<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 21, 1999
------------------------
NABISCO, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
NEW JERSEY 1-1021 13-1841519
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of Identification Number)
incorporation)
</TABLE>
<TABLE>
<S> <C>
7 CAMPUS DRIVE
PARSIPPANY, NEW JERSEY
(Address of Principal Executive 07054
Offices) (Zip Code)
</TABLE>
------------------------
(973) 682-5000
(Registrant's telephone number, including area code)
------------------------
(Former Name or Former Address, if Changed Since Last Report)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 5. OTHER EVENTS.
Attached hereto and incorporated herein by reference are (i) Distribution
Agreement, dated December 21, 1999 by and among Nabisco, Inc., Morgan Stanley &
Co. Incorporated, Banc of America Securities LLC, Chase Securities Inc.,
Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc. and Warburg Dillon Read LLC, relating to the issuance
and sale from time to time by Nabisco, Inc. of up to $1,000,000,000 aggregate
public offering price of Medium Term Notes pursuant to Registration Statement
No. 333-66025 (the "Offering"); and (ii) forms of Medium-Term Notes relating to
the Offering.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED
Not applicable.
(b) PRO FORMA FINANCIAL INFORMATION
Not applicable.
(c) EXHIBITS
Exhibit 1.1 Distribution Agreement, dated December 21, 1999.
Exhibit 4.1 Form of Medium-Term Note (Fixed Rate).
Exhibit 4.2 Form of Medium-Term Note (Floating Rate).
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
<TABLE>
<S> <C> <C>
NABISCO, INC.
By: /s/ ROBERT K. DEVRIES
-----------------------------------------
Name: Robert K. DeVries
Title: Vice President
</TABLE>
Date: January 5, 2000
3
<PAGE>
Exhibit 1.1
NABISCO, INC.
$1,000,000,000
MEDIUM-TERM NOTES
Due from 9 Months or more from Date of Issue
U.S. DISTRIBUTION AGREEMENT
December 21, 1999
The Agents listed in
Schedule 1 hereto
Dear Sirs:
Nabisco, Inc., a New Jersey corporation (the "COMPANY"), confirms its
agreement with each of you with respect to the issue and sale from time to time
by the Company of up to $1,000,000,000 (or the equivalent thereof in one or more
foreign currencies or composite currencies) aggregate initial public offering
price of its medium-term notes due from 9 months or more from date of issue (the
"NOTES"). The Notes will be issued under an Indenture dated as of June 5, 1995
(the "INDENTURE") between the Company and Citibank, N.A., as Trustee (the
"TRUSTEE"), and will have the maturities, interest rates, redemption provisions,
if any, and other terms as set forth in supplements to the Basic Prospectus
referred to below.
The Company hereby appoints Morgan Stanley & Co. Incorporated ("MORGAN
STANLEY") Banc of America Securities LLC, Chase Securities Inc., Goldman, Sachs
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Smith Barney
Inc. and Warburg Dillon Read LLC (individually, an "AGENT" and collectively, the
"AGENTS") as its agents, subject to Section 8 and Section 11, for the purpose of
soliciting and receiving offers to purchase Notes from the Company by others
and, on the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, each Agent agrees to use
reasonable efforts to solicit and receive offers to purchase Notes upon terms
acceptable to the Company at such times and in such amounts as the Company shall
from time to time specify. In addition, any Agent may also purchase Notes as
principal pursuant to the terms of a terms agreement relating to such sale (a
"TERMS AGREEMENT") in accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto, as amended
at the Commencement Date (as hereinafter defined), is hereinafter referred to as
the "REGISTRATION STATEMENT." The Company proposes to file with the Commission
from time to time, pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
<PAGE>
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "BASIC PROSPECTUS." The term "PROSPECTUS" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "PROSPECTUS SUPPLEMENT") specifically relating to Notes, as filed with,
or to be transmitted for filing to, the Commission pursuant to Rule 424. As used
herein, the terms "Registration Statement","Basic Prospectus" and "Prospectus"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "SUPPLEMENT," "AMENDMENT" and "AMEND" as used herein shall
include all documents deemed to be incorporated by reference in the Registration
Statement and the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each Agent as of the Commencement Date, as of each date on which
an Agent solicits offers to purchase Notes, as of each date on which the Company
accepts an offer to purchase Notes (including any purchase by an Agent pursuant
to a Terms Agreement), as of each date the Company issues and delivers Notes and
as of each date the Registration Statement or the Basic Prospectus is amended or
supplemented, as follows (it being understood that such representations,
warranties and agreements shall be deemed to relate to the Registration
Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Registration Statement
