 AVENUE OF THE AMERICAS 919 THIRD AVENUE
NEW YORK, NEW YORK 10019-6064 NEW YORK, NEW YORK 10022-3897
(212) 373-3000 (212) 735-3000
</TABLE>
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after the effective date of this Registration
Statement as determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SECURITY(2)(3)(4) PRICE(2)(3) FEE
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Debt Securities........................... $500,000,000 100% $500,000,000 $172,414(5)
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</TABLE>
(1) In United States dollars or the equivalent thereof in a foreign or composite
currency.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee.
(3) Or, if any Debt Securities are issued (i) at an original issue discount,
such greater principal amount as shall result in an aggregate offering price
equal to $500,000,000 or (ii) with a principal amount denominated in a
foreign or composite currency, such principal amount as shall result in the
aggregate offering price equivalent to $500,000,000 at the time of the
offering.
(4) Plus accrued interest, if any.
(5) Previously paid.
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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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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 STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 15, 1995
PROSPECTUS
$500,000,000
IBP, INC.
DEBT SECURITIES
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IBP, inc. ("IBP" or the "Company") may offer from time to time its senior
unsecured debt securities (the "Debt Securities") at an aggregate initial
offering price of up to $500,000,000 (or the equivalent thereof if any of the
Debt Securities are denominated other than in U.S. dollars) on terms to be
determined at the time of offering. The series, specific designation, aggregate
principal amount, maturity, rate (or manner of rate calculation) and time of
payment of any interest, purchase price, any terms relating to mandatory or
optional redemption or repayment (including any sinking fund), any modification
of the covenants and any other specific terms in connection with the sale of the
Debt Securities in respect of which this Prospectus is being delivered are set
forth in an accompanying Prospectus Supplement. The Prospectus Supplement also
includes information concerning any listing on a stock exchange of the Debt
Securities with respect to which this Prospectus and the Prospectus Supplement
are being delivered.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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The Debt Securities may be offered directly by the Company, through agents
designated from time to time, through dealers or through underwriters. See "Plan
of Distribution." Any such agents, dealers or underwriters are set forth in the
accompanying Prospectus Supplement. If an agent of IBP or a dealer or
underwriter is involved in the offering of the Debt Securities, the name of such
agent, dealer or underwriter, any applicable commissions or discounts, and net
proceeds to IBP will be set forth in the Prospectus Supplement with respect to
such Debt Securities. Any agents, dealers or underwriters participating in the
offering may be deemed "underwriters" within the meaning of the Securities Act
of 1933, as amended.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
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The date of this Prospectus is
<PAGE> 3
AVAILABLE INFORMATION
IBP is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy materials and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy materials and other
information concerning IBP and the Registration Statement (as defined below) can
be inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the regional offices maintained by the Commission at The Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and
at Seven World Trade Center, 13th Floor, New York, New York 10048. Copies can be
obtained by mail from the Commission at prescribed rates from the Public
Reference Section of the Commission at its principal office at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and copies can be obtained
electronically through the Commission's Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system. In addition, reports, proxy statements and other
information concerning IBP can be inspected at the office of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York, on which IBP's common stock
is listed.
IBP has filed with the Commission a registration statement on Form S-3
(herein, together with all information incorporated by reference therein and all
amendments and exhibits thereto, referred to as the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus and any applicable Prospectus Supplement do not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is hereby made to the Registration Statement
including the exhibits filed as a part thereof. Statements made in this
Prospectus and any applicable Prospectus Supplement as to the contents of any
documents referred to are not necessarily complete, and in each instance
reference is made to such exhibit for a more complete description and each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by IBP with the Commission (File No. 1-6085)
pursuant to the Exchange Act are incorporated in and made a part of this
Prospectus by reference thereto:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1994;
(b) Quarterly Reports on Form 10-Q for the thirteen weeks ended April
1, 1995, the twenty-six weeks ended July 1, 1995, and the thirty-nine weeks
ended September 30, 1995; and
(c) Current Report on Form 8-K filed with the Commission on August 7,
1995.
All other documents filed by IBP pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities made hereby shall be
deemed incorporated by reference in this Prospectus and any applicable
Prospectus Supplement and to be a part hereof from the date of filing of such
documents. Any statement contained in the documents incorporated or deemed to be
incorporated herein by reference, or contained in this Prospectus or any
applicable Prospectus Supplement, shall be deemed to be modified or superseded
for purposes of this Prospectus or any applicable Prospectus Supplement to the
extent that a statement contained herein or in any subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus or any applicable Prospectus Supplement.
IBP will provide without charge to each person to whom this Prospectus and
any Prospectus Supplement have been delivered, upon written or oral request of
such person, a copy (without exhibits other than exhibits specifically
incorporated by reference) of any or all documents incorporated by reference
into this Prospectus or any applicable Prospectus Supplement. Requests for such
copies should be directed to Investor Relations Department, IBP, inc., Post
Office Box 515 #52A, Dakota City, Nebraska 68731; telephone number (402)
241-2559.
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THE COMPANY
IBP is the world's leading producer of fresh beef and pork, with fiscal
1994 net sales of approximately $12.1 billion. Customers include food retailers,
distributors, wholesalers, restaurant and hotel chains and other food
processors. IBP also produces fully cooked meats for the retail and food service
industries. Its allied products line includes more than 250 items, including
tanned hides for leather makers, ingredients for pharmaceuticals and raw
materials for animal feeds.
Founded in 1960 as Iowa Beef Packers, Inc., the Company began operations in
1961 with one plant in western Iowa. Today, IBP has 23 plant sites in North
America, regional sales offices throughout the United States and international
sales offices in England and Japan.
IBP is a Delaware corporation with executive offices located at IBP Avenue,
Dakota City, Nebraska 68731-0515. The telephone number of its Investor Relations
Department is (402) 241-2559. Unless the context indicates otherwise, all
references in this Prospectus to "IBP" or the "Company" include IBP, inc. and
its subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for IBP for each of the periods set
forth below is as follows:
<TABLE>
<CAPTION>
THIRTY-NINE WEEKS ENDED FISCAL YEARS ENDED
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SEPTEMBER 30, SEPTEMBER 24, DECEMBER 31, DECEMBER 25, DECEMBER 26, DECEMBER 28, DECEMBER 29,
1995 1994 1994(1) 1993 1992 1991 1990
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<S> <C> <C> <C> <C> <C> <C>
11.68x 5.85x 7.36x 3.67x 2.87x 1.03x 2.23x
</TABLE>
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(1) Fiscal year consisted of 53 weeks.
The ratio of earnings to fixed charges has been computed by dividing
pre-tax earnings available for fixed charges (earnings before income taxes
adjusted for interest expense and one-third of operating lease/rent expense) by
fixed charges. Fixed charges include interest expense (incurred interest before
capitalized interest and interest income) and one-third of operating lease/rent
expense. The Company's management believes that one-third of operating
lease/rent expense is representative of the interest factor.
USE OF PROCEEDS
Except as otherwise provided in the applicable Prospectus Supplement, the
net proceeds to IBP from the sale of the Debt Securities offered hereby will be
added to the working capital of IBP and will be available for general corporate
purposes.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the "Indenture")
between the Company and The Bank of New York, as trustee (the "Trustee"). A form
of the Indenture has been filed as an exhibit to the Registration Statement. The
statements made under this heading relating to the Debt Securities and the
Indenture are summaries of the provisions thereof and do not purport to be
complete. Parenthetical references below are to the Indenture or to sections of
the Trust Indenture Act of 1939, as amended (the "TIA"), certain provisions of
which govern the terms of the Indenture, and, whenever any particular provision
of the Indenture or the TIA or any defined term used therein is referred to,
such provision or defined term is incorporated by reference as a part of the
statement in connection with which such reference is made, and the statement in
connection with which such reference is made is qualified in its entirety by
such reference. Capitalized terms used herein but not otherwise defined shall
have the meanings assigned to them in the Indenture.
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GENERAL
The Indenture does not limit the amount of Debt Securities which may be
issued thereunder and provides that Debt Securities may be issued thereunder
from time to time in one or more series up to the aggregate principal amount
which may be authorized by the Company for each series. The Debt Securities will
be unsecured and unsubordinated Debt of the Company and will rank equally and
ratably with all other unsecured and unsubordinated indebtedness of the Company.
The particular terms of each series of Debt Securities, as well as any
modifications of or additions to the general terms of the Debt Securities as
described herein that may be applicable in the case of a particular series of
Debt Securities, will be described in the Prospectus Supplement relating to such
series of Debt Securities. Accordingly, for a description of the terms of a
particular series of Debt Securities, reference must be made to both the
Prospectus Supplement relating thereto and the description of Debt Securities
set forth in this Prospectus.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for a description of the following
terms or additional provisions of the Debt Securities: (1) the title of such
Debt Securities; (2) any limit on the aggregate principal amount of such Debt
Securities; (3) the price or prices at which such Debt Securities will be
issued; (4) the date or dates, or the method by which such date or dates will be
determined or extended, on which the principal of such Debt Securities will be
payable; (5) the rate or rates per annum (which may be fixed, floating or
adjustable) at which such Debt Securities will bear interest, if any, or the
formula pursuant to which such rate or rates shall be determined; (6) the date
or dates from which interest, if any, on such Debt Securities shall accrue or
the method by which such date or dates shall be determined, the dates on which
such interest, if any, will be payable, the date on which payment of such
interest, if any, will commence, the Regular Record Dates for such Interest
Payment Dates, if any, and the Person to whom any interest on such Debt
Securities will be payable, if other than the Person in whose name such Debt
Securities are registered on any Regular Record Date; (7) the date, if any,
after which and the price or prices at which such Debt Securities may, pursuant
to any optional or mandatory redemption provisions, be redeemed at the option of
the Company or the Holder and any other terms and provisions of such optional or
mandatory redemptions; (8) the obligation, if any, of the Company to redeem,
repay or purchase such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the period or periods within
which or the date or dates on which, the price or prices at which, the Currency
in which, and the other terms and conditions upon which, such Debt Securities
shall be redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation; (9) whether such Debt Securities are to be issuable as Registered
Securities or Bearer Securities or both, whether any of such Debt Securities
shall be issuable in whole or in part in temporary or permanent global form or
in the form of Book-Entry Securities and, if so, the circumstances under which
any such global security or global securities or Book-Entry Securities may be
exchanged for Debt Securities registered in the name of, and any transfer of
such global or Book-Entry Securities may be registered to, a Person other than
the depository for such temporary or permanent global securities or Book-Entry
Securities or its nominee; (10) if other than Dollars, the Currency in which
such Debt Securities will be denominated and in which the principal of (and
premium, if any) and any interest on such Debt Securities will be payable; (11)
whether the amount of payments of principal of (and premium, if any) or
interest, if any, on such Debt Securities may be determined with reference to an
index, formula or other method (which index, formula or method may be based on
one or more Currencies, commodities, equity indices or other indices) and the
manner in which such amounts shall be determined; (12) whether the Company or
Holder may elect payment of the principal of (and premium, if any) or interest,
if any, on such Debt Securities in one or more Currencies other than that in
which such Debt Securities are denominated or stated to be payable, the period
or periods within which, and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange rate between
the Currency in which such Debt Securities are denominated or stated to be
payable and the Currency in which such Debt Securities are to be so payable;
(13) the place or places, if any, other than or in addition to the Borough of
Manhattan, The City of New York, where the principal of (and premium, if any)
and any interest on such Debt Securities shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer, such
Debt Securities may be surrendered for exchange and notice or demands to or upon
the Company in respect of such Debt Securities and the Indenture may be served;
(14) if other than denominations of $1,000 and any integral multiple thereof,
the denominations in which any
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Registered Securities of the series shall be issuable and, if other than the
denomination of $5,000, the denomination or denominations in which any Bearer
Securities of the series shall be issuable; (15) the applicability, if at all,
to such Debt Securities of the provisions of Article XIV of the Indenture
described under "Defeasance and Covenant Defeasance" below, and any provisions
in modification of, in addition to or in lieu of any of the provisions of such
Article; (16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global security on an Interest
Payment Date will be paid if other than in the manner provided in the Indenture;
(17) whether and under what circumstances the Company will pay Additional
Amounts as contemplated by Section 10.4 of the Indenture on such Debt Securities
to any Holder who is not a United States Person (including any modification to
the definition of such term as contained in the Indenture as originally
executed) in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such Debt Securities rather
than pay such Additional Amounts (and the terms of any such option); (18)
provisions, if any, granting special rights to the Holders of such Debt
Securities upon the occurrence of such events as may be specified; (19) any
deletions from, modifications of or additions to the Events of Default or
covenants of the Company with respect to such Debt Securities, whether or not
such Events of Default or covenants are consistent with the Events of Default or
covenants set forth herein; (20) the date as of which any Bearer Securities of
the series and any temporary global security shall be dated if other than the
date of original issuance of the first of such Debt Securities; (21) if such
Debt Securities are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary security of such series) only upon receipt
of certain certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or conditions; (22)
the designation of the initial Exchange Rate Agent, if any; and (23) any other
terms of such Debt Securities (Section 3.1).
