<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 23, 1997
REGISTRATION NO. 333-36383
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
MERCK & CO., INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
NEW JERSEY 22-1109110
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
P.O. BOX 100
ONE MERCK DRIVE
WHITEHOUSE STATION, NEW JERSEY 08889
(908) 423-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CELIA A. COLBERT
VICE PRESIDENT AND SECRETARY
MERCK & CO., INC.
P.O. BOX 100
ONE MERCK DRIVE
WHITEHOUSE STATION, NEW JERSEY 08889
(908) 423-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
KENNETH C. FRAZIER, ESQ. ANN B. FISHER, ESQ.
MERCK & CO., INC. SULLIVAN & CROMWELL
P.O. BOX 100 125 BROAD STREET
ONE MERCK DRIVE NEW YORK, NEW YORK 10004
WHITEHOUSE STATION, NEW JERSEY 08889
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement, as determined in
light of market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- - ---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
PURSUANT TO RULE 429, THE PROSPECTUS CONTAINED IN THIS REGISTRATION
STATEMENT ALSO RELATES TO $170,000,000 OF UNISSUED DEBT SECURITIES REGISTERED
UNDER FORM S-3 REGISTRATION STATEMENT NO. 33-60322.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement is filed
solely to add exhibits pursuant to Rule 462(d) under the Securities Act.
Accordingly, all other items of Form S-3 are inapplicable and are not included.
<PAGE> 3
ITEM 16. EXHIBITS.
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<C> <S> <C> <C>
1 (a) -- Form of Underwriting Agreement.
1 (b) -- Distribution Agreement dated October 9, 1997 between the Company and Goldman,
Sachs & Co., J.P. Morgan Securities Inc. and Morgan Stanley & Co. Incorporated.
4 (a) -- Indenture between the Company and Morgan Guaranty Trust Company of New York, as
Trustee (incorporated herein by reference to Exhibit (4) to the Company's
Registration Statement on Form S-3 (No. 33-39349)).
4 (b) -- Form of First Supplemental Indenture between the Company and First Trust of New
York, National Association, as Trustee.
4 (c) -- Form of Fixed Rate Note.
4 (d) -- Form of Floating Rate Note.
5 -- Opinion and Consent of Mary M. McDonald, Esq.
12 -- Computation of Ratio of Earnings to Fixed Charges (incorporated herein by
reference to Exhibit 12 to the Company's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1997 (File No. 1-03305)).
23 (a) -- Consent of Arthur Andersen LLP.
23 (b) -- Consent of Counsel (included in Exhibit 5).
24 -- Power of Attorney (included in the signature page hereto).
25 -- Statement of Eligibility and Qualification on Form T-1 under the Trust Indenture
Act of 1939, as amended, of First Trust of New York, National Association.
</TABLE>
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Merck & Co.,
Inc. certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this post-effective
amendment to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, at Whitehouse Station, State of New
Jersey, on October 23, 1997.
MERCK & CO., INC.
By /s/ CELIA A. COLBERT
------------------------------------
(Celia A. Colbert)
Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- - --------------------------------------------- ---------------------------- -------------------
<C> <S> <C>
* Chairman of the Board, October 23, 1997
- - --------------------------------------------- President, Chief Executive
(Raymond V. Gilmartin) Officer and Director
(principal executive
officer)
* Senior Vice President and October 23, 1997
- - --------------------------------------------- Chief Financial Officer
(Judy C. Lewent) (principal financial
officer)
* Vice President and October 23, 1997
- - --------------------------------------------- Controller (principal
(Peter E. Nugent) accounting officer)
* Director October 23, 1997
- - ---------------------------------------------
(H. Brewster Atwater, Jr.)
* Director October 23, 1997
- - ---------------------------------------------
(Derek Birkin)
* Director October 23, 1997
- - ---------------------------------------------
(Lawrence A. Bossidy)
* Director October 23, 1997
- - ---------------------------------------------
(William G. Bowen)
* Director October 23, 1997
- - ---------------------------------------------
(Johnnetta B. Cole)
* Director October 23, 1997
- - ---------------------------------------------
(Carolyne K. Davis)
* Director October 23, 1997
- - ---------------------------------------------
(Lloyd C. Elam)
* Director October 23, 1997
- - ---------------------------------------------
(Charles E. Exley, Jr.)
* Director October 23, 1997
- - ---------------------------------------------
(William N. Kelley)
* Director October 23, 1997
- - ---------------------------------------------
(Edward M. Scolnick)
* Director October 23, 1997
- - ---------------------------------------------
(Samuel O. Thier)
Director
- - ---------------------------------------------
(Dennis Weatherstone)
* By: /s/ CELIA A. COLBERT October 23, 1997
- - ---------------------------------------------
(Celia A. Colbert)
Attorney-in-fact
</TABLE>
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- - -------------- ----------------------------------------------------------------------------
<C> <C> <S>
* 1(a) -- Form of Underwriting Agreement.
1(b) -- Distribution Agreement dated October 9, 1997 between the Company and
Goldman, Sachs & Co., J.P. Morgan Securities Inc. and Morgan Stanley & Co.
Incorporated.
* 4(b) -- Form of First Supplemental Indenture between the Company and First Trust of
New York, National Association, as Trustee.
4(c) -- Form of Fixed Rate Note.
4(d) -- Form of Floating Rate Note.
* 5 -- Opinion and Consent of Mary M. McDonald, Esq.
*23(a) -- Consent of Arthur Andersen LLP.
*23(b) -- Consent of Counsel (included in Exhibit 5).
*24 -- Power of Attorney (included in the signature page hereto).
*25 -- Statement of Eligibility and Qualification on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Trust of New York, National
Association.
</TABLE>
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* Filed previously.
<PAGE> 1
Exhibit 1(b)
MERCK & CO., INC.
$1,670,000,000
MEDIUM-TERM NOTES, SERIES C
DISTRIBUTION AGREEMENT
October 9, 1997
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
J.P. Morgan Securities Inc.,
60 Wall Street,
New York, New York 10260.
Morgan Stanley & Co. Incorporated,
1585 Broadway,
New York, New York 10036.
Dear Sir or Madam:
Merck & Co., Inc., a New Jersey corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes, Series C
(the "Securities"), at an aggregate initial public offering price of up to
$1,670,000,000, subject to reduction as the result of the concurrent sale of
other Debt Securities (as defined in the Prospectus) by the Company, 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 pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, 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 II hereto,
relating to such sale in accordance
<PAGE> 2
with Section 2(b) hereof. This Distribution Agreement shall not be construed to
create either an obligation on the part of the Company to sell any Securities or
an obligation of any of the Agents to purchase Securities as principal.
The Securities will be issued under the Indenture, dated as of
April 1, 1991, as amended and supplemented (the "Indenture"), between the
Company and First Trust of New York, National Association, as Trustee (the
"Trustee"). The Securities shall have the maturity ranges, interest rates, if
any, 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 of holders thereof established, from
time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with,
each Agent that:
(a) Two registration statements on Form S-3 (File Nos.
33-60322 and 333-36383) in respect of debt securities of the Company,
including the Securities, have been filed with the Securities and
Exchange Commission (the "Commission"); such registration statements
and any post-effective amendment thereto, each 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 in the prospectus relating to all such debt securities
contained therein, has been declared effective by the Commission in
such form; no other document with respect to such registration
statements or document incorporated by reference therein has been filed
or transmitted for filing with the Commission (other than the
prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the
"Act"), each in the form heretofore delivered to the Agents) on or
prior to the date hereof; and no stop order suspending the
effectiveness of any such registration statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission (any preliminary prospectus included in such registration
statements or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Act is hereinafter
called a "Preliminary Prospectus";
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<PAGE> 3
the various parts of such registration statements, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in such registration statements at the time such
part of such registration statements became effective but excluding
Form T-1, each as amended at the time such part thereof became
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus (including any prospectus supplement)
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the
Securities (a "Pricing Supplement"), shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or the Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to and
include the Prospectus as amended or supplemented (including the
applicable Pricing Supplement filed in accordance with Section 4(a)
hereof) in relation to Securities sold pursuant to this Agreement, in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act and in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were
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<PAGE> 4
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty 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 in
the Prospectus as amended or supplemented to relate to a particular
issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date in the case of the Registration Statement and any
amendment thereto and as of the applicable filing date in the case of
the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty 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 in the Prospectus as
amended or supplemented to relate to a particular issuance of
Securities;
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<PAGE> 5
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in
the consolidated capital stock or any material increase in the
consolidated long-term debt of the Company and its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of New
Jersey, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) Each of the following subsidiaries of the Company: MSD
Ireland (Holdings) S.A., Merck Sharp & Dohme (Ireland) Ltd., MSD
Overseas Finance, Merck Sharp & Dohme Quimica de Puerto Rico, Inc.,
Merck Sharp & Dohme Limited, Merck Sharp & Dohme (Italia) S.p.A., Merck
Sharp & Dohme B.V., Laboratoires Merck Sharp & Dohme - Chibret SNC,
Banyu Pharmaceutical Co., Ltd., Financiere MSD S.A.S., MSD Overseas
Manufacturing Co. and Merck Sharp & Dohme Overseas Finance has been
duly incorporated, and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership or
leasing of its property requires such qualification, except where
failure to qualify would not have a materially adverse effect upon the
Company and its consolidated subsidiaries taken as a whole;
-5-
<PAGE> 6
(g) The Securities have been duly authorized, and, when
Securities are issued and delivered pursuant to this Agreement and any
Terms Agreement (or other agreement for the sale of particular
Securities made pursuant to Section 2(b)), will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and constitutes a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms, and the
Securities of any particular issuance of Securities will conform to the
descriptions thereof contained in the Prospectus as amended or
supplemented to relate to such issuance of Securities;
(h) The issue and sale of the Securities, the compliance by
the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any Terms Agreement (or other agreement
for the sale of particular Securities made pursuant to Section 2(b)),
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation, as amended, or the By-Laws of the Company
or any statute, order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental
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<PAGE> 7
agency or body is required for the solicitation of offers to purchase
Securities, the issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by this Agreement,
any Terms Agreement (or other agreement for the Sale of particular
Securities made pursuant to Section 2(b))or the Indenture, except such
as have been, or will have been prior to the Commencement Date (as
defined in Section 3 hereof), obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the solicitation by such
Agent of offers to purchase Securities from the Company and with
purchases of Securities by such Agent as principal, as the case may be,
in each case in the manner contemplated hereby;
(i) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is the subject,
other than as set forth in the Prospectus which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(j) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement (or other agreement for the sale
of particular Securities made pursuant to Section 2(b)), 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, to use its
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<PAGE> 8
reasonable 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. So long as the provisions of this Agreement
relating to the solicitation of offers to purchase Securities from the Company
shall not have been terminated pursuant to Section 10 with respect to any Agent,
the Company shall not, without the consent of such Agent, solicit or accept
offers to purchase, or sell, any debt securities with a maturity at the time of
original issuance of nine months or more except pursuant to this Agreement or
any Terms Agreement (or other agreement for the sale of particular Securities
made pursuant to Section 2(b)), or except pursuant to a private placement not
constituting a public offering under the Act or 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. However, (i)
the Company reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf with persons other than
broker-dealers, 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; and (ii) the Company shall have the right at any time to request the
Agents to execute, prior to the date 15 Business Days in New York City after
such request, an amendment to this Agreement to provide for another person as an
Agent hereunder on substantially the same terms as the Agents hereunder on the
date of such request, and each Agent shall have the right either to execute such
amendment or to terminate the provisions of this Agreement relating to the
solicitation of offers to purchase Securities from the Company pursuant to
Section 10 with respect to such Agent. These provisions shall not limit Section
4(f) hereof or any similar provision included in any Terms Agreement.