and the Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations of
the Commission thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain and each such part, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that (A)
the representations and warranties set forth in this paragraph do not
apply (1) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to an Agent furnished to the
Company in writing by such Agent expressly for use therein or (2) to that
part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "TRUST INDENTURE ACT"), of the Trustee and (B) the representations
and warranties set forth in clauses 1(b)(iii) and 1(b)(iv) above, when
made as of the Commencement Date or as of
2
<PAGE>
any date on which an Agent solicits offers to purchase Notes or on which
the Company accepts an offer to purchase Notes, shall be deemed not to
cover information concerning an offering of particular Notes to the extent
such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each of Nabisco International, Inc., Nabisco Ltd., Nabisco
England IHC, Inc., Nabisco Brands Company and Nabisco Technology Company
(collectively, the "Principal Operating Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Terms
Agreement (as hereinafter defined) has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles
of equity.
(g) The forms of Notes have been duly authorized and, when the Notes
have been executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the purchasers thereof, the
Notes will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles
of equity.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Notes, the Indenture and any applicable Written Terms Agreement will not
contravene (i) any provision of applicable law or the certificate of
incorporation or by-laws of the Company or (ii) any agreement or
3
<PAGE>
other instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole, or
(iii) any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Notes, the Indenture and any
applicable Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending or, to
the best of the Company's knowledge, threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(k) The Company is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
Notwithstanding the foregoing, the representations and warranties set
forth in clauses 1(b)(iii) and 1(b)(iv) and Sections 1(g) (except as to due
authorization of the Notes) and 1(h), when made as of the Commencement Date, or
as of any date on which an Agent solicits offers to purchase Notes, with respect
to any Notes the payments of principal or interest on which will be determined
by reference to one or more currency exchange rates, commodity prices, equity
indices or other factors, shall be deemed not to address the application of the
Commodity Exchange Act, as amended, or the rules, regulations or interpretations
of the Commodity Futures Trading Commission, unless otherwise specified in any
applicable pricing supplement.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. In connection with an Agent's actions as
agent hereunder, such Agent agrees to use reasonable efforts to solicit
offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently,
the solicitation of offers to
4
<PAGE>
purchase Notes. Upon receipt of at least one business day's prior notice
from the Company, the Agents will forthwith suspend solicitations of
offers to purchase Notes from the Company until such time as the Company
has advised the Agents that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver
any certificates, opinions or letters in accordance with Sections 5(a),
5(b) and 5(c); PROVIDED, HOWEVER, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension
(other than by an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions
and letters as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Note equal to the percentage set forth
below of the purchase price of such Note:
<TABLE>
<CAPTION>
Maturity Commission
- -------- ----------
<S> <C>
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to less than 30 years .750%
30 years and beyond to be negotiated
</TABLE>
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such Agent as agent that in its
judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase
5
<PAGE>
Notes and may reject any offer in whole or in part. Each Agent shall have
the right to reject any offer to purchase Notes that it considers to be
unacceptable, and any such rejection shall not be deemed a breach of its
agreements contained herein. The procedural details relating to the issue
and delivery of Notes sold by the Agents as agents and the payment
therefor shall be as set forth in the Administrative Procedures (as
hereinafter defined).
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Terms
Agreement that will provide for the sale of such Notes to and the purchase
thereof by such Agent. Each Terms Agreement will take the form of either
(i) a written agreement between such Agent and the Company, which may be
substantially in the form of Exhibit A hereto (a "WRITTEN TERMS
AGREEMENT"), or (ii) an oral agreement between such Agent and the Company
confirmed in writing by such Agent to the Company.