The Indenture does not contain any provisions that afford Holders of Debt
Securities of any series protection in the event of a highly leveraged
transaction, reorganization, restructuring, merger or similar transaction
involving the Company that may adversely affect Holders of the Debt Securities
(except to the limited extent that the covenants described below under "Certain
Restrictions" might affect the Company's ability to consummate such
transactions). Any provision that does provide such protection, if applicable to
the Debt Securities, will be described in the applicable Prospectus Supplement
relating thereto.
Some or all of the Debt Securities may be issued under the Indenture as
Original Issue Discount Securities (bearing no interest or interest at a rate
that at the time of issuance is below market rates) or as deferred interest Debt
Securities (paying interest at a later date) to be issued at prices below their
stated principal amounts. Certain federal income tax consequences and other
special considerations applicable to any such Original Issue Discount Securities
and deferred interest Debt Securities will be described in the applicable
Prospectus Supplement.
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency markets. These risks will vary
depending upon the currency or currencies involved and will be more fully
described in the applicable Prospectus Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Registered Securities will be issuable in
denominations of $1,000 and integral multiples of $1,000 and Bearer Securities
will be issuable in the denomination of $5,000 or, in each case, in such other
denominations as may be in the terms of the Debt Securities of any particular
series. The Indenture also provides that Debt Securities of a series may be
issuable in temporary or permanent global form and may be issued as Book-Entry
Securities that will be deposited with, or on behalf of, The Depository Trust
Company or another depository named by the Company (the
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"Depository") and identified in a Prospectus Supplement with respect to such
series (Section 3.1). Unless otherwise specified in an applicable Prospectus
Supplement, Bearer Securities will have interest coupons attached (Section 2.1).
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. If (but only if)
provided in an applicable Prospectus Supplement, Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
of any series may be exchanged for Registered Securities of the same series of
any authorized denominations and of a like aggregate principal amount and tenor.
In such event, Bearer Securities surrendered in a permitted exchange for
Registered Securities between a Regular Record Date or a Special Record Date and
the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and interest will not be
payable on such date for payment of interest in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the holder of such coupon when due in accordance with the terms of the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
Bearer Securities will not be issued in exchange for Registered Securities
(Section 3.5).
The Debt Securities may be presented for exchange as described above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a written instrument of transfer), at the corporate
trust office of the Trustee in the Borough of Manhattan, The City of New York,
or at the office of any transfer agent designated by the Company for such
purpose with respect to any series of Debt Securities and referred to in the
applicable Prospectus Supplement. No service charge will be made for any
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith (Section 3.5). If a Prospectus Supplement refers to any
transfer agent (in addition to the Trustee) initially designated by the Company
with respect to any series of Debt Securities, the Company may at any time
rescind the designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, except that, if Debt
Securities of a series are issuable solely as Registered Securities, the Company
will be required to maintain a transfer agent in each Place of Payment for such
series and, if Debt Securities of a series may be issuable both as Registered
Securities and as Bearer Securities, the Company will be required to maintain
(in addition to the Trustee) a transfer agent in a Place of Payment for such
series located outside the United States. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities
(Section 10.2).
The Company shall not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (A) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption and (B) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any Registered
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Security being redeemed in part, (iii) exchange any
Bearer Security selected for redemption, except to exchange such Bearer Security
for a Registered Security of that series and like tenor which is simultaneously
surrendered for redemption; or (iv) issue, register the transfer of or exchange
any Debt Securities which has been surrendered for repayment at the option of
the Holder, except the portion, if any, thereof not to be so repaid (Section
3.5).
CERTAIN LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In order to avoid certain adverse United States federal income tax
consequences to the Company, Bearer Securities will not be offered, sold, resold
or delivered in connection with their original issuance in the United States or
to United States persons (each as defined in the Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations thereunder), except as otherwise
permitted by Treasury Regulation Section 1.163-5(c)(2)(i)(D), including offers
and sales to offices located outside the United States of United States
financial institutions (as defined in Treasury Regulation Section
1.165-12(c)(1)(v)) that agree in writing to
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comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Code and
the regulations thereunder. Any underwriters, agents and dealers participating
in the offering of Debt Securities must agree in writing that they will not
offer any Bearer Securities for sale or resale in the United States or to United
States persons (other than the financial institutions described above) or
deliver Bearer Securities within the United States. In addition, any such
underwriters, agents and dealers must agree to send confirmations to each
purchaser of a Bearer Security confirming that such purchaser represents that it
is not a United States person or that it is a financial institution described
above and, if such person is a dealer, that it will send similar confirmations
to purchasers from it. A Bearer Security may be delivered in connection with its
original issuance only if the person entitled to receive such Bearer Security
furnishes written certification of the beneficial ownership of the Bearer
Security as required by Treasury Regulation Section 1.163-5(c)(2)(i)(D)(3). In
the case of a Bearer Security in permanent global form, such certification must
be given in connection with notation of a beneficial owner's interest therein in
connection with the original issuance of such Debt Security (Section 3.3).
Bearer Securities and any coupons appertaining thereto must bear the
following legend: "Any United States person who holds this obligation will be
subject to limitations under the United States income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue
Code." Under Sections 165(j) and 1287(a) of the Code, Holders that are United
States persons, with certain exceptions, will not be entitled to deduct any loss
on Bearer Securities and must treat as ordinary income any gain realized on the
sale or other disposition (including the receipt of principal) of Bearer
Securities.
Other restrictions and additional tax considerations may apply to the
issuance and holding of Bearer Securities. A description of any such
restrictions and federal income tax consequences will be set forth in the
applicable Prospectus Supplement.
GLOBAL AND BOOK-ENTRY DEBT SECURITIES
If Debt Securities to be sold in the United States are designated by the
Company in a Prospectus Supplement as Book-Entry Securities, a global security
representing the Book-Entry Securities will be deposited in the name of the
nominee for the Depository, representing the Debt Securities to be sold in the
United States. Upon such deposit of the Book-Entry Securities, the Depository
shall credit an account maintained or designated by an institution to be named
by the Company or any purchaser of the Debt Securities represented by the
Book-Entry Securities with an aggregate amount of Debt Securities equal to the
total number of Debt Securities that have been so purchased. The specific terms
of any depository arrangement with respect to any portion of a series of Debt
Securities to be represented by one or more global securities will be described
in the applicable Prospectus Supplement. Beneficial interests in such Debt
Securities will only be evidenced by, and transfers thereof will only be
effected through, records maintained by the Depository and the institutions that
are Depository participants.
If so specified in an applicable Prospectus Supplement, the portion of the
Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary or permanent global Debt
Securities, without interest coupons, to be deposited with a common depository
in London for the Euroclear System ("Euroclear") and CEDEL S.A. ("CEDEL") for
credit to the designated accounts. Unless otherwise indicated by an applicable
Prospectus Supplement, on or after 40 days following its issuance, each such
temporary global Debt Security will be exchangeable for definitive Bearer
Securities, definitive Registered Securities or all or a portion of a permanent
global Debt Security, or any combination thereof, as specified in an applicable
Prospectus Supplement, only upon written certification in the form and to the
effect described under "Denominations, Registration and Transfer." No Bearer
Security (including a Debt Security in permanent global form) delivered in
exchange for a portion of a temporary or permanent global Debt Security shall be
mailed or otherwise delivered to any location in the United States in connection
with such exchange (Sections 3.4 and 3.5).
A Person having a beneficial interest in a permanent global Debt Security
will, except with respect to payment of principal of, premium, if any, and
interest on such permanent global Debt Security, be treated as a Holder of such
principal amount of Outstanding Debt Securities represented by such permanent
global Debt
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Security as shall be specified in a written statement of the Holder of such
permanent global Debt Security or, in the case of a permanent global Debt
Security in bearer form, of the operator of Euroclear or CEDEL which is provided
to the Trustee by such Person (Section 2.3).
