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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 17, 1994
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1993
--------------------------
KIMBERLY-CLARK CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 39-0394230
(State of incorporation) (I.R.S. Employer Identification No.)
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(214) 830-1200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------------
O. GEORGE EVERBACH
SENIOR VICE PRESIDENT --
LAW AND GOVERNMENT AFFAIRS
KIMBERLY-CLARK CORPORATION
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(214) 830-1200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
ROBERT E. BUCKHOLZ, JR.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
<S> <C> <C> <C> <C>
Debt Securities............... $200,000,000 100% $200,000,000 $68,966
<FN>
(1) Estimated solely for the purpose of determining the registration fee.
</TABLE>
--------------------------
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 THE 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 SUCH STATE.
<PAGE>
PRELIMINARY PROSPECTUS SUBJECT TO COMPLETION, DATED JUNE 17, 1994.
KIMBERLY-CLARK CORPORATION LOGO
DEBT SECURITIES
----------------
Kimberly-Clark Corporation (the "Corporation") from time to time may offer
and sell debt securities consisting of debentures, notes and/or other unsecured
evidences of indebtedness in one or more series not to exceed $200,000,000 in
aggregate principal amount (the "Debt Securities") denominated in United States
dollars or any other currency. The Debt Securities may be offered as separate
series in amounts, at prices and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement (the "Prospectus Supplement") sets forth
with regard to the series of Debt Securities in respect of which this Prospectus
is being delivered (the "Offered Debt Securities") the title, aggregate
principal amount, denominations, maturity, interest rate, if any (which may be
fixed or variable), time of payment of any interest, any terms for redemption at
the option of the Corporation or the holder, any terms for sinking fund
payments, any listing on a securities exchange and the initial public offering
price and other terms in connection with the offering and sale of such Offered
Debt Securities.
The Corporation may sell Debt Securities to or through underwriters or
dealers, and also may sell Debt Securities directly or indirectly to other
purchasers or through agents. Such underwriters may include Goldman, Sachs & Co.
and Salomon Brothers Inc, or may be a group of underwriters represented by firms
including one or more of such firms. Such firms may also act as agents. The
Prospectus Supplement sets forth the names of any underwriters or agents
involved in the sale of the Offered Debt Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or agents and
any applicable commissions or discounts.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1994.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE CORPORATION OR ANY AGENT, UNDERWRITER OR DEALER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR ANY OFFER
TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY
CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCE, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE CORPORATION SINCE THE DATE HEREOF OR THAT INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy and information statements and other
information filed by the Corporation can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Room 3190, Suite 1400, 500 West Madison Street, Chicago,
Illinois 60661-2511; and 13th Floor, 7 World Trade Center, New York, New York
10048. Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549. Such reports, proxy and information statements and other information
concerning the Corporation can also be inspected at the offices of the New York
Stock Exchange, the Chicago Stock Exchange, and the Pacific Stock Exchange, on
which certain of the Corporation's securities are listed.
The Corporation has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does 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.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed with the Commission by the
Corporation under the Exchange Act are incorporated herein by reference:
(a) the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993, including those portions of the Corporation's annual
report to its stockholders for the year ended December 31, 1993 and the
Corporation's 1994 proxy statement incorporated by reference in such Annual
Report on Form 10-K;
(b) the Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994; and
(c) the Corporation's Current Reports on Form 8-K dated February 17,
1994 and February 18, 1994.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents.
Any statement contained herein, in the Prospectus Supplement or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a statement contained herein, in the
Prospectus Supplement or in any subsequently filed document which also is or is
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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 the Registration
Statement or this Prospectus.
THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, UPON THE
WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY OR ALL OF THE INFORMATION
REFERRED TO ABOVE WHICH HAS BEEN OR MAY BE INCORPORATED IN THIS PROSPECTUS BY
REFERENCE (NOT INCLUDING EXHIBITS TO THE INFORMATION THAT IS INCORPORATED BY
REFERENCE UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO
THE INFORMATION THAT THE PROSPECTUS INCORPORATES). WRITTEN REQUESTS OR REQUESTS
BY TELEPHONE FOR SUCH COPIES SHOULD BE DIRECTED TO DONALD M. CROOK, SECRETARY,
KIMBERLY-CLARK CORPORATION, P.O. BOX 619100, DALLAS, TEXAS 75261-9100 (TELEPHONE
214-830-1200).
A COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED IN THIS PROSPECTUS BY
REFERENCE (NOT INCLUDING EXHIBITS TO THE INFORMATION THAT IS INCORPORATED BY
REFERENCE UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO
THE INFORMATION THAT THE PROSPECTUS INCORPORATES), MAY ALSO BE OBTAINED BY
WRITTEN REQUEST TO: GOLDMAN, SACHS & CO., 85 BROAD STREET, NEW YORK, NEW YORK
10004, ATTENTION: REGISTRATION DEPARTMENT; OR TO SALOMON BROTHERS INC, SEVEN
WORLD TRADE CENTER, NEW YORK, NEW YORK 10048, ATTENTION: REGISTRATION
DEPARTMENT.
THE CORPORATION
Kimberly-Clark is principally engaged in the manufacturing and marketing
throughout the world of a wide range of products for personal, business and
industrial uses. Most of these products are made from natural and synthetic
fibers using advanced technologies in absorbency, fibers and nonwovens. For
reporting purposes, the Corporation's products and services are segmented into
three classes.
Class I includes tissue products for household, commercial, institutional
and industrial uses; infant, child, feminine and incontinence care products;
industrial and commercial wipers; health care products; and related products.
Class II includes newsprint, printing papers, premium business and
correspondence papers, tobacco industry papers and products, technical papers,
and related products. Class III includes aircraft services, commercial air
transportation and other products and services.
The Corporation's products are sold under a variety of well-known brand
names including Kleenex, Huggies, Pull-Ups, Kotex, New Freedom, Lightdays,
Depend, Poise, Hi-Dri, Delsey, Kimguard, Kimwipes and Classic.
Kimberly-Clark Corporation was incorporated in Delaware in 1928 as a
successor to a business established in 1872, and the mailing address of its
principal executive offices is P.O. Box 619100, Dallas, Texas 75261-9100
(telephone 214-830-1200).
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the years ended December 31,
1993, 1992, 1991, 1990 and 1989 was 5.75, 4.43, 6.06, 6.03 and 7.16,
respectively, and for the three months ended March 31, 1994 and 1993 was 5.62
and 5.24, respectively.
USE OF PROCEEDS
The net proceeds received by the Corporation from the sale of the Debt
Securities will be used for general corporate purposes. These purposes may
include: reduction of its existing indebtedness; working capital; capital
expenditures; investments in subsidiaries and equity companies; the purchase of
shares of the Corporation's stock; and possible future acquisitions. Pending use
for these purposes, such proceeds will be invested in short-term securities.
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DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Offered Debt
Securities and the extent, if any, to which such general provisions may not
apply thereto will be described in the Prospectus Supplement relating to such
Offered Debt Securities.
The Debt Securities are to be issued under a First Amended and Restated
Indenture, dated as of March 1, 1988 between the Corporation and Bank of America
National Trust and Savings Association, as successor Trustee (the "Trustee"), as
amended by the First Supplemental Indenture, dated as of November 6, 1992, and
the Second Supplemental Indenture, dated as of May 25, 1994, between the
Corporation and the Trustee (the "Indenture"). The following summaries of
certain provisions of the Debt Securities and the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all of the provisions of the Indenture, including the definitions therein of
certain terms. Whenever particular provisions or defined terms in the Indenture
are referred to herein, such provisions or defined terms are incorporated by
reference herein. Section references used herein are references to the Indenture
and certain defined terms in the Indenture are capitalized herein.
GENERAL
The Debt Securities will be unsecured obligations of the Corporation and
will rank on a parity with all other currently outstanding unsecured and
unsubordinated indebtedness of the Corporation. The Indenture does not limit the
aggregate principal amount of the Debt Securities or of any particular series of
Offered Debt Securities and provides that Debt Securities may be issued
thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement relating to the particular
series of Offered Debt Securities offered thereby for the following terms
thereof: (1) the title of the Offered Debt Securities; (2) any limit on the
aggregate principal amount of the Offered Debt Securities; (3) the initial
offering price or prices (expressed as a percentage of the aggregate principal
amount thereof) at which the Offered Debt Securities will be sold; (4) the date
or dates on which the principal of the Offered Debt Securities will be payable;
(5) the rate or rates (which may be fixed or variable) per annum at which the
Offered Debt Securities will bear interest, if any, and the date from which such
interest, if any, will accrue; (6) the date or dates on which such interest, if
any, will be payable and the Regular Record Dates for such Interest Payment
Dates; (7) the obligation, if any, of the Corporation to redeem or purchase the
Offered Debt Securities pursuant to any sinking fund or analogous provisions or
at the option of a Holder, and the periods within, the prices at, and the terms
and conditions upon which the Offered Debt Securities shall be redeemed or
purchased; (8) the date or dates, if any, after which and the price or prices at
which the Offered Debt Securities may, pursuant to any optional redemption
provisions, be redeemed at the option of the Corporation or of the holder
thereof and other detailed terms and provisions of any such optional redemption;
(9) if other than the principal amount thereof, the portion of the principal
amount of the Offered Debt Securities which shall be payable upon declaration of
acceleration of the maturity thereof; (10) the currency of payment of principal
of (and premium, if any) and/or interest on the Offered Debt Securities; (11)
any index used to determine the amounts of payments of principal of (and
premium, if any) and/or interest on the Offered Debt Securities; (12) the right
of the Corporation to defease the Offered Debt Securities or certain restrictive
covenants and certain Events of Default under the Indenture; (13) any issuance
of the Offered Debt Securities in the form of one or more Global Securities and,
in such case, the Depositary therefor; and (14) any Events of Default or other
terms relating to the Offered Debt Securities in addition to those described
herein. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal of and any premium and interest on the Offered Debt Securities will be
payable, and the Offered Debt Securities will be exchangeable and transfers
thereof will be registrable, at the office of the Trustee at 701 S. Western
Avenue, Glendale, California 91201, or at the office of BankAmerica National
Trust
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Company, 1 World Trade Center, 18th Floor, New York, New York 10048-1191,
provided that, at the option of the Corporation, payment of any interest may be
made by check mailed via first-class mail to the address of the Person entitled
thereto as it appears in the Security Register. (Sections 301, 305 and 1002)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities will be issued only in fully registered form without
coupons in denominations of $1,000 or any integral multiple thereof, and no
service charge will be made for any transfer or exchange of such Offered Debt
Securities, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Sections
302 and 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount from the principal
amount thereof. Special Federal income tax, accounting and other considerations
applicable thereto will be described under "Original Issue Discount -- Factors
to Consider" in the Prospectus Supplement relating to any such Original Issue
Discount Securities.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the covenants contained in the Indenture and the Offered Debt Securities would
not necessarily afford Holders of the Offered Debt Securities protection in the
event of a highly leveraged or other transaction involving the Corporation which
may adversely affect the Holders of the Offered Debt Securities.
RESTRICTIVE COVENANTS
LIENS. The Corporation covenants that it will not, and will not permit any
Restricted Subsidiary to, issue, assume or guarantee any indebtedness for
borrowed money (hereafter called "indebtedness") secured by a mortgage, security
interest, pledge or lien (hereafter called "mortgage") of or upon any Principal
Property, or any shares of capital stock or indebtedness of any Restricted
Subsidiary, whether owned at the date of the Indenture or thereafter acquired,
without effectively providing that the Debt Securities (together with, if the
Corporation shall so determine, any other indebtedness issued, assumed or
guaranteed by the Corporation or any Restricted Subsidiary and then existing or
thereafter created) shall be secured by such mortgage equally and ratably with
(or, at the option of the Corporation, prior to) such indebtedness. The
foregoing restrictions, however, shall not apply to (a) mortgages of or upon any
property acquired, constructed or improved by, or of or upon any shares of
capital stock or indebtedness acquired by, the Corporation or any Restricted
Subsidiary after the date of the Indenture to secure indebtedness incurred for
the purpose of financing all or any part of the purchase price of any property,
shares of capital stock or indebtedness or of the cost of any construction or
improvements on such property, which indebtedness is incurred prior to or within
360 days after such acquisition, completion of such construction or the
commencement of the commercial operation of such property; (b) mortgages of or
upon any property, shares of capital stock or indebtedness existing at the time
of acquisition thereof by the Corporation or any Restricted Subsidiary; (c)
mortgages of or upon property of a corporation existing at the time such
corporation is merged with or into or consolidated with the Corporation or any
Restricted Subsidiary or at the time of a sale or transfer of the properties of
a corporation as an entirety or substantially as an entirety to the Corporation
or any Restricted Subsidiary; (d) mortgages of or upon any property of, or
shares of capital stock or indebtedness of, any corporation existing at the time
such corporation becomes a Restricted Subsidiary; (e) mortgages to secured
indebtedness of any Restricted Subsidiary to the Corporation or another
Restricted Subsidiary or to secure indebtedness of the Corporation to any
Restricted Subsidiary; (f) mortgages in favor of governmental bodies to secure
advance or progress payments pursuant to any contract or statute or to secure
indebtedness incurred or guaranteed to finance or refinance all or any part of
the purchase price of the property, shares of capital stock or indebtedness
subject to, or the cost of constructing or improving the property subject to,
such mortgages; and (g) extensions, renewals or replacements of any mortgage
existing on the date of this Indenture or any mortgage referred to in the
foregoing clauses (a) through (f), inclusive. (Section 1004) For additional
information as to mortgages on property, see "Defeasance and Covenant
Defeasance" herein.
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Notwithstanding the restrictions outlined above, the Corporation or any
Restricted Subsidiary may, without equally and ratably securing the Debt
Securities, issue, assume or guarantee indebtedness secured by a mortgage not
excepted under clauses (a) through (g) above, if the aggregate amount of such
indebtedness, together with all other indebtedness secured by mortgages not so
excepted and the Attributable Debt existing in respect of Sale and Lease-Back
Transactions (other than Sale and Lease-Back Transactions in respect of which
amounts equal to the Attributable Debt relating to the transactions shall have
been applied, within 360 days after the effective date of the arrangement, to
the prepayment or retirement (other than any mandatory prepayment or retirement)
of long-term indebtedness and Sale and Lease-Back Transactions in which the
property involved would have been permitted to be mortgaged under clause (a) or
(f) above), does not at the time exceed 5% of Consolidated Net Tangible Assets.
(Section 1004)
The sale, mortgage or other transfer of timber in connection with an
arrangement under which the Corporation or any Restricted Subsidiary is
obligated to cut such timber or a portion thereof in order to provide the
transferee with a specified amount of money however determined shall not be
deemed to create indebtedness secured by a mortgage or to constitute a mortgage
securing any indebtedness or to constitute a Sale and Lease-Back Transaction.