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 Administrative Procedures
attached hereto as Annex III as it may be amended from time to time by written
agreement between the Agents and the Company (the "Administrative Procedures").
The provisions of the Administrative Procedures shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms Agreement. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them in the
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<PAGE> 9
Administrative Procedures. The Company will furnish to the Trustee a copy of the
Administrative Procedures as from time to time in effect.
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 from the
Company. As soon as practicable, but in any event not later than one Business
Day in New York City, after receipt of notice from the Company, the Agents will
suspend solicitation of offers to purchase Securities from the Company until
such time as the Company has advised the Agents that such solicitation may be
resumed. Any time at which no such suspension of solici tation of offers is in
effect and any time at which no suspension of solicitation of offers to purchase
Securities pursuant to Section 4(c) is in effect, and any time when either any
Agent shall own any Securities with the intention of reselling them or the
Company has accepted an offer to purchase Securities but the related settlement
has not occurred, is referred to herein as a "Marketing Time."
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 in accordance with the schedule
set forth in Annex I hereto.
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and shall either be made by
a Terms Agreement, substantially in the form of Annex II hereto, or by an oral
agreement to be followed by a written confirmation or communication, which
written confirmation or communication shall be deemed to incorporate the terms
specified in the applicable Pricing Supplement. Upon acceptance by the Company
of an offer to purchase Securities, unless the Company and any Agent otherwise
agree in writing, any such Terms Agreement or written confirmation or
communication transmitted by any Agent to the Company shall constitute an
agreement between such Agent and the Company for the sale and purchase of such
Securities. 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 as principal, whether pursuant to any Terms Agreement or
otherwise, 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
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<PAGE> 10
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 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.
For each sale of Securities to an Agent as principal that is
not made pursuant to a Terms Agreement, the procedural details relating to the
issue and delivery of such Securities and payment therefor shall be as set forth
in the Administrative Procedures. For each such sale of Securities to an Agent
as principal that is not made pursuant to a Terms Agreement, the Company agrees
to pay such Agent a commission (or grant an equivalent discount) as provided in
Annex I hereto and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities
to be purchased by an Agent as principal, whether set forth in a Terms Agreement
or in accordance with the Administrative Procedures, is referred to herein as a
"Time of Delivery". For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, the settlement date (if later than the otherwise applicable
settlement date) shall be the date for payment of funds and delivery of
securities for all the Securities sold pursuant to an offering of Securities
having identical terms (including the issue date) and terms of sale (whether or
not set forth in a single Terms Agreement).
(c) Each Agent agrees that, with respect to any Security
denominated in a currency other than U.S. dollars, it will not (i) as agent,
directly, or indirectly, solicit offers to purchase, or (ii) as principal under
any Terms Agreement or otherwise, directly or indirectly, offer, sell or
deliver, such Security in, or to residents of, the country issuing such
currency, except as permitted by applicable law.
3. The documents required to be delivered pursuant to Section
6 hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the
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<PAGE> 11
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 (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which
shall be disapproved by any Agent promptly after reasonable notice
thereof or (B) after the date of any Terms Agreement or other agreement
by an Agent to purchase particular Securities as principal and prior to
the related Time of Delivery which shall be disapproved by any Agent
party to such Terms Agreement or so purchasing as principal promptly
after reasonable notice thereof; (ii) to prepare, with respect to any
Securities to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a
form previously approved by such Agent and to file such Pricing
Supplement pursuant to and in accordance with Rule 424(b) under the
Act; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, at any time
prior to having afforded each Agent a reasonable opportunity to review
and comment on it, and if the Company effects any amendment or
supplementation of the Registration Statement or the Prospectus to
which an Agent objects, such Agent shall be relieved of its obligations
under Section 2(a) to solicit offers to purchase Securities until such
time as the Company shall have filed such further amendments or
supplements such that such Agent is reasonably satisfied with the
Registration Statement and the Prospectus, as then amended or
supplemented; (iv) to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities, and
during such same period to advise such
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<PAGE> 12
Agent, promptly after the Company receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or has
become effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to
Securities not purchased through or by such Agent) has been filed with
or mailed for filing to the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, 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 amendment
or supplement of the Registration Statement or Prospectus or for
additional information; and (v) in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities 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 reasonably may request to qualify the Securities for offering and
sale under the securities laws of such United States jurisdictions as
such Agent may request and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities;
provided, however, 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 Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedures), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference
therein, all in such quantities as such Agent may reasonably request
from time to time; and, if, during any Marketing Time a prospectus
relating to the Securities is required to be delivered under the Act,
any event occurs as a result of which the Prospectus as then amended or
supplemented
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<PAGE> 13
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 during such same period 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 promptly
by telephone (with confirmation in writing) 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 cease such solicitations as soon as practicable, but in any
event not later than one Business Day in New York City later) and to
cease making offers or sales of Securities which an Agent may then own
as principal; 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 cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or the Prospectus as then amended or supplemented 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 or
such Agent is otherwise required to deliver a prospectus in respect of
transactions in the Securities, the Company shall promptly prepare and
file with the Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), 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);
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<PAGE> 14
(e) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial or
other) furnished to stockholders, and deliver to such Agent (i) as soon
as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and
(ii) such additional information concerning the business and financial
condition of the Company as such Agent may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to
the Commission);
(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal
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, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature more than 9 months
after such Time of Delivery and are substantially similar to the
Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to
purchase Securities hereunder (including any purchase by such Agent as
principal not pursuant to a Terms Agreement), 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
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<PAGE> 15
as amended and supplemented relating to such Securities);
(h) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), and each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, each
such time to be referred to for purposes of this Section 4(h) as a
"Representation Date", the Company shall, notify each Agent of each
such amendment, supplement or filing and if requested by any Agent
shall, (a) concurrently if such Representation Date shall occur during
a Marketing Time, or (b) immediately at commencement of the next
Marketing Time if such Representation Date shall not occur during a
Marketing Time, furnish or cause to be furnished forthwith to such
Agent a written opinion of Mary M. McDonald, Esq., General Counsel for
the Company, or such other person who shall be General Counsel to the
Company at such time of delivery, dated the date of such amendment,
supplement, incorporation or the Time of Delivery relating to such
sale, as the case may be, in form satisfactory to such Agent, to the
effect set forth in Section 6(c) hereof; provided, however, that to the
extent appropriate such opinion or opinions may reconfirm matters set
forth in a prior opinion delivered under Section 6(c) or this Section
4(h); provided further, however, that any opinion or opinions furnished
under this Section 4(h) shall relate to the Registration Statement and
the Prospectus as amended or supplemented at such Representation Date
and shall state that the Securities sold in the relevant Applicable
Period (as defined below) have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject only to the exceptions set forth in clause (v) of Section 6(c)
hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity
principles, and conform to the description thereof contained in the
Prospectus as amended or supplemented at the relevant settlement date
or dates for the sale of such Securities. For the purpose of this
Section 4(h), "Applicable Period" shall mean with respect to any
opinion delivered on a Representation Date the period commencing on the
date
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<PAGE> 16
as of which the most recent prior opinion delivered under Section 6(c)
or this Section 4(h) speaks and ending on such Representation Date;
(i) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement) and each time that a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus (other
than the filing of an 8-K with an earnings release), in either case to
set forth financial information included in or derived from the
Company's consolidated financial statements or accounting records, such
time to be referred to for purposes of this Section 4(i) as an
"Accountants' Representation Date", the Company shall notify each Agent
of each such amendment, supplement or filing and if requested by any
Agent shall, (a) concurrently if such Accountants' Representation Date
shall occur during a Marketing Time, or (b) immediately at the
commencement of the next Marketing Time if such Accountants'
Representation Date shall not occur during a Marketing Time, cause the
independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation by reference or the Time of Delivery relating
to such sale, as the case may be, in form satisfactory to such 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;
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<PAGE> 17
(j) At each Representation Date referred to in Section 4(h)
the Company shall notify each Agent of each such amendment, supplement
or filing and if requested by any Agent shall, (a) concurrently if such
Representation Date shall occur during a Marketing Time, or (b)
immediately at the commencement of the next Marketing Time if such
Representation Date shall not occur during a Marketing Time, furnish or
cause to be furnished forthwith to such Agent a certificate, dated the
date of such supplement, amendment, incorporation by reference or the
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 certificates referred to in Section 6(g) hereof which were 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(g) 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 Administrative
Procedures, any condition set forth in Section 6(a), 6(e) or 6(f)
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 of an Agent
with respect to certain matters referred to in such Sections 6(a), 6(e)
and 6(f), and that such Agent shall have no duty or obligation
whatsoever to exercise the judgment permitted under such Sections 6(a),
6(e) and 6(f) 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, disbursements
and expenses of the Company's counsel and accountants in connection with the
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<PAGE> 18
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, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to such Agent; (ii) the fees, disbursements and
expenses of counsel for the Agents in connection with the program contemplated
hereby, any opinions to be rendered by such counsel hereunder and the
transactions contemplated hereunder; (iii) the cost of printing, producing or
reproducing this Agreement, any Terms Agreement, any indenture, any Blue Sky and
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iv) all expenses in
connection with the qualification of the Securities for the offering and sale
under state securities laws as provided in Section 4(b) hereof, including the
fees and disbursements of counsel for the Agents in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(v) any fees charged by securities rating services for rating the Securities;
(vi) 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; (vii)
the cost of preparing, and providing any CUSIP or other identification numbers
for, the Securities; (viii) the fees and expenses of the Trustee and any agent
of the Trustee and any transfer or paying agent of the Company and the fees and
disbursements of counsel for the Trustee or such agent in connection with any
Indenture and the Securities; (ix) the fees and expenses of any Depository (as
defined in the Indenture) and any nominees thereof in connection with 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 its obligations hereunder which are not
otherwise specifically provided for in this Section. Except as provided in
Sections 7 and 8 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 or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the
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<PAGE> 19
Company herein (and, in the case of an obligation of an 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 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 (including the Pricing
Supplement) with respect to such Securities shall have been filed with
the Commission pursuant to Rule 424(b) under the Act 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 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 such opinion or opinions, dated the
Commencement Date, as such Agent may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Mary M. McDonald, Esq., Senior Vice President and General
Counsel for the Company (or such other person who shall be General
Counsel to the Company at such Time of Delivery), shall have furnished
to such Agent such counsel's written opinions, dated the Commencement
Date, in form and substance 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 State
of New Jersey
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<PAGE> 20
and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its
business or the ownership or leasing of property requires such
qualification, except where failure to qualify would not have
a materially adverse effect upon the Company and its
consolidated subsidiaries taken as a whole;
(ii) Each of the following subsidiaries of the Company:
MSD Ireland (Holdings) S.A., Merck Sharp & Dohme (Ireland)
Ltd., MSD Overseas Finance, Merck Sharp & Dohme Quimica de
Puerto Rico, Inc., Merck Sharp & Dohme Limited, Merck Sharp &
Dohme (Italia) S.p.A., Merck Sharp & Dohme B.V., Laboratoires
Merck Sharp & Dohme - Chibret SNC, Banyu Pharmaceutical Co.,
Ltd., Financiere MSD S.A.S., MSD Overseas Manufacturing Co.