An Agent's commitment to purchase Notes pursuant to a Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of Notes to be purchased by
such Agent pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such
Notes. Each such Terms Agreement may also specify any requirements for
officers' certificates, opinions of counsel and letters from the
independent public accountants of the Company pursuant to Section 4
hereof. A Terms Agreement may also specify certain provisions relating to
the reoffering of such Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of
Notes purchased by an Agent as principal and the payment therefor shall be
as set forth in the Administrative Procedures. Each date of delivery of
and payment for Notes to be purchased by an Agent pursuant to a Terms
Agreement is referred to herein as a "SETTLEMENT DATE."
Unless otherwise specified in a Terms Agreement, if an Agent is
purchasing Notes as principal such Agent may resell such Notes to other
dealers. Any such sales may be at a discount, which shall not exceed the
amount set forth in the Prospectus Supplement relating to such Notes.
(c) ADMINISTRATIVE PROCEDURES. The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached
hereto as Exhibit B) (the "ADMINISTRATIVE PROCEDURES"), as amended from
time to time. The Administrative Procedures may be amended only by written
agreement of the Company and the Agents.
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<PAGE>
(d) DELIVERY. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to each Agent's obligation to
begin soliciting offers to purchase Notes as an agent of the Company shall
be delivered at the office of Simpson Thacher & Bartlett, counsel for the
Agents, not later than 1 p.m., New York City time, on the date hereof, or
at such other time and/or place as the Agents and the Company may agree
upon in writing, but in no event later than the day prior to the earlier
of (i) the date on which the Agents begin soliciting offers to purchase
Notes and (ii) the first date on which the Company accepts any offer by an
Agent to purchase Notes pursuant to a Terms Agreement. The date of
delivery of such documents is referred to herein as the "COMMENCEMENT
DATE."
(e) OBLIGATIONS SEVERAL. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of any offering of the Notes pursuant
to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to the
Agents copies thereof for their review and will not file any such proposed
supplement or amendment to which the Agents reasonably object; PROVIDED,
HOWEVER, that (i) the foregoing requirement shall not apply to any of the
Company's periodic filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies
of which filings the Company will cause to be delivered to the Agents
promptly after being transmitted for filing with the Commission and (ii)
any Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall only be reviewed and approved by the
Agent or Agents offering such Notes. Subject to the foregoing sentence,
the Company will promptly cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in accordance with Rule
424(b) under the Securities Act. The Company will promptly advise the
Agents (i) of the filing of any amendment or supplement to the Basic
Prospectus (except that notice of the filing of an amendment or supplement
to the Basic Prospectus that merely sets forth the terms or a description
of particular Notes shall only be given to the Agent or Agents offering
such Notes), (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Basic Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use reasonable efforts to
prevent the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of
the filing under the Exchange Act of any document
7
<PAGE>
incorporated by reference in the Prospectus, no Agent shall be obligated
to solicit offers to purchase Notes so long as it is not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in the
opinion of the Agents or in the opinion of the Company, it is necessary at
any time to amend or supplement the Prospectus, as then amended or
supplemented, to comply with applicable law, the Company will immediately
notify the Agents by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Notes and, if so notified by the
Company, the Agents shall forthwith suspend such solicitation and cease
using the Prospectus, as then amended or supplemented. If the Company
shall decide to amend or supplement the Registration Statement or
Prospectus, as then amended or supplemented, it shall so advise the Agents
promptly by telephone (with confirmation in writing) and, at its expense,
shall prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as
then amended or supplemented, satisfactory in all respects to the Agents,
that will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to the Agents in such
quantities as they may reasonably request. If any documents, certificates,
opinions and letters furnished to the Agents pursuant to Sections 3(f),
5(a), 5(b) and 5(c) in connection with the preparation and filing of such
amendment or supplement are satisfactory in all respects to the Agents,
upon the filing with the Commission of such amendment or supplement to the
Prospectus or upon the effectiveness of an amendment to the Registration
Statement, the Agents will resume the solicitation of offers to purchase
Notes hereunder. Notwithstanding any other provision of this paragraph,
until the earlier of (i) completion of the distribution of any Notes an
Agent may own as principal or (ii) 180 days after the date any Agent has
purchased Notes as principal from the Company, if any event described
above in this paragraph occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as
then amended or supplemented, satisfactory in all respects to such Agent,
will supply such amended or supplemented Prospectus to such Agent in such
quantities as it may reasonably request and shall furnish to such Agent
pursuant to Sections 3(f), 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as it may request in connection with
the preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security
holders and to the Agents as soon as practicable earning statements that
satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder covering twelve month
periods beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined
in Rule 158 under the Securities Act) of the Registration Statement with
respect to each sale of Notes. If such fiscal quarter is the last fiscal
quarter of the Company's fiscal year, such earning
8
<PAGE>
statement shall be made available not later than 90 days after the close
of the period covered thereby and in all other cases shall be made
available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish to each Agent, without charge, a signed
or conformed copy of the Registration Statement, including exhibits and
all amendments thereto, and as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Agents shall reasonably request and to maintain such qualifications for as
long as the Agents shall reasonably request, provided that the Company
shall not be obligated to so qualify the Notes if such qualification
requires it to file any general consent to service of process or to
register or qualify as a foreign corporation in any jurisdiction in which
it is not so registered or qualified.