(Section 1004)
SALES AND LEASE-BACKS. Sale and Lease-Back Transactions by the Corporation
or any Restricted Subsidiary of any Principal Property are prohibited unless (i)
the Corporation or such Restricted Subsidiary would be entitled, without equally
and ratably securing the Debt Securities, to incur indebtedness secured by a
mortgage on the property to be leased pursuant to clause (a) or (f) under the
subsection LIENS above, or (ii) the Corporation or such Restricted Subsidiary
would be entitled, without equally and ratably securing the Debt Securities, to
incur indebtedness secured by a mortgage on such property in an amount at least
equal to the Attributable Debt in respect of the Sale and Lease-Back
Transaction, or (iii) the Corporation shall apply, within 360 days after the
effective date of the arrangement, an amount equal to the Attributable Debt in
respect of the transaction to the prepayment or retirement (other than any
mandatory prepayment or retirement) of long-term indebtedness of the Corporation
or any Restricted Subsidiary. (Section 1005) For additional information as to
Sale and Lease-Back Transactions, see "Defeasance and Covenant Defeasance"
herein.
DEFINITIONS. "Attributable Debt" in respect of a Sale and Lease-Back
Transaction means, as of any particular time, the present value (discounted at
the rate of interest implicit in the lease involved in such Sale and Lease-Back
Transaction, as determined in good faith by the Corporation) of the obligation
of the lessee thereunder for rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges) during
the remaining term of such lease (including any period for which such lease has
been extended or may, at the option of the lessor, be extended). (Section 101)
"Consolidated Net Tangible Assets" means, as of any particular time, the
total amount of assets (less applicable reserves) after deducting therefrom (a)
all current liabilities (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is being computed and
excluding current maturities of long-term indebtedness), and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, all shown in the audited consolidated balance
sheet of the Corporation and subsidiaries contained in the Corporation's then
most recent annual report to stockholders, except that assets shall include an
amount equal to the Attributable Debt in respect of any Sale and Lease-Back
Transaction not capitalized on such balance sheet. (Section 101)
"Principal Property" means any mill, manufacturing plant, manufacturing
facility or Timberland, located within the United States of America, having a
gross book value in excess of 1% of
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Consolidated Net Tangible Assets at the time of determination thereof and owned
by the Corporation or any Restricted Subsidiary, in each case other than (1) any
such mill, plant, facility or Timberland which, in the opinion of the Board of
Directors of the Corporation, is not of material importance to the total
business conducted by the Corporation and its Restricted Subsidiaries taken as a
whole, (2) any portion of such a mill, plant, facility or Timberland similarly
found not to be of material importance to the use or operation thereof or (3)
any ores, metals, fossils, elements, gases, oil, minerals, geothermal resources
and rights thereto and any plant or facility used for the extraction or
processing thereof. (Section 101)
"Restricted Subsidiary" means any Subsidiary (a) substantially all of the
property of which is located, or substantially all of the business of which is
carried on, within the United States of America (other than its territories or
possessions and other than Puerto Rico) and (b) which owns a Principal Property;
provided however that any Subsidiary which is principally engaged in financing
operations outside the United States of America or which is principally engaged
in leasing or in financing instalment receivables shall not be a Restricted
Subsidiary. (Section 101)
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Corporation or any Restricted Subsidiary of any
Principal Property, whether owned at the date of the Indenture or thereafter
acquired (except for temporary leases for a term, including any renewal thereof,
of not more than three years and except for leases between the Corporation and
any Restricted Subsidiary, between any Restricted Subsidiary and the Corporation
or between Restricted Subsidiaries), which property has been or is to be sold or
transferred by the Corporation or such Restricted Subsidiary to such Person with
the intention of taking back a lease of such property. (Section 101)
"Subsidiary" means any corporation more than 50% of the outstanding voting
stock of which is at the time owned, directly or indirectly, by the Corporation
and/or one or more of its other Subsidiaries. (Section 101)
"Timberland" means any real property owned by the Corporation or any
Restricted Subsidiary which contains standing timber which is (or upon
completion of a growth cycle then in process is expected to become) of a
commercial quantity and of merchantable quality, excluding, however, any such
real property which at the time of determination is designated by the Board of
Directors of the Corporation as being held primarily for development or sale,
rather than primarily for the production of timber. (Section 101)
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities for the particular provisions relating to such Offered
Debt Securities, including any additional restrictive covenants that may be
included in the terms thereof.
CONSOLIDATIONS, MERGERS AND SALES OF ASSETS BY THE CORPORATION
Nothing in the Indenture or in any of the Debt Securities shall prevent any
consolidation of the Corporation with or merger of the Corporation into any
other corporation or shall prevent any sale or transfer of all or substantially
all of the property and assets of the Corporation to any other corporation;
provided, however, and the Corporation covenants and agrees, that any such
consolidation, merger, sale or transfer shall be upon the condition that the due
and punctual payment of the principal of, and premium, if any, and interest on,
all the Debt Securities according to their tenor, and the due and punctual
performance and observance of all the terms, covenants and conditions of the
Indenture to be kept or performed by the Corporation shall, by an indenture
supplemental to the Indenture, executed and delivered to the Trustee, be assumed
by the corporation formed by such consolidation or into which the Corporation
shall have merged, or the corporation which shall have acquired by sale or
transfer all or substantially all of the property and assets of the Corporation.
(Section 801)
If, upon any such consolidation or merger, or upon any such sale or
transfer, any Principal Property of the Corporation or of any Restricted
Subsidiary or any shares of capital stock or indebtedness of any Restricted
Subsidiary, owned immediately prior thereto, would thereupon become subject
7
<PAGE>
to any mortgage, security interest, pledge or lien securing any indebtedness for
borrowed money of, or guaranteed by, such other corporation (other than any
mortgage, security interest, pledge or lien permitted as described in the first
two paragraphs under "LIENS" above), the Corporation, prior to such
consolidation, merger, sale or transfer, will by indenture supplemental to the
Indenture secure the due and punctual payment of the principal of, and premium,
if any, and interest on the Debt Securities (together with, if the Corporation
shall so determine, any other indebtedness of, or guaranteed by, the Corporation
or any Restricted Subsidiary and then existing or thereafter created) equally
and ratably with (or, at the option of the Corporation, prior to) the
indebtedness secured by such mortgage, security interest, pledge or lien.
(Section 802) For additional information as to liens on property in certain
events, see "Defeasance and Covenant Defeasance" herein.
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture with respect to
Debt Securities of any series: (a) default in payment of principal of or
premium, if any, on any Debt Security of that series when due; (b) default in
payment of any interest on any Debt Security of that series when due, continued
for 30 days; (c) default in the deposit of any sinking fund payment, when due,
in respect of any Debt Security of that series; (d) default in the performance
of any other covenant of the Corporation in the Indenture (other than a covenant
included in the Indenture solely for the benefit of series of Debt Securities
other than that series), continued for 90 days after written notice as provided
in the Indenture; (e) certain events in bankruptcy, insolvency or
reorganization; and (f) any other Event of Default provided with respect to Debt
Securities of that series. No Event of Default with respect to a particular
series of Debt Securities issued under the Indenture (except as to such events
in bankruptcy, insolvency or reorganization) necessarily constitutes an Event of
Default with respect to any other series of Debt Securities issued thereunder.
(Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding shall occur and be continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series may, by a notice in writing to the
Corporation (and to the Trustee if given by Holders), declare to be due and
payable immediately the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all Debt Securities
of that series. However, at any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made, but before the
Stated Maturity thereof, the Holders of a majority in principal amount of
Outstanding Debt Securities of that series may, subject to certain conditions,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal, with respect to Debt Securities of that
series have been cured or waived as provided in the Indenture. (Section 502) For
information as to waiver of defaults, see "Modification of the Indenture and
Waiver of Covenants" herein. Reference is made to the Prospectus Supplement
relating to any series of Offered Debt Securities which are Original Issue
Discount Securities for the particular provisions relating to acceleration of a
portion of the principal amount of such Original Issue Discount Securities upon
the occurrence of an Event of Default and the continuation thereof.
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 will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security and indemnity. (Sections 601 and 603). Subject to such provisions for
security and indemnification of the Trustee and certain other rights of the
Trustee, the Holders of a majority in principal amount of the Outstanding Debt
Securities of any series 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 with respect to the Debt
Securities of that series. (Section 512)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given
8
<PAGE>
to the Trustee written notice of a continuing Event of Default with respect to
Debt Securities of that series and unless also the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series shall have
made written request, and offered reasonable security and indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in principal amount of the Outstanding
Debt Securities of that series a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days. (Section 507)
However, the Holder of any Debt Security will have an absolute right to receive
payment of the principal of (and premium, if any) and any interest on such Debt
Security on or after the due dates expressed in such Debt Security and to
institute suit for the enforcement of any such payment. (Section 508)
The Indenture requires the Corporation to furnish to the Trustee annually a
statement as to the absence of certain defaults under the Indenture. (Section
1007) The Indenture provides that the Trustee may withhold notice to the Holders
of Debt Securities of any series of any default (except in payment of principal
or any premium or interest or in sinking fund payments) with respect to Debt
Securities of such series if it considers it in the interest of the Holders of
Debt Securities of such series to do so. (Section 602)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if applicable, the Corporation will be
discharged from any and all obligations in respect of the Outstanding Securities
(as those terms are defined in the Indenture) of any series (except for certain
obligations to register the transfer or exchange of Outstanding Securities of
such series, to replace stolen, lost or mutilated Outstanding Securities of such
series, to maintain paying agencies and to hold monies for payment in trust)
upon the irrevocable deposit with the Trustee, in trust, of money and/or U.S.
Government Obligations (as defined in the Indenture) which through the payment
of interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of and premium, if
any, and each installment of interest, if any, on the Outstanding Securities of
such series on the Stated Maturity or Redemption Date of such payments in
accordance with the terms of the Indenture and the Outstanding Securities of
such series. Such a trust may only be established if, among other things, (i)
the Corporation has received from, or there has been published by, the Internal
Revenue Service a ruling which, in the Opinion of Counsel (who may be counsel
for the Corporation), provides that Holders of the Outstanding 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 amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and discharge
had not occurred, and (ii) the Corporation has delivered to the Trustee an
Opinion of Counsel (who may be counsel for the Corporation) to the effect that
the Outstanding Securities of such series, if then listed on any securities
exchange, will not be delisted as a result of such deposit, defeasance and
discharge. (Section 402)
The Indenture provides that, if applicable, the Corporation may omit to
comply with the restrictive covenants contained in Sections 802 (Securities to
be Secured in Certain Events), 1004 (Limitations on Liens), 1005 (Limitation on
Sale and Lease-Back) and 1007 (Statement by Officers as to Default) of the
Indenture, and that such omission shall not be deemed to be an Event of Default
under the Indenture and the Outstanding Securities of any series, upon the
irrevocable 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, and each installment of
interest on the Outstanding Securities of such series on the Stated Maturity or
Redemption Date of such payments in accordance with the terms of the Indenture
and the Outstanding Securities of such series. The obligations of the
Corporation under the Indenture and the Outstanding Securities of such series
other than with respect to the covenants referred to above and the Events of
Default other than the Event of Default referred to above shall remain in full
force and effect. Such a trust may only be established if, among other things,
the Corporation has delivered to the Trustee an Opinion of Counsel
9
<PAGE>
(who may be counsel for the Corporation) to the effect that (i) the Holders of
the Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and defeasance
and will be subject to federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit and defeasance
had not occurred, and (ii) the Outstanding Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit and defeasance. (Section 1006)
In the event the Corporation exercises its option to omit compliance with
certain covenants of the Indenture with respect to the Outstanding Securities of
any series as described above and the Outstanding Securities of such series are
declared due and payable because of the occurrence of any Event of Default other
than the Event of Default described in the preceding paragraph, the amount of
money and U.S. Government Obligations on deposit with the Trustee will be
sufficient to pay amounts due on the Outstanding Securities of such series at
the time of their Stated Maturity or Redemption Date but may not be sufficient
to pay amounts due on the Outstanding Securities of such series at the time of
the acceleration resulting from such Event of Default. However, the Corporation
shall remain liable for such payments.
MODIFICATION OF THE INDENTURE AND WAIVER OF COVENANTS
Modifications and amendments of the Indenture may be made by the Corporation
and the Trustee with the consent of the Holders of 66 2/3% in principal amount
of the Outstanding Debt Securities of each series affected by such modifications
or amendments; provided, however, that no such modification or amendment may,
without the consent of the Holder of each Outstanding Debt Security affected
thereby, (a) change the stated maturity date of the principal amount of, or any
installment of principal of or interest on, any Debt Security, (b) reduce the
principal amount of, or the premium (if any) or any interest on, any Debt
Security or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon acceleration, (c) change the place
or currency of payment of principal of, or premium (if any) or interest on, any
Debt Security, (d) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security after the stated maturity date,
or (e) reduce the percentage in principal amount of Outstanding Debt Securities
of any series, the consent of whose Holders is required for modification or
amendment of the Indenture, for waiver of compliance with certain provisions of
the Indenture or for waiver of certain defaults. (Section 902)
The Holders of 66 2/3% in principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities of
that series waive, insofar as that series is concerned, compliance by the
Corporation with certain restrictive provisions of the Indenture. (Section 1007)
The Holders of a majority in principal amount of the Outstanding Debt Securities
of any series may on behalf of the Holders of all Debt Securities of that series
waive any past default under the Indenture with respect to that series, except a
default in the payment of the principal of (or premium, if any) or any interest
on any Debt Security of that series or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of that series affected. (Section 513)
REGARDING THE TRUSTEE
The Corporation maintains banking relationships in the ordinary course of
business with Bank of America National Trust and Savings Association, the
Trustee under the Indenture, and has a revolving credit agreement in the amount
of $150 million with such bank. Certain debt securities of the Corporation are
currently outstanding under the Indenture.
PLAN OF DISTRIBUTION
The Corporation may sell Debt Securities to or through underwriters or
dealers, and also may sell Debt Securities directly or indirectly to one or more
other purchasers or through agents. Such underwriters may include Goldman, Sachs
& Co. and Salomon Brothers Inc, or a group of underwriters represented by one or
more of such firms. Such firms also may act as agents.
10
<PAGE>
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 related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Corporation or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. 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 from the Corporation and any profit on
the resale of Debt Securities by them may be deemed to be underwriting discounts
and commissions, under the Act. Any such underwriter or agent will be
identified, and any such compensation received from the Corporation will be
described, in the Prospectus Supplement.
Underwriters and agents who participate in the distribution of Debt
Securities may be entitled under agreements which may be entered into by the
Corporation to indemnification by the Corporation against certain liabilities,
including liabilities under the Act, or to contribution with respect to payments
which the underwriters or agents may be required to make in respect thereof.