and Merck Sharp & Dohme Overseas Finance has been duly
incorporated, and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct
of its business or the ownership or leasing of its property
requires such qualification, except where failure to qualify
would not have a materially adverse effect upon the Company
and its consolidated subsidiaries taken as a whole;
(iii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject,
other than as set forth in the Prospectus and other than
litigation or proceedings which individually are not material
to the Company and its subsidiaries taken as a whole; to the
best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or others; and such
counsel has not received notice that any such proceedings are
contemplated by governmental authorities;
(iv) This Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
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<PAGE> 21
(v) Any series of Securities established on or prior to
the date of such opinion has been duly authorized and
established in conformity with the Indenture, and, when the
terms of a particular Security and of its issuance and sale
have been duly authorized and established by all necessary
corporate action in conformity with the Indenture, and such
Security has been duly completed, executed, authenticated and
issued in accordance with the Indenture and delivered against
payment as contemplated by this Agreement, such Security will
constitute a valid and legally binding obligation of the
Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles, it being understood that such counsel may (a)
assume that at the time of the issuance, sale and delivery of
each Security the authorization of such series will not have
been modified or rescinded and there will not have occurred
any change in law affecting the validity, legally binding
character or enforceability of such Security, (b) assume that
neither the issuance, sale and delivery of any Security, nor
any of the terms of such Security, nor compliance by the
Company with such terms, will violate any applicable law, any
agreement or instrument then binding upon the Company or any
restriction imposed by any court or governmental body having
jurisdiction over the Company, and (c) state that as of the
date of such opinion a judgment for money in an action based
on Securities denominated in foreign currencies or currency
units in a Federal or State court in the United States
ordinarily would be enforced in the United States only in
United States dollars, and that the date used to determine the
rate of conversion of the foreign currency or currency unit in
which a particular Security is denominated into United States
dollars will depend upon various factors, including which
court renders the judgement;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding instrument,
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<PAGE> 22
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under
the Trust Indenture Act;
(vii) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any applicable
Terms Agreement with respect to the Securities will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation, as amended,
or the By-Laws of the Company or any statute, order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their proper ties; and no consent,
approval, authorization, order, registration or qualification
of or with any court or any such regulatory authority or other
governmental body is required for the issue and sale by the
Company of the Securities or the execution and delivery and
performance by the Company of this Agreement, any applicable
Terms Agreement or the Indenture, 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 in connection with the purchase and
distribution of the Securities by the Agents;
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<PAGE> 23
(viii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other
documents which were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading; and
(ix) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of
such opinion for the Securities (other than the financial
statements and related schedules therein, as to which 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; such
counsel has no reason to believe that, as of its effective
date, the Registration Statement or any further amendment or
supplement thereto made by the Company prior to the date of
such opinion (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that, as of the date of such opinion, the Prospectus as
amended or supplemented or any
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<PAGE> 24
further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; or
that, as of the date of such opinion, either the Registration
Statement or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances
in which they were made, not misleading; and such counsel does
not know of any amendment to the Registration Statement
required to be filed or 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 or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date, the independent certified public accountants who
have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to such Agent a letter, dated the
Commencement Date, as the case may be, in form and substance
satisfactory to such Agent, to the effect set forth in Annex IV hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor
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<PAGE> 25
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented 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 change in the consolidated capital stock
(except for the issuance of shares of common stock pursuant to the
Company's savings, incentive stock and executive incentive plans) or
any increase in the consolidated long-term debt of the Company and its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise 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), is in the 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, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(f) There shall not have occurred any of the following: (i) a
suspension of trading of the Company's Common Stock by the Commission
or the New York Stock Exchange precipitated by the announcement by the
Company of a material adverse event with respect to the Company's
business or financial position; (ii) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities;
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war if the effect of any such event specified in this clause (iv) in
the judgment of such Agent makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase Securities or the
purchase of Securities from the Company as principal, pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the
terms and in the manner contemplated by the Prospectus as amended or
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<PAGE> 26
supplemented; (v) any downgrading in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act; or (vi) any public announcement by
any such organization that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities; and
(g) The Company shall have furnished or caused to be furnished
to such Agent certificates of officers of the Company dated the
Commencement Date, in such form and executed by such officers of the
Company as shall be satisfactory to such Agent, as to the accuracy 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 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, as to the matters set forth in subsections
(a) and (e) of this Section 6, and as to such other matters as such
Agent may reasonably request.
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, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, 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, 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 as such expenses are
incurred; 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, the
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<PAGE> 27
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, 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.
(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, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, 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, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, 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 incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(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
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<PAGE> 28
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 or insufficient to hold harmless 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 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 required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on
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<PAGE> 29
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 per capita 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), an Agent shall
not be required to contribute any amount in excess of the amount by which the
total public offering price at which the Securities purchased by or through it
were sold 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 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 purchase by an Agent as principal, pursuant to a
Terms Agreement or otherwise), is acting solely as agent for the Company and not
as principal. Each Agent will make
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<PAGE> 30
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 statements 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 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 as 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 termination with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) 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 and (z) in any event, this Agreement shall remain
in full force and effect insofar as the fourth paragraph of Section 2(a),
Section 4(d), Section 4(e), Section 5, Section 7, Section 8 and Section 9 hereof
are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing,
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<PAGE> 31
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,
Telephone no.: 212-902-6685, facsimile transmission no.: 212-902-3000,
Attention: Registration Department; and if to J.P. Morgan Securities Inc. shall
be sufficient in all respects when delivered or sent by facsimile transmission
or registered mail to 60 Wall Street, New York, New York 10260- 0060, facsimile
transmission no.: 212-837-5909, Attention: Medium Term Note Desk, Third Floor;
and if to Morgan Stanley & Co. Incorporated shall be sufficient in all respects
when delivered or sent by facsimile transmission or registered mail to Morgan
Stanley & Co. Incorporated, 1585 Broadway, New York, New York 10036, facsimile
transmission no.: 212-761-0780, Attention: Manager, Credit Department with a
copy to Morgan Stanley & Co. Incorporated, 1585 Broadway, New York, New York
10036, facsimile transmission no.: 212-761-0687 Attention: Managing Director,
Debt Syndicate; and if to the Company shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to the address of
the Company set forth in the Registration Statement, Attention: Secretary.
12. This Agreement and any Terms Agreement (or other agreement
for the purchase of particular Securities pursuant to Section 2(b)) 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 personal representatives, 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 merely of such purchase.
13. Time shall be of the essence in this Agreement and any
Terms Agreement. As used herein, the term "Business Day", when used with respect
to any place of payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that place of payment
are authorized or obligated by law or executive order to close.
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<PAGE> 32
14. THIS AGREEMENT AND ANY TERMS AGREEMENT (OR OTHER AGREEMENT
FOR THE PURCHASE OF PARTICULAR SECURITIES MADE PURSUANT TO SECTION 2(B)) SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
15. This Agreement and any Terms Agreement (or other agreement
for the purchase of particular Securities made pursuant to Section 2(b)) may be
executed by any one or more of the parties hereto 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.
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<PAGE> 33
If the foregoing is in accordance with your understanding,
please sign and return to us five 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,
MERCK & CO., INC.
By: /s/Caroline Dorsa
----------------------------------
Caroline Dorsa
Vice President and Treasurer
Accepted in New York, New York
as of the date hereof
/s/Goldman, Sachs & Co.
- - ---------------------------------------
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By: /s/Margaret Brody
----------------------------------
Name: Margaret Brody
Title: Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/Michael Fusco
- - ---------------------------------
Name: Michael Fusco
Title: Vice President
<PAGE> 34
ANNEX I
The Issuer agrees to pay each Agent a commission equal to the
following percentage of the principal amount of Securities sold to purchasers
solicited by such Agent:
<TABLE>
<CAPTION>
Commission Rate
(as a percentage of
Term principal amount)
---- ------------------
<S> <C>
From 9 Months to less than 12 months .125%
From 12 months to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to and including 30 years .750%
More than 30 years *
</TABLE>
- - ------------------
* To be determined at the time of issuance.
I-1
<PAGE> 35
ANNEX II
MERCK & CO., INC.
MEDIUM TERM NOTES, SERIES C
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
TERMS AGREEMENT
____________, 19__
[NAME(S) AND ADDRESS(ES)
OF AGENT(S)]
Dear Sir or Madame:
Merck & Co., Inc. (the "Company") proposes, subject to the
terms and conditions stated herein and in the Distribution Agreement, dated
October 8, 1997 (the "Distribution Agreement"), between the Company on the one
hand and Goldman, Sachs & Co., J.P. Morgan Securities Inc. and Morgan Stanley &
Co. Incorporated (the "Agents") on the other, to issue and sell to [NAME(S) OF
AGENT(S)] 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 the Agents, as agents 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 1 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 date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
II-1
<PAGE> 36
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 [NAME(S) OF AGENT(S)] and [NAME(S) OF AGENT(S)] 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 .......... 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.
MERCK & CO., INC.
By:.....................
Name:
Title:
Accepted:
[NAME(S) OF AGENT(S)]
By:......................
Name:
Title:
II-2
<PAGE> 37
Schedule to Annex II
Title of Purchased Securities:
[ %] Medium-Term Notes, Series C
Aggregate Principal Amount:
[$ or units of other Specified Currency]
[Price to Public:]
Purchase Price by [Name(s) of Agent(s)]:
% 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 April 1, 1991, as amended and supplemented,
between the Company and First Trust of New York, National Association, as
Trustee
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
II-3
<PAGE> 38
Redemption Commencement Date (if any):
Redemption Periods (if any):
Redemption Prices (if any):
The Redemption Price shall initially be ____% of the principal amount
of such Notes to be redeemed and shall decline (but not below par) on each
anniversary of the Redemption Commencement Date by ____% of the principal amount
to be redeemed until the Redemption Price is 100% of such principal amount.
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 of the General Counsel of the Company
referred to in Section 4(h).]
[(2) The accountants' letter referred to in Section 4(i).]
[(3) The officers' certificate referred to in Section
4(j).]