(f) The Company shall furnish to the Agents such relevant documents
and certificates of officers of the Company relating to the business,
operations and affairs of the Company, the Registration Statement, the
Basic Prospectus, any amendments or supplements thereto, the Indenture,
the Notes, this Agreement, the Administrative Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder
or thereunder as the Agents may from time to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate
the direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including: (i)
the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the Trustee
and its counsel, (iv) the qualification of the Notes under securities or
Blue Sky laws in accordance with the provisions of Section 3(e), including
filing fees and the fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue
Sky or Legal Investment Memoranda, (v) the printing and delivery to the
Agents in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Agents of copies of any Blue Sky or Legal Investment Memoranda, (vii)
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<PAGE>
any fees charged by rating agencies for the rating of the Notes, (viii)
any expenses incurred by the Company in connection with a "road show"
presentation to potential investors and (ix) the fees and disbursements of
counsel for the Agents incurred in connection with the offering and sale
of the Notes and in connection with the establishment of the Notes
program, including any opinions to be rendered by such counsel hereunder,
and (x) any reasonable out-of-pocket expenses incurred by the Agents;
PROVIDED that any advertising expenses incurred by the Agents shall have
been approved by the Company.
(i) During the period beginning the date of any Terms Agreement and
continuing to and including the Settlement Date with respect to such Terms
Agreement, the Company will not, without such Agent's prior consent,
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company or warrants to purchase debt securities of the Company
substantially similar to the Notes that are to be sold pursuant to such
Terms Agreement (other than (i) the Notes that are to be sold pursuant to
such Terms Agreement, (ii) Notes previously agreed to be sold by the
Company and (iii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided in such Terms Agreement.
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's obligation to
solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes pursuant to any Terms Agreement and the obligation
of any other purchaser to purchase Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Notes, at the time of such solicitation, and, in the
case of an Agent's or any other purchaser's obligation to purchase Notes, at the
time the Company accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that,
in the judgment of the relevant Agent, is material and adverse and
that makes it, in the judgment of such Agent, impracticable to
market the Notes on the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange
or the National Association of Securities Dealers, Inc., (B)
suspension of trading of any securities of the
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Company on any exchange or in any over-the-counter market, (C)
declaration of a general moratorium on commercial banking activities
in New York by either Federal or New York State authorities or (D)
any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the
relevant Agent, is material and adverse and, in the case of any of
the events described in clauses 4(a)(ii)(A) through 4(a)(ii)(D),
such event, singly or together with any other such event, makes it,
in the judgment of such Agent, impracticable to market the Notes on
the terms and in the manner contemplated by the Prospectus, as
amended or supplemented at the time of such solicitation or at the
time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(A) except, in each case described in Section 4(a)(i),
4(a)(ii) or 4(a)(iii) above, as disclosed to the relevant
Agent in writing by the Company prior to such solicitation or,
in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was
made or (B) unless in each case described in Section 4(a)(ii)
above, the relevant event shall have occurred and been known
to the relevant Agent before such solicitation or, in the case
of a purchase of Notes, before the offer to purchase such
Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall
have received:
(i) The opinion, dated as of such date, of James A. Kirkman
III, Executive Vice President, General Counsel and Secretary of the
Company, or his successor as chief legal officer of the Company, to
the effect that:
(A) the Company is duly qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(B) each Principal Operating Subsidiary of the Company
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus, as then amended or supplemented,
and is duly
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qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(C) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Notes, the Indenture and any applicable Written
Terms Agreement will not contravene any agreement or other
instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as
a whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary,
except for such contraventions as would not, individually or
in the aggregate, have a material adverse effect on the
financial condition or results of operations of the Company