Such underwriters and agents may be customers of, engage in transactions with,
or perform services for the Corporation in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Corporation may authorize
underwriters or other persons acting as the Corporation's agents to solicit
offers by certain institutions to purchase Offered Debt Securities from the
Corporation pursuant to contracts providing for payment and delivery on a future
date. Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Corporation. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Offered Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any responsibility
in respect of the validity or performance of such contracts.
VALIDITY OF DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the validity of the
Debt Securities offered hereby will be passed upon for the Corporation by O.
George Everbach, Senior Vice President -- Law and Government Affairs of the
Corporation, and for the underwriters or agents by Sullivan & Cromwell, New
York, New York.
EXPERTS
The consolidated financial statements and consolidated financial statement
schedules of the Corporation and its consolidated subsidiaries as of December
31, 1993 and 1992 and for each of the three years in the period ended December
31, 1993, included or incorporated by reference in the Corporation's Annual
Report on Form 10-K for the year ended December 31, 1993, have been audited by
Deloitte & Touche, independent auditors, as stated in their reports with respect
thereto which have been incorporated herein. Such consolidated financial
statements and financial statement schedules have been incorporated herein in
reliance upon the reports of Deloitte & Touche given on their authority as
experts in accounting and auditing.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
S.E.C. Filing Fee........................................................ $ 68,966
Trustee's Charges*....................................................... 5,000
Printing and Engraving*.................................................. 40,000
Accounting Fees*......................................................... 35,000
Rating Agency Fees*...................................................... 80,000
Blue Sky and Legal Fees and Expenses*.................................... 15,000
Miscellaneous*........................................................... 20,034
---------
$ 264,000
---------
---------
<FN>
- ------------------------
*Estimated.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Corporation provide, among other things, that the
Corporation shall (i) indemnify any person 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 the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, or in the case of an officer or director of the Corporation is or
was serving as an employee or agent of a 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
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, and (ii) indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation, or
in the case of an officer or director of the Corporation is or was serving as an
employee or agent of a 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 the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery 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,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper. The By-Laws
further provide that the indemnification provided therein shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled.
Section 145 of the Delaware General Corporation Law authorizes
indemnification by the Corporation of directors and officers under the
circumstances provided in the foregoing By-Law provisions and requires such
indemnification for expenses actually and reasonably incurred to the extent a
director or officer is successful in the defense of any action, or any claim,
issue or matter therein.
The Corporation has purchased insurance which purports to insure the
Corporation against certain costs of indemnification which may be incurred by it
pursuant to the By-Laws and to insure
II-1
<PAGE>
the officers and directors of the Corporation, and of its subsidiary companies,
against certain liabilities incurred by them in the discharge of their functions
as such officers and directors except for liabilities resulting from their own
malfeasance.
The forms of Underwriting Agreement and Distribution Agreement filed as
Exhibits 1.1 and 1.2 hereto provide for indemnification and contribution by
underwriters or agents, as the case may be, with respect to certain liabilities
of officers and directors of the Corporation and other persons, if any, who
control the Corporation.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ------------------------------------------------------------------
<C> <S>
1.1 -- Form of Underwriting Agreement (incorporated by reference from
Exhibit 1.1 to the Registration Statement on Form S-3 filed on
November 13, 1990 (Registration No. 33-36458))
1.2 -- Form of Distribution Agreement
4.1 -- First Amended and Restated Indenture dated as of March 1, 1988
(the "Indenture") between the Corporation and Bank of America
National Trust and Savings Association, as successor Trustee
(incorporated by reference from Exhibit 4.1 to the Registration
Statement on Form S-3 filed on March 1, 1988 (Registration No.
33-20405))
4.2 -- Three forms of Debt Securities (included in Exhibit 4.1 at pages
A-1 through C-6)
4.3 -- First Supplemental Indenture, dated as of November 6, 1992, to the
Indenture.
4.4 -- Second Supplemental Indenture, dated as of May 25, 1994, to the
Indenture.
5 -- Opinion of O. George Everbach, Senior Vice President -- Law and
Government Affairs of the Corporation, as to the validity of the
Debt Securities
12 -- Computation of Ratio of Earnings to Fixed Charges for the five
years ended December 31, 1993 and for the three months ended March
31, 1994 and March 31, 1993
23.1 -- Consent of Deloitte & Touche
23.2 -- The consent of O. George Everbach, Senior Vice President -- Law
and Government Affairs of the Corporation, is contained in his
opinion filed as Exhibit 5 to this Registration Statement
24 -- Directors' Powers of Attorney
25 -- Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Bank of America National Trust and
Savings Association dated as of June 17, 1994
</TABLE>
ITEM 17. UNDERTAKINGS.
The Corporation hereby undertakes (1) to file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs (1)(i) and (1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Corporation pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement; (2) that, for
II-2
<PAGE>
the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; (3)
to remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering; (4) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Corporation's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; (5) that, for purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of a registration statement in reliance upon rule 430A and
contained in the form of prospectus filed by the registrant pursuant to rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of the registration statement as of the time it was declared effective; and (6)
that, for the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the provisions described under Item 15 above or
otherwise, the Corporation has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Corporation of expenses incurred or paid by a director, officer or
controlling person of the Corporation in the successful defense of any action,
suit or proceeding) is asserted against the Corporation by such director,
officer or controlling person in connection with the securities being
registered, the Corporation will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irving and State of Texas on June 17, 1994.
KIMBERLY-CLARK CORPORATION
By /s/ WAYNE R. SANDERS
-----------------------------------
Wayne R. Sanders,
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on June 17, 1994 by the following
persons in the capacities indicated:
SIGNATURE TITLE
- ----------------------------------------------------- -------------------------
/s/ WAYNE R. SANDERS Chairman of the Board and
------------------------------------------- Chief Executive Officer
Wayne R. Sanders (principal executive
officer) and Director
/s/ JOHN W. DONEHOWER Senior Vice President and
------------------------------------------- Chief Financial Officer
John W. Donehower (principal financial
officer)
/s/ RANDY J. VEST Vice President and
------------------------------------------- Controller
Randy J. Vest (principal accounting
officer)
* Director
-------------------------------------------
John F. Bergstrom
* Director
-------------------------------------------
James D. Bernd
* Director
-------------------------------------------
Pastora San Juan Cafferty
* Director
-------------------------------------------
Paul J. Collins
* Director
-------------------------------------------
Claudio X. Gonzalez
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------------------------- -------------------------
<S> <C>
* Director
-------------------------------------------
James G. Grosklaus
* Director
-------------------------------------------
Phala A. Helm, M.D.
* Director
-------------------------------------------
Louis E. Levy
* Director
-------------------------------------------
Frank A. McPherson
Director
-------------------------------------------
Wolfgang R. Schmitt
Director
-------------------------------------------
Randall L. Tobias
* Director
-------------------------------------------
H. Blair White
*By /s/ O. GEORGE EVERBACH
---------------------------------------
O. George Everbach
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ---------------------------------------------------------------------
<C> <S>
1.1 -- Form of Underwriting Agreement (incorporated by reference from
Exhibit 1.1 to the Registration Statement on Form S-3 filed on
November 13, 1990 (Registration No. 33-36458))
1.2 -- Form of Distribution Agreement
4.1 -- First Amended and Restated Indenture dated as of March 1, 1988 (the
"Indenture") between the Corporation and Bank of America National
Trust and Savings Association, as successor Trustee (incorporated by
reference from Exhibit 4.1 to the Registration Statement on Form S-3
filed on March 1, 1988 (Registration No. 33-20405))
4.2 -- Three forms of Debt Securities (included in Exhibit 4.1 at pages A-1
through C-6)
4.3 -- First Supplemental Indenture, dated as of November 6, 1992, to the
Indenture
4.4 -- Second Supplemental Indenture, dated as of May 25, 1994, to the
Indenture
5 -- Opinion of O. George Everbach, Senior Vice President -- Law and
Government Affairs of the Corporation, as to the validity of the Debt
Securities
12 -- Computation of Ratio of Earnings to Fixed Charges for the five years
ended December 31, 1993 and for the three months ended March 31, 1994
and March 31, 1993
23.1 -- Consent of Deloitte & Touche
23.2 -- The consent of O. George Everbach, Senior Vice President -- Law and
Government Affairs of the Corporation, is contained in his opinion
filed as Exhibit 5 to this Registration Statement
24 -- Directors' Powers of Attorney
25 -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bank of America National Trust and Savings
Association dated as of June 17, 1994
</TABLE>
<PAGE>
Kimberly-Clark Corporation
$100,000,000
Medium-Term Debt Securities
DISTRIBUTION AGREEMENT
January 14, 1988
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Salomon Brothers Inc,
One New York Plaza,
New York, New York 10004.
Dear Sirs:
Kimberly-Clark Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time its medium-term debt securities
(the "Securities") in an aggregate principal amount up to $100,000,000 and
agrees with each of you (individually, an "Agent", and collectively, the
"Agents") as set forth in this Agreement. Subject to the terms and conditions
stated herein and to the reservation by the Company of the right to sell
Securities directly on its own behalf, the Company hereby (i) appoints each
Agent as an agent of the Company for the purpose of soliciting and receiving
offers to purchase Securities from the Company and (ii) agrees that whenever
it determines to sell Securities directly to any Agent as principal, it will
enter into a separate agreement (each a "Terms Agreement"), substantially in
the form of Annex I hereto, relating to such sale in accordance with Section
2(b) hereof.
The Securities will be issued under an indenture, dated as of January
15, 1983, between the Company and Bank of America National Trust and Savings
Association, as successor Trustee (the "Trustee") pursuant to a Tripartite
Agreement, dated as of December 20, 1984, among the Company, Citibank, N.A.
and the Trustee, as supplemented by Supplemental Indenture No. 1, dated as of
June 1, 1987, between the Company and the Trustee (the indenture, as so
amended and supplemented, the "Indenture"). The Securities shall have the
maturity ranges, annual interest rates, redemption provisions and other terms
set forth in the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and the terms
and rights thereof established, from time to time by the Company in accordance
with the Indenture, the Issuing and Paying Agency Agreement, dated as of
January 14,
<PAGE>
1988 (the "Issuing Agency Agreement"), between the Company and
Chemical Bank, as Issuing and Paying Agent (the "Issuing Agent") and the
Administrative Procedure attached hereto as Annex II as it may be amended from
time to time by written agreement between the Agents and the Company (the
"Procedure") and, if applicable, will be specified in a related Terms
Agreement.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) A registration statement on Form S-3 (Registration No. 33-15424)
in respect of $200,000,000 aggregate principal amount of debt securities of
the Company, including the Securities, has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective under the
Securities Act of 1933, as amended (the "Act"), in the form heretofore
delivered or to be delivered to such Agent, excluding exhibits to such
registration statement, but including all documents incorporated by reference
therein on or prior to the date of this Agreement; such registration
statement, including all exhibits thereto but excluding Form T-1, and the
prospectus included in such registration statement, each as amended at the
data of this Agreement, being hereinafter called the "Registration Statement"
and the "Basic Prospectus", respectively. As used in this Agreement,
"Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Securities in the definitive form
filed or to be filed pursuant to Rule 424 under the Act; and "Preliminary
Prospectus" means the Basic Prospectus together with a preliminary prospectus
supplement specifically relating to the Securities. Any reference herein to
the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents or portions thereof incorporated
by reference therein pursuant to the applicable form under the Act; and any
reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents or portions thereof filed after the date this Agreement
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and so incorporated by reference; and
(b) The Registration Statement and the Prospectus conform, and any
further amendments or supplements thereto, when they become effective or are
filed with the Commission, will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder;
the Registration Statement and the Basic
-2-
<PAGE>
Prospectus, on the effective date of the Registration Statement, did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus does not, and any amendments or supplements
thereto, when they become effective or are filed with the Commission, will not,
contain any untrue statement of a material fact or omit 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; PROVIDED, HOWEVER, that the
representations and warranties contained in this paragraph (b) shall not apply
to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for use
therein.
(c) Immediately after the settlement of any sale of Securities by the
Company resulting from solicitation by such Agent hereunder and immediately
after any Time of Delivery relating to a sale under a Terms Agreement with
such Agent, the aggregate amount of Securities which shall have been issued
and sold by the Company hereunder or under any Terms Agreement and of any debt
securities of the Company (other than such Securities) that shall have been
issued and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions herein set forth, each of the Agents
hereby severally and not jointly agrees, as agent of the Company, when
requested by the Company, to use its best efforts to solicit and receive
offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from time to
time and in the Procedure. So long as the obligations of the Agents with
respect to the solicitation and sale of the Securities under this Agreement
shall remain in effect with respect to any Agent, the Company shall not,
without the consent of such Agent, which consent shall not be unreasonably
withheld, solicit or accept offers to purchase, or sell, any debt securities
with a maturity at time of original issuance of 18 months or more except as
contemplated hereby or in any Terms Agreement, or, subject to all of the terms
and conditions hereof and of any Terms Agreement, except in connection with a
firm commitment underwriting pursuant to an underwriting agreement that does
not provide for a continuous offering of medium-term debt securities.
-3-
<PAGE>
No Agent shall otherwise employ, pay or compensate any other
person to solicit offers to purchase Securities or to perform any of its
functions as Agent without the prior written consent of the Company.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. Upon
receipt of notice from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Securities from the Company until such time
as the Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
percentage of the principal amount of such Security sold:
<TABLE>
<CAPTION>
COMMISSION
(PERCENTAGE OF
AGGREGATE
PRINCIPAL AMOUNT
RANGE OF MATURITIES OF SECURITIES SOLD)
------------------- -------------------
<S> <C>
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 8 years .600%
From 8 years to less than 9 years .600%
From 9 years up to and including 10 years .600%
</TABLE>
As an Agent, each of you is authorized to solicit offers to purchase the
Securities only in denominations of $100,000 or any amount in excess thereof
that is an integral multiple of $1,000 at a purchase price equal to 100% of
their principal amount, unless otherwise specified in a Pricing Supplement (as
defined in the Procedure) or a Terms Agreement. Each Agent shall communicate
to the Company, orally or in writing, each reasonable offer to purchase
Securities received by it as Agent except those rejected by such Agent as
provided below. The Company shall have the sole right to accept offers to
purchase Securities and may reject any proposed purchase of Securities as a
whole or in part. Each Agent shall have the right, in its discretion
-4-
<PAGE>
reasonably exercised, to reject any offer received by it to purchase
Securities, as a whole or in part, and any such rejection by it shall not be
deemed a breach of its agreements contained Therein. The Company reserves the
right to sell, and may solicit and accept offers to purchase, Securities
directly on its own behalf, and, in the case of any such sale not resulting
from a solicitation made by any Agent, no commission will be payable with
respect to such sale.