Other Provisions:
II-4
<PAGE> 39
ANNEX IV
ACCOUNTANTS' LETTER
Pursuant to Section 4(i) and Section 6(d), as the case may be,
of the Distribution Agreement, the Company's independent certified public
accountants 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;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited by them and
included or incorporated by reference in the Registration Statement or
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, prospective financial
information and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been furnished to the Agents;
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for the
five such fiscal years which were included or incorporated by reference
in the Company's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted auditing
standards, consisting of a reading of
IV-1
<PAGE> 40
the unaudited financial statements and other information referred to
below, a reading of the latest available interim financial statements
of the Company and its subsidiaries, inspection of the minute books of
the Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible 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 condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with the basis for
the audited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Annual
Report on Form 10- K for the most recent fiscal year;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis
IV-2
<PAGE> 41
substantially consistent with the basis for the audited
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net current
assets or net assets or other items specified by the Agents,
or any increases in any items specified by the Agents, in each
case as compared with amounts shown in the latest balance
sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Agents, or any increases in any items specified by the Agents,
in each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Agents, except in each case for
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
IV-3
<PAGE> 42
(v) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Agents which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Agents or
in documents incorporated by reference in the Prospectus specified by
the Agents, 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.
All references in this Annex IV 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.
IV-4
<PAGE> 1
Exhibit 4(c)
[Form of Face of Security]
[Fixed Rate Medium-Term Note]
REGISTERED REGISTERED
No. FXR-__________ PRINCIPAL
CUSIP No.:__________ AMOUNT (and Specified
Currencies if other than U.S.
dollars):
MERCK & CO., INC.
MEDIUM-TERM NOTE, SERIES C
[Insert if the Security is to be a Book-Entry Security -- This Security
is a Book-Entry Security within the meaning of the Indenture referred to on the
reverse hereof and is registered in the name of a Depository or a nominee of a
Depository. This Security is exchangeable for Securities registered in the name
of a Person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and this Security may not be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Company or
its agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment hereon is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
<PAGE> 2
ORIGINAL ISSUE DATE: AUTHORIZED DENOMINATIONS:
(if Specified Currency is
other than U.S. dollars)
INTEREST RATE: MATURITY DATE:
OPTIONAL REPAYMENT DATES: REDEMPTION
COMMENCEMENT DATE:
REDEMPTION PERIODS: REDEMPTION PRICES:
OTHER PROVISIONS:
Merck & Co., Inc., a New Jersey corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to) , for value received, hereby promises to pay to [INSERT
IF THE SECURITY IS TO BE A GLOBAL SECURITY -- Cede & Co., as nominee for The
Depository Trust Company], ______________________________________, or registered
assigns, the principal sum of _____________________ [Specified Currency] on the
Maturity Date specified above [if the Security is to bear interest prior to
Maturity, insert -- , and to pay interest thereon from and including the
Original Issue Date specified above or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on May
1 and November 1 in each year and at Maturity, commencing on the first such
Interest Payment Date next succeeding the Original Issue Date (or, if the
Original Issue Date is after the Regular Record Date and before the Interest
Payment Date immediately following such Regular Record Date, on the second such
Interest Payment Date next succeeding the Original Issue Date), at the rate per
annum specified above, until the principal hereof is paid or made available for
payment, and (to the extent that the payment of such interest shall be legally
enforceable) at the interest rate equal to the Interest Rate specified above on
any overdue principal and premium and on any overdue
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<PAGE> 3
instalment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the April 15 or October 15 (whether or not a
Business Day in New York City), as the case may be, next preceding such Interest
Payment Date; provided, however, that interest payable at Maturity will be
payable to the person to whom principal shall be payable. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture]. [If the Security is not to bear
interest prior to Maturity, insert -- The principal of this Security shall not
bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue
principal of this Security shall bear interest at the Default Rate per annum
specified above (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear
interest at the Default Rate per annum specified above (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such demand or payment to the date payment of such interest has been
made or duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made in the Specified Currency specified above (or, if
such Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued such Specified Currency as at the time of such payment is
legal tender for
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<PAGE> 4
the payment of such debts); provided, however, that, if this Security is
denominated in other than U.S. dollars, payments of principal (and premium, if
any) and interest on this Security will nevertheless be made in U.S. dollars:
(a) at the option of the Holder of this Security under the procedures described
in the two next succeeding paragraphs and (b) at the Company's option in the
case of imposition of exchange controls or other circumstances beyond the
Company's control as described in the fifth succeeding paragraph. The Company
will at all times appoint and maintain a Paying Agent (which may be the Trustee)
authorized by the Company to pay the principal of (and premium, if any) or
interest on any Securities of this series on behalf of the Company and having an
office or agency (the "Paying Agent Office") in The City of New York, where
Securities of this series may be presented or surrendered for payment and where
notices, designations or requests in respect of payments with respect to
Securities of this series may be served. The Company has initially appointed
First Trust of New York, National Association, as such Paying Agent, with the
Paying Agent Office currently at 100 Wall Street, New York, New York. The
Company will give prompt written notice to the Trustee of any change in such
appointment.
Except as provided in the next paragraph, payments of interest and
principal (and premium, if any) for any Security of this series denominated in a
Specified Currency other than U.S. dollars will be made in U.S. dollars if the
registered Holder of such Security on the relevant Regular Record Date, or at
the Maturity of such Security, as the case may be, has transmitted a written
request for such payment in U.S. dollars to the Trustee at its Corporate Trust
Office in The City of New York on or before such Regular Record Date, or the
date 15 days prior to Maturity, as the case may be. Such request may be in
writing (mailed or hand delivered) or by cable, telex or other form of facsimile
transaction. Any such request made for any Security by a registered Holder will
remain in effect for any further payments of interest and principal (and
premium, if any) on such Security payable to such Holder, unless such request is
revoked on or before the relevant Regular Record Date or the date 15 days before
the Maturity of such Security, as the case may be.
The U.S. dollar amount to be received by a Holder of a Security
denominated in a Specified Currency other than U.S. dollars who elects to
receive payment in U.S. dollars will be based on the highest bid quotation in
The City of New York received by the Exchange Rate Agent (as defined below) as
of 11:00 a.m., New York City time on the second
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<PAGE> 5
Market Day (as hereinafter defined) next preceding the applicable payment date
from three recognized foreign exchange dealers (one of which may be the Exchange
Rate Agent) for the purchase by the quoting dealer of such Specified Currency
for U.S. dollars for settlement on such payment date in the aggregate amount of
such Specified Currency payable to all Holders of Securities of this series
denominated in such Specified Currency electing to receive U.S. dollar payments
on such payment date and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available on the second Market
Day preceding the payment of principal (and premium, if any) or interest for any
such Security, such payment will be made in the Specified Currency. All currency
exchange costs associated with any payment in U.S. dollars on any such Security
will be borne by the Holder thereof by deductions from such payment. If this
Security is denominated in a Specified Currency other than U.S. dollars, (i) the
Company will at all times appoint and maintain an agent that is not an affiliate
of the Company as Exchange Rate Agent hereunder; and (ii) the Company has
initially appointed First Trust of New York, National Association, as such
Exchange Rate Agent and will give prompt written notice to the Trustee of any
change in such appointment.
"Market Day" means (a) with respect to any Security other than a
Security denominated other than in U.S. dollars, any day that is a Business Day
in The City of New York, (b) with respect to a Security denominated in a
currency other than U.S. dollars, except for a Security denominated in European
Currency Units ("ECUs"), any day that is a Business Day in The City of New York
and in the principal financial center of the country of the Specified Currency
and (c) with respect to a Security denominated in ECUs, any day that is a
Business Day in The City of New York and that is designated as an ECU settlement
day by the ECU Banking Association in Paris or otherwise generally regarded in
the ECU interbank market as a day on which payments in ECU are made.
Payment of the principal of (and premium, if any) and interest on any
Security of this series due at the Maturity of such Security will be made in
immediately available funds upon surrender of such Security at the Corporate
Trust Office of First Trust of New York, National Association, in the Borough of
Manhattan, The City of New York; provided that such Security is presented to the
Paying Agent in time for the Paying Agent to make such payment in accordance
with its normal procedures. Payments of interest on any Security of this series
(other than at the Maturity of such Security) will be made by check mailed to
the
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<PAGE> 6
address of the Person entitled thereto as it appears in the Security Register or
by wire transfer to such account as may have been appropriately designated in
writing no later than the relevant Regular Record Date to the Paying Agent by
such Person.
A payment on this Security due on any day that is not a Market Day with
respect to this Security need not be made on such a day, but may be made on the
next succeeding Market Day with the same force and effect as if made on the due
date, and no interest shall accrue for the period from and after such date.
Payments of interest and principal (and premium, if any) on this
Security to be paid in a Specified Currency other than U.S. dollars will be made
by wire transfer to such account maintained by the Holder with a bank located in
the country issuing the Specified Currency (or, with respect to Securities
denominated in ECUs, Brussels) or other jurisdiction acceptable to the Company
and the Trustee as shall have been designated in writing on or prior to the
relevant Regular Record Date preceding the Interest Payment Date or 15 days
preceding Maturity, as the case may be, by the registered Holder of this
Security on the relevant Regular Record Date or Maturity; provided that, in the
case of payment of principal of (and premium, if any) and any interest due at
Maturity, the Security is presented to the Paying Agent in time for the Paying
Agent to make such payments in such funds in accordance with its normal
procedures. Such designation shall be made by filing the appropriate information
with the Trustee at its Corporate Trust Office in The City of New York, and,
unless revoked in writing, any such designation made with respect to this
Security by a registered Holder will remain in effect with respect to any
further payments with respect to such Security payable to such Holder. If a
payment with respect to this Security cannot be made by wire transfer because
the required designation has not been received by the Trustee on or before the
requisite date or for any other reason, a notice will be mailed to the Holder at
its registered address requesting a designation pursuant to which such wire
transfer can be made and, upon the Trustee's receipt of such a designation, such
payment will be made within 5 Market Days of such receipt. The Company will pay
any administrative costs imposed by banks in connection with making payments by
wire transfer, but any tax, assessment or governmental charge imposed upon
payments will be borne by the Holders of the Security in respect of which
payments are made.
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<PAGE> 7
If the principal of (and premium, if any) or interest on this Security
is payable in other than U.S. dollars and such Specified Currency is not
available, due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligations to the Holder of this Security by making such payments in U.S.
dollars on the basis of the most recently available Exchange Rate (as defined on
the reverse hereof).
If the Specified Currency specified above is converted into or replaced
by another currency pursuant to law having general and direct applicability in
the jurisdiction which issued such Specified Currency (which may include
European Community law), any payments in respect of this Security otherwise
required to be made in such Specified Currency shall be made in the currency
into or by which such Specified Currency has been so converted or replaced,
based on the conversion or equivalency rate prescribed by law having general and
direct applicability in such jurisdiction (which may include European Community
law), and such Specified Currency shall not be deemed to be unavailable to the
Company solely by reason of any such conversion or replacement. If any currency
is introduced in the jurisdiction issuing the Specified Currency on the basis of
legally enforceable equivalency to such Specified Currency pursuant to law
having general and direct applicability in such state (which may include
European Community law) in preparation for conversion of such Specified Currency
into, or replacement of such Specified Currency by, such other currency, the
Company shall be entitled, at its option, to make any payments in respect of
this Security otherwise required to be made in such Specified Currency in such
other currency based on the equivalency rate prescribed by law having general
and direct applicability in such jurisdiction (which may include European
Community law). Making payments in accordance with this paragraph shall not, by
itself, constitute a default in the Company's obligations to make such payments.