CERTAIN RESTRICTIONS
RESTRICTIONS ON LIENS
The Indenture provides that neither the Company nor any Significant
Subsidiary of the Company shall incur, create, issue, assume, guarantee or
otherwise become liable for any Debt for money borrowed that is secured by a
Lien on any asset now owned or hereafter acquired by it unless the Company makes
or causes to be made effective provision whereby the Securities issued under the
Indenture will be secured by such Lien equally and ratably with (or prior to)
all other Debt thereby secured so long as any such Debt shall be secured. The
foregoing restriction does not apply to the following:
(i) Liens existing as of the date of the Indenture;
(ii) Liens created by Subsidiaries of the Company to secure Debt of
such Subsidiaries to the Company or to one or more other Subsidiaries of
the Company;
(iii) Liens affecting property of a Person existing at the time it
becomes a Subsidiary of the Company or at the time it merges into or
consolidates with the Company or a Subsidiary of the Company or at the time
of a sale, lease or other disposition of all or substantially all of the
properties of such Person to the Company or its Subsidiaries;
(iv) Liens on property existing at the time of the acquisition thereof
or incurred to secure payment of all or a part of the purchase price
thereof, including the expenses incurred in connection therewith, or to
secure Debt incurred prior to, at the time of, or within one year after the
acquisition thereof for the purpose of financing all or a part of the
purchase price thereof, including the expenses incurred in connection
therewith;
(v) Liens on any property to secure all or part of the cost of
improvements or construction thereon or Debt incurred to provide funds for
such purpose in a principal amount not exceeding the cost of such
improvements or construction, including the expenses incurred in connection
therewith;
(vi) Liens on shares of stock, Debt or other securities of a Person
that is not a Subsidiary;
(vii) Liens relating to accounts receivable of the Company or any of
its Subsidiaries which have been sold, assigned or otherwise transferred to
another Person in a transaction classified as a sale of accounts receivable
in accordance with generally accepted accounting principles (to the extent
the sale by the Company or the applicable Subsidiary is deemed to give rise
to a Lien in favor of the purchaser thereof in such accounts receivable or
the proceeds thereof);
(viii) Liens created pursuant to applications or reimbursement
agreements pertaining to commercial letters of credit which encumber only
the goods, or documents of title covering the goods that are sold or
shipped in the transaction for which such letters of credit were issued;
(ix) Liens incurred by the Company after the date of this Agreement in
connection with industrial revenue bond financing for facilities (including
pollution control equipment) to be used by the Company or any Subsidiary;
(x) Liens in favor of governmental bodies to secure progress, advance
or other payments;
(xi) other Liens arising in connection with Debt of the Company and
its Subsidiaries in an aggregate principal amount for the Company and its
Subsidiaries not exceeding 10% of the Consolidated Net Assets of the
Company at the time such Lien is issued, created or assumed; and
(xii) any extension, renewal or replacement (or successive extensions,
renewals or replacements) of any Lien referred to in the foregoing clauses
(i) through (xi) inclusive, or of any Debt secured thereby, provided that
the principal amount of Debt secured thereby shall not exceed the greater
of (A) the principal amount of Debt so secured at the time of such
extension, renewal or replacement and (B) the
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principal amount of Debt secured at the time the Lien was issued, created,
assumed or otherwise permitted, plus in either of (A) or (B) the expenses
of the Company and its Subsidiaries (including any premium) incurred in
connection with any such extension, renewal or replacement, and provided
further that such extension, renewal or replacement Lien shall be limited
to all or part of substantially the same property that secured the Lien
extended, renewed or replaced (plus improvements on such property) (Section
10.6).
RESTRICTIONS UPON SALE AND LEASEBACK TRANSACTIONS
The Company is not permitted, and may not permit a Significant Subsidiary,
to enter into any arrangement on or after the date of the Indenture, or such
other date as may be specified in any Prospectus Supplement for an applicable
series of Debt Securities issued pursuant to the Indenture, with any Person
(other than the Company or another Subsidiary) providing for the leasing by the
Company or any such Significant Subsidiary of any Principal Property (except a
lease for a temporary period, including renewals, of not more than 24 months by
the end of which it is intended that the use of such property by the lessee will
be discontinued) except (i) where the Company or such Subsidiary would be
entitled to incur Debt secured by a Lien on the property to be leased in an
amount equal to the Attributable Debt with respect to such Sale and Leaseback
Transaction without equally and ratably securing the Debt Securities, (ii) where
the Sale and Leaseback Transaction is entered into in respect of property
acquired by the Company or a Subsidiary within 24 months of such acquisition,
(iii) where such Sale and Leaseback Transaction is entered into by the Company
or a Subsidiary in respect of property within 24 months of the Company's or a
Subsidiary's acquisition of, or merger with, the Person owning such property, or
(iv) where the Company within 120 days of entering into the Sale and Leaseback
Transaction applies to the retirement of Debt Securities of any series an amount
equal to the greater of (a) the net proceeds of the sale of the property leased
pursuant to such Transaction or (b) the fair market value of the property so
leased (Section 10.7).
RESTRICTIONS UPON MERGER AND SALE OF ASSETS
The Indenture provides that the Company may not consolidate with or merge
into any other Person, or sell, convey, transfer, lease, or otherwise dispose
of, or permit one or more of its Subsidiaries to sell, convey, transfer, lease,
or otherwise dispose of, all or substantially all of the property and assets of
the Company, on a consolidated basis, to any Person unless, among other things,
(i) either the Company is the continuing corporation or such Person is a
corporation, partnership or trust organized and validly existing under the laws
of the United States of America, any state thereof or the District of Columbia,
and assumes by supplemental indenture all the obligations of the Company under
the Indenture and the Debt Securities, and (ii) immediately after the
transaction no Default or Event of Default shall exist (Section 8.1).
EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to the Debt
Securities of any series as being any one of the following events: (i) default
for 30 days in any payment of interest upon or any Additional Amounts payable in
respect of any Debt Security of that series when due; (ii) default in any
payment of principal of (or premium, if any, upon) any Debt Security of that
series when due; (iii) default in the deposit of any sinking fund payment, when
and as due by the terms of any Debt Security of that series; (iv) default for 60
days after appropriate notice in the performance of any other covenant in the
Indenture with respect to any Debt Security of that series; (v) certain events
in bankruptcy, insolvency, reorganization or other similar laws; and (vi) any
other Event of Default provided with respect to Debt Securities of that series
(Section 5.1).
In case an Event of Default shall occur and be continuing with respect to
the Debt Securities of any series, the Trustee or the Holders of not less than
25% in aggregate principal amount of the Debt Securities then Outstanding of
that series may declare the principal of the Debt Securities of such series (or,
if the Debt Securities of that series were issued as discounted Debt Securities,
such portion of the principal as may be specified in the terms of that series)
and the accrued interest thereon, if any, to be due and payable (Section 10.8).
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The Indenture requires the Company to file annually with the Trustee an
Officers' Certificate as to the absence of certain defaults under the terms of
the Indenture (Section 10.8). The Indenture provides that the Trustee may
withhold notice to the Holders of any default (except in payment of principal or
premium, if any, or interest) if it considers it in the interest of the Holders
to do so (Section 6.1).
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing, the
Indenture provides that the Trustee shall be under no obligation to exercise any
of its rights or powers under the Indenture at the request, order or direction
of Holders unless such Holders shall have offered to the Trustee reasonable
indemnity and security against the costs, expenses and liabilities which might
be incurred by it in compliance with such request (Section 5.7). Subject to such
provisions for indemnification and certain other rights of the Trustee, the
Indenture provides that the Holders of a majority in principal amount of the
Debt Securities of any series then Outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee
(Section 5.12).
The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the Holders of all
the Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive portions of the Indenture
and, if applicable, such Debt Securities, unless a greater percentage of such
aggregate principal amount is specified in the applicable Prospectus Supplement.
The Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all the Debt
Securities of such series and any related coupons waive any past default under
the Indenture with respect to such series and its consequences, except a default
(i) in the payment of the principal of (or premium, if any) or interest on or
Additional Amounts payable in respect of any Debt Security of such series, or
(ii) in respect of a covenant or provision that cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of such
series affected thereby (Section 5.13).
MODIFICATION OF THE INDENTURE
Modification and amendment of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of all Outstanding Debt Securities of any series that
are affected by such modification or amendment unless a greater percentage of
such aggregate principal amount is specified in the Prospectus Supplement;
provided, however, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Debt Security of such series, among
other things: (i) change the Stated Maturity of the principal of, or any
installment of interest on, any Debt Security of such series; (ii) reduce the
principal amount of, the rate of interest on, or any premium payable upon the
redemption of, any Debt Security of such series; (iii) change any obligation of
the Company to pay Additional Amounts in respect of any Debt Security of such
series; (iv) reduce the amount of principal of an Original Issue Discount
Security of such series that would be due and payable upon a declaration of
acceleration of the Maturity thereof; (v) change the Place of Payment or
Currency of Payment of principal of, or any premium or interest on, any Debt
Security of such series; (vi) impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof or any
Redemption Date therefor; (vii) reduce the above-stated percentage of Holders of
Outstanding Debt Securities of such series necessary to modify or amend the
Indenture or to consent to any waiver thereunder or reduce the requirements for
voting or quorum described below; or (viii) modify the foregoing requirements or
reduce the percentage of Outstanding Debt Securities of such series necessary to
waive any past default (Section 9.2).
Modification and amendment of the Indenture may be made by the Company and
the Trustee without the consent of any Holder, for any of the following
purposes: (i) to evidence the succession of another Person to the Company as
obligor under the Indenture; (ii) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Debt Securities; (iii) to add
Events of Default for the benefit of the Holders of all or any series of Debt
Securities; (iv) to add or change any provisions of the Indenture to facilitate
the issuance of Bearer Securities; (v) to change or eliminate any provisions of
the Indenture, provided that any such change or elimination shall become
effective only when there are no Outstanding Debt Securities of any
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series created prior thereto which are entitled to the benefit of such
provision; (vi) to establish the form or terms of Debt Securities of any series
and any related coupons; (vii) to secure the Debt Securities; (viii) to provide
for the acceptance of appointment by a successor Trustee; (ix) to cure any
ambiguity, defect or inconsistency in the Indenture, provided such action does
not adversely affect the interests of Holders of Debt Securities of any series
in any material respect; or (x) to supplement any of the provisions of the
Indenture to the extent necessary to permit or facilitate defeasance and
discharge of any series of Debt Securities, provided such action shall not
adversely affect the interests of the Holders of any Debt Securities in any
material respect (Section 9.1).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent, waiver or other
action thereunder or are present at a meeting of Holders of Debt Securities for
quorum purposes, (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof, and (ii) the principal amount of a Debt
Security denominated in a foreign currency or currency units shall be the Dollar
Equivalent of the Currency Unit, determined on the date of original issuance of
such Debt Security or, in the case of an Original Issue Discount Security, the
Dollar Equivalent of the Currency Unit, determined on the date of original
issuance of such Debt Security, of the amount determined as provided in (i)
above (Section 3.12).
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of any series. A meeting may be called at any time by the
Trustee, and also, upon request, by the Company or the Holders of at least 10%
in principal amount of the Outstanding Debt Securities of any such series, in
any such case upon notice given as provided in the Indenture. Except for any
consent that must be given by the Holder of each Debt Security affected thereby,
as described above, any resolution presented at a meeting or adjourned meeting
at which a quorum is present may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
that series; provided, however, that any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of Outstanding Debt Securities of a
series may be adopted at a meeting or adjourned meeting duly reconvened at which
a quorum is present by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with the Indenture will be
binding on all Holders of Debt Securities of that series and the related
coupons. The quorum at any meeting called to adopt a resolution, and at any
reconvened meeting, will be the Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of a series; provided, however, that
if any action is to be taken at such meeting with respect to a consent or waiver
that may be given by the Holders of a specified percentage in principal amount
of the Outstanding Debt Securities of a series, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Debt Securities
of such series will constitute a quorum (Article XV).