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and a Terms Agreement which
will provide for the sale of such Securities to, and the purchase thereof by,
such Agent. A Terms Agreement may also specify certain provisions relating to
the reoffering of such Securities by such Agent. The commitment of any Agent to
purchase Securities pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each Terms Agreement shall specify the principal amount of Securities to be
purchased by any Agent pursuant thereto, the price to be paid to the Company for
such Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of the
Securities, and the time and date (each such time and date being referred to
herein as a "Time of Delivery") and place of delivery of and payment for such
Securities. Such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof.
(c) Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities, and the payment
in each case therefor, shall be as set forth in the Procedure. Each Agent and
the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them in the Procedure.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered at the
offices of Sullivan & Cromwell, 125 Broad Street, New York, New York, at 11:00
a.m., New York City time, on the date of this Agreement, which date and time
of such delivery may be postponed by agreement between the Agents and the
Company but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any
Terms Agreement is executed
-5-
<PAGE>
(such time and date being referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each
Agent:
(a) (i) To prepare, with respect to any Securities to be sold
pursuant to this Agreement, the Prospectus as amended and supplemented with
respect to such Securities in a form approved by the Agent which solicited the
purchaser of such Securities and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the close of business of the Commission on the
fifth business day after the date on which such Prospectus is first used; (ii)
to make no amendment or supplement to the Registration Statement or Prospectus
prior to the Commencement Date, or after the date of any Terms Agreement and
prior to the related Time of Delivery, without furnishing prior thereto a copy
of each such amendment or supplement to such Agent; to advise such Agent
promptly of any such amendment or supplement at any other time and to furnish
such Agent with copies of any such amendment or supplement at any other time;
(iii) to file promptly all documents 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, in each case for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; (iv) to advise such
Agent, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has become effective or when any supplement to the
Prospectus or any amended Prospectus (other than any supplement to the
Prospectus or any amended Prospectus required to be filed with the Commission
pursuant to clause (i) that relates to Securities the purchaser of which was not
solicited by such Agent) has been filed, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of the
Prospectus or any supplement thereto or any amended Prospectus, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and
(v) in the event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or any supplement thereto or any amended
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the
-6-
<PAGE>
Securities for offering and sale under the securities laws of such jurisdictions
as such Agent may 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 Securities; PROVIDED that
in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish such Agent with copies of the Prospectus as each
time amended or supplemented in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act in such quantities as such Agent
may from time to time reasonably request, and, if the delivery of a prospectus
is required at any time and if at such time any event 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 Act,. the Exchange Act or the Trust
Indenture Act, to notify such Agent and request such Agent, in its capacity as
agent of the Company, to suspend solicitation of offers to purchase Securities
from the Company and, if so notified, such Agent shall forthwith cease such
solicitations; and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented, to so
advise such Agent promptly by telephone (with confirmation in writing) and to
prepare and furnish without charge to such Agent as many copies as such Agent
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus that will correct such statement or omission or
effect such compliance; PROVIDED, HOWEVER, that if during such same period such
Agent continues to own Securities purchased from the Company by such Agent as
principal, the Company shall promptly prepare and file with the Commission such
an amendment or supplement that will correct such statement or omission or
effect such compliance;
(d) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months after (i) the
effective date of the Registration Statement, (ii) the effective date of each
post-effective amendment to the Registration Statement, and
-7-
<PAGE>
(iii) the date of each filing by the Company with the Commission of an Annual
Report on Form 10-K that is incorporated by reference in the Registration
Statement, an earning statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158) and covering a period of at least twelve months beginning
after the effective dates referred to in (i) and (ii) or the filing date
referred to in (iii);
(e) That, from the date of any Terms Agreement with such Agent
and continuing to and including the earlier of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as notified to
the Company by such Agent and (ii) the related Time of Delivery, the Company
will not, without the prior written consent of such Agent, offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which mature more than 18 months after such Time of Delivery and which are
substantially similar to the Securities;
(f) That each acceptance by the Company of an offer to purchase
Securities hereunder, and each execution and delivery by the Company of a
Terms Agreement with such Agent, shall be deemed to be an affirmation to such
Agent that the representations, and warranties of the Company contained in or
made pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though made at
and as of such date, and an undertaking that such representations and
warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of Delivery relating
to such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
relating to such Securities);
(g) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement relating solely to a change in the rate of interest
per annum borne by or the maturity of the Securities offered, or both), each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, and each time the Company sells
SecuritIes to such Agent as principal and the applicable Terms Agreement
specifies the delivery of an opinion or opinions by Sullivan & Cromwell,
counsel to the Agents, as a condition to the purchase of Securities pursuant
to such Terms
-8-
<PAGE>
Agreement, the Company shall furnish such counsel such papers
and information as they may reasonably request to enable them to furnish the
opinion or opinions referred to in Section 6(b) hereof to such Agent;
(h) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
relating solely to a change in the rate of interest per annum borne by or the
maturity of the Securities offered, or both), each time a document filed under
the Act or the Exchange Act is incorporated by reference into the Prospectus,
and each time the Company sells Securities to such Agent as principal and the
applicable Terms Agreement specifies the delivery of an opinion under this
Section 4(h) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished forthwith
to such Agent a written opinion of the General Counsel of the Company or other
counsel for the Company reasonably satisfactory to such Agent, dated the date
of effectiveness of such amendment, the date of filing of such supplement, the
date of such incorporation or such Time of Delivery relating to such sale, as
the case may be, in form satisfactory to such Agent, to the effect that such
Agent may rely on the opinion referred to in Section 6(c) hereof which was
last furnished to such Agent to the same extent as though it were dated the
date of such letter authorizing reliance (except that the statements in such
last opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
opinion, an opinion of the same tenor as the opinion referred to in Section
6(c) hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented, each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus, in either
case to set forth financial information included in or derived from the
Company's consolidated financial statements or accounting records, and each time
the Company sells Securities to such Agent as principal and the applicable Terms
Agreement specifies the delivery of a letter under this Section 4(i) as a
condition to the purchase of Securities pursuant to such Terms Agreement, the
Company shall cause Deloitte Haskins & Sells forthwith to furnish such Agent a
letter, dated the date of effectiveness of such amendment, the date of filing of
such supplement, the date of such incorporation or such Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such
-9-
<PAGE>
Agent, of the same tenor as the letter referred to in Section 6(d) hereof but
modified to relate to the Registration Statement and the Prospectus as amended
or supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company, to the extent such financial
statements and other information are available as of a date not more than five
business days prior to the date of such letter; PROVIDED, HOWEVER, that, with
respect to any financial information or other matter, such letter may reconfirm
as true and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or other
matter made in the letter referred to in Section 6(d) hereof which was last
furnished to such Agent;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
relating solely to a change in the rate of interest per annum borne by or the
maturity of the Securities offered, or both), each time a document filed under
the Act or the Exchange Act is incorporated by reference into the Prospectus,
and each time the Company sells Securities to such Agent as principal and the
applicable Terms Agreement specifies the delivery of a certificate under this
Section 4(j) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished forthwith
to such Agent a certificate, dated the dale of effectiveness of such
supplement, the date of filing of such amendment, the date of such
incorporation or such Time of Delivery relating to such sale, as the case may
be, in such form and executed by such officers of the Company as shall be
satisfactory to such Agent, to the effect that the statements contained in the
certificate referred to in Section 6(h) hereof which was last furnished to
such Agent are true and correct at such date as though made at and as of such
date (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date) or, in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(h) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and
(k) To offer to any person who has agreed to purchase Securities
as the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Procedure, any condition set forth in
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<PAGE>
Section 6(a) (i), 6(e), 6(f) or 6(g) hereof shall not have been satisfied (it
being understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4 (k), for the respective judgments
referred to therein of an Agent with respect to certain matters referred to in
such Sections 6 (a) (i), 6 (e), 6(f) and 6(g), and that such Agent shall have no
duty or obligation whatsoever to exercise the judgment permitted under such
Sections 6(a) (i), 6(e), 6(f) and 6(g) on behalf of any such person).
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees and expenses of the
Company's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements there
to and the mailing and delivering of copies thereof to such Agent; (ii) the
fees and expenses of counsel for the Agents in connection with the
establishment of the program contemplated hereby and the transactions
contemplated hereunder; (iii) the out-of-pocket expenses of such Agent; (iv)
the cost of printing, preparing by word processor or reproducing this
Agreement, any Terms Agreement, any Indenture, the Issuing Agency Agreement,
any Blue Sky and Legal Investment Memoranda and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(v) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including fees and disbursements of counsel for the Agents in
connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (vi) any fees charged by securities rating services
for rating the Securities; (vii) any filing fees incident to any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (viii) the cost of preparing the Securities; (ix)
the fees and expenses of any Trustee, any agent of any Trustee, the Issuing
Agent and any other transfer or paying agent of the Company and the fees and
disbursements of counsel for any Trustee, the Issuing Agent or such agent in
connection with any Indenture, the Issuing Agency Agreement and the
Securities; (x) any advertising expenses connected with the solicitation of
offers to purchase and the sale of Securities so long as such advertising
expenses have been approved by the Company; and (xi) all other costs and
expenses incident to the performance of the Company's obligations hereunder
which are
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<PAGE>
not otherwise specifically provided for in this Section. Except as
provided in Section 7 hereof, each Agent shall pay all other expenses it
incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal pursuant to any
Terms Agreement shall in each case be subject, in such Agent's discretion, to
the condition that all representations and warranties of the Company herein
(and, in the case of an obligation of any Agent under a Terms Agreement, in or
incorporated in such Terms Agreement by reference) are true and correct at and
as of the Commencement Date and any applicable date referred to in Section 4(j)
hereof that is prior to such Solicitation Time or Time of Delivery, as the case
may be, and at and as of such Solicitation Time or Time of Delivery, as the case
may be, the condition that prior to such Solicitation Time or Time of Delivery,
as the case may be, the Company shall have performed in all material respects
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) (i) With respect to any Securities sold at or prior to
such Solicitation Time or Time of Delivery, as the case may be, the Prospectus
as amended or supplemented with respect to such Securities shall have been
filed with the Commission pursUant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or, to the best
knowledge of the Company, threatened by the Commission; and (iii) all requests
for additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of such Agent;
(b) Sullivan & Cromwell, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the Commencement
Date, in form and substance reasonably satisfactory to such Agent, with
respect to the incorporation of the Company, the validity of the Indenture,
the Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as such Agent may reasonably request,
and (ii) if and to the extent requested by such Agent, with respect to each
applicable date referred to in Section 4(q) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, an opinion or
opinions, dated
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<PAGE>
such applicable date, to the effect that such Agent may rely on the opinion or
opinions which were last furnished to such Agent pursuant to this Section 6(b)
to the same extent as though it or they were dated the date of such letter
authorizing reliance (except that the statements in such last opinion or
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in lieu of
such an opinion or opinions, an opinion or opinions of the same tenor as the
opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) The General Counsel of the Company or other counsel for the
Company reasonably satisfactory to such Agent, shall have furnished to such
Agent his written opinions, dated the Commencement Date and each applicable
date referred to in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and
substance reasonably satisfactory.to such Agent, 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 the
jurisdiction of its incorporation, with corporate power to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented, if applicable;
(ii) To the best of such counsel's knowledge there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body involving the Company or any of
its properties required to be disclosed in the Registration Statement
which is not adequately disclosed in the Prospectus as amended or
supplemented, if applicable; and such counsel does not know of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated
by reference into the Prospectus as amended or supplemented, if
applicable, or required to be described in the Registration Statement
or the Prospectus as amended or supplemented, if applicable, which are
not filed or incorporated by reference or described as required;
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<PAGE>
(iii) This Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(iv) The Securities have been duly authorized by the
Company and, when duly executed and authenticated in accordance with
the provisions of the Indenture and the Issuing Agency Agreement and
delivered to and paid for by the purchasers thereof (including any
Agent as principal), will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting enforcement of
creditors' rights and to general equity principles; and the
Securities, the Indenture and the Issuing Agency Agreement conform in
all material respects to the description thereof in the Prospectus as
amended or supplemented, if applicable;
(v) Each of the Indenture and the Issuing Agency
Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting enforcement of creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vi) The issuance and sale of the Securities and the
compliance by the Company with the provisions of the Securities, the
Indenture, the Issuing Agency Agreement, this Agreement and any
applicable Terms Agreement, and the consummation of the transactions
relating to the Securities contemplated herein and therein will not
conflict with or result in a breach of the terms or provisions of, or
constitute a default under, any indenture, loan agreement or other
agreement or instrument in respect of indebtedness for money borrowed
known to such counsel to which the Company is a party or by which the
Company is bound or, to the knowledge of such counsel, any other
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company
-14-
<PAGE>
is subject, nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation, as amended,
or the By-Laws of the Company or, to the knowledge of such counsel,
any statute or any order, rule or regulation of any court or
regulatory authority or other governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any court or any such regulatory authority or other
governmental agency or body is required for the issuance and sale by
the Company of the Securities or the consummation of the transactions
relating to.the Securities contemplated by this Agreement or any
applicable Terms Agreement or the Indenture or the Issuing Agency
Agreement, except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws;
(vii) The documents or portions thereof, if any,
incorporated by reference in the Prospectus (other than the financial
statements, related schedules and other financial and statistical
information included therein, 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; and
(viii) The Registration Statement and the Prospectus as
amended or supplemented, if applicable (other than the financial
statements, related schedules and other financial and statistical
information included therein, as to which such counsel need express no
opinion), comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; and, although such counsel is not passing
upon, and does not assume responsibility for, the accuracy,
completeness or fairness of statements contained in the Registration
Statement or the Prospectus as amended or supplemented, if applicable
(except as to the matters specified in the last clause of subparagraph
(iv) of this paragraph (c)), nothing has come to the attention of such
counsel that causes such counsel to believe that either the
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<PAGE>
Registration Statement or the Prospectus as amended of supplemented,
if applicable, contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(i) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, Deloitte Haskins & Sells shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may be, in form
and substance reasonably satisfactory to such Agent, to the effect set forth in
Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest financial statements contained in
the Prospectus as amended or supplemented any loss or interference material to
the business of the Company and its subsidiaries taken as a whole from fire,
explosion, flood or other calamity or from any labor dispute or court or
governmental action, order or decree and (ii) since the respective dates as of
which information is given in the Prospectus as amended or supplemented there
shall not have been any material change in the capital stock or long-term debt
of the Company or any material adverse change, or any development which will
result in a material adverse change, in the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise (in any such case described in clause
(i) or (ii) hereof) than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which (in any such case described in
clause (i) or (ii) hereof) is in the reasonable judgment of such Agent so
material and adverse as to make.it impracticable or inadvisable to proceed with
the solicitation by such Agent of offers to purchase Securities from the Company
or the purchase by such Agent of Securities from the Company as principal, as
the case may be;
(f) Subsequent to the execution of this Agreement, there shall
not have occurred any downgrading in any rating accorded to the Company's
senior debt securities by Moody's Investors Service Inc. or Standard & Poor's
Corporation; PROVIDED, HOWEVER, that this paragraph (f) shall not apply to
either of such rating agencies which
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<PAGE>
shall have notified the Agents of the rating of the Securities prior to the
execution of this Agreement;
(g) Subsequent to the execution of this Agreement, there shall
not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange;
(ii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii) the
engagement by the United States in hostilities which have resulted in the
declaration, on or after the date of this Agreement, of a national emergency
or war, the effect of which (in any such case described in clause (i), (ii) or
(iii) hereof) in the reasonable judgment of such Agent makes it impracticable
or inadvisable to proceed with solicitation of offers to purchase SecUrities
or the purchase of Securities from the Company as principal pursuant to the
applicable Terms Agreement, as the case may be; and
(h) The Company shall have furnished or caused to be furnished
to such Agent one or more certificates of officers of the Company dated the
Commencement Date and each applicable date referred to in Section 4(j) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the.case
may be, reasonably satisfactory to such Agent as to the accuracy in all
material respects of the 'representations and warranties of the Company herein
at and as of the Commencement Date or such applicable date, as the case may
be, as to the performance in all material respects by the Company of all of
its obligations hereunder to be performed at or prior to the Commencement Date
or such applicable date, as the case may be, and as to the matters set forth
in paragraph (a) and clauses (i) and (ii) of paragraph (e) of this Section 6,
with the certificate based upon knowledge or belief as to proceedings
initiated or threatened referred to in such paragraph (a) and as to the
matters referred to in clauses (i) and (ii) of such paragraph (e).