No occurrence of a currency conversion, replacement or introduction of a type
described in this paragraph involving the Specified Currency shall, by itself,
entitle the Company to avoid its obligations under this Security or entitle the
Company or any Holder of this Security to recission of the purchase and sale of
this Security or to reformation of any of the terms hereof on the grounds of
impossibility or impracticability of performance, frustration of purpose or
otherwise.
-7-
<PAGE> 8
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
-8-
<PAGE> 9
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
MERCK & CO., INC.
By __________________________
Attest:
_________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
As Trustee
By ______________________________________
Authorized Officer
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<PAGE> 10
[Form of Reverse of Security]
[Fixed Rate Medium-Term Note]
MERCK & CO., INC.
MEDIUM-TERM NOTE, SERIES C
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of April 1, 1991, as amended and
supplemented (herein called the "Indenture"), between the Company and First
Trust of New York, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof. The Securities of this series may be issued upon original
issuance under the Indenture from time to time at an aggregate initial public
offering price not to exceed $1,670,000,000 or its equivalent in one or more
other currencies or composite currencies; provided, however, that the foregoing
limit may be increased by the Company if in the future it determines that it may
wish to sell additional Securities of this series.
Payments of interest hereon with respect to any Interest Payment Date
will include interest accrued to but excluding such Interest Payment Date.
Interest hereon shall be computed on the basis of a 360-day year of twelve
30-day months.
This Security is not subject to any sinking fund and, unless a
Redemption Commencement Date is specified on the face hereof, this Security
shall not be redeemable before the Maturity Date specified on the face hereof.
If a Redemption Commencement Date is so specified, this Security is subject to
redemption upon not more than 60 or less than 30 days' notice by first class
mail at any time on or after the Redemption Commencement Date, as a whole or in
part in increments of $1,000 or such other minimum Authorized Denomination as is
specified on the face hereof (provided
<PAGE> 11
that any principal amount of such Security be at least $1,000 or such other
minimum Authorized Denomination), at the election of the Company, at the
Redemption Price specified on the face hereof (expressed as a percentage of the
principal amount of this Security) applicable to the Redemption Period so
specified during which this Security is to be redeemed, together in the case of
any such redemption with accrued interest to the Redemption Date; but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Dates referred to on the face hereof, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor and for a principal
amount equal to the unredeemed portion will be issued to the registered Holder
upon the cancellation hereof.
This Security will be repayable by the Company at the option of the
Holder hereof prior to Stated Maturity only if one or more Optional Repayment
Dates are specified on the face hereof. If so specified, this Security will be
subject to repayment at the option of the Holder hereof on any Optional
Repayment Date in whole or from time to time in part in increments of $1,000 or
such other minimum Authorized Denomination specified herein (provided that any
remaining principal amount thereof shall be at least $1,000 or such other
minimum Authorized Denomination), at a repayment price equal to 100% of the
unpaid principal amount to be repaid (or, if this Security is an Original Issue
Discount Security, such lesser amount as provided herein), together with unpaid
interest accrued to the date of repayment. For this Security to be repaid, such
Security must be received, together with the form hereon entitled "Option to
Elect Repayment" duly completed, by the Trustee at its Corporate Trust Office
(or such other address of which the Company shall from time to time notify the
Holders) not more than 60 nor less than 30 calendar days prior to the date of
repayment. Exercise of such repayment option by the Holder shall be irrevocable.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
(or, in the case of any Securities of this series that are Original Issue
Discount Securities, an amount of principal thereof determined in accordance
with the provisions of this Security set out in the next paragraph (the "Default
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<PAGE> 12
Amount")) may be declared due and payable in the manner and with the effect
provided in the Indenture.
If this Security is an Original Issue Discount Security and if an Event
of Default with respect to the Securities of this series shall have occurred and
be continuing, the Default Amount of principal of this Security may be declared
due and payable in the manner and with the effect provided in the Indenture.
Such Default Amount shall be equal to the adjusted issue price as at the first
day of the accrual period (as determined under Treasury Regulation Section
1.1275-1(b) (or successor regulation) under the United States Internal Revenue
Code of 1986, as amended), in which the date of acceleration occurs, increased
by the daily portion of the original issue discount for each day in such accrual
period ending on the date of acceleration, (as determined under Treasury
Regulation Section 1.1272-1(b) (or successor regulation) under the United States
Internal Revenue Code of 1986, as amended). Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on this
Security shall terminate.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange
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<PAGE> 13
thereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth (including, in the case of a Book-Entry Security certain additional
limitations), the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of (i) if denominated in U.S. dollars, $1,000
and any integral multiple thereof or (ii) if denominated in a Specified Currency
other than U.S. dollars, the amount of such Specified Currency which is
equivalent, at the noon buying rate in The City of New York for cable transfers
for such Specified Currency (the "Exchange Rate") on the first Business Day in
The City of New York and in the country issuing such currency (or, for ECUs,
Brussels) next preceding the Original Issue Date, to $1,000 (rounded down to an
integral multiple of 1,000 units (but not less than 1,000 units) of the
Specified Currency) and any greater amount that is an integral multiple of 1,000
units of such Specified Currency. The Securities of this series may be issued,
in whole or in part, in the form of one or more Book-Entry Securities bearing
the legend specified in the Indenture regarding certain restrictions on
registration of transfer and exchange and issued to The Depository Trust Company
as depository for the Book-Entry Securities of this series (the "Depository") or
its nominee and registered in the name of the Depository or such nominee. As
provided in the Indenture and subject to certain limitations (including, in the
case of any Book-
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<PAGE> 14
Entry Security, certain additional limitations) therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE> 15
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the within Security, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _________ Custodian __________
(Cust) (Minor)
under Uniform Gifts to Minors Act
__________________________________
(State)
Additional abbreviations may also be used though
not in the above list.
__________________________________
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<PAGE> 16
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________________
__________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address,
Including Postal Zip Code, of Assignee)
________________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________________________________
________________________________________________________________________________
________________________________________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated: ________________
Signature Guaranteed
______________________________ ______________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed by a member firm of this assignment must
the New York Stock Exchange or correspond with the name
a commercial bank or trust as written upon the face
company. of the within Security in
every particular, without
alteration or enlargement
or any change whatever.
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<PAGE> 17
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Security is to be repaid,
specify the portion thereof (which shall be increments of $1,000 or such other
minimum Authorized Denomination as is specified on the face hereof) which the
holder elects to have repaid: __________________________; and specify the
denomination or denominations (which shall not be less than the minimum
Authorized Denomination) of the Securities to be issued to the Holder for the
portion of the within Security not being repaid (in the absence of any such
specification, one such Security will be issued for the portion not being
repaid):
______________________________.
Date:_________________________
_____________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration
or enlargement or any change
whatsoever.
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<PAGE> 1
Exhibit 4(d)
[Form of Face of Security]
[Floating Rate (Resetting Daily, Weekly, Monthly,
Quarterly, Semi-Annually or Annually)
Medium-Term Note]
REGISTERED REGISTERED
No. FLR-__________ PRINCIPAL AMOUNT (and
CUSIP No.:__________ Specified Currency if other
than U.S. dollars):
MERCK & CO., INC.
MEDIUM-TERM NOTE, SERIES C
[Insert if the Security is to be a Book-Entry Security, -- This
Security is a Book-Entry Security within the meaning of the Indenture referred
to on the reverse hereof and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a Person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture, and this Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary.
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Company or
its agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment hereon is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
<PAGE> 2
ORIGINAL ISSUE INITIAL INTEREST MATURITY DATE:
DATE: RATE: %
AUTHORIZED INTEREST RATE
DENOMINATIONS: BASIS:
(if Specified
Currency is other
than U.S. Dollars)
INDEX MATURITY:
INDEX CURRENCY:
DESIGNATED LIBOR DESIGNATED CMT
PAGE: MATURITY INDEX:
DESIGNATED CMT
TELERATE PAGE:
SPREAD (plus or SPREAD MULTIPLIER:
minus):
MINIMUM INTEREST MAXIMUM INTEREST
RATE: RATE:
INTEREST PAYMENT INTEREST PAYMENT
DATES: PERIOD:
INTEREST RESET INTEREST RESET
DATES: PERIOD:
CALCULATION AGENT:
OPTIONAL REPAYMENT REDEMPTION
DATES: COMMENCEMENT DATE:
REDEMPTION PERIODS: REDEMPTION PRICES:
OTHER PROVISIONS:
Merck & Co., Inc., a New Jersey corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to [INSERT IF THE SECURITY IS TO
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<PAGE> 3
BE A BOOK-ENTRY SECURITY -- Cede & Co., as nominee for the Depository Trust
Company [ ], or registered assigns, the principal sum of _____________
[Specified Currency] on the Maturity Date specified above and to pay interest
thereon from and including the Original Issue Date specified above or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, on the Interest Payment Dates in each year specified above
(provided, that if any such date (other than Maturity) is not a Market Day (as
defined on the reverse hereof) for this Security, such Interest Payment Date
will be the next succeeding Market Day (or, if the Interest Rate Basis specified
above is LIBOR and such next succeeding Market Day falls in the next calendar
month, the next preceding Market Day)) and at Maturity, commencing on the first
such Interest Payment Date next succeeding the Original Issue Date (or, if the
Original Issue Date is after a Regular Record Date and before the Interest
Payment Date immediately following such Regular Record Date, on the second such
Interest Payment Date next succeeding the Original Issue Date), at a rate per
annum equal to the Initial Interest Rate specified above until the first
Interest Reset Date following the Original Issue Date and on and after such
Interest Reset Date at the rate determined in accordance with the provisions set
forth on the reverse hereof, until the principal hereof is paid or made
available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the interest rate equal to the interest rate in
effect on the most recent Interest Reset Date on any overdue instalment of
interest. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the 15th day (whether or not a Business Day in New York
City) before such Interest Payment Date; provided, however, that interest
payable at Maturity will be payable to the person to whom principal shall be
payable. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to the Holders of Securities of this
Series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made in the Specified Currency specified above (or, if
such Specified Currency is not at
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<PAGE> 4
the time of such payment legal tender for the payment of public and private
debts, in such other coin or currency of the country which issued such Specified
Currency as at the time of such payment is legal tender for the payment of such
debts); provided, however, that, if this Security is denominated in other than
U.S. dollars, payments of principal (and premium, if any) and interest on this
Security will nevertheless be made in U.S. dollars: (a) at the option of the
Holder of this Security under the procedures described in the two next
succeeding paragraphs and (b) at the Company's option in the case of imposition
of exchange controls or other circumstances beyond the Company's control as
described in the fifth succeeding paragraph. The Company will at all times
appoint and maintain a Paying Agent (which may be the Trustee) authorized by the
Company to pay the principal of (and premium, if any) or interest on any
Securities of this series on behalf of the Company and having an office or
agency (the "Paying Agent Office") in The City of New York, where Securities of
this series may be presented or surrendered for payment and where notices,
designations or requests in respect of payments with respect to Securities of
this series may be served. The Company has initially appointed First Trust of
New York, National Association, as such Paying Agent, with the Paying Agent
Office currently at 100 Wall Street, New York, New York. The Company will give
prompt written notice to the Trustee of any change in such appointment.