DEFEASANCE AND DISCHARGE
The Indenture provides that, if so specified with respect to the Debt
Securities of any series, the Company will be discharged from any and all
obligations in respect of the Debt Securities of such series upon the deposit
with the Trustee, in trust, of money and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof in accordance
with the terms will provide money in an amount sufficient to pay the principal
of (and premium, if any), each installment of interest on, and any sinking fund
payments on, the Debt Securities of such series on the Stated Maturity of such
payments in accordance with the terms of the Indenture and the Debt 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 to the effect that
(i) the Company has received from, or there has been published by, the Internal
Revenue Service a rule, or (ii) since the date of the Indenture there has been a
change in applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of
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Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge, and will be subject to federal income tax on the same amounts 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. In the event of any such
defeasance and discharge of Debt Securities of such series, Holders of Debt
Securities of such series would be able to look only to such trust fund for
payment of principal of and any premium and any interest on their Debt
Securities until Maturity (Section 14.2).
DEFEASANCE OF CERTAIN COVENANTS
The Indenture provides covenants that, if so specified with respect to the
Debt Securities of any series, the Company may omit to comply with the
restrictive covenants described under "Certain Restrictions" above and any other
covenants applicable to such Debt Securities which are subject to covenant
defeasance and any such omission shall not be an Event of Default with respect
to the Debt Securities of such series, upon the deposit with the Trustee, in
trust, of money and/or U.S. 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), each installment of interest on, and any sinking fund payments on, the
Debt Securities of such series on the Stated Maturity of such payments in
accordance with the terms of the Indenture and the Debt Securities of such
series. The obligations of the Company under the Indenture and the Debt
Securities of such series other than with respect to such covenant shall remain
in full force and effect. Such a trust may be established only if, among other
things, the Company has delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Debt 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 obligations and will be subject to federal income tax
on the same amounts 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 14.3).
In the event the Company exercises its option to omit compliance with the
covenants described under "Certain Restrictions" above with respect to the Debt
Securities of any series as described above and the Debt Securities of such
series are declared due and payable because of the occurrence of any Event of
Default, then the amount of money and U.S. Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Debt Securities of
such series at the time of their Stated Maturity but may not be sufficient to
pay amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Default. The Company shall in any event remain
liable for such payments as provided in the Indenture.
Unless otherwise provided in the Prospectus Supplement, if, after the
Company has deposited funds and/or U.S. Government Obligations to effect
defeasance and discharge or covenant defeasance with respect to Debt Securities
of any series, (a) the Holder of a Debt Security of such series is entitled to,
and does, elect pursuant to the terms of such Debt Security to receive payment
in a Currency other than that in which such deposit has been made in respect of
such Debt Security, or (b) the Currency in which such deposit has been made in
respect of any Debt Security of such series ceases to be used by its government
of issuance, the Debt represented by such Debt Security shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest, if any, on such Debt Security
as they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the Currency in which such Debt
Security becomes payable as a result of such election or such cessation of usage
based on the applicable Market Exchange Rate (Section 14.5). Unless otherwise
provided in the Prospectus Supplement, all payments of principal of (and
premium, if any) and interest, if any, and Additional Amounts, if any, on any
Debt Security that is payable in a Foreign Currency that ceases to be used by
its government of issuance shall be made in Dollars (Section 3.12).
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within a particular series and any related coupons.
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MEDIUM-TERM NOTES
The Company may offer from time to time medium-term notes (the "Medium-Term
Notes") as a series of Debt Securities under the Indenture. The particular terms
and provisions of the Medium-Term Notes will be described in the Prospectus
Supplement relating to such Medium-Term Notes.
THE TRUSTEE
The Company from time to time maintains bank accounts and has other
customary banking relationships with and obtains credit facilities and lines of
credit from the Trustee in the ordinary course of business. The Trustee may also
serve as trustee under other indentures covering other debt securities of the
Company.
PAYMENT AND PAYING AGENTS
Unless otherwise provided in an applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, and Additional Amounts, if
any, on Bearer Securities will be payable, subject to any applicable laws and
regulations, at the offices of such Paying Agents outside the United States as
the Company may designate from time to time (Section 10.2). Unless otherwise
provided in the Prospectus Supplement, payment of interest and certain
Additional Amounts on Bearer Securities on any Interest Payment Date will be
made only against presentation and surrender of the coupon relating to such
Interest Payment Date (Section 10.1). Unless otherwise provided in the
Prospectus Supplement, no payment with respect to any Bearer Security will be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. Notwithstanding the
foregoing, payments of principal, premium, if any, and interest, if any, and
Additional Amounts, if any, in respect of Bearer Securities payable in Dollars
will be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount
thereof in Dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions (Section 10.2).
Unless otherwise provided in an applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, and Additional Amounts, if
any, on Registered Securities will be payable at the office of such Paying Agent
or Paying Agents as the Company may designate from time to time, except that, at
the option of the Company, interest (including Additional Amounts, if any) may
be paid (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or (ii) by transfer to an
account maintained by the payee located inside the United States. Unless
otherwise provided in the Prospectus Supplement, payment of any installment of
interest on Registered Securities will be made to the Person in whose name such
Registered Security is registered at the close of business on the Regular Record
Date for such interest (Section 3.7).
Any Paying Agents outside the United States and any other Paying Agents in
the United States initially designated by the Company for the Debt Securities
will be named in the Prospectus Supplement. The Company may at any time
designate additional Paying Agents or rescind the designation of any Paying
Agent or approve a change in the office through which any Paying Agent acts,
except that, if Debt Securities of a series are issuable only as Registered
Securities, the Company will be required to maintain a Paying Agent in each
Place of Payment for such series and, if Debt Securities of a series are also
issuable as Bearer Securities, the Company will be required to maintain (i) a
Paying Agent in the Borough of Manhattan, The City of New York, for payments
with respect to any Registered Securities of the series (and for payments with
respect to Bearer Securities of the series in the circumstances described above,
but not otherwise) and (ii) a Paying Agent in a Place of Payment located outside
the United States where Debt Securities of such series and any related coupons
may be presented and surrendered for payment; provided that if the Debt
Securities of such series are listed upon application by the Company on any
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent in any other required city
located outside the United States, as the case may be, for the Debt Securities
of such series (Section 10.2).
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Payments of principal of, premium, if any, and interest on Book-Entry
Securities registered in the name of any Depository or its nominee will be made
to the Depository or its nominee, as the case may be, as the registered owner of
the global security representing such Book-Entry Securities. The Company expects
that the Depository, upon receipt of any payment of principal, premium or
interest, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests as shown on the
records of such Depository or its nominee. None of the Company, the Trustee, any
Paying Agent or the Securities Registrar for such Debt Securities will have any
responsibility or liability for any aspects of the records relating to, or
payments made on account of, such beneficial ownership interests in the
Book-Entry Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
CERTAIN DEFINITIONS
"Consolidated Net Assets" means the total assets of the Company and its
consolidated Subsidiaries as shown on the consolidated balance sheet of the
Company for the most recently completed accounting period for which financial
statements are publicly available, after deducting the amount of all current
liabilities (excluding any constituting Funded Debt by reason of their being
renewable or extendible).
"Funded Debt" means indebtedness for money borrowed which by its terms
matures at, or is extendible or renewable at the option of the obligor to, a
date more than 12 months after the date of the creation of such indebtedness for
money borrowed.
"Holder," when used with respect to any Security, means, in the case of a
Registered Security, the Person in whose name the Security is registered in the
Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or security
interest.
"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Property" means any facility (together with the land on which it
is erected, any future additions or improvements thereto, and all machinery and
equipment included therein) used by the Company or a Subsidiary primarily for
producing, processing, packaging, storing, or distributing its products, raw
materials, inventories or other materials and supplies, located in the United
States or Canada, owned or leased by the Company or a Subsidiary, and having an
acquisition cost plus capitalized improvements in excess of 2% of Consolidated
Net Assets as of the date of such determination, but shall not include any such
property financed through the issuance of tax-exempt governmental obligations,
or any such property or portion thereof that has been determined by Board
Resolution not to be of material importance to the respective business conducted
by the Company or a Subsidiary, effective as of the date such Board Resolution
is adopted.
"Significant Subsidiary" means, at any time, any Subsidiary that would be a
"Significant Subsidiary" at such time, as such term is defined in Regulation S-X
promulgated by the Commission, as in effect as of the date of the Indenture.
"Subsidiary" means any corporation, partnership, limited liability company,
joint venture, trust, association or unincorporated organization more than 50%
of the outstanding voting interest of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries.
14
<PAGE> 16
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities to or through underwriters, and
also may sell the Debt Securities directly to other purchasers or through
agents, and any such sales may be made on a continuing basis. The Prospectus
Supplement with respect to the Debt Securities being offered thereby sets forth
the terms of the offering of such Debt Securities, including the name or names
of any underwriters or agents, the purchase price of such Debt Securities and
the proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or paid to dealers and
any securities exchanges on which such Debt Securities may be listed.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices relating to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of Debt
Securities may be deemed to be underwriters and any discounts or commissions
received by them and any profit on the resale of Debt Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Any such underwriter or agent will be identified, and any such compensation will
be described, in a Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
the underwriters to solicit offers by certain institutions to purchase Debt
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts providing for
payment and delivery on the date stated in the Prospectus Supplement. Each such
contract will be for an amount not less than, and unless the Company otherwise
agrees, the aggregate principal amount of Debt Securities sold pursuant to such
contracts shall not be more than, the respective amounts stated in the
Prospectus Supplement. Institutions with which such contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions, and other
institutions, but shall in all cases be subject to the approval of the Company.
Delayed Delivery Contracts will not be subject to any conditions except that the
purchase by an institution of the Debt Securities covered thereby shall not at
the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which such institution is subject.
VALIDITY OF THE DEBT SECURITIES
The validity of the Debt Securities will be passed upon for the Company by
Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York and certain matters
will be passed upon for any underwriters by Skadden, Arps, Slate, Meagher &
Flom, New York, New York. Skadden, Arps, Slate, Meagher & Flom from time to time
provides legal services to the Company.
EXPERTS
The financial statements and schedules included in IBP's Annual Report on
Form 10-K for the fiscal year ended December 31, 1994, which are incorporated by
reference herein and in the Registration Statement, have been audited by Price
Waterhouse LLP, independent public accountants, as indicated in their report
with respect thereto, which is incorporated by reference herein. Such financial
statements and schedules are incorporated by reference herein in reliance upon
the report of Price Waterhouse LLP, given upon its authority as experts in
accounting and auditing.
15
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the securities being registered other than underwriting discounts and
commissions, are set forth in the following table.