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus as amended or supplemented, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein
-17-
<PAGE>
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such Agent for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such action or claim; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus as amended or
supplemented, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use in the Prospectus as amended or supplemented; and PROVIDED,
FURTHER, that such indemnity with respect to the Registration Statement or any
Preliminary Prospectus shall not inure to the benefit of any Agent by whom the
person asserting any such loss, claim, damage or liability was solicited to
purchase the Securities which are the subject thereof if such person did not
receive a copy of the Prospectus or the Prospectus as amended or supplemented
(excluding documents incorporated by reference) at or prior to the confirmation
of the sale of the Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Registration Statement or any such Preliminary Prospectus was
corrected in the Prospectus or the Prospectus as amended or supplemented.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus as amended or supplemented, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus as amended or supplemented, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably
-18-
<PAGE>
incurred by the Company in connection with investigating or defending any such
action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsection (a) or (b) above in respect
of any' losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and each Agent on the other from the offering of the Securities to which
such loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and each Agent on the other in
connection with the statements or omissions which resulted in such
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<PAGE>
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and each Agent on the other shall be deemed to be
in the same proportion as the total net proceeds from the sale of Securities
(before deducting expenses) receiVed by the Company bear to the total
commissions or discounts received by such Agent in respect thereof. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or by any Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and each Agent agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if all Agents 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 above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. notwithstanding the
provisions of this subsection (d), no Agent shall be required to contribute any
amount in excess of the amount by which the total public offering price of the
Securities purchased by or through it exceeds the amount of any damages which
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of the Agents under this
subsection (d) to contribute are several in proportion to the respective
purchases made by or through it to which such loss, claim, damage or liability
(or action in respect thereof) relates and. are not joint.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act; and the obligations of each
Agent under this Section 7 shall be in addition to any liability which such
Agent may otherwise have and shall
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<PAGE>
extend, upon the same terms and conditions, to each offIcer and director of the
Company and to each person, if any, who controls the Company Within the meaning
of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any Terms Agreement), is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Securities from the Company was solicited by such Agent and has been
accepted by the Company, but such Agent shall not have any liability to the
Company in the event such purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Securities to a purchaser
whose offer it has accepted, the Company shall (i) hold each Agent harmless
against any loss, claim or damage arising from or as a result of such default
by the Company and (ii) notwithstanding such default, pay to the Agent that
solicited such offer any commission to which it would be entitled in
connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Agent or any controlling person of any Agent or
the Company, or any officer or director or any controlling person of the
Company, and shall survive each delivery of and payment for any of the
Securities.
10. The Agents shall have no further obligation to solicit offers to
purchase Securities from the Company after such time as offers to purchase
$100,000,000 aggregate principal amount (or less, if the Company or any Agent
shall suspend or terminate the provisions of this Agreement relating to the
solicitation of such offers to purchase, as hereinafter provided) have been
accepted by the Company. The provisions of this Agreement relating to the
solicitation of offers to purchase Securities from the Company may be suspended
or terminated at any time by the Company as to any Agent or by any Agent insofar
as this Agreement relates to such Agent upon the giving of written notice of
such suspension or termination to 'such Agent or the Company, as the case may
be. In the event of such suspension or
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<PAGE>
termination with respect to any Agent, this Agreement shall remain in full force
and effect with respect to any Agent as to which such suspension or termination
has not occurred, and, in the event of such suspension or termination with
respect to any Agent, or the acceptance by the Company of offers to purchase all
of the Securities to be sold pursuant hereto, (x) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Securities which are already
issued, agreed to be issued or the subject of a pending offer at the Time of
such suspension or termination or acceptance of all such offers and (y) in any
event, this Agreement shall remain in full force and effect insofar as the third
paragraph of Section 2(a), Section 4(d), Section 5, Section 7, Section 8 and
Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Procedure, all statements, requests, notices and advices hereunder shall be in
writing, or by telephone if promptly confirmed in writing, and if to Goldman,
Sachs & Co. shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 85 Broad Street, New York, New
York 10004, Facsimile Transmission No. (212) 809-1583, Attention: Registration
Department, and if to Salomon Brothers Inc shall be sufficient in all respects
when delivered or sent by facsimile transmission or registered mail to One New
York Plaza, New York, New York 10004, Facsimile Transmission No. (212)
943-4569, Attention: Katherine E. Dietze, Medium Term Note Department, and if
to the Company shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to P.O. Box 619100, DFW Airport
Station, Dallas, Texas 75261-9100, Facsimile Transmission No. (214) 830-1289,
Attention: Treasurer's Office.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company, and to the extent
provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any Agent or the Company,
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities
through or from any Agent hereunder shall be deemed a successor or assign by
reason of such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when
the office of the Commission in Washington, D.C. is normally open for
business.
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<PAGE>
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by
any one or more of the parties here to and thereto in any number of
counterparts, each of which shall be an original, but all of such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us several counterparts hereof, whereupon this letter and
the acceptance by each of you thereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
Kimberly-Clark Corporation
By: /s/
--------------------------
Accepted in New York, New York,
as of the date hereof:
/s/ Goldman, Sachs & Co.
- --------------------------------
(Goldman, Sachs & Co.)
Salomon Brothers Inc
By: Katherine E. Dietz
-----------------------
[Title]
VP
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<PAGE>
ANNEX I
Kimberly-Clark Corporation
[Medium-Term Notes]
TERMS AGREEMENT
---------------
........, 19...
[Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004]
[Salomon Brothers Inc
One New York Plaza
New York, New York 10004]
Dear Sirs:
Kimberly-Clark Corporation (the "Company") proposes, subject to the
terms and conditions stated herein and in the Distribution Agreement, dated
January 14, 1988 (the "Distribution Agreement"), between the Company on the
one hand and Goldman, Sachs & Co. and Salomon Brothers Inc on the other, to
issue and sell to [Goldman, Sachs & Co.] [Salomon Brothers Inc] the securities
specified in the Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement not specifically related to the
solicitation by [Goldman, Sachs & Co.] [Salomon Brothers Inc], as agent[s] of
the Company, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Nothing contained herein or in the Distribution Agreement shall make
any party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase
securities from the Company, solely by virtue of its execution of this Terms
Agreement. Each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Terms Agreement,
except that each representation and warranty in Section l of the Distribution
Agreement which makes reference to the Prospectus shall be deemed to be a
representation and warranty as of the date of the Distribution Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the
I-1
<PAGE>
date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Goldman, Sachs & Co.] [Salomon Brothers Inc] and [Goldman,
Sachs & Co.] [Salomon Brothers Inc] agree[s] to purchase from the Company the
Purchased Securities, at the time and place, in the principal amount and at
the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Kimberly-Clark Corporation
By:
-----------------------
Accepted:
[
-----------------------------------------
(Goldman, Sachs & Co.)]
[Salomon Brothers Inc
By:
---------------------------------
[Title]]
I-2
<PAGE>
Schedule to Annex I
Title of Purchased Securities:
[ % Notes due ] [Medium-Term Notes]
Aggregate Principal Amount:
$
[Price to Public:]
Purchase Price by [Goldman, Sachs & Co.]
[Salomon Brothers Inc]
% of the principal amount of the Purchased Securities, plus
accrued interest from to [and accrued amortization, if any, from
to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of
the Company, in [[New York] Clearing House] [immediately available]
funds
[By wire transfer to a bank account specified by the Company in [next
day] [immediately available] funds]
Indenture:
Indenture, dated as of January 15, 1983, between the
Company and Bank of America National Trust and Savings Association, as
successor Trustee pursuant to a Tripartite Agreement, dated as of
December 20, 1984, among the Company, Citibank, N.A. and the Trustee, as
supplemented by Supplemental Indenture No. 1, dated as of June 1, 1987,
between the Company and the Trustee
Issuing and Paying Agent:
Chemical Bank
55 Water Street
New York, New York 10041
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<PAGE>
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the
Closing:
[(1) The opinion or opinions referred to in Section 4 (g).]
[(2) The opinion referred to in Section 4(h).]
[(3) The accountants' letter referred to in Section 4(i).]
[(4) The officers' certificate referred to in Section 4(j).]
Syndicate Provisions:
[Set forth any provisions relating to underwriters' default and step-up
of amounts to be purchased by underwriters acting with Goldman, Sachs & Co. or
Salomon Brothers Inc, as the case may be.]
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<PAGE>
ANNEX II
Kimberly-Clark Corporation
ADMINISTRATIVE PROCEDURE
Medium-term debt securities (the "Securities") in the aggregate
principal amount of up to $100,000,000 are to be offered from time to time by
Kimberly-Clark Corporation (the "Company"), through Goldman, Sachs & Co. and
Salomon Brothers Inc, as agents of the Company (together, in such capacity,
the "Agents"). Each Agent has agreed to use its best efforts to solicit
offers to purchase Securities directly from the Company (an Agent, in relation
to a purchase of a particular Security by a purchaser solicited by such Agent,
being herein referred to as the "Selling Agent") and may also purchase
Securities from the Company as principal. The Securities are being sold
pursuant to a Distribution Agreement, dated January 14, 1988 (the
"Distribution Agreement"), between the Company and the Agents, to which this
Administrative Procedure is attached as Annex II. The Company has reserved
the right to sell Securities directly on its own behalf.
The Securities will be issued under an indenture, dated as of January
15, 1983, between the Company and Bank of America National Trust and Savings
Association, as successor Trustee (the "Trustee") pursuant to a Tripartite
Agreement, dated as of December 20, 1984, among the Company, Citibank, N.A.
and the Trustee, as. supplemented by Supplemental Indenture No. 1, dated as of
June 1, 1987, between the Company and the Trustee (the indenture, as so
amended and supplemented, the "Indenture") and pursuant to an Issuing and
Paying Agency Agreement, dated as of January 14, 1988 (the "Issuing Agency
Agreement"), between the Company and Chemical Bank, as issuing and paying
agent (the "Issuing Agent"). The Securities will rank equally and ratably
with other unsecured and unsubordinated indebtedness of the Company and will
have been registered with the Securities and Exchange Commission (the
"Commission")
In the case of purchases of Securities by Goldman, Sachs & Co. or
Salomon Brothers Inc, as principal, the relevant terms and settlement details
related thereto, including the Time of Delivery referred to in Section 2 (b),
will be set forth in a Terms Agreement entered into between Goldman, Sachs &
Co. or Salomon Brothers Inc and the Company pursuant to the Distribution
Agreement.
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. The following summaries of certain provisions of
the Distribution Agreement and the Indenture
II-1
<PAGE>
do not purport to be complete and are subject, and are qualified in their
entirety by reference, to all of the respective provisions of the Distribution
Agreement and the Indenture.
Administrative and record-keeping responsibilities will be handled for
the Company by its Treasurer's Office. The Company will advise each Agent in
writing of those persons handling administrative responsibilities ("Designated
Persons") with whom such Agent is to communicate regarding offers to purchase
Securities and the details of their delivery.
Maturities: Each Security will mature on a date, selected by
the purchaser and agreed to by the Company,
which will be at least 18 months but not more
than 10 years from the date of issuance.
Price to Public: Each Security will be issued at 100% of its
principal amount, unless otherwise specified in
a Pricing Supplement (as defined below under
"Acceptance of Offers") or a Terms Agreement.
Denominations: The denominations will be $100,000 and any
integral multiple of $1,000 in excess thereof.
Registration: Securities will be issued only in fully
registered form.
Interest Payments: Interest payments will be made on each January
15 and July 15 in each year (the "Interest
Payment Dates"), commencing on the first
Interest Payment Date after the Settlement Date
(as defined below under "Settlement"), and at
maturity. Interest payments will be made on the
Interest Payment Dates to the registered owners
at the close of business on the immediately
preceding January 1 and July 1 record dates,
respectively. Interest will begin to accrue on
the Settlement Date, as hereafter defined, and
not from the immediately previous Interest
Payment Date. Interest payable at maturity
(other than on a date which is an Interest
Payment Date) will be paid to the same person to
whom the
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<PAGE>
principal is payable. Interest (including
payments for partial periods) will be
calculated on the basis of a 360-day year of
twelve 30-day months. All interest payments
(other than interest due at maturity) will be
made by check, drawn on the Issuing Agent, or,
upon receipt by the Issuing Agent, at least 15
days prior to any date for payment, of written
instructions from a holder of not less than
$1,000,000 aggregate principal amount of
Securities, by wire transfer (or other electronic
means) to a United States dollar account
maintained by the payee at any United States
depository institution with appropriate
facilities for receiving such a transfer.
On the fifth business day immediately preceding
each Interest Payment Date, the Issuing Agent
will advise the Company of the aggregate amount
of interest to be paid on the Securities on such
Interest Payment Date. The Is.suing Agent will
provide monthly to the Company's Treasurer's
Office a list of the principal and interest to
be paid on Securities maturing in the next
succeeding month. The Issuing Agent will assume
responsibility for withholding taxes on interest
paid as required by law.