Except as provided in the next paragraph, payments of interest and
principal (and premium, if any) for any Security of this series denominated in a
Specified Currency other than U.S. dollars will be made in U.S. dollars if the
registered Holder of such Security on the relevant Regular Record Date, or at
the Maturity of such Security, as the case may be, has transmitted a written
request for such payment in U.S. dollars to the Trustee at its Corporate Trust
Office in The City of New York on or before such Regular Record Date, or the
date 15 days prior to Maturity, as the case may be. Such request may be in
writing (mailed or hand delivered) or by cable, telex or other form of facsimile
transaction. Any such request made for any Security by a registered Holder will
remain in effect for any further payments of interest and principal (and
premium, if any) on such Security payable to such Holder, unless such request is
revoked on or before the relevant Regular Record Date or the date 15 days before
the Maturity of such Security, as the case may be.
The U.S. dollar amount to be received by a Holder of a Security
denominated in a Specified Currency other than U.S. dollars who elects to
receive payment in U.S. dollars will be based on the highest bid quotation in
The City of New York received by the Exchange Rate Agent (as defined below) as
of 11:00 a.m., New York City time on the second Market Day next preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent) for the
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<PAGE> 5
purchase by the quoting dealer of such Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all Holders of Securities of this series denominated in such
Specified Currency electing to receive U.S. dollar payments on such payment date
and at which the applicable dealer commits to execute a contract. If three such
bid quotations are not available on the second Market Day preceding the payment
of principal (and premium, if any) or interest for any such Security, such
payment will be made in the Specified Currency. All currency exchange costs
associated with any payment in U.S. dollars on any such Security will be borne
by the Holder thereof by deductions from such payment. If this Security is
denominated in a Specified Currency other than U.S. dollars, (i) the Company
will at all times appoint and maintain an agent that is not an affiliate of the
Company as Exchange Rate Agent hereunder; and (ii) the Company has initially
appointed First Trust of New York, National Association, as such Exchange Rate
Agent and will give prompt written notice to the Trustee of any change in such
appointment.
Payment of the principal of (and premium, if any) and interest on any
Security of this series due at the Maturity of such Security will be made in
immediately available funds upon surrender of such Security at the Corporate
Trust Office of First Trust of New York, National Association, in the Borough of
Manhattan, The City of New York; provided that such Security is presented to the
Paying Agent in time for the Paying Agent to make such payment in accordance
with its normal procedures. Payments of interest on any Security of this series
(other than at the Maturity of such Security) will be made by check mailed to
the address of the Person entitled thereto as it appears in the Security
Register or by wire transfer to such account as may have been appropriately
designated in writing no later than the relevant Regular Record Date to the
Paying Agent by such Person.
Payments of interest and principal (and premium, if any) on this
Security to be paid in a Specified Currency other than U.S. dollars will be made
by wire transfer to such account maintained by the Holder with a bank located in
the country issuing the Specified Currency (or, with respect to Securities
denominated in ECUs, Brussels) or other jurisdiction acceptable to the Company
and the Trustee as shall have been designated in writing on or prior to the
Regular Record Date preceding the Interest Payment Date or 15 days preceding
Maturity, as the case may be, by the registered Holder of this Security on the
relevant Regular Record Date or Maturity; provided that, in the case of payment
of principal of (and premium, if any) and any interest due at Maturity, the
Security is presented to the Paying Agent in time for the Paying Agent to make
such payments in such funds in accordance with its normal procedures. Such
designation shall be made by filing the appropriate information with the Trustee
at its Corporate Trust Office in The City of New York, and, unless revoked, any
such designation made
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<PAGE> 6
with respect to this Security by a registered Holder will remain in effect with
respect to any further payments with respect to such Security payable to such
Holder. If a payment with respect to this Security cannot be made by wire
transfer because the required designation has not been received by the Trustee
on or before the requisite date or for any other reason, a notice will be mailed
to the Holder at its registered address requesting a designation pursuant to
which such wire transfer can be made and, upon the Trustee's receipt of such a
designation, such payment will be made within 5 Market Days of such receipt. The
Company will pay any administrative costs imposed by banks in connection with
making payments by wire transfer, but any tax, assessment or governmental charge
imposed upon payments will be borne by the Holders of the Securities in respect
of which payments are made.
If the principal of (and premium, if any) or interest on this Security
is payable in other than U.S. dollars and such Specified Currency is not
available, due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligations to the Holder of this Security by making such payments in U.S.
dollars on the basis of the most recently available Exchange Rate (as defined on
the reverse hereof).
If the Specified Currency specified above is converted into or replaced
by another currency pursuant to law having general and direct applicability in
the jurisdiction which issued such Specified Currency (which may include
European Community law), any payments in respect of this Security otherwise
required to be made in such Specified Currency shall be made in the currency
into or by which such Specified Currency has been so converted or replaced,
based on the conversion or equivalency rate prescribed by law having general and
direct applicability in such jurisdiction (which may include European Community
law), and such Specified Currency shall not be deemed to be unavailable to the
Company solely by reason of any such conversion or replacement. If any currency
is introduced in the jurisdiction issuing the Specified Currency on the basis of
legally enforceable equivalency to such Specified Currency pursuant to law
having general and direct applicability in such state (which may include
European Community law) in preparation for conversion of such Specified Currency
into, or replacement of such Specified Currency by, such other currency, the
Company shall be entitled, at its option, to make any payments in respect of
this Security otherwise required to be made in such Specified Currency in such
other currency based on the equivalency rate prescribed by law having general
and direct applicability in such jurisdiction (which may include European
Community law). Making payments in accordance with this paragraph shall not, by
itself, constitute a default in the Company's obligations to make such payments.
No occurrence of a currency conversion, replacement or introduction of a type
described in this paragraph involving the
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<PAGE> 7
Specified Currency shall, by itself, entitle the Company to avoid its
obligations under this Security or entitle the Company or any Holder of this
Security to recission of the purchase and sale of this Security or to
reformation of any of the terms hereof on the grounds of impossibility or
impracticability of performance, frustration of purpose or otherwise.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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<PAGE> 8
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
MERCK & CO., INC.
By _________________________
Attest:
_________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
As Trustee
By ______________________________________
Authorized Officer
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<PAGE> 9
[Form of Reverse of Security]
[Floating Rate (Resetting Daily, Weekly, Monthly,
Quarterly, Semi-Annually or Annually)
Medium-Term Note]
MERCK & CO., INC.
MEDIUM-TERM NOTE, SERIES C
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of April 1, 1991, as amended and
supplemented (the "Indenture"), between the Company and First Trust of New York,
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof. The Securities of
this series may be issued upon original issuance under the Indenture from time
to time at an aggregate initial public offering price not to exceed
$1,670,000,000 or its equivalent in one or more other currencies or composite
currencies; provided, however, that the foregoing limit may be increased by the
Company if in the future it determines that it may wish to sell additional
Securities of this series.
This Security is not subject to any sinking fund and, unless a
Redemption Commencement Date is specified on the face hereof, this Security
shall not be redeemable before the Maturity Date specified on the face hereof.
If a Redemption Commencement Date is so specified, this Security is subject to
redemption upon not more than 60 or less than 30 days' notice by first class
mail at any time on or after the Redemption Commencement Date, as a whole or in
part in increments of $1,000 or such other minimum Authorized Denomination as is
specified on the face hereof (provided that any principal amount of such
Security shall be at least $1,000 or such other minimum Authorized
Denomination), at the election of the Company, at the Redemption Price specified
on the face hereof (expressed as a percentage of
<PAGE> 10
the principal amount of this Security) applicable to the Redemption Period so
specified during which this Security is to be redeemed, together in the case of
any such redemption with accrued interest to the Redemption Date; but interest
installments whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Regular Record Dates referred
to on the face hereof, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor and for a principal
amount equal to the unredeemed portion will be delivered to the registered
Holder upon the cancellation hereof.
This Security will be repayable by the Company at the option of the
Holder thereof prior to Stated Maturity only if one or more Optional Repayment
Dates are specified on the face hereof. If so specified, this Security will be
subject to repayment at the option of the Holder hereof on any Optional
Repayment Date in whole or from time to time in part in increments of $1,000 or
such other minimum Authorized Denomination as is specified herein (provided that
any remaining principal amount thereof shall be at least $1,000 or such other
minimum Authorized Denomination), at a repayment price equal to 100% of the
unpaid principal amount to be repaid (or, if this Security is an Original Issue
Discount Security, such lesser amount as provided herein), together with unpaid
interest accrued to the date of repayment. For this Security to be repaid, such
Security must be received, together with the form hereon entitled "Option to
Elect Repayment" duly completed, by the Trustee at its Corporate Trust Office
(or such other address of which the Company shall from time to time notify the
Holders) not more than 60 nor less than 30 calendar days prior to the date of
repayment. Exercise of such repayment option by the Holder shall be irrevocable.
The rate of interest on this Security will be reset daily, weekly,
monthly, quarterly, semi-annually or annually (such period being the "Interest
Reset Period" for such Floating Rate Note, and the first date of each Interest
Period being an "Interest Reset Date"), depending on the Interest Reset Period
specified on the face hereof; provided, however, that the interest rate in
effect from the Original Issue Date to the first Interest Reset Date will be the
Initial Interest Rate specified on the face hereof. Except as provided in the
next sentence and in the sixth succeeding paragraph, the Interest Reset Date
will be, if
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<PAGE> 11
this Security resets daily, each Market Day; if this Security resets weekly
(unless the Interest Rate Basis for this Security is the Treasury Rate), the
Wednesday of each week; if this Security resets weekly and the Interest Reset
Basis for this Security is the Treasury Rate, the Tuesday of each week (except
as otherwise provided below); if this Security resets monthly, the third
Wednesday of each month; if this Security resets quarterly, the third Wednesday
of each March, June, September and December; if this Security resets
semi-annually, the third Wednesday of two months of each year, as specified on
the face hereof; and if this Security resets annually, the third Wednesday of
one month of each year, as specified on the face hereof. If any Interest Reset
Date would otherwise be a day that is not a Market Day for this Security, the
Interest Reset Date shall be postponed to the next day that is a Market Day for
this Security, except that if the Interest Rate Basis specified on the face
hereof is LIBOR and such next succeeding Market Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Market Day for this Security.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based. "Market Day" means (a)
for any Security other than a Security whose Interest Rate Basis is LIBOR or a
Security denominated other than in U.S. dollars, any day that is a Business Day
in The City of New York, (b) with respect to a Security whose Interest Rate
Basis is LIBOR only, any Business Day in The City of New York on which dealings
in deposits in the Index Currency are transacted in the London interbank market,
(c) with respect to Securities denominated in a currency other than U.S.
dollars, except for Securities denominated in European Currency Units ("ECUs"),
any day that is a Business Day in The City of New York and in the principal
financial center of the country of the Specified Currency and (d) with respect
to Securities denominated in ECUs, any day that is a Business Day in The City of
New York and that is designated as an ECU settlement day by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU interbank market
as a day on which payments in ECU are made. "London Market Day" means a day on
which dealings in the Index Currency are transacted in the London interbank
market.