<TABLE>
<S> <C>
Securities and Exchange Commission fee.................................... $172,414
Printing and engraving expenses........................................... 80,000*
Accountants' fees and expenses............................................ 35,000*
Legal fees and expenses................................................... 300,000*
Blue Sky fees and expenses................................................ 15,000*
Trustee fees and expenses................................................. 17,500*
Rating Agency fees........................................................ 160,000*
Miscellaneous............................................................. 10,000*
--------
Total........................................................... $789,914*
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware, as
amended (the "GCL"), empowers a corporation, subject to certain limitations, to
indemnify its directors and officers against actual and reasonable expenses of
defending litigation against them in their capacities as directors and officers.
As permitted by this section, Article VI of the Bylaws of IBP provides that IBP
shall indemnify any person (a) who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in right of IBP) by reason of the fact that he is or was a director or
officer of IBP or is or was serving at the request of IBP as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of IBP,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful; (b) who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of IBP to procure a judgment in its favor by reason of the fact
that he is or was a director or officer of IBP, or is or was serving at the
request of IBP as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of IBP, except that no indemnification shall be made in any such
case in respect of any claim, issue or matter as to which he shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duties to IBP unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, he is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery of Delaware or such other court
shall deem proper.
The Bylaws provide that the foregoing indemnification shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled under any law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to actions in his official capacity and as to
actions in any other capacity while holding office, and shall continue as to a
person who has ceased to be a director or officer, and shall inure to the
benefit of the heirs, executors and administrators of such person.
II-1
<PAGE> 18
Under Article VI of the Bylaws, IBP is authorized to purchase and maintain
insurance on behalf of any person who is or was a director or officer of IBP or
is or was serving at the request of IBP as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not IBP would
have the power to indemnify him against liability under the provisions of
Article VI of the Bylaws.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of the Registration Statement:
<TABLE>
<S> <C>
Exhibit 1 -- Form of Underwriting Agreement for Debt Securities*
Exhibit 4 -- Form of Indenture between IBP and The Bank of New York, as
Trustee, relating to the Debt Securities**
Exhibit 5 -- Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to the
legality of the Debt Securities*
Exhibit 12 -- Statement re: Computation of Ratio of Earnings to Fixed Charges**
Exhibit 23(a) -- Consent of Price Waterhouse LLP**
Exhibit 23(b) -- Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
their opinion filed as Exhibit 5)*
Exhibit 24 -- Power of Attorney*
Exhibit 25 -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of The Bank of New York, as Trustee, for the
Debt Securities**
</TABLE>
- ---------------
* Filed herewith.
** Previously filed.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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 the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3, and 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 Exchange Act, that are
incorporated by reference in the Registration Statement.
II-2
<PAGE> 19
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in 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.
(c) The undersigned registrant hereby undertakes if securities are to be
offered pursuant to competitive bidding (1) to use its best efforts to
distribute prior to the opening of bids, to prospective bidders, underwriters
and dealers, a reasonable number of copies of a prospectus which at that time
meets the requirements of Section 10(a) of the Securities Act, and relating to
the securities offered at competitive bidding, as contained in the Registration
Statement, together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the issuer after the opening
of bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer and
no reoffering of such securities by purchasers is proposed to be made.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(e) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 20
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO
THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN DAKOTA CITY, STATE OF NEBRASKA, ON DECEMBER 14,
1995.
IBP, inc.
By: /s/ ROBERT L. PETERSON
------------------------------------
Robert L. Peterson
Chairman of the Board, President and
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED ON DECEMBER 14, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------------------- --------------------------------------------
<C> <S>
/s/ ROBERT L. PETERSON Chairman of the Board, President and Chief
- ----------------------------------------------- Executive Officer (principal executive
Robert L. Peterson officer)
</TABLE>
<PAGE> 21
<TABLE>
<C> <S>
* Executive Vice President -- Corporate
- ----------------------------------------------- Development (principal financial officer)
Larry Shipley
/s/ CRAIG J. HART Vice President and Controller (principal
- ----------------------------------------------- accounting officer)
Craig J. Hart
/s/ RICHARD L. BOND Director
- -----------------------------------------------
Richard L. Bond
* Director
- -----------------------------------------------
John S. Chalsty
* Director
- -----------------------------------------------
Alec P. Courtelis
* Director
- -----------------------------------------------
Wendy L. Gramm
* Director
- -----------------------------------------------
David C. Layhee
/s/ EUGENE D. LEMAN Director
- -----------------------------------------------
Eugene D. Leman
* Director
- -----------------------------------------------
JoAnn R. Smith
* Director
- -----------------------------------------------
Dale C. Tinstman
*By: /s/ LONNIE O. GRIGSBY
- -----------------------------------------------
Lonnie O. Grigsby
Attorney-in-fact
</TABLE>
<PAGE> 22
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL PAGE
EXHIBITS NUMBERS
- -------------- ---------------
<S> <C> <C>
Exhibit 1 Form of Underwriting Agreement for Debt Securities*.......
Exhibit 4 Form of Indenture between IBP and The Bank of New York, as
Trustee, relating to the Debt Securities**................
Exhibit 5 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to
the legality of the Debt Securities*......................
Exhibit 12 Statement re: Computation of Ratio of Earnings to Fixed
Charges**.................................................
Exhibit 23(a) Consent of Price Waterhouse LLP**.........................
Exhibit 23(b) Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(included in their opinion filed as Exhibit 5)*...........
Exhibit 24 Power of Attorney*........................................
Exhibit 25 Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of The Bank of New
York, as Trustee, for the Debt Securities**...............
</TABLE>
- ---------------
* Filed herewith.
** Previously filed.
<PAGE> 1
Exhibit 1
-----------
IBP, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
_______, 199_
To the several Underwriters named
in the respective Terms Agreements
hereinafter described
Dear Ladies and Gentlemen:
IBP, inc., a Delaware corporation ("IBP" or the "Company"),
proposes to issue and sell its senior unsecured debt securities (the "Debt
Securities") in one or more offerings on the terms and conditions determined at
the time of sale. The Debt Securities will be issued pursuant to an indenture
dated as of _______, 199_ (the "Indenture") between the Company and The Bank of
New York, as trustee (the "Trustee").
From time to time, the Company may enter into one or more terms
agreements (each a "Terms Agreement") that provide for the sale of such
designated Debt Securities to, and the purchase and offering thereof by, the
underwriter or underwriters named therein (the "Underwriters" or "you", which
terms shall include the underwriter or underwriters named therein whether acting
alone in the sale of Debt Securities or as members of an underwriting syndicate)
and the provisions set forth herein (except for provisions which relate to
securities other than Debt Securities designated in the applicable Terms
Agreement) shall be incorporated by reference in any such Terms Agreement. The
applicable Terms Agreement, including the provisions incorporated therein by
reference, is herein referred to as "this Agreement."
<PAGE> 2
1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No.
33-64459), including a prospectus relating to the Debt
Securities of the Company for the registration of such
securities under the Securities Act of 1933, as amended (the
"Securities Act"), has (i) been prepared by the Company in
material conformity with the requirements of the Securities Act
and the rules and regulations (the "Rules and Regulations") of
the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act; and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Copies of such registration statement and any amendments
thereto have been delivered by the Company to you. As used in
this Agreement, "Effective Date" means the date and the time as
of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared
effective by the Commission; "Registration Statement" means the
registration statement as amended to the date of this Agreement
including all documents incorporated by reference or deemed to
be incorporated by reference therein and the exhibits thereto;
"Basic Prospectus" means the prospectus included in the
Registration Statement; "Preliminary Prospectus" means any
preliminary form of Prospectus (as defined herein) specifically
relating to designated Debt Securities, in the form first filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424 of the Rules and Regulations; "Prospectus Supplement"
means any prospectus supplement specifically relating to
designated Debt Securities, in the form first filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
under the Securities Act; "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement except that
if such Basic Pro
2
<PAGE> 3
spectus is amended or supplemented on or prior to the date on
which the Prospectus Supplement was first filed pursuant to
Rule 424, the term "Prospectus" shall refer to the Basic
Prospectus as so amended or supplemented and as supplemented by
the Prospectus Supplement; "Basic Prospectus," "Prospectus",
"Preliminary Prospectus" and "Prospectus Supplement" shall
include in each case the documents, if any, filed by the
Company with the Commission pursuant to the United States
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference therein; and "supplement"
and "amendment", shall be deemed to refer to and include any
documents incorporated by reference pursuant to Item 12 of Form
S-3 under the Securities Act that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission
pursuant to the Exchange Act. Any reference to any amendment to
the Registration Statement shall be deemed to include any
annual report of the Company filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date that is incorporated by reference in the
Registration Statement.
(b) The Registration Statement conforms in all
material respects, and the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all material
respects, to the requirements of the Securities Act and the
Rules and Regulations thereunder and do not and will not, as of
the applicable Effective Date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date
(as to the Prospectus and any amendment or supplement thereto)
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in
light of the circumstances in which they were made) not
misleading; provided, however, that no representation or
warranty is
3
<PAGE> 4
made as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility on Form T-1 under the Trust
Indenture Act of the Trustee, and (ii) information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for use in the
Registration Statement or the Prospectus.
(c) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and
regulations thereunder.
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all material
respects with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder, and, when read together with the Prospectus on the filing
date of the Prospectus and any amendment or supplement thereto, none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and, when read together with the Prospectus on the dates such documents
become effective or are filed with the Commission, as the case may be,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
4
<PAGE> 5
(e) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification except where the failure to be so qualified and
in good standing would not be reasonably expected to have a
material adverse effect on the consolidated financial
condition, stockholders' equity, results of operations or
business of the Company and its subsidiaries, taken as a whole
(a "Material Adverse Effect"), and where so qualified have all
corporate power and authority necessary to own, lease or
operate their respective properties and to conduct the
businesses in which they are engaged as described in the
Prospectus.
(f) The Debt Securities have been duly and validly
authorized by the Company and, when duly executed, issued and
delivered by the Company, and authenticated by the Trustee
pursuant to the provisions of the Indenture, against payment
therefor as provided in this Agreement, will constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company
in accordance with their terms, except as the enforceability
thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium
or similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity); and the Debt Securities, when issued and delivered,
will conform in all material respects to the description
thereof contained in the Prospectus.
(g) The Indenture has been duly authorized by the
Company, and when duly executed by
5
<PAGE> 6
the proper officers of the Company (assuming due execution and
delivery by the Trustee) and delivered by the Company, will
constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms, except as the enforceability thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity); and the Indenture
conforms in all material respects to the description thereof
contained in the Prospectus.
(h) This Agreement has been duly authorized, executed
and delivered by the Company.
(i) The execution, delivery and performance of this
Agreement and the Indenture by the Company, and the
consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Debt Securities
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under any indenture, lien, charge or encumbrance upon any
property or mortgage, deed of trust, loan agreement, or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them is bound
or to which any of the property or assets of the Company or any
of its subsidiaries is subject except for such conflicts,
breaches, violations or defaults which would not have a
Material Adverse Effect; nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries; nor will such action result
in any violation of the provisions of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries
or any of their material properties or assets except for
violations which
6
<PAGE> 7
would not have a Material Adverse Effect; and except for the
registration of the Debt Securities under the Securities Act,
the qualification of the Indenture under the Trust Indenture
Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Debt Securities by
the Underwriters, no consent, approval, authorization or order
of, or filing, registration or qualification of or with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the
Indenture by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby.