and its subsidiaries taken as a whole, and no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Terms
Agreement, except such as have been obtained and except such
as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Notes;
(D) the statements (1) in the Registration Statement
under Item 15, (2) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (3) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on
Form 10-Q, if any, filed since such annual report, in each
case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize
the matters referred to therein;
(E) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus, as then amended
or supplemented, and are not so described nor of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus,
as then amended or supplemented, or to be filed or
incorporated by reference as exhibits to such Registration
Statement that are not described, filed or incorporated as
required;
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(F) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and
the Prospectus, as then amended or supplemented (except for
financial statements and schedules included therein as to
which such counsel need not express any opinion) complied when
so filed as to form in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder, (2) has no reason to believe that (except for
(x)financial statements and schedules, (y) that part of the
Registration Statement that constitutes the Form T-1
heretofore referred to and (z) the section of the Prospectus
entitled "United States Federal Taxation" as to all of which
such counsel need not express any belief ) each part of the
Registration Statement, as then amended, if applicable, when
such part became effective, contained and as of the date such
opinion is delivered, contains any untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that
the Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except for financial statements
and schedules included therein as to which such counsel need
not express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (4) has no reason
to believe that (except for financial statements and schedules
as to which such counsel need not express any belief) the
Prospectus, as then amended or supplemented, if applicable, as
of the date such opinion is delivered contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; PROVIDED that in the case of an opinion delivered
on the Commencement Date or pursuant to Section 5(b), the
opinion and belief set forth in clauses 4(b)(i)(F)(3) and
4(b)(i)(F)(4) above shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic
Prospectus.
(ii) The opinion, dated as of such date, of Robert K. DeVries,
Vice President, Assistant General Counsel and Assistant Secretary of
the Company, to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business
as described in the Prospectus, as then amended or
supplemented
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(B) each of this Agreement and any applicable Written
Terms Agreement has been duly authorized, executed and
delivered by the Company;
(C) the Indenture has been duly authorized by the
Company;
(D) the Notes have been duly authorized by the Company;
and
(E) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Notes, the Indenture and any applicable Written
Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole.
(iii) The opinion, dated as of such date, of Davis Polk &
Wardwell, outside counsel for the Company, to the effect that:
(A) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and equitable principles
of general applicability;
(B) the Notes have been duly authorized and, if executed
and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers
thereof on the date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable in accordance with
their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally and equitable principles of general applicability;
(C) the statements made in the Prospectus, as then
amended or supplemented, under the captions "Description of
Debt Securities," "Description of Notes" and "Plan of
Distribution", insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to
therein, fairly summarize in all material respects the matters
referred to therein;
(D) such counsel is of the opinion ascribed to it in the
Prospectus, as then amended or supplemented, under the caption
"United States Federal Taxation";
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<PAGE>
(E) nothing has come to the attention of such counsel
that causes such counsel to believe that (1) (except for
financial statements and schedules as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration
Statement, as then amended, if applicable, when such part
became effective, contained and as of the date such opinion is
delivered, contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (2) is of the opinion that the Registration
Statement and Prospectus, as then amended or supplemented, if
applicable (except for financial statements and schedules
included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (3) has no reason to believe that
(except for financial statements and schedules as to which
such counsel need not express any belief) the Prospectus, as
then amended or supplemented, if applicable, as of the date
such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
PROVIDED that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the opinion and
belief set forth in clauses 4(b)(iii)(E)(2) and
4(b)(iii)(E)(3) above shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic
Prospectus.