If the date for payment of the principal of or any premium or interest
on this Security at Maturity is not a Market Day, then such payment of
principal, premium or interest need not be made on such day, but may be made on
the next succeeding Market Day with the same force and
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<PAGE> 12
effect as if made on the due date, and no interest shall accrue for the period
from and after such date.
Except as otherwise specified in this paragraph, the rate of interest
on this Security for each Interest Reset Date shall be the rate determined in
accordance with the provisions below under the heading below corresponding to
the Interest Rate Basis specified on the face hereof:
Commercial Paper Rate. If the Interest Rate Basis of this Security is
the Commercial Paper Rate, the interest rate hereon for any Interest Reset
Date shall equal (a) the Money Market Yield (calculated as described below)
of the per annum rate (quoted on a bank discount basis) on the relevant
Commercial Paper Interest Determination Date for commercial paper having the
Index Maturity specified on the face hereof, (i) as such rate is published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication of the Board
of Governors of the Federal Reserve System ("H.15(519)") under the heading
"Commercial Paper -- Nonfinancial" or (ii) if such rate is not published
before 9:00 a.m., New York City time, on the relevant Calculation Date, then
as such rate is published by the Federal Reserve Bank of New York in its
daily statistical release, "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or any successor publication published by the Federal
Reserve Bank of New York ("Composite Quotations") under the heading
"Commercial Paper -- Nonfinancial" or (b) if by 3:00 p.m. New York City time,
on such Calculation Date, such rate is not yet published in either H.15(519)
or Composite Quotations, the Money Market Yield of the arithmetic mean of the
offered per annum rates (quoted on a bank discount basis) as of 11:00 a.m.,
New York City time, on such Commercial Paper Interest Determination Date, of
three leading dealers of commercial paper in The City of New York selected by
the Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof placed for an industrial issuer whose bond rating is "AA", or
the equivalent, from a nationally recognized rating agency, in any of the
above cases (a) or (b) as adjusted (x) by the addition or subtraction of the
Spread, if any, specified on the face hereof, and then (y) by the
multiplication by the Spread Multiplier, if any, specified on the face
hereof; provided, however, that, if fewer than three dealers selected as
provided above by the Calculation Agent are quoting as mentioned in this
sentence, the interest rate hereon for such
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<PAGE> 13
Interest Reset Date will be the interest rate hereon in effect on such
Commercial Paper Interest Determination Date. "Money Market Yield" shall be a
yield (expressed as a percentage) calculated in accordance with the following
formula:
Money Market Yield = 100 x 360 x D
-------------,
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal and "M" refers to the actual number
of days in the period corresponding to the Index Maturity specified on the
face hereof.
Prime Rate. If the Interest Rate Basis of this Security is the Prime
Rate, the interest rate hereon for any Interest Reset Date shall equal (a)(i)
the rate for the relevant Prime Rate Interest Determination Date set forth in
H.15(519) under the heading "Bank Prime Loan", or (ii) if such rate is not
published before 9:00 a.m., New York City time, on the relevant Calculation
Date, then the arithmetic mean of the rates of interest publicly announced by
each bank that appears on the Reuters Screen USPRIME1 Page as such bank's
prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date as quoted on the Reuters Screen USPRIME1 Page on such
Prime Rate Interest Determination Date or (b) if fewer than four such rates
appear on the Reuters Screen USPRIME1 Page on such Prime Rate Interest
Determination Date, the arithmetic mean of the prime rates or base lending
rates (quoted on the basis of the actual number of days in the year divided
by a 360-day year) as of the close of business on such Prime Rate Interest
Determination Date by three major banks in The City of New York selected by
the Calculation Agent, in any of the above cases (a) or (b) as adjusted (x)
by the addition or subtraction of the Spread, if any, specified on the face
hereof, and then (y) by the multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, that, if fewer than three
banks selected as provided above by the Calculation Agent are quoting as
mentioned in this sentence, the interest rate hereon for such Interest Reset
Date will be the interest rate hereon in effect on such Prime Rate Interest
Determination Date. "Reuters Screen USPRIME1 Page" means the display
designated as page "USPRIME1" on the Reuters Monitor Money Rates Service (or
such other page as may replace the USPRIME1 page on
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<PAGE> 14
that service or any successor service for the purpose of displaying prime
rates or base lending rates of major United States banks).
LIBOR. If the Interest Rate Basis of this Security is LIBOR, the
interest rate hereon shall be determined by the Calculation Agent in
accordance with the following provisions: (a) With respect to any LIBOR
Interest Determination Date, LIBOR will be either (i) if "LIBOR Reuters" is
specified on the face of this Security, the arithmetic mean of the offered
rates (unless the Designated LIBOR Page by its terms provides only for a
single rate in which case such single rate shall be used) for deposits in the
Index Currency having the Index Maturity specified on the face of such
Security, commencing on the applicable Interest Reset Date, that appear (or,
if only a single rate is required as aforesaid, appears) on the Designated
LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date, or (ii) if "LIBOR Telerate" is specified on the face of
this Security or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified
on the face of this Security as the method for calculating LIBOR, the rate
for deposits in the Index Currency having the Index Maturity specified on the
face of this Security, commencing on such Interest Reset Date, that appears
on the Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If fewer than two such offered rates so appear,
or if no such rate so appears, as applicable, LIBOR on such LIBOR Interest
Determination Date will be determined in accordance with the provisions
described in clause (b) below. "Designated LIBOR Page" means (i) if "LIBOR
Reuters" is specified on the face of this Security, the display on the Reuter
Monitor Money Rates Service (or any successor service) on the page specified
herein (or any other page as may replace such page on such service) for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, or (ii) if "LIBOR Telerate" is specified on the
face of this Security as the method for calculating LIBOR, the display on the
Dow Jones Telerate Service (or any successor service) on the page specified
herein (or any other page as may replace such page on such service) for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency
(b) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be,
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<PAGE> 15
on the Designated LIBOR Page as specified in clause (a) above, the
Calculation Agent will request the principal London office of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity specified on the face of this Security, commencing on the applicable
Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination
Date and in a principal amount that is representative for a single
transaction in such Index Currency in such market at such time. If at least
two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If fewer
than two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 A.M., in the applicable Principal Financial Center, on
such LIBOR Interest Determination Date by three major banks in such Principal
Financial Center selected by the Calculation Agent for loans in the Index
Currency to leading European banks, having the Index Maturity specified on
the face of this Security and in a principal amount that is representative
for a single transaction in such Index Currency in such market at such time;
in either of case (a) or (b), as adjusted by (x) the addition or subtraction
of the Spread, if any, specified on the face hereof, and then (y) by the
multiplication by the Spread Multiplier, if any, specified on the face
hereof; provided, however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR determined as of
such LIBOR Interest Determination Date will be LIBOR in effect on such LIBOR
Interest Determination Date. "Principal Financial Center" means the capital
city of the country issuing the Index Currency, except that with respect to
United States dollars, Australian dollars, Deutsche marks, Dutch guilders,
Italian lire, Swiss francs and ECUs, the Principal Financial Center shall be
The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
Treasury Rate. If the Interest Rate Basis of this Security is the
Treasury Rate, the interest rate hereon for any Interest Reset Date shall
equal (a) the rate from the auction on the relevant Treasury Interest
Determination Date of direct obligations of the United
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<PAGE> 16
States ("Treasury Bills") having the Index Maturity specified on the face
hereof, (i) as such rate is published in H.15(519) under the heading "U.S.
Government Securities/Treasury Bills-Auction Average (Investment)" or (ii) if
such rate is not so published by 9:00 a.m., New York City time, on the
relevant Calculation Date, then the auction average rate (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) for such auction as otherwise announced by the
United States Department of the Treasury or (b) if the results of such
auction of Treasury Bills having the Index Maturity specified on the face
hereof are not published or reported as provided above by 3:00 p.m., New York
City time, on such Calculation Date or if no such auction is held during such
week, then the rate set forth in H.15(519) for the relevant Treasury Interest
Determination Date for the Index Maturity specified on the face hereof under
the heading "U.S. Government Securities/Treasury Bills/Secondary Market" or
(c) if such rate is not so published by 3:00 p.m., New York City time, on the
relevant Calculation Date, then the yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates as of approximately 3:30 p.m., New York City time, on such Treasury
Interest Determination Date, of three primary United States government
securities dealers in The City of New York selected by the Calculation Agent
for the issue of Treasury Bills with a remaining maturity closest to the
Index Maturity specified on the face hereof, in any of the above cases (a),
(b) or (c) as adjusted (x) by the addition or subtraction of the Spread, if
any, specified on the face hereof, and then (y) by the multiplication by the
Spread Multiplier, if any, specified on the face hereof; provided, however,
that, if fewer than three dealers selected as provided above by the
Calculation Agent are quoting as mentioned in this sentence, the interest
rate hereon for such Interest Reset Date will be the interest rate hereon in
effect on such Treasury Interest Determination Date.
CD Rate. If the Interest Rate Basis of this Security is the CD Rate,
the interest rate hereon for any Interest Reset Date shall equal (a) the rate
for the relevant CD Interest Determination Date for negotiable certificates
of deposit having the Index Maturity specified on the face hereof (i) as
published in H.15(519) under the heading "CDs (Secondary Market)" or (ii) if
such rate is not published before 9:00 a.m.,
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<PAGE> 17
New York City time, on the relevant Calculation Date, then the rate on such
CD Rate Interest Determination Date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Certificates of Deposit" or (b) if by
3:00 p.m., New York City time, on such Calculation Date such rate is not
published in either H.15(519) or Composite Quotations, the arithmetic mean of
the secondary market offered rates, as of 10:00 a.m., New York City time, on
such CD Rate Interest Determination Date, of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in The City of New York
selected by the Calculation Agent for negotiable certificates of deposit of
major United States money market banks with a remaining maturity closest to
the Index Maturity specified on the face hereof in a denomination of
$5,000,000, in any of the above cases (a) or (b) as adjusted (x) by the
addition or subtraction of the Spread, if any, specified on the face hereof,
and then (y) by the multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, that, if fewer than three
dealers selected as provided above by the Calculation Agent are quoting as
mentioned in this sentence, the interest rate hereon for such Interest Reset
Date will be the interest rate hereon in effect on such CD Rate Interest
Determination Date.
Federal Funds Rate. If the Interest Rate Basis of this Security is the
Federal Funds Rate, the interest rate hereon for any Interest Reset Date
shall equal (a) the rate on the relevant Federal Funds Interest Determination
Date for Federal Funds (i) as published in H.15(519) under the heading
"Federal Funds (Effective)" or (ii) if such rate is not published before 9:00
a.m., New York City time, on the relevant Calculation Date, then the rate on
such Federal Funds Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate" or (b) if by 3:00
p.m., New York City time, on such Calculation Date such rate is not published
in either H.15(519) or Composite Quotations, the arithmetic mean of the
rates, as of 9:00 a.m., New York City time, on such Federal Funds Interest
Determination Date, for the last transaction in overnight Federal Funds
arranged by three leading brokers of Federal Funds transactions in The City
of New York selected by the Calculation Agent prior to 9:00 a.m., New York
City time, on such Federal Funds Interest Determination Date, in any of the
above cases (a) or (b) as adjusted
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<PAGE> 18
(x) by the addition or subtraction of the Spread, if any, specified on the
face hereof, and then (y) by the multiplication by the Spread Multiplier, if
any, specified on the face hereof; provided, however, that, if fewer than
three brokers selected as provided above by the Calculation Agent are quoting
as mentioned in this sentence, the interest rate hereon for such Interest
Reset Date will be the interest rate hereon in effect on such Federal Funds
Interest Determination Date.