Acceptance of Offers: Subject to the next sentence, each Agent will
promptly advise the Company by telephone or
other appropriate means of all reasonable offers
to purchase Securities. Each Agent may, in its
discretion reasonably exercised, reject any
offer received by it in whole or in part. The
Company will have the sole right to accept
offers to purchase Securities and may reject any
such offer in whole or in part.
If the Company accepts an offer to
purchase Securities, it will confirm such
acceptance in writing to the
II-3
<PAGE>
Selling Agent and the Issuing Agent.
If the Company rejects an offer, it will
promptly notify the Agent involved.
If the Company accepts an offer to purchase a
Security, the Company will prepare a pricing
supplement reflecting the terms of such Security
(each a "Pricing Supplement") and will arrange to
have 10 Pricing Supplements filed with the
Commission not later than the close of business of
the Commission on the fifth business day following
such acceptance of an offer to purchase such
Security and will supply at least ten Pricing
Supplements to the Selling Agent.
Delivery of Prospectus: With respect to each Security sold pursuant to
the Distribution Agreement, the Selling Agent
shall send a copy of the Prospectus Supplement
(together with a Pricing Supplement relating to
such Security), to the customer or its agent
prior to or together with the earlier of
delivery of (a) the written confirmation of sale
sent to such customer or agent or (b) the
Security or due bill to such customer or agent.
Confirmation: The Selling Agent will issue a written
confirmation to each purchaser containing the
Sale Information (as defined below), plus
delivery and payment instructions.
Settlement: Unless special arrangements have been made, all
offers solicited by the Agents and accepted by
the Company will be settled on the fifth
business day after the date of acceptance. At
the request of the purchaser, the Company may in
its discretion allow for settlement on any
business day subsequent to the date of
acceptance or, with respect to offers accepted
by the Company by 10:00 a.m., on the date of
acceptance. The day of settlement
II-4
<PAGE>
is referred to herein as the "Settlement Date".
Prior to 3:00 p.m., New York City time, on the
business day prior to the Settlement Date, the
Company will instruct the Issuing Agent by
facsimile transmission or other acceptable
written means to authenticate and deliver the
Securities no later than 12:00 noon, New York
City time, on the Settlement Date.
If the Settlement Date is the same day as the
date of acceptance, then prior to 11:00 a.m.,
New York City time, on the Settlement Date the
Company will instruct the Issuing Agent by
facsimile transmission or other acceptable means
to authenticate and deliver the notes no later
than 2:15 p.m., New York City time, on the
Settlement Date.
Details for Settlement: The Selling Agent must communicate the following
information (the "Sale Information") from the
purchaser to a Designated Person by telephone
(confirmed in writing), facsimile transmission
or other acceptable written means:
(1) Name of the registered owner,
(2) Address of the registered owner (including
address for interest payments, if
different, and wire transfer instructions
for interest payments, if applicable),
(3) Taxpayer identification number of the
registered owner,
(4) Principal amount of the purchase,
(5) Date of Security,
(6) Interest rate,
(7) Settlement Date (which shall be the
Original Issue Date),
(8) Maturity date,
(9) Denominations of certificate[s],
II-5
<PAGE>
(10) Selling Agent's commission (to be paid as
a discount from gross proceeds of sale),
(11) Net proceeds to the Company, and
(12) Delivery instructions.
After receiving the Sale Information from the
Selling Agent, and, after recording the Sale
Information and any necessary calculations, the
Company will communicate such Sale Information
by telephone (confirmed in writing), facsimile
transmission or other acceptable written means,
to the Issuing Agent. Prior to preparing the
Securities for delivery, the Issuing Agent will
promptly confirm the Sale Information, if
necessary, by telephone with the Selling Agent.
The Issuing Agent will assign to and enter on
each Security a transaction number.
Delivery of Securities: The Issuing Agent will prepare and authenticate
the pre-printed 4-ply Security packet containing
the following documents in forms approved by the
Company, the Selling Agent and the Issuing
Agent:
1. Security with customer receipt.
2. Stub1 - For the Selling Agent.
3. Stub2 - For the Company.
4. Stub3 - For the Issuing Agent.
The Issuing Agent will deliver a Security to the
Selling Agent for the benefit of the purchaser
against receipt therefor and, later the same
day, receipt by the Company directly from the
Selling Agent, of an amount in immediately
available funds equal to the face amount of the
Security less the Selling Agent's commission The
Selling Agent will obtain a written
acknowledgement from the purchaser of the
receipt of such Security.
Failures: In the event that a purchaser shall fall to
accept delivery of and make payment for any
Security, the Selling Agent
II-6
<PAGE>
will forthwith notify the Issuing Agent and the
Company's Treasurer's Office by telephone
(confirmed in writing) or by facsimile
transmission. If the Security has been delivered
to the Selling Agent on behalf of the purchaser,
the Selling Agent will immediately return the
Security to the Issuing Agent. Immediately after
receipt of such Security by the Issuing Agent, the
Company will repay any funds advanced in respect
of such Security by the Selling Agent to such
Selling Agent. If such failure shall have
occurred for any reason other than default by the
Selling Agent in the performance of its
obligations under the Distribution Agreement, the
Company will reimburse the Selling Agent on an
equitable basis for its loss of the use of the
funds during the period when they were credited to
the account of the Company.
Immediately upon receipt of the certificate
representing the Security in respect of which
the failure occurred, the Issuing Agent will
cancel the Security, make appropriate entries in
its records and, unless otherwise instructed by
the Company, destroy the certificate.
Payment Upon presentation of each Security at maturity,
Maturity: the Issuing Agent will pay the principal amount
of such Security, together with accrued interest
due at maturity, in immediately available funds.
The Issuing Agent will cancel Securities
presented at maturity as provided in the Issuing
Agency Agreement, and, unless otherwise
instructed by the Company, forward them directly
to the Company's Treasurer's Office with an
appropriate debit advice.
Suspension of Subject to its representations, warranties and
Solicitation; covenants contained in the Distribution
Amendment or Agreement, the Company may instruct the Agents
Supplement: to
II-7
<PAGE>
suspend solicitation of offers to purchase
Securities at any time. As soon as practicable,
but in any event not later than one business day
after, the Agents will suspend solicitation
until such time as the Company has advised the
Agents that solicitation of offers to purchase
Securities may be resumed. Except as otherwise
provided for in the Distribution Agreement, the
Company has discretion regarding whether to
amend or supplement the Registration Statement
or Prospectus. If the Company proposes so to
amend or supplement, it will promptly advise the
Agents and will furnish the Agents such proposed
amendment or supplement and, after the Agents
have been afforded a reasonable opportunity to
review such amendment or supplement, will cause
such amendment or supplement promptly to be
filed with, or mailed for filing to, the
Commission. The Company will promptly provide
the Agents with copies of any such amendment or
supplement and confirm to the Agents that such
amendment or supplement has been filed with the
Commission.
In the event that at the time the Agents suspend
solicitation of offers to purchase Securities
there shall be any orders for delayed settlement
outstanding, the Company, consistent with its
obligations under the Distribution Agreement,
promptly will advise the Agents whether such
orders may be settled and whether copies of the
Prospectus as in effect at the time of the
suspension may be delivered in connection with the
settlement of such orders. The Company will have
the sole responsibility for such decision and for
any arrangements which may be made in the event
that the Company determines that such orders may
not be settled or that copies of such Prospectus
may not be so delivered.
II-8
<PAGE>
Authenticity of The Company will cause the issuing Agent to
Signatures: furnish the Agents from time to time with the
specimen signatures of each of the Issuing
Agent's officers, employees or agents who have
been authorized by the Issuing Agent to
authenticate Securities, but the Agents will
have no obligation or liability to the Company
or the Issuing Agent in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Issuing
Agent on any Security.
Advertising Cost: The Company will determine with the Agents the
amount of advertising that may be appropriate in
the solicitation of offers to purchase the
Securities. Advertising expenses will be paid by
the Company.
II-9
<PAGE>
ANNEX III
Pursuant to Section 4(i) and Section 6(d), as the case may
be, of the Distribution Agreement, Deloitte Haskins & Sells shall furnish
letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder, and the
information, if any, with respect to them required to be given in response to
Item 10 of Form 5-3 and set forth in the Prospectus is correct;
(ii) In their opinion, the financial statements and
schedules examined by them and included or incorporated by reference in the
Prospectus or any amendment or supplement there to prior to the date of such
letter comply as to form in all material respects with the applicable
accounting requirements of [the Act or] the Exchange Act[, as applicable,] and
the published rules and regulations thereunder;
(iii) On the basis of having carried out certain specified
procedures (but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of significance
with respect to the comments set forth below, including a reading of the
unaudited financial statements and schedules and other information referred to
below, a reading of the latest interim financial statements made available by
the Company, a reading of the minutes of the meetings of the Board of
Directors, Executive Committee and Finance Committee of the Company since
December 31, 198[ ] [date of last audited financial statements], inquiries of
certain officials of the Company who have responsibility for financial and
accounting matters and such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that caused them to believe
that:
[(A) the unaudited financial statements included or incorporated
by reference in the Prospectus or any amendment or supplement thereto
prior to the date of such letter, do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the published rules and regulations thereunder as they
relate to Form 10-Q or are not fairly presented in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated financial
statements included or incorporated by reference in the Company's Annual
Report on
III-1
<PAGE>
Form 10-K for the year ended December 31, 198[ ] (the "Annual
Report");]
[(B) the unaudited information with respect to the Company's
consolidated financial position and consolidated results of operations as
of and for the [three] [six] [nine] months ended [March 31] [June 30]
[September 30], 198[ ] and 198[ ] included in the Prospectus or any such
amendment or supplement there to under the caption " " does
not agree with the corresponding amounts in the unaudited consolidated
financial statements referred to in Clause (A) or was not determined on a
basis substantially consistent with that of the corresponding amounts in
the audited consolidated financial statements included or incorporated by
reference in the Annual Report;]
[(C) the internal unaudited financial statements for the
month[s] ended , 198[ ] and 198[ ], which were not included in
the Prospectus or any such amendment or supplement thereto but from which
were derived certain unaudited financial information included in the
Prospectus or any such amendment or supplement thereto in text under the
caption " ", are not stated on a basis substantially consistent
with that of the audited financial statements included in the Prospectus;]
[(D) certain unaudited financial information included in the
Prospectus or any such amendment or supplement thereto in text under the
caption " " does not agree with the corresponding amounts in the
internal unaudited financial statements referred to in Clause (C) or was
not determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements included in the
Prospectus or any such amendment or supplement thereto;]
(E) as of a specified date not more than five days prior to the date
of delivery of such letter, there have been any changes in the capital
stock or long-term debt of the Company and its subsidiaries or) a
consolidated basis, or any decreases in consolidated net current assets or
consolidated net assets of the Company and its subsidiaries, in each case
as compared with amounts shown in the balance sheet of the Company and its
subsidiaries as of , 198[ ] [date of last Form 10-Q financial
statements included or incorporated by reference in the Prospectus or any
such amendment or supplement thereto] included or
III-2
<PAGE>
incorporated by reference in the Prospectus or any such amendment or
supplement thereto, except in each case for changes or decreases which the
Prospectus or any such amendment or supplement thereto discloses have
occurred or may occur and/or which are described in such letter; and
(F) for the period from , 198[ ] [date of the last Form 10-Q
financial statements included or incorporated by reference in the
Prospectus or any such amendment or supplement thereto] to such specified
date there were any decreases in consolidated net sales, income before
income taxes or the total or per share amounts of net income, in each case
as compared with the comparable period of the preceding year, except in
each case for decreases which the Prospectus or any such amendment or
supplement there to discloses have occurred or may occur and/or which are
described in such letter; and
(iv) In addition, they have performed certain specified
procedures, not constituting an audit, with respect to certain information of
an accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) which appear in the
Prospectus or any such amendment or supplement thereto (excluding documents
incorporated by reference) [and in Exhibit[s] 12 [and ] to the Registration
Statement], in the Annual Report and Exhibit[s] [and ] thereto, and in the
Company's Quarterly Report[s] for the quarter[s] ended [March 31] [and] [,]
[June 30] [and September 30], 198[ ] and Exhibit[s] [and] thereto, and which are
specified by the Agent[s] and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement, excluding any questions of
legal interpretation.
All references in this Annex III to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement Date
referred to in Section 6(d) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) as of
the date of the amendment, supplement, incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(i) thereof.
III-3
<PAGE>
EXHIBIT 4.3
FIRST SUPPLEMENTAL INDENTURE, dated as of November 6, 1992,
between Kimberly-Clark Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), and Bank
of America National Trust and Savings Association, a national banking
association duly incorporated and existing under the laws of the United States,
as successor Trustee (herein called the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the
Trustee a First Amended and Restated Indenture dated as of March 1, 1988
(herein called the "Indenture"), pursuant to which one or more series of
unsecured debentures, notes or other evidences of indebtedness of the Company
(herein called the "Securities") may be issued from time to time. All terms
used in this First Supplemental Indenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Company desires and has requested the Trustee to join with
it in the execution and delivery of this First Supplemental Indenture for the
purpose of amending Articles One, Two, Three and Eleven of the Indenture in
order to permit the issuance of Securities in the form of global securities.
Section 901(9) of the Indenture provides that a supplemental
indenture may be entered into by the Company
<PAGE>
and the Trustee without the consent of any Holders to make provisions with
respect to matters arising under the Indenture which do not adversely affect
the interests of the Holders of Securities of any series in any material
respect.
The Company has furnished the Trustee with (i) an Opinion of
Counsel stating that the execution of the First Supplemental Indenture is
authorized or permitted by the Indenture, (ii) an Officer's Certificate stating
that all conditions precedent provided for in the Indenture with respect to
this First Supplemental Indenture have been complied with, and (iii) a copy of
the resolutions of its Board of Directors, certified by its Secretary, pursuant
to which this First Supplemental Indenture has been authorized.
All things necessary to make this First Supplemental Indenture
a valid agreement of the Company and the Trustee and a valid amendment of and
supplement to this Indenture have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
any series thereof, as follows:
-2-
<PAGE>
ARTICLE ONE
SECTION 101. Section 101 of the Indenture is amended to
include therein the following provisions:
(a) After the definition of Defaulted Interest:
"'Depository' means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository for such series by the Company
pursuant to Section 301."
(b) After the definition of Event of Default:
"'Global Security' means a Security in the form prescribed in
Section 203 evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee and registered in the name of such
Depository or nominee."
SECTION 102. Section 104 of the Indenture is amended by
adding, at the end thereof, the following:
"(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series
-3-
<PAGE>
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action."
SECTION 103. A new Section 203 is added, to read in its
entirety as follows:
"SECTION 203. Additional Provisions Required in Global
Security.