(iv) The opinion, dated as of such date, of Simpson Thacher &
Bartlett, counsel for the Agents, covering the matters in Sections
4(b)(ii)(B), 4(b)(iii)(A), 4(b)(iii)(B) and 4(b)(iii)(D) (but only
as to the statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Debt Securities"
and "Description of Notes"), and Sections 4(b)(i)(F).
Notwithstanding the foregoing, the opinions described in
Sections 4(b)(iii)(B) (except as to due authorization of the Notes)
and 4(b)(i)(C) and 4(b)(ii)(E) and Sections 4(b)(iii)(D),
4(b)(i)(F)(3), 4(b)(i)(F)(4), 4(b)(iii)(E)(2) and 4(b)(iii)(E)(3)
when contained in an opinion delivered on the Commencement Date or
pursuant to Section 5(b), shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading
Commission as to Notes the payments of principal or interest on
which will be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors.
With respect to Section 4(b)(iii)(E) above, Davis Polk &
Wardwell may state that their opinion and belief are based upon
their participation in the
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preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein
by reference and review and discussion of the contents thereof, but
are without independent check or verification, except as specified
and may rely as to certain matters of New Jersey law on the opinion
of Robert DeVries. With respect to Section 4(b)(i) above, James A.
Kirkman III may rely as to certain matters of fact on certificates
of officers of the Company and of public officials and with respect
to matters of New Jersey law, on a member of the Company's legal
staff admitted to practice in the State of New Jersey, and may state
that such counsel expresses no opinion as to the laws of any
jurisdiction other than the State of New York, the federal law of
the United States, the Delaware General Corporation Law and the
corporate law of the State of New Jersey. With respect to Section
4(b)(i)(F), Simpson Thacher & Bartlett may state that their opinion
and belief are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated
therein by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but
are without independent check or verification, except as specified
and may rely as to certain matters of New Jersey law on the opinion
of a member of the Company's legal staff admitted to practice in the
State of New Jersey.
The opinion of Davis Polk & Wardwell described in Section
4(b)(iii) above shall be rendered to the Agents at the request of
the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall
have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of
the Company, to the effect set forth in Section 4(a)(iii) and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of such date and that the Company
has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before such
date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, Deloitte & Touche LLP,
independent public accountants, shall have furnished to the relevant
Agents a letter or letters, dated the Commencement Date or such Settlement
Date, as the case may be, in form and substance satisfactory to such
Agents containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in or
incorporated by reference into the Prospectus, as then amended or
supplemented.
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(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may reasonably
request.
5. ADDITIONAL AGREEMENTS OF THE COMPANY. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes or for a
change the Agents deem to be immaterial), the Company will deliver or cause to
be delivered forthwith to each Agent a certificate signed by an executive
officer of the Company, dated the date of such amendment or supplement, as the
case may be, in form reasonably satisfactory to the Agents, of the same tenor as
the certificate referred to in Section 4(c) relating to the Registration
Statement or the Prospectus as amended or supplemented to the time of delivery
of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company will furnish or cause to be furnished forthwith to each Agent
a written opinion of (i) the senior legal officer of the Company and (ii)
independent counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the opinion
referred to in Sections 4(b)(i) and 4(b)(ii), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to an Agent may furnish to each Agent a letter to the
effect that such Agent may rely on such last opinion to the same extent as
though it were dated the date of such letter (except that statements in such
last opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent public accountants forthwith
to furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, of the same
tenor as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter.
6. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls any Agent within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses,
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<PAGE>
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such Agent furnished to the Company in writing by such Agent expressly for
use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the Registration Statement
or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either Section 6(a) or 6(b) above, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Agents that are indemnified parties, in the case of
parties indemnified pursuant to Section 6(a) above, and by the Company, in the
case of parties indemnified pursuant to Section 6(b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such
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settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 6(a) or 6(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Notes, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other hand from the offering of such Notes or (ii) if the allocation provided by
clause 6(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
6(d)(i) above but also the relative fault of the Company on the one hand and
each Agent on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and each Agent on the other hand in connection with the offering
of such Notes shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the Company bear to the total discounts and commissions received by
each Agent in respect thereof. The relative fault of the Company on the one hand
and each Agent on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by such Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Each Agent's obligation to contribute pursuant to
this Section 6 shall be several in the proportion that the principal amount of
the Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by PRO RATA
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes referred to in Section 6(d) that were offered and
sold to the public through such Agent exceeds the amount of any damages that
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive
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<PAGE>
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6,
representations, warranties and other statements of the Company, its officers
and the Agents set forth in or made pursuant to this Agreement or any Terms
Agreement will remain in full force and effect regardless of (i) any termination
of this Agreement or any such Terms Agreement, (ii) any investigation made by or
on behalf of any Agent or any person controlling any Agent or by or on behalf of
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Notes.