CMT Rate. If the Interest Rate Basis of this Security is the CMT Rate,
the interest rate hereon for any CMT Rate Interest Determination Date shall
equal (a) the rate displayed on the Designated CMT Telerate Page under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve Board
Release H.15 . . . Mondays Approximately 3:45 P.M.", or any successor
caption, under the column for the Designated CMT Maturity Index for (i) if
the Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
week or the month, as applicable, ended immediately preceding the week in
which the related CMT Rate Interest Determination Date occurs or (b) if such
rate is no longer displayed on the relevant page, or is not displayed prior
to 3:00 P.M., New York City time, on the related Calculation Date, (i) the
Treasury Constant Maturity rate for the Designated CMT Maturity Index, as
published in such relevant H.15(519) or any successor publication or (ii) if
such rate is no longer published, or is not published by 3:00 P.M., New York
City time, on the related Calculation Date, the Treasury Constant Maturity
rate for the Designated CMT Maturity Index (or other United States Treasury
rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated
CMT Telerate Page and published in the relevant H.15(519) or any successor
publication or (c) if such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then (i) a yield to maturity,
calculated by the Calculation Agent based on the arithmetic mean of the
secondary market closing offer side prices as of approximately 3:30 P.M., New
York City time, on such CMT Rate Interest Determination Date
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<PAGE> 19
reported, according to their written records, by three leading primary United
States government securities dealers (each, a "Reference Dealer") in The City
of New York (which may include one or more of the Agents or their affiliates)
selected by the Calculation Agent (from five such Reference Dealers selected
by the Calculation Agent and eliminating the highest quotation (or, in the
event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes")
with an original maturity of approximately the Designated CMT Maturity Index
and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year or (ii) if the Calculation Agent is unable to
obtain three such Treasury Note quotations, a yield to maturity calculated by
the Calculation Agent based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 P.M., New York City time, on such
CMT Rate Interest Determination Date of three Reference Dealers in The City
of New York (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of equality,
one of the lowest)), for Treasury Notes with an original maturity of the
number of years that is the next highest to the Designated CMT Maturity Index
and a remaining term to maturity closest to the Designated CMT Maturity Index
and in an amount of at least $100 million (provided, if three or four (and
not five) of such Reference Dealers are quoting as described above, then the
interest rate hereon will be based on the arithmetic mean of the offer prices
obtained and neither the highest nor the lowest of such quotes will be
eliminated; as adjusted (x) by the addition or subtraction of the Spread, if
any, specified on the face hereof, and then (y) by the multiplication by the
Spread Multiplier, if any, specified on the face hereof; provided, however,
that if fewer than three Reference Dealers selected by the Calculation Agent
are quoting as described herein, the interest rate hereon will be the CMT
Rate in effect on such CMT Rate Interest Determination Date). If two Treasury
Notes with an original maturity as described in (c)(i) above have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the
quotes for the Treasury Note with the shorter remaining term to maturity will
be used.
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<PAGE> 20
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service, or any successor service, on the page designated herein (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no such page is specified herein, the Designated CMT Telerate Page shall
be 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face of this Security with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face of this
Security, the Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, specified on the face hereof or
less than the Minimum Interest Rate, if any, specified on the face hereof. In
addition, the interest rate hereon will in no event be higher than the maximum
rate permitted by New York law, as the same may be modified by United States law
of general application.
The Company will at all times appoint and maintain an agent that is not
an affiliate of the Company as Calculation Agent hereunder. The Company has
initially appointed First Trust of New York, National Association, as such
Calculation Agent and will give prompt written notice to the Trustee of any
change in such appointment. The Company will cause the Calculation Agent to
calculate the interest rate on this Security for any Interest Reset Date in
accordance with the foregoing on or before the Calculation Date pertaining to
the related Interest Determination Date. Except as otherwise provided herein,
all percentages resulting from any calculations will be rounded, if necessary,
to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded upward to 9.87655% (or .0987655)), and all U.S. dollar
amounts used in or resulting from such calculations will be rounded to the
nearest cent or, in the case of Securities denominated other than in U.S.
dollars, the nearest unit of such other currency of composite currency (with
one-half cent or unit being rounded upward). The Calculation Agent's
determination of any interest rate will be final and binding in the absence of
manifest error.
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<PAGE> 21
Upon the request of the Holder of this Security, the Calculation Agent
will provide to such Holder the interest rate hereon then in effect and, if
determined, the interest rate hereon which will become effective on the next
Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date if
the rate of interest hereon shall be determined in accordance with the
provisions under the headings above entitled "Commercial Paper Rate" (the
"Commercial Paper Interest Determination Date"), "Prime Rate" (the "Prime Rate
Interest Determination Date"), "CD Rate" (the "CD Rate Interest Determination
Date"), "Federal Funds Rate" (the "Federal Funds Rate Interest Determination
Date") and "CMT Rate" (the "CMT Rate Interest Determination Date") will be the
second Market Day preceding such Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date if the rate of interest hereon shall
be determined in accordance with the provisions under the heading above entitled
"LIBOR" (the "LIBOR Interest Determination Date") will be the second London
Market Day preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date if the rate of interest hereon shall be
determined in accordance with the provisions under the heading above entitled
"Treasury Rate" (the "Treasury Interest Determination Date") will be the day of
the week on which Treasury bills are auctioned for the week in which such
Interest Reset Date falls, or if no auction is held for such week, the Monday of
such week (or if such Monday is a legal holiday, the next succeeding Market Day)
and the Interest Reset Date will be the Market Day immediately following such
Treasury Interest Determination Date. Treasury Bills are usually sold at auction
on Monday of each week, unless that day is a legal holiday, in which case the
auction is usually held on the following Tuesday, except that such auction may
be held on the preceding Friday. If, as the result of a legal holiday, an
auction is so held on the preceding Friday, such Friday will be the Treasury
Interest Determination Date pertaining to the Interest Reset Date occurring in
the next succeeding week.
The interest rate with respect to any Interest Reset Date will be
determined by the Calculation Agent as of the related Interest Determination
Date and will be calculated no later than the Calculation Date. "Calculation
Date" means, unless otherwise specified herein, the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Market Day, the next succeeding Market Day or (ii) the Market Day
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<PAGE> 22
immediately preceding the applicable Interest Payment Date or date any payment
of principal is due, as the case may be.
Payments of interest hereon with respect to any Interest Payment Date
will include interest accrued to but excluding such Interest Payment Date.
Accrued interest hereon from (and including) the Original Issue Date or
from (and including) the last date to which interest has been paid is calculated
by multiplying the principal amount of this Security by an accrued interest
factor. Such accrued interest factor is computed by adding the interest factor
calculated for each day from (and including) the Original Issue Date, or from
(and including) the last date to which interest has been paid, to but excluding
the date for which accrued interest is being calculated. The interest factor
(expressed as a decimal) for each such day is computed by dividing the interest
rate (expressed as a decimal) applicable to such day by 360 or, if the Interest
Rate Basis for this Security is the Treasury Rate or the CMT Rate, by the actual
number of days in the year.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
(or, in the case of any Securities of this series that are Original Issue
Discount Securities, an amount of principal thereof determined in accordance
with the provisions of this Security set out in the next paragraph (the "Default
Amount")) may be declared due and payable in the manner and with the effect
provided in the Indenture.
If this Security is an Original Issue Discount Security and if an Event
of Default with respect to the Securities of this series shall have occurred and
be continuing, the Default Amount of principal of this Security may be declared
due and payable in the manner and with the effect provided in the Indenture.
Such Default Amount shall be equal to the adjusted issue price as at the first
day of the accrual period as determined under Treasury Regulation Section
1.1275-1(b) (or successor regulation) under the United States Internal Revenue
Code of 1986, as amended, in which the date of acceleration occurs, increased by
the daily portion of the original issue discount for each day in such accrual
period ending on the date of acceleration, as determined under Treasury
Regulation Section 1.1272-1(b) (or successor regulation) under the United States
Internal Revenue Code of 1986, as amended. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in
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<PAGE> 23
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on this Security shall terminate.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security or Securities issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, places and rates, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth (including, in the case of a Book-Entry Security, certain additional
limitations), the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security is payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar, duly executed by, the Holder hereof or his
attorney duly
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<PAGE> 24
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of (i) if denominated in U.S. dollars, $1,000
and any integral multiple thereof or (ii) if denominated in a Specified Currency
other than U.S. dollars, the amount of such Specified Currency which is
equivalent, at the noon buying rate in The City of New York for cable transfers
for such Specified Currency (the "Exchange Rate") on the first Business Day in
The City of New York and in the country issuing such currency (or, for ECUs,
Brussels) next preceding the Original Issue Date, to $1,000 (rounded down to an
integral multiple of 1,000 units (but not less than 1,000 units) of the
Specified Currency) and any greater amount that is an integral multiple of 1,000
units of such Specified Currency. The Securities of this series may be issued,
in whole or in part, in the form of one or more Book-Entry Securities bearing
the legend specified in the Indenture regarding certain restrictions on
registration of transfer and exchange and issued to The Depository Trust Company
as depository for the Book-Entry Securities of this series (the "Depository") or
its nominee and registered in the name of the Depositary or such nominee. As
provided in the Indenture and subject to certain limitations (including, in the
case of any Book-Entry Security, certain additional limitations) therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE> 25
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the within Security, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
_________________________________
-17-
<PAGE> 26
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________________________
_________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address,
Including Postal Zip Code, of Assignee)
________________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably
constitutes and appoints _______________________________________________________
________________________ to transfer said Security on the books of the Company,
with full power of substitution in the premises.
Dated:______________
Signature Guaranteed
____________________________ ______________________________
NOTICE: Signature must be NOTICE: The signature of
guaranteed by a member firm this assignment must
of the New York Stock correspond with the
Exchange or a commercial name as written upon the
bank or trust company. face of the within Security
in every particular, without
alteration or enlargement or
any change whatever.
-18-
<PAGE> 27
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Security is to be repaid,
specify the portion thereof (which shall be increments of $1,000 or such other
minimum Authorized Denomination as is specified on the face hereof) which the
holder elects to have repaid: _________________________; and specify the
denomination or denominations (which shall not be less than the minimum
Authorized Denomination) of the Securities to be issued to the Holder for the
portion of the within Security not being repaid (in the absence of any such
specification, one such Security will be issued for the portion not being
repaid):
_____________________________.
Date:________________________
____________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration
or enlargement or any change
whatsoever.
-19-