Any Global Security issued hereunder shall, in addition to the
other provisions set forth in or determined pursuant to the provisions hereof,
bear a legend as follows:
'This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Global Security is
exchangeable for Securities registered in the name of a person other
than the Depository or its nominee only in the limited circumstances
hereinafter described and may not be transferred except as a whole by
the Depository to a
-4-
<PAGE>
nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository.'
In addition, such Global Security shall contain the following
provision:
'This Security is a Global Security and shall be exchangeable
for Securities registered in the names of Persons other than the
Depository with respect to this Global Security or its nominee only if
(x) such Depository notifies the Company that it is unwilling or
unable to continue as Depository for this Global Security or at any
time ceases to be a clearing agency registered as such under the
Securities Exchange Act of 1934, as amended or (y) the Company
executes and delivers to the Trustee a Company Order that this Global
Security shall be exchangeable. If this Global Security is
exchangeable pursuant to the preceding sentence, it shall be
exchangeable for Securities issuable in denominations of $1,000 and
any integral multiple thereof, registered in such names as such
Depository shall direct.'"
SECTION 104. The word "and" is deleted at the end of Section
301(15) of the Indenture, Section 301(16) of the Indenture is renumbered
Section 301(17) and a new Section 301(16) is added, to read in its entirety as
follows:
-5-
<PAGE>
"(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in such
case, the Depository for such Global Security or Securities; and"
SECTION 105. The following paragraphs are appended to the end
of Section 305 of the Indenture.
"Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, a Global Security of any series shall be
exchangeable pursuant to this Section for Securities registered in the names of
Persons other than the Depository with respect to such series or its nominee
only as provided in this paragraph. A Global Security shall be exchangeable
pursuant to this Section if (x) such Depository notifies the Company that it is
unwilling or unable to continue as Depository for such series or at any time
ceases to be a clearing agency registered as such under the Securities Exchange
Act of 1934, as amended or (y) the Company executes and delivers to the Trustee
a Company Order that such Global Security shall be so exchangeable. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities issuable in denominations of $1,000 and any
integral multiple thereof, registered in such names as the Depository for such
Global Security shall direct.
-6-
<PAGE>
Notwithstanding any other provision of this Section, a Global
Security may not be transferred except as a whole by the Depository to a
nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository."
SECTION 106. The following paragraph is appended to the end of
Section 308 of the Indenture:
"No holder of any beneficial interest in any Global Security
held on its behalf by a Depository shall have any rights under this Indenture
with respect to such Global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depository and such
holders of beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depository as Holder of any Security."
SECTION 107. Section 1107 of the Indenture is amended to read
in its entirety as follows:
"SECTION 1107. Securities Redeemed in Part.
Any Security (including any Global Security) which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument or transfer in form satisfactory to the Company
-7-
<PAGE>
and the Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered; provided, that if a Global Security is so surrendered, the new
Global Security shall be in a denomination equal to the unredeemed portion of
the principal of the Global Security so surrendered."
ARTICLE II
SECTION 201. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
---------------
-8-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
KIMBERLY- CLARK CORPORATION
By /s/ W. ANTHONY GAMRON
------------------------------
Attest:
/s/ RONALD D. MCCRAY
- ------------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, Trustee
By /s/ CLARENCE EAGLIN
------------------------------
Attest:
/s/ AGANO OCTERIA
- ------------------------------
-9-
<PAGE>
STATE OF TEXAS )
) SS.:
COUNTY OF DALLAS )
On the 2nd day of November, 1992, before me personally came W.
Anthony Gamron to me known, who, being by me duly sworn, did depose and say
that he is VP & Treasurer of Kimberly-Clark Corporation, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ PATRICIA A. THEISS
------------------------------
STATE OF CALIFORNIA )
) SS.:
COUNTY OF SAN FRANCISCO )
On the 4 day of November, 1992, before me personally came
Clarence Eaglin, to me known, who, being by me duly sworn, did depose and say
that he is a trust Officer of Bank of America National Trust and Savings
Association, one of the corporations described in and which executed the
foregoing instrument, that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/s/ KRISTIN M. BOETTGER
------------------------------
OFFICE SEAL
KRISTIN M. BOETTGER
{SEAL} Notary Public-California
SAN FRANCISCO COUNTY
My commission Expires
May 16, 1994
-10-
<PAGE>
EXHIBIT 4.4
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of May 25, 1994, between Kimberly-
Clark Corporation, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), and Bank of America
National Trust and Savings Association, a national banking association duly
incorporated and existing under the laws of the United States, as successor
trustee (herein called the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee a First
Amended and Restated Indenture dated as of March 1, 1988 (herein called the
"Indenture"), pursuant to which one or more series of unsecured debentures,
notes or other evidences of indebtedness of the Company (herein called the
"Securities") may be issued from time to time. All terms used in this Second
Supplemental Indenture which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The Company desires and has requested the Trustee to join with it in the
execution and delivery of this Second Supplemental Indenture for the purpose of
amending Section 1102 of the Indenture.
Section 901(9) of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee without the consent of any
Holders to make provisions with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of Securities of any
series in any material respect.
The Company has furnished the Trustee with (i) an Opinion of Counsel
stating that the execution of the Second Supplemental Indenture is authorized
and permitted by the Indenture, (ii) an Officer's Certificate stating that all
conditions precedent provided for in the Indenture with respect to this Second
Supplemental Indenture have been complied with, and (iii) a copy of the
resolution of its Special Committee of the Board of Directors, certified by its
Secretary, pursuant to which this Second Supplemental Indenture has been
authorized.
All things necessary to make this Second Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and supplement
to this Indenture have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof, as follows:
ARTICLE ONE
SECTION 101. Section 1102 of the Indenture is amended to read in its
entirety as follows:
<PAGE>
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed; provided,
however, that in the case of any Securities issued on or after April 1, 1994,
such notice shall be given by the Company on such day, not less than 5 Business
Days prior to the last date for mailing notice of redemption to the Holders of
such Securities prior to such Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee in its sole discretion), as the Company, in its sole
discretion shall determine. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
ARTICLE II
SECTION 201. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
KIMBERLY-CLARK CORPORATION
By: /s/ John W. Donehower
----------------------------
Name: John W. Donehower
Title: Senior Vice President and
Chief Financial Officer
Attest:
/s/ David M. Dolan
- --------------------------
-2-
<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, TRUSTEE
By: /s/ Kristin M. Boettger
--------------------------------
Name: Kristin M. Boettger
Title: Senior Trust Officer
Attest:
/s/ Ayaro Ostanie
- ---------------------------
STATE OF TEXAS )
) s.:
COUNTY OF DALLAS)
On the 25th day of May, 1994, before me personally came John W. Donehower,
to me known, who, being by me duly sworn, did depose and say that he is Senior
Vice President and Chief Financial Officer of Kimberly-Clark Corporation, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Special
Committee of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/s/ Patricia A. Theiss
------------------------------------
Notary Public
My Commission Expires 1/28/96.
-3-
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO)
On the 27th day of May, 1994, before me personally came Kristin M.
Boettger, to me known, who, being by me duly sworn, did depose and say that he
is Trust Officer of Bank of America National Trust and Savings Association, one
of the corporations described in and which executed the foregoing instrument,
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ Norma L. Cantora
----------------------------------
Notary Public
My Commission Expires 9/19/94.
I:\USERS\DOLAND\FINANCE\DEBENTUR\SUPINDEN.2ND
-4-
<PAGE>
EXHIBIT 5
June 17, 1994
Kimberly-Clark Corporation
P. O. Box 619100
Dallas, Texas 75261-9100
Re: Registration Statement on Form S-3
---------------------------------------
Gentlemen:
I am Senior Vice President - Law and Government Affairs of Kimberly-Clark
Corporation (the "Corporation"), and have acted as counsel in connection with
(i) the registration statement being filed by the Corporation with the
Securities and Exchange Commission (the "Commission") with regard to the
registration under the Securities Act of 1933, as amended (the "Act"), of
$200,000,000 aggregate principal amount of debt securities of the Corporation
(the "Debt Securities"), and (ii) the First Amended and Restated Indenture dated
as of March 1, 1988, as supplemented by the First Supplemental Indenture thereto
dated as of November 6, 1992, and the Second Supplemental Indenture thereto
dated as of May 25, 1994 (the "Indenture"), between the Corporation and Bank of
America National Trust and Savings Association, as successor trustee (the
"Trustee"), pursuant to which Indenture the Debt Securities are to be issued.
The registration statement (including the exhibits thereto and all documents or
portions thereof incorporated therein by reference) is hereinafter collectively
called the "Registration Statement."
I am familiar with the proceedings to date with respect to the proposed issuance
and sale of the Debt Securities. In addition, in connection with this opinion,
I have examined an executed copy of the Registration Statement and the
Indenture, and such corporate and other documents and records, and certificates
of officers of the Corporation, as I have deemed necessary for the purposes of
this opinion. In stating my opinion I have assumed the genuineness of all
signatures of, and the authority of, persons signing any documents or records on
behalf of parties other than the Corporation, the authenticity of all documents
submitted to me as originals and the conformity to authentic original documents
of all documents submitted to me as certified or photostatic copies.
Based upon the foregoing, I am of the opinion that:
1. The Corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
2. The Corporation has the corporate power to authorize and sell the Debt
Securities.
<PAGE>
Kimberly-Clark Corporation
Page 2
June 17, 1994
3. The Debt Securities will be legally issued and binding obligations of the
Corporation (except as may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting the enforcement of creditors' rights or by general principles of
equity) when: (i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), shall have become effective under
the Act; (ii) the Corporation's Board of Directors or a duly authorized
committee thereof shall have duly adopted resolutions authorizing the
issuance and sale of the Debt Securities as contemplated by the
Registration Statement and the Indenture; and (iii) the Debt Securities
shall have been duly executed, authenticated and delivered to the
purchasers thereof against payment of the agreed consideration therefor.
For purposes of this opinion, I have assumed that there will be no changes in
the laws currently applicable to the Corporation and that such laws will be the
only laws applicable to the Corporation.
I express no opinion as to the application of the securities or Blue Sky laws of
the various states to the sales of the Debt Securities.
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the use of my name under the caption "Validity of Debt
Securities" in the Prospectus and the Prospectus Supplement relating to the
Registration Statement which are reviewed and approved by me prior to the
distribution of such Prospectus and Prospectus Supplement and the filing thereof
with the Commission.
Very truly yours,
/s/ O. George Everbach
O. George Everbach
OGE/DMD/pat
<PAGE>
EXHIBIT 12
KIMBERLY-CLARK CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(Dollar amounts in millions)
<TABLE>
<CAPTION>
Three Months
Year Ended December 31 Ended March 31
-------------------------------------- ---------------
1993 1992 1991 1990 1989 1994 1993
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED COMPANIES
Income before income taxes....... $713.0 $461.9 $684.3 $660.8 $630.8 $183.6 $174.7
Interest expense ................ 112.6 99.4 102.1 88.1 68.2 31.1 26.1
Interest factor in rent expense.. 23.1 26.4 22.6 20.8 11.0 6.2 7.2
Amortization of capitalized
interest ...................... 5.7 5.7 4.7 4.1 3.4 1.4 1.4
EQUITY AFFILIATES
Share of 50%-owned:
Income before income taxes .... 34.6 39.3 28.2 21.3 19.8 9.5 6.5
Interest expense .............. 7.6 3.1 5.1 8.6 8.8 1.9 2.0
Interest factor in rent expense .6 .6 .7 .7 .5 .1 .1
Amortization of capitalized
interest .................... .6 .3 .2 .2 .1 .1 .1
Distributed income of less than
50%-owned ..................... 41.4 41.7 43.4 33.2 39.2 - -
------ ------ ------ ------ ------ ------ ------
Earnings .......................... $939.2 $678.4 $891.3 $837.8 $781.8 $233.9 $218.1
------ ------ ------ ------ ------ ------ ------
------ ------ ------ ------ ------ ------ ------
CONSOLIDATED COMPANIES
Interest expense ............ $112.6 $ 99.4 $102.1 $ 88.1 $ 68.2 $ 31.1 $ 26.1
Capitalized interest ........ 19.0 18.6 14.7 20.3 20.2 2.3 6.1
Interest factor in rent
expense .................. 23.1 26.4 22.6 20.8 11.0 6.2 7.2
EQUITY AFFILIATES
Share of 50%-owned:
Interest expense and
capitalized interest ... 8.1 8.1 7.1 9.0 9.3 1.9 2.1
Interest factor in rent
expense ................ .6 .6 .7 .7 .5 .1 .1
------ ------ ------ ------ ------ ------ ------
Fixed charges ................... $163.4 $153.1 $147.2 $138.9 $109.2 $ 41.6 $ 41.6
------ ------ ------ ------ ------ ------ ------
------ ------ ------ ------ ------ ------ ------
Ratio of earnings to
fixed charges ........ 5.75 4.43(a) 6.06 6.03 7.16 5.62 5.24
------ ------ ------ ------ ------ ------ ------
------ ------ ------ ------ ------ ------ ------
<FN>
(a) The 1992 ratio of earnings to fixed charges excluding the pretax restructuring charge of
$250.0 million was 6.06.
</TABLE>
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Kimberly-Clark Corporation on Form S-3 of our report dated January 28, 1994
appearing in the Current Report on Form 8-K of Kimberly-Clark Corporation dated
February 17, 1994, and our reports dated January 28, 1994, appearing in and
incorporated by reference in the Annual Report on Form 10-K of Kimberly-Clark
Corporation for the year ended December 31, 1993. Such reports include an
explanatory paragraph concerning the Corporation's changes in its methods of
accounting for income taxes and postretirement benefits other than pensions to
conform with Statements of Financial Accounting Standards No. 109 and No. 106,
respectively. We also consent to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche
DELOITTE & TOUCHE
Dallas, Texas
June 17, 1994
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ John F. Bergstrom
---------------------------------------------
John F. Bergstrom
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that John F. Bergstrom, personally known to me to
be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person, and acknowledged that he or she signed,
sealed and delivered the said instrument as his or her free and voluntary act,
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ Pastora San Juan Cafferty
---------------------------------------------
Pastora San Juan Cafferty
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Pastora San Juan Cafferty, personally known to
me to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person, and acknowledged that he or she signed,
sealed and delivered the said instrument as his or her free and voluntary act,
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ Paul J. Collins
---------------------------------------------
Paul J. Collins
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Paul J. Collins, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person, and acknowledged that he or she signed, sealed and
delivered the said instrument as his or her free and voluntary act, for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ Claudio X. Gonzalez
---------------------------------------------
Claudio X. Gonzalez
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Claudio X. Gonzalez, personally known to me to
be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person, and acknowledged that he or she signed,
sealed and delivered the said instrument as his or her free and voluntary act,
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ Phala A. Helm, M.D.