(j) Except as described or incorporated by reference
in the Registration Statement or the Prospectus, there are no
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in
the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the
Securities Act.
(k) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest financial
statements included or incorporated by reference in the
Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree in any such case, which
would have a Material Adverse Effect, otherwise than as set
forth or contemplated in the Prospectus; and, since such date,
there has not been any change in the capital stock or long
7
<PAGE> 8
term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, management, financial condition, stockholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(l) Price Waterhouse L.L.P., which has certified
certain financial statements of the Company, which statements
appear in the Prospectus or are incorporated by reference
therein, and Coopers and Lybrand L.L.P., which has delivered
the initial letter referred to in Section 7(g) hereof, are each
independent public accountants as required by the Securities
Act and the Rules and Regulations.
(m) The financial statements (including the related
notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by reference
in the Prospectus present fairly in all material respects the
financial condition and results of operations of the Company
and its consolidated subsidiaries at the dates and for the
periods indicated, and have been prepared in conformity with
United States generally accepted accounting principles applied
on a consistent basis throughout the periods involved, except
as otherwise expressly set forth therein.
(n) Except as described in the Registration Statement,
Prospectus or in documents incorporated therein by reference,
there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which
any material property or assets of the Company or any of its
subsidiaries is the subject which is required to be disclosed
in the Registration Statement, Prospectus or in documents
incorporated therein by reference or which would reasonably be
expected to have a Material Adverse Effect; and to the
Company's knowledge, no such proceedings are
8
<PAGE> 9
threatened by governmental authorities or by others.
(o) There are no contracts or other documents which
are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or
by the Rules and Regulations which have not been described in
the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference under the Rules
and Regulations.
(p) Neither the Company nor any of its subsidiaries is
(i) in violation of its charter or by-laws, or (ii) in default
in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term,
covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement to
which the Company or any of its subsidiaries is a party or by
which it or any of them is or may be bound or to which any of
the properties or assets of the Company or any of its
subsidiaries is subject, except for such default which would
not have a Material Adverse Effect or (iii) in violation in any
material respect of any law, ordinance, governmental rule,
regulation or court decree to which the Company or any of its
subsidiaries or its or any of their property or assets may be
subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its or their property or
to the conduct of its or their business, except for such
violation or failure which would not have a Material Adverse
Effect.
(q) Neither the Company nor, to the Company's
knowledge, any of its subsidiaries, any director, officer,
agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful con
9
<PAGE> 10
tribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official
or employee from corporate funds; or violated or is in
violation in any material respect of any provision of the
Foreign Corrupt Practices Act of 1977.
(r) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended (the "Investment
Act"), and the rules and regulations of the Commission
thereunder.
(s) Neither the ____ nor ____ senior debt rating
assigned to the Company in 1995 by Standard & Poor's
Corporation and by Moody's Investor Services, Inc.,
respectively, has been lowered or, to the Company's knowledge,
threatened to be lowered by either such rating agency nor, to
the Company's knowledge, has it been placed under surveillance
or review by either such rating agency.
(t) Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
2. Purchase of the Debt Securities by the Underwriters. On the
basis of the representations and warranties contained herein, and subject to
the terms and conditions set forth herein, the Company agrees to sell to the
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at the price and/or principal amount, as the case may
be, set forth in the Terms Agreement attached hereto as the Schedule together
with interest thereon accrued from the date specified in the Terms Agreement and
in the respective amounts of the designated Debt Securities set forth opposite
the name of each such Underwriter in Exhibit A to such Terms Agreement.
10
<PAGE> 11
3. Offering of the Debt Securities by the Underwriters. The
Underwriters propose to offer the Debt Securities for sale upon the terms and
conditions set forth in the Prospectus and any amendment or supplement thereto
relating to the Debt Securities.
4. Delivery of and Payment for the Debt Securities. Delivery of
and payment for the Debt Securities shall be made at such location as may be
agreed upon by the Underwriters and the Company at 10:00 a. m. New York City
time, on the third business day following the date of this Agreement, or at such
other time and date as shall be agreed upon (each such date and time of payment
and delivery being herein called the "Closing Date") in the manner set forth in
the applicable Terms Agreement. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of each Underwriter hereunder. Upon delivery, the Debt
Securities shall be registered in such names and in such denominations as the
Underwriters shall request in writing not less than two full business days prior
to the Closing Date. For the purpose of expediting the checking and packaging of
the certificates for the Debt Securities, the Company shall make the
certificates representing the Debt Securities available for inspection by the
Underwriters in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Closing Date.
The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities in book-entry form that will
be deposited with, or on behalf of, a depository, or its nominee, identified in
the Prospectus Supplement relating to such series. In such a case, the manner of
delivery of such global securities will be set forth in the applicable Terms
Agreement.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form reasonably
acceptable to the Underwriters and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than
the Commission's close of business on the second Business Day
following the execution and deliv
11
<PAGE> 12
ery of this Agreement [or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act];
to make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the applicable Closing
Date except as permitted herein; to advise the Underwriters,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale
of the Debt Securities; to advise the Underwriters, promptly
after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Debt
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus
or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriters and to
counsel for the Underwriters a copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all
consents and exhibits (other than those incorporated by
reference) filed therewith;
12
<PAGE> 13
(c) To deliver promptly to the Underwriters such
number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this Agreement, the Indenture and such other exhibits as the
Underwriters may reasonably request), (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus and (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto); and, if the
delivery of a prospectus is required at any time after the
Effective Date in connection with the offering or sale of the
Debt Securities and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus (or to file
under the Exchange Act any document incorporated by reference
in the Prospectus) in order to comply with the Securities Act
or the Exchange Act, to notify the Underwriters and, upon the
reasonable request of the Underwriters, to file such document
and to prepare and furnish without charge to each Underwriter
as many copies as the Underwriters may from time to time
reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any amendment
to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment of the
Company and the Underwriters, be required by the Securities Act
or requested by the Commission;
13
<PAGE> 14
(e) Prior to filing with the Commission any amendment
to the Registration Statement or supplement to the Prospectus,
and promptly after filing with the Commission any document
incorporated by reference in the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Underwriters and counsel for the
Underwriters;
(f) As soon as practicable after the date of this
Agreement and every Terms Agreement relating to designated Debt
Securities, to make generally available to its securityholders
an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the
applicable Closing Date, to furnish to the Underwriters copies
of all materials furnished by the Company to all of its
stockholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Company's common
stock and any Debt Securities may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rules or
regulations of the Commission thereunder;
(h) Promptly from time to time, to use its best
efforts, to take such action as the Underwriters may reasonably
request to qualify the Debt Securities for offering and sale
under the securities laws of such jurisdictions as the
Underwriters may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Debt Securities; provided,
however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation, to file a
14
<PAGE> 15
general consent to service of process in any jurisdiction where
it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is
not otherwise so subject;
(i) If, and to the extent specified in the Terms
Agreement attached hereto as the Schedule, designated Debt
Securities are to be duly authorized for listing on a national
securities exchange, to apply for any listing of such
designated Debt Securities on such national securities exchange
and to use its best efforts to complete that listing, subject
only to official notice of issuance, prior to the relevant
Closing Date; and
(j) To apply the net proceeds from the sale of the
Debt Securities being sold by the Company as set forth in the
Prospectus.
6. Expenses. The Company agrees to pay all costs, expenses,
fees and taxes incident to (i) the preparation, printing, filing and
distribution under the Securities Act of the Registration Statement (including
financial statements and exhibits), each Preliminary Prospectus and all
amendments and supplements thereto, (ii) the printing and delivery of the
Prospectus and all amendments or supplements thereto, (iii) the printing and
delivery of this Agreement, the Blue Sky Memorandum and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Debt Securities (including in each case any
reasonable disbursements of counsel for the Underwriters relating to such
printing and delivery), (iv) the registration or qualification of the Debt
Securities for offer and sale under the securities or Blue Sky Laws of the
several states (including in each case the reasonable fees and disbursements of
counsel for the Underwriters relating to such registration or qualification and
memoranda relating thereto), (v) filings and clearance with the NASD in
connection with the offering, if applicable, and (vi) furnishing such copies of
the Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale of
the Debt Securities by the Underwriters.
15
<PAGE> 16
7. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for any Debt Securities are subject to the
accuracy in all material respects, when made, and on each Closing Date, of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder and under the Terms
Agreement attached hereto as the Schedule, and to each of the following
additional terms and conditions:
(a) At the applicable Closing Date, the Prospectus
shall have been timely filed with the Commission in accordance
with Section 5(a); no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall
have been complied with to the Underwriters' reasonable
satisfaction.
(b) Lonnie O. Grigsby, General Counsel to the Company,
shall have furnished to the Underwriters his opinion, as
general counsel to the Company, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably
satisfactory to counsel for the Underwriters to the effect
that:
(i) The Company's subsidiaries have been duly
incorporated and are validly existing as corporations
in good standing under the laws of their respective
jurisdictions of incorporation; and the Company is
duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which
its ownership or lease of property or the conduct of
its business requires such qualification and where the
failure to be so qualified and in good standing would
have a Material Adverse Effect, and where so
qualified, has all corporate power and authority
necessary to own, lease or operate its prop
16
<PAGE> 17
erties and to conduct businesses as described or
incorporated by reference in the Prospectus;
(ii) To such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by
the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to
the Registration Statement or incorporated therein by
reference under the Rules and Regulations;
(iii) The documents incorporated by reference
in the Prospectus (other than the financial statements
and related schedules therein and all other financial
and statistical data included or incorporated by
reference therein or omitted therefrom, as to which
such counsel need express no opinion), when they were
filed with the Commission complied as to form in all
material respects with the requirements of the
Exchange Act and the rules and regulations of the
Commission thereunder;
(iv) To such counsel's knowledge, and other
than as set forth in the Registration Statement, the
Prospectus, or any documents incorporated by
reference, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any material
property or assets of the Company or any of its
subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries,
would have a Material Adverse Effect; and to such
counsel's knowledge, no such proceedings are
threatened by governmental authorities or others; and
(v) The issuance and sale of the Debt
Securities being delivered on the
17
<PAGE> 18
Closing Date by the Company and the compliance by the
Company with all of the provisions of this Agreement
and the Indenture and the consummation of the
transactions contemplated hereby and thereby, will not
conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement known to such
counsel to which the Company or any of its
subsidiaries is a party or by which any of them is
bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject except
for such conflicts, breaches, violations or defaults
which would not have a Material Adverse Effect nor
will such actions result in any violation of the
provisions of any state or federal statute or any
order, rule or regulation known to such counsel of any
court or governmental agency or body having
jurisdiction over the Company or any of its
subsidiaries or any of their material properties or
assets, except for such violations as would not have a
Material Adverse Effect.