---------------------------------------------
Phala A. Helm, M.D.
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Phala A. Helm, M.D., personally known to me to
be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person, and acknowledged that he or she signed,
sealed and delivered the said instrument as his or her free and voluntary act,
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ Louis E. Levy
---------------------------------------------
Louis E. Levy
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Louis E. Levy, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person, and acknowledged that he or she signed, sealed and
delivered the said instrument as his or her free and voluntary act, for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 25th day of
February, 1994.
/s/ Frank A. McPherson
---------------------------------------------
Frank A. McPherson
STATE OF OKLAHOMA )
) ss
COUNTY OF OKLAHOMA)
I, Jennine L. Mashburn, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY that Frank A. McPherson, personally known to
me to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person, and acknowledged that he or she signed,
sealed and delivered the said instrument as his or her free and voluntary act,
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 25th day of February, 1994.
/s/ Jennine L. Mashburn
----------------------------------------
Jennine L. Mashburn
Notary Public
My Commission Expires May 15, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ H. Blair White
---------------------------------------------
H. Blair White
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that H. Blair White, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person, and acknowledged that he or she signed, sealed and
delivered the said instrument as his or her free and voluntary act, for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ James D. Bernd
---------------------------------------------
James D. Bernd
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that James D. Bernd, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person, and acknowledged that he or she signed, sealed and
delivered the said instrument as his or her free and voluntary act, for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ James G. Grosklaus
---------------------------------------------
James G. Grosklaus
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that James G. Grosklaus, personally known to me to
be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person, and acknowledged that he or she signed,
sealed and delivered the said instrument as his or her free and voluntary act,
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director, Officer, or Director and Officer of
Kimberly-Clark Corporation, a Delaware corporation (the "Corporation"), does
hereby constitute and appoint John W. Donehower, O. George Everbach and Randy J.
Vest, and each of them, his or her true and lawful attorneys and agents, each
with full power and authority (acting alone and without the other), to do any
and all acts and things and execute, in the name and on behalf of the
undersigned as such Director, Officer, or Director and Officer, any and all
instruments or documents which such attorneys and agents, or any one of them,
may deem necessary or advisable to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission (the "SEC") in respect thereof, and with the securities laws
of any or all of the states of the United States, in connection with the
registration under the Securities Act of 1933 of the securities referred to
below and the registration of such securities under the securities laws of any
or all of the states of the United States, including specifically, but without
limitation thereof, power and authority to execute any and all registration
statements to be filed with the SEC in respect of such securities, any and all
amendments of such registration statements, any and all instruments or documents
filed as a part of or in connection with such registration statements or
amendments of such registration statements, any and all applications for
qualification of such securities under the securities laws of any or all of the
states of the United States, any and all amendments of such applications and any
and all instruments or documents filed as a part of or in connection with such
applications or amendments of such applications, and the undersigned Director,
Officer, or Director and Officer hereby grants to such attorneys and agents, and
each of them, all power of substitution, resubstitution and revocation in the
premises and hereby ratifies and confirms all that such attorneys and agents,
and each of them, shall do or cause to be done by virtue hereof.
The securities to which this power pertains are debt securities of the
Corporation, consisting of debentures, notes and/or other evidences of
indebtedness in one or more series, not to exceed $200,000,000 in aggregate
principal amount, to be registered by the Corporation in one or more
<PAGE>
registration statements on Form S-3 filed by the Corporation with the SEC at any
time or from time to time after the date hereof.
IN WITNESS WHEREOF, I have hereto set my hand and seal this 17th day of
February, 1994.
/s/ Wayne R. Sanders
---------------------------------------------
Wayne R. Sanders
STATE OF TEXAS )
) ss
COUNTY OF DALLAS )
I, Clairene Jorella, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Wayne R. Sanders, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person, and acknowledged that he or she signed, sealed and
delivered the said instrument as his or her free and voluntary act, for the uses
and purposes therein set forth.
GIVEN under my hand and notarial seal this 17th day of February, 1994.
/s/ Clairene Jorella
----------------------------------------
Clairene Jorella
Notary Public
My Commission Expires July 30, 1997
<PAGE>
Securities Act of 1933 File No.
(If application to determine eligibility of Trustee for delayed offering
pursuant to Section 305(b)(2))
- ---------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- ---------------------------------------------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to determine Eligibility of a Trustee
Pursuant to Section 305(b)(2)
-------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(Exact name of trustee as specified in its charter)
94-1687665
(I.R.S. employer identification no.)
Head Office:
555 California Street, San Francisco, California 94104
Los Angeles Headquarters:
333 South Beaudry Street, Los Angeles, California 90017
(Address of principal executive offices)
KIMBERLY-CLARK CORPORATION
---------------------------------------------------
(Exact name of obligor as specified in its charter)
DELAWARE 39-0394230
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
P. O. BOX 619100
-------------------------
DALLAS, TEXAS 75261-9100
-------------------------
(Address of principal executive offices)
Debt Securities
---------------
(Title of Indenture Securities)
As of June 17, 1994
--------------------
- ---------------------------------------------------------------------
-1-
<PAGE>
FORM T-1
1. GENERAL INFORMATION. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco (Twelfth District)
San Francisco, California
Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS. If the obligor or any
underwriter for the obligor is an affiliate of the trustee, describe each
affiliation.
None.
In answering this item the trustee has relied in part on information
furnished by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
Trustee has also examined its own books and records for the purpose of
answering this item.
3. VOTING SECURITIES OF THE TRUSTEE: Furnish the following information as to
each class of voting securities of the trustee:
As of June 1, 1994
===============================================================================
COL. A COL. B
Amount
Title of Class Outstanding
===============================================================================
Common Stock (1.5625 Par Value) 357,115,046 Shares
4. TRUSTEESHIPS UNDER OTHER INDENTURES. If the trustee is a trustee under
another indenture under which any other securities, or certificates of
interest or participation in any other securities, of the obligor are
outstanding, furnish the following information.
-2-
<PAGE>
(a) Title of the securities outstanding under each such other indenture.
The following securities have been issued under the First Amended and Restated
Indenture dated March 1, 1988 as amended:
- -- $100,000,000 9 1/8% Notes due June 1, 1997
- -- $100,000,000 9 1/2% Sinking Fund Debentures due February 1, 2018
- -- $100,000,000 9% Notes due August 1, 2000
- -- $200,000,000 7 7/8% Debentures due February 1, 2023
- -- $200,000,000 8 5/8% Notes due May 1, 2001
- -- $100,000,000 6 7/8% Debentures due February 15, 2014
- -- $ 40,000,000 7.55% Debenture due June 1, 2004
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1)
of the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities
will rank as compared with the securities issued under such other
indenture.
The Debt Securities listed above are wholly unsecured. When issued, the
indenture securities and the Debt Securities listed above will rank equally.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS. If the trustee or any of the directors or executive officers
of the trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the nature
of such connection.
None.
In answering this item the trustee has relied in part on information
furnished by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy of completeness of such information.
Trustee has also examined its own books and records for the purpose of
answering this item.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
-3-
<PAGE>
As of June 1, 1994
==============================================================================
COL. A COL. B COL. C COL. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount given in
Name of Owner Title of Class Beneficially Col. C
===============================================================================
None.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of June 1, 1994
===============================================================================
COL. A COL. B COL. C COL. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount given in
Name of Owner Title of Class Beneficially Col. C
===============================================================================
None.
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE. Furnish the
following information as to securities of the obligor owned beneficially or
held as collateral security for obligations in default by the Trustee:
As of June 1, 1994
===============================================================================
COL. A COL. B COL. C COL. D
Amount Owned
Beneficially
or Held as
Collateral
Whether the Security for Percent of Class
Securities are Obligations Represented
Voting or Non- in Default by Amount
Title of Class Voting Securities by Trustee Given in Col. C
===============================================================================
Less than 1%.
In answering this item the trustee has relied in part on information
furnished by the obligor, and the trustee disclaims responsibility for the
accuracy or completeness of such information. Trustee has also examined
its own books and records for the purpose of answering this item.
-4-
<PAGE>
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. If the trustee
owns beneficially or holds as collateral security for obligations in
default any securities of an underwriter for the obligor, furnish the
following information as to each class of securities of such underwriter
any of which are so owned or held by the Trustee.
As of June 1, 1994
===============================================================================
COL. A COL. B COL. C COL. D
Amount Owned
Beneficially
or Held as
Collateral
Security for Percent of Class
Name of Issuer Obligations Represented
and Amount in Default by Amount
Title of Class Outstanding by Trustee Given in Col. C
===============================================================================
None.
In answering this item the trustee has relied in part on information
furnished by the obligor, and the trustee disclaims responsibility for the
accuracy or completeness of such information. Trustee has also examined
its own books and records for the purpose of answering this item.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR. If the trustee owns
beneficially or holds as collateral security for obligations in default
voting securities of a person who to the knowledge of the trustee (1) owns
10% or more of the voting securities of the obligor or (2) is an affiliate,
other than a subsidiary, of the obligor, furnish the following information
as to the voting securities of such person.
As of June 1, 1994
===============================================================================
COL. A COL. B COL. C COL. D
Amount Owned
Beneficially
or Held as
Collateral
Security for Percent of Class
Name of Issuer Obligations Represented
and Amount in Default by Amount
Title of Class Outstanding by Trustee Given in Col. C
===============================================================================
Less than 1%.
In answering this item the trustee has relied in part on information
furnished by the obligor, and the trustee disclaims responsibility for the
accuracy or completeness of such information. Trustee has also examined
its own books and records for the purpose of answering this item.
-5-
<PAGE>
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING
50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR. If the trustee
owns beneficially or holds as collateral security for obligations in
default any securities of a person who to the knowledge of the trustee owns
50 percent or more of the voting securities of the obligor, furnish the
following information as to each class of securities of such person any of
which are so owned or held by the trustee.
As of June 1, 1994
===============================================================================
COL. A COL. B COL. C COL. D
Amount Owned
Beneficially
or Held as
Collateral
Security for Percent of Class
Name of Issuer Obligations Represented
and Amount in Default by Amount
Title of Class Outstanding by Trustee Given in Col. C
===============================================================================
None
In answering this item the trustee has relied in part on information
furnished by the obligor, and the trustee disclaims responsibility for the
accuracy or completeness of such information. Trustee has also examined
its own books and records for the purpose of answering this item.
The foregoing answers were prepared prior to the ascertainment of the Trustee of
all of the facts and are based on incomplete information. Such answers are to
be considered as correct unless amended.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE. Except as noted in the
instructions, if the obligor is indebted to the Trustee, furnish the
following information:
As of June 1, 1994
===============================================================================
COL. A COL. B COL. C
Name of Indebtedness Amount Outstanding Date Due
- -------------------- ------------------ --------
None
===============================================================================
13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
NOT APPLICABLE
-6-
<PAGE>
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest of participation in any
other securities, of the obligor are outstanding, or is trustee for
more than one outstanding series of securities under the indenture,
state whether there has been a default under any such indenture or
series identify the indenture or series affected, and explain the
nature of any such default.
NOT APPLICABLE
14. AFFILIATIONS WITH THE UNDERWRITERS. If any underwriter is an affiliate of
the trustee, describe each such affiliation.
NOT APPLICABLE
15. FOREIGN TRUSTEE. Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures qualified or
to be qualified under the Act.
NOT APPLICABLE
16. LIST OF EXHIBITS
List below all exhibits filed as a part of this statement of eligibility
and qualification.
*EXHIBIT A
Articles of Association of Bank of America National Trust and Savings
Association (formerly Bank of Italy). By-Laws of Bank of America
National Trust and Savings Association.
**EXHIBIT B
Copy of Charter under date of March 1, 1927 authorizing Bank of Italy
National Trust and Savings Association to commence business of
banking.
**EXHIBIT C
Copy of authorization of the Federal Reserve Board issued under date
of November 1, 1930, granting Bank of America National Trust and
Savings Association the right to act in a fiduciary capacity.
**EXHIBIT D
Certificate issued by the Comptroller of the Currency under date of
November 1, 1930 evidencing consolidation of Bank of Italy National
Trust and Savings Association and Bank of America of California under
the corporate title of Bank of America National Trust and Savings
Association.
**EXHIBIT E
Copy of Charter under date of March 31, 1969, authorizing B.A.
National Bank to commence business of banking.
**EXHIBIT F
Copy of certificate issued by the Comptroller of the Currency under
date of April 1, 1969, evidencing the merger of Bank of America
National Trust and Savings Association into B.A. National Bank under
the title "Bank of America National Trust and Savings Association".
-7-
<PAGE>
**EXHIBIT G
A copy of the approval for "Bank of America National Trust and Savings
Association" to operate the presently existing branches of Bank of
America National Trust and Savings Association.
EXHIBIT H
Consent of Bank of America National Trust and Savings Association
required by Section 321 (b) of the Act.
**EXHIBIT I
Copy of the latest Report of Condition at the close of business on
DECEMBER 31, 1993 of the Trustee published in response to call made by
Comptroller of Currency.
**EXHIBIT J
A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act. (NOT APPLICABLE)
**EXHIBIT K
Foreign trustees are required to furnish a consent to service of
process (see Rule 10a-4 under the Act). (NOT APPLICABLE)
*Exhibit A is incorporated by reference to Exhibit A with Form T-1 Statement,
Registration No. 33-47386.
**Exhibits prefaced by this designation are filed with Securities and Exchange
Commission as exhibits to Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 in connection with the Registration Statement of
Borden Inc., File No. 2-50369, under the same exhibit number and are
incorporated herein by reference.
-8-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Bank of America National Trust and Savings Association, a corporation
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested, all in the City and County of San Francisco,
State of California,_________________________________________.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Kristin M. Boettger
-----------------------------------
Kristin M. Boettger
-----------------------------------
Senior Trust Officer
-----------------------------------
(Name and Title)
(Seal)
Attest: /s/ Jennifer Holder
----------------------------
Jennifer Holder
----------------------------
Assistant Vice President
----------------------------
-9-
<PAGE>
EXHIBIT "H"
The undersigned, as Indenture Trustee or prospective Indenture Trustee
under the First Amended and Restated Indenture dated as of MARCH 1, 1988,
AS AMENDED, of KIMBERLY-CLARK CORPORATION does hereby consent that reports
of examinations by Federal, State, Territorial, or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon its request, in accordance with and to the extent prescribed under Section
321 of the Trust Indenture Act of 1939.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Kristin M. Boettger
-----------------------------------
Kristin M. Boettger
-----------------------------------
Senior Trust Officer
-----------------------------------
(Name and Title)
(Seal)
Attest: /s/ Jennifer Holder
----------------------------
Jennifer Holder
----------------------------
Assistant Vice President
-10-