(c) Paul, Weiss, Rifkind, Wharton & Garrison, special
counsel to the Company, shall have furnished to the
Underwriters their opinion, as counsel to the Company,
addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of Delaware;
(ii) The Debt Securities have been duly and
validly authorized by the Company and, when duly
executed, issued and delivered by the Company, and
authenticated by the Trustee pursuant to the
provisions of
18
<PAGE> 19
the Indenture, against payment therefor as provided in
this Agreement, will constitute valid and legally
binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the
Company in accordance with their terms, except as the
enforceability thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or
in equity); and the Debt Securities, when issued and
delivered, will conform in all material respects to
the description thereof contained in the Prospectus;
(iii) The Indenture has been duly authorized
by the Company, and when duly executed by the proper
officers of the Company (assuming due execution and
delivery by the Trustee) and delivered by the Company
will constitute a valid and legally binding obligation
of the Company enforceable against the Company in
accordance with its terms, except as the
enforceability thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or
in equity); and the Indenture conforms in all material
respects to the description thereof contained in the
Prospectus;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
(v) The Company is not an "investment
company" within the meaning of such term under the
Investment Act and the
19
<PAGE> 20
rules and regulations of the Commission thereunder;
(vi) The Registration Statement was declared
effective under the Securities Act and the Indenture
was qualified under the Trust Indenture Act as of the
date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to
subparagraph of Rule 424 specified in such opinion on
the date specified therein and no stop order
suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of
such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(vii) The statements contained in the
Prospectus under the captions relating to the Debt
Securities insofar as they describe federal statutes,
rules and regulations, or portions thereof, constitute
accurate descriptions thereof in all material
respects;
(viii) The Registration Statement, as of the
Effective Date, and the Prospectus, as of the date it
was filed with the Commission, and any further
amendments or supplements thereto made by the Company
prior to the applicable Closing Date (other than the
financial statements and related schedules therein and
all other financial and statistical data included or
incorporated by reference therein or omitted therefrom
and other than the T-1, as to which such counsel need
express no opinion) appears on its face to comply as
to form in all material respects with the requirements
of the Securities Act and the Rules and Regulations;
and the Indenture conforms in all material respects to
the requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder; and
20
<PAGE> 21
(ix) The issuance and sale of the Debt
Securities being delivered on the Closing Date by the
Company and the compliance by the Company with all of
the provisions of this Agreement and the Indenture and
the consummation of the transactions contemplated
hereby and thereby, will not result in any violation
of the provisions of the charter or by-laws of the
Company; and will not result in any violation of the
provisions of any state or federal statute or any
order, rule or regulation known to such counsel of any
state or federal court or governmental agency or body
having jurisdiction over the Company except for such
violations as would not have a Material Adverse
effect; and, except for the registration of the Debt
Securities under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange
Act, the Trust Indenture Act and applicable state
securities laws in connection with the purchase and
distribution of the Debt Securities by the
Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such
court or governmental agency or body is required for
the execution delivery and performance of this
Agreement and the Indenture by the Company and the
consummation by the Company of the transactions
contemplated hereby and thereby.
In rendering the opinions required by subsections (b) and (c)
of this section, Lonnie O. Grigsby and Paul, Weiss, Rifkind, Wharton &
Garrison, respectively, may (i) state that their opinion is limited to
matters governed by the federal laws of the United States of America,
the laws of the State of New York or the General Corporation Law of the
State of Delaware and (ii) rely (to the extent such counsel deems
proper and specifies in their opinion) as to matters involving the
application of laws covered by supporting opinion upon the opinion of
other counsel of good standing, provided that such
21
<PAGE> 22
other counsel is reasonably satisfactory to counsel for the
Underwriters and furnishes a copy of its opinion to the Underwriters.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied upon certificates of officers of the
Company and its subsidiaries and certificates of public officials. In
addition, Lonnie O. Grigsby, in rendering the opinions required by
clauses (i) and (ii) of subsection (b) with respect to subsidiaries,
may rely on opinions rendered by counsel employed by such subsidiaries.
Each of Lonnie O. Grigsby and Paul, Weiss, Rifkind, Wharton &
Garrison shall have furnished to the Underwriters written statements,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect
that such counsel has acted as counsel to the Company in connection
with the preparation of the Registration Statement, and based on the
foregoing, such counsel does not believe that the Registration
Statement (other than the financial statements and related schedules
and all other financial data included or incorporated by reference
therein or omitted therefrom, and other than the Form T-1, as to which
such counsel shall express no opinion or belief), as of the Effective
Date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that the
Prospectus (other than the financial statements and related schedules
and all other financial and statistical data included or incorporated
by reference therein or omitted therefrom, and other than the Form T-1,
as to which such counsel shall express no opinion or belief), as of its
date and the applicable Closing Date, contains any untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Lonnie
O. Grigsby shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriters, to the
effect that he does not
22
<PAGE> 23
believe that any document incorporated by reference in the Prospectus
(other than the financial statements and related schedules and all
other financial and statistical data included or incorporated by
reference therein or omitted therefrom, and other than the Form T-1, as
to which such counsel shall express no opinion or belief) contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
opinions and statements may be qualified by statements to the effect
that (i) such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for the statements made
in the Prospectus under the captions relating to the designated Debt
Securities, insofar as such statements relate to the Debt Securities
and concern legal matters and (ii) as to facts necessary to the
determination of materiality, such counsel is relying upon the opinions
of officers and other representatives of the Company.
(d) The Underwriters shall have received from counsel
for the Underwriters such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Debt
Securities, the Registration Statement, the Prospectus and
other related matters as the Underwriters may reasonably
require.
(e) At the Closing Date, counsel for the Underwriters
shall have been furnished with such documents, certificates and
information as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Debt
Securities as contemplated herein and in each Terms Agreement
and related proceedings, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment
of any of the conditions, herein and therein contained.
(f) At the time of execution of this Agreement and
each Terms Agreement, the Underwriters shall have received from
Coopers &
23
<PAGE> 24
Lybrand L.L.P., with respect to the Company, letters, in form
and substance reasonably satisfactory to the Underwriters,
addressed to the Underwriters and dated the date hereof and
thereof (i) confirming that they are independent public
accountants with respect to the Company and its subsidiaries
within the meaning of the Securities Act, (ii) stating, as of
the date hereof and thereof (or with respect to matters
involving changes or developments since the respective dates as
of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the
date hereof or thereof), the conclusions and findings of such
firm with respect to the financial information and other
matters as provided in SAS No. 72.
(g) With respect to the letters of Coopers & Lybrand
L.L.P. referred to in the preceding paragraph and delivered to
the Underwriters concurrently with the execution of this
Agreement (the "initial letter") and each Terms Agreement, the
Company shall have furnished to the Underwriters letters (the
"bring-down letters") of such accountants, addressed to the
Underwriters and dated the Closing Date (i) confirming that
they are independent public accountants within the meaning of
the Securities Act and the Rules and Regulations, (ii) stating,
as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective
dates as of which specified financial information is given in
the Prospectus, as of a date not more than five business days
prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial
information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(h) At each Closing Date, there shall not have been,
since the date hereof or since the respective dates as of which
information is given in the Registration Statement and the
24
<PAGE> 25
Prospectus, any material adverse change in the
consolidated financial condition, stockholders' equity,
results of operations or business of the Company and its
subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, and the Company shall have
furnished to the Underwriters a certificate, dated the Closing
Date of its Chairman of the Board, its President or a Vice
President of the Company, on the one hand, and its Chief
Financial Officer (or any person acting in such capacity) or
its Treasurer, on the other hand, stating that:
(i) The representations and warranties of the
Company in Section 1 are true and correct as of such
Closing Date; the Company has complied with its
agreements contained in this Agreement and the
conditions set forth in Section 7(a) and 7(i) have
been fulfilled in each case, in all material respects;
(ii) They have carefully examined the
Registration Statement and the Prospectus and in their
opinion (A) as of the Effective Date, the Registration
Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state
a material fact required to be stated therein or
necessary to make the statements therein, (in the case
of the Prospectus, in light of the circumstances in
which they were made) not misleading, and (B) since
the Effective Date no event has occurred which should
have been set forth or incorporated by reference in a
supplement or amendment to the Registration Statement
or the Prospectus which has not been so set forth; and
(iii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
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<PAGE> 26
(i) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the respective dates as
of which information is given in the Registration Statement or
the Prospectus or in any document incorporated by reference
therein any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth,
contemplated or incorporated by reference in the Prospectus or
in any of the documents incorporated by reference therein, or
(ii) since such date there shall not have been any change in
the capital stock or long-term debt of the Company or any of
its subsidiaries except as set forth in the letters described
in paragraphs (f) or (g) of this Section 7, or any material
change in the financial condition, stockholders' equity or
results of operations of the Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated or
incorporated by reference in the Prospectus or in any of the
documents incorporated by reference therein, the effect of
which, in any such case described in clause (i) or (ii), is, in
the reasonable judgment of the Underwriters, so material and
adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Debt Securities
being delivered on such Closing Date on the terms and in the
manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, (i) no downgrading
shall have occurred in the rating accorded the Company's
securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and
(ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative
implications, its rating of any of the Company's securities.
26
<PAGE> 27
(k) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the NASDAQ National
Market or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction,
(ii) a general banking moratorium shall have been declared by
federal or New York state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been
an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or
war by the United States, if the effect of any event specified
in this clause (iii) in the judgment of the Underwriters makes
it impracticable or inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in
the manner contemplated in the Prospectus, (iv) any federal or
state statute, regulation, rule or order of any court or other
governmental authority shall have been enacted, published,
decreed or otherwise promulgated which in the judgment of the
Underwriters materially and adversely affects, or will
materially and adversely affect, the business or operations of
the Company and any subsidiaries, taken as a whole, (v) any
federal, state or local government or agency shall take any
action in respect of its monetary or fiscal affairs which in
the judgment of the Underwriters has a material adverse effect
on the financial markets in the United States, or (vi) there
shall have occurred such a material adverse change in general
economic or financial conditions (or such a material adverse
change in international conditions the effect of which on the
financial markets in the United States shall be such) as to
make it, in the reasonable judgment of the Underwriters,
impracticable or
27
<PAGE> 28
inadvisable to proceed with the public offering or delivery of
the Debt Securities being delivered on such Closing Date on the
terms and in the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters. The Company may rely on any waiver of such
conditions given by the Underwriters or counsel to the Underwriters as if given
by the Underwriters.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages, liabilities and judgments caused
by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any
Preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriters furnished
in writing to the Company by or on behalf of any Underwriter
expressly for use therein, and except further that the Company
shall not be liable with respect to any losses, claims,
damages, liabilities or judgments arising out of or based on
any untrue statements or alleged untrue statement or omission
or alleged omission to state a material fact in any Preliminary
Prospectus which is corrected in the Prospectus if the person
or entity asserting
28
<PAGE> 29
such loss, claim, damage, liability or judgment purchased Debt
Securities from such Underwriter, but was not sent or given a
copy of the Prospectus at or prior to the written confirmation
of the sale of such Debt Securities to such person or entity in
any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage,
liability or judgment of such Underwriter results from an
untrue statement or omission of a material fact contained in
the Preliminary Prospectus.
(b) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based
upon any Preliminary Prospectus, the Registration Statement or
the Prospectus or any amendment or supplement thereto and with
respect to which indemnity may be sought against the Company,
such Underwriter shall promptly notify the Company in writing
and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such
indemnified party and payments of all fees and expenses. Any
Underwriter or any such controlling person shall have the right
to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the
Company, (ii) the Company shall have failed to assume the
defense and employ counsel or (iii) the named parties to any
such action (including any impleaded parties) include both such
Underwriter or such controlling person and the Company and such
Underwriter or such controlling person shall have been advised
by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those
available to the Company (in which case the Company shall not
have the right to assume the defense of such action on behalf
of such Underwriter or such controlling
29
<PAGE> 30
person, it being understood, however, that the Company shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters and controlling persons,
which firm shall be designated in writing by the
representatives and that all such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without
its written consent, but, if settled with the written consent
of the Company, the Company agrees to indemnify and hold
harmless any Underwriters and any such controlling person from
and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any
case where the fees and expenses of counsel are at the expense
of the indemnifying party and an indemnified party shall have
requested the indemnifying party to reimburse the indemnified
party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any
settlement of any action effected without its written consent
if (i) such settlement is entered into more than thirty days
after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request
for reimbursement prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such proceeding.
30
<PAGE> 31
(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement,
and any person controlling the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter but only with reference to
information relating to such Underwriter furnished in writing
by or on behalf of such Underwriter expressly for use in the
Registration Statement, the Prospectus or any Preliminary
Prospectus. In case any action shall be brought against the
Company, any of its directors, any such officer or any person
controlling the Company based on the Registration Statement,
the Prospectus or any Preliminary Prospectus and in respect of
which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the
Company (except that if the Company shall have assumed the
defense thereof, such Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in
the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), and the Company,
its directors, any such officers and any person controlling the
Company shall have the rights and duties given to the
Underwriter by Section 8(b) hereof.
(d) If the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of
any losses, claims, damages, liabilities or judgments referred
to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities and judgements (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 hand from the offering of the Debt
Securities or (ii) if the allocation provided by clause (i)
above is not permitted by
31
<PAGE> 32
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 and the Underwriters
in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters
shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received
by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total
price to the public of the Debt Securities, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose)
or by any other method of allocation which does not take
account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this
32
<PAGE> 33
Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at
which the Debt 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
Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective number
of Debt Securities purchased by each of the Underwriters
hereunder and not joint.
9. Defaulting Underwriters. If on the applicable
Closing Date, any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters shall be
obligated to purchase (in addition to the principal amount of Debt Securities
which such Underwriters are obligated to purchase pursuant to Section 2) the
Debt Securities which the defaulting Underwriter agreed but failed to purchase
on such Closing Date in the respective proportions to the principal amount of
Debt Securities set opposite the names of each remaining non-defaulting
Underwriter in Exhibit A to the applicable Terms Agreement bears to the
principal amount of the Debt Securities set opposite the names of all the
remaining non-defaulting Underwriters in Exhibit A to the applicable Terms
Agreement; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Debt Securities on such Closing
Date if the total number of Debt Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 10% of the total
principal amount of the Debt Securities to be purchased on such Closing Date. If
the foregoing maximum percentage is exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Underwriters who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Debt
33
<PAGE> 34
Securities to be purchased on such Closing Date. If the foregoing maximum
percentage is exceeded, the remaining non-defaulting Underwriters which have
agreed to purchase in the aggregate 50% or more of the aggregate principal
amount of Debt Securities (other than the Debt Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Closing Date)
may, at any time after 72 hours immediately following the failure of the
defaulting Underwriter or Underwriters to purchase the Debt Securities set forth
opposite the name of such Underwriter or Underwriters, terminate this Agreement
without liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 6 and 11. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Exhibit A to any applicable
Terms Agreement who, pursuant to this Section 9, purchases Debt Securities which
a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Debt Securities of
a defaulting Underwriter, either the Underwriters or the Company may postpone
the applicable Closing Date for up to seven full business days in order to
effect any changes that in the reasonable opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement necessary to consummate the
transactions described herein.
10. Termination. Except as provided in the applicable
Prospectus Supplement, the obligations of the Underwriters hereunder may be
terminated by the Underwriters which have agreed to purchase in the aggregate
50% or more of the aggregate principal amount of Debt Securities by notice given
to and received by the Company prior to delivery of and payment for the Debt
Securities if, prior to that time, any of the events described in Sections
7(i),(j) and (k) shall have occurred or if the Underwriters shall decline to
purchase the Debt Securities as permitted by Section 9.
34
<PAGE> 35
11. Reimbursement of Underwriters' Expenses. If the
Company shall fail to tender the Debt Securities for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company is not fulfilled (other than Section 7(k)), the Company
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the
Debt Securities, and upon demand the Company shall pay the full amount thereof
to the Underwriters. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter for any of its expenses
incurred in connection with this Agreement.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent
by mail, telex or facsimile transmission as shall be directed
in the Terms Agreement attached hereto as the Schedule; and
(b) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention:
General Counsel (Fax: (402) 241-2427).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the lead Underwriter.
13. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties,
35
<PAGE> 36
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of the directors of the Company,
officers of the Company and any person controlling the Company within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for any
Debt Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. Definition of the Term "Business Day". For purposes of this
Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
17. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
36
<PAGE> 37
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
IBP, inc.
By
-----------------------------
Name:
Title:
Confirmed and accepted
as of the date first
above written:
By [Representative]
By
-----------------------------
Acting severally on behalf of
themselves and the several
Underwriters named in
Exhibit A to the Schedule hereto
37
<PAGE> 38
SCHEDULE
TERMS AGREEMENT
<PAGE> 1
Exhibit 5
---------
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
December 15, 1995
IBP, inc.
IBP Avenue
Post Office Box 515
Dakota City, Nebraska 68731
Registration Statement on Form S-3
Registration No. 33-64459
Ladies and Gentlemen:
In connection with the above-captioned Registration Statement
on Form S-3 (the "Registration Statement") filed by IBP, inc. (the "Company")
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Act"), and the rules and regulations promulgated
thereunder, we have been requested to render our opinion as to the legality of
the securities being registered thereunder.
<PAGE> 2
IBP, inc. 2
The Registration Statement relates to the offering from time to time of the
Company's Debt Securities (the "Debt Securities") to be issued under an
indenture (the "Indenture") to be entered into by the Company and The Bank of
New York, as Trustee (the "Trustee"), having an aggregate initial public
offering price not to exceed $500,000,000 or the equivalent thereof in one or
more foreign currencies or composite currencies.
In this connection we have examined (i) originals, photocopies
or conformed copies of the Registration Statement (including all amendments
thereto), (ii) the form of the Indenture filed as an exhibit to the Registration
Statement, (iii) the Company's Restated Certificate of Incorporation and
By-laws, and (iv) records of certain of the Company's corporate proceedings
relating to, among other things, the proposed issuance and sale of the Debt
Securities. In addition, we have made such other examinations of law and fact as
we considered necessary in order to form a basis for the opinion hereinafter
expressed. In connection with such investigation, we have assumed the
genuineness of all
<PAGE> 3
IBP, inc. 3
signatures, the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as photocopies or
conformed copies and the legal capacity of natural persons executing the
documents we have examined, none of which facts we have independently verified.
In rendering the opinion set forth below, we have assumed that
(i) the Indenture will be duly executed and delivered by the Company and duly
authorized, executed and delivered by the Trustee, (ii) the Indenture will be
executed and delivered in substantially the form filed as an exhibit to the
Registration Statement and (iii) the Indenture, when so executed and delivered,
will represent a valid and binding obligation of the Trustee. We have also
assumed, with respect to the Debt Securities of a particular series offered (the
"Offered Debt Securities"), that (a) the terms of issue and sale of the Offered
Debt Securities shall have been duly established in accordance with the
Indenture and (b) the Offered Debt Securities will be duly authorized, issued
and
<PAGE> 4
IBP, inc. 4
delivered by the Company and duly authenticated by the Trustee all in accordance
with the terms of the Indenture and against payment by the purchasers thereof at
the agreed consideration therefor.
Based on the foregoing, we are of the opinion that the Offered
Debt Securities, when issued, authenticated and delivered in accordance with the
terms of the Indenture and against payment by the purchasers thereof at the
agreed consideration therefor, will be legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance or transfer, reorganization, moratorium and other similar
laws affecting creditors' rights generally and subject to general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law).
Our opinion expressed above is limited to the laws of the State
of New York and the federal laws of the United States of America. Our opinion is
rendered only with respect
<PAGE> 5
IBP, inc. 5
to the laws, and the rules, regulations and orders thereunder, that are
currently in effect.
We hereby consent to the use of our name in the Registration
Statement and in the related prospectus as the same appears in the caption
"Validity of the Debt Securities" and to the use of this opinion as an exhibit
to the Registration Statement. In giving this consent, we do not thereby admit
that we come within the category of persons whose consent is required by the Act
or by the rules and regulations promulgated thereunder.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
<PAGE> 1
Exhibit 24
----------
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Robert L. Peterson and Lonnie O. Grigsby, and each of them, such person's true
and lawful attorneys-in-fact and agents, with full powers of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement and to sign any and all additional
registration statements relating to the same offering of securities as this
Registration Statement that are filed prusuant to Rule 462(b) of the Securities
Act of 1933, as amended, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON NOVEMBER 20, 1995.
SIGNATURE TITLE
--------- -----
/s/ ROBERT L. PETERSON Chairman of the Board,
- ------------------------------------ President and Chief Executive Officer
Robert L. Peterson (principal executive officer)
<PAGE> 2
/s/ LARRY SHIPLEY Executive Vice President -- Corporate
- -------------------------------- Development (principal financial officer)
Larry Shipley
/s/ CRAIG J. HART Vice President and Controller (principal
- -------------------------------- accounting officer)
Craig J. Hart
/s/ RICHARD L. BOND Director
- --------------------------------
Richard L. Bond
/s/ JOHN S. CHALSTY Director
- --------------------------------
John S. Chalsty
/s/ ALEC P. COURTELIS Director
- --------------------------------
Alec P. Courtelis
/s/ WENDY L. GRAMM Director
- --------------------------------
Wendy L. Gramm
/s/ DAVID C. LAYHEE Director
- --------------------------------
David C. Layhee
/s/ EUGENE D. LEMAN Director
- --------------------------------
Eugene D. Leman
/s/ JOANN R. SMITH Director
- --------------------------------
JoAnn R. Smith
/s/ DALE C. TINSTMAN Director
- --------------------------------
Dale C. Tinstman