7. POSITION OF THE AGENTS. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent of
the Company and does not assume any obligation towards or relationship of agency
or trust with any purchaser of Notes. An Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason. If the Company shall default in its
obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall hold the relevant Agent harmless against any loss, claim, damage
or liability arising from or as a result of such default and shall, in
particular, pay to such Agent the commission it would have received had such
sale been consummated.
8. TERMINATION. This Agreement may be terminated at any time by the
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7,
9, 10 and 13 shall survive; PROVIDED that if at the time of termination an offer
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 1, 2(b), 2(c), 3(a), 3(b), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall
also survive until such delivery has been made.
9. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to Morgan Stanley, will be mailed, delivered or
telefaxed and confirmed to Morgan Stanley at 1585 Broadway, New York, New York,
10036, Attention: Manager, Credit Department (telefax number: 212-761-0780),
with a copy to 1585 Broadway, New York, New York, 10036, Attention: Managing
Director, Debt Syndicate, Banc of America Securities LLC, 100 North Tryon
Street, Charlotte, North Carolina 29255, Attention: MTN Product Management, 7th
Floor (telefax number (204) 388-9939), Chase Securities Inc., 270 Park Avenue,
New York, New York 10017, Attention: Medium-Term Note Desk (telefax number (212)
834-6081), Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
Attention: Credit Department (telefax number (212) 363-7609), Merrill Lynch,
Pierce, Fenner & Smith
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Incorporated, World Financial Center, North Tower, 15th Floor, New York, New
York 10281, Attention: MTN Product Management (telefax number (212) 449-2234),
Salomon Smith Barney Inc., 390 Greenwich Street, New York, New York 10013,
Attention: Managing Director Debt Syndicate (telefax number (212) 723-8672),
Warburg Dillon Read LLC, 677 Washington Blvd., Stamford, CT 06901, Attention:
Debt Syndicate (telefax number (203) 719-0485), or, if sent to the Company, will
be mailed, delivered or telefaxed and confirmed to the Company at 7 Campus
Drive, Parsippany, New Jersey 07054, Attention: Assistant Treasurer (telefax
number (973) 682- 6619).
10. SUCCESSORS. This Agreement and any Terms Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
11. AMENDMENTS. This Agreement may be amended or supplemented if, but only
if, such amendment or supplement is in writing and is signed by the Company and
each Agent; PROVIDED that the Company may from time to time, without the consent
of any Agent, amend this Agreement to add as a party hereto one or more
additional firms registered under the Exchange Act, whereupon each such firm
shall become an Agent hereunder on the same terms and conditions as the other
Agents that are parties hereto. The Agents shall sign any agreement, amendment
or supplement giving effect to the addition of any such firm as an Agent under
this Agreement. In addition, subject to the Administrative Procedures, the
Company may from time to time also offer Notes for sale otherwise than through
an Agent. The Company reserves the right to solicit or accept offers to purchase
Notes through an agent other than the Agents; PROVIDED, HOWEVER, that (i) in the
case of a continuous offering by such agent, the Company shall amend this
Agreement to add such agent as a party hereto pursuant to this Section 11,
whereupon such agent shall become an Agent hereunder on the same terms and
conditions as the other Agents that are parties hereto, or (ii) in the case of a
specific purchase of Notes by such agent, the Company engages such agent on a
reverse inquiry basis at a commission that is the same as that contained in
Section 2(a) of this Agreement with respect to Notes of identical maturities.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
21
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
NABISCO, INC.
By: /s/ Benjamin Boykin II
__________________________
Name: Benjamin Boykin II
Title: Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
MORGAN STANLEY & CO.
INCORPORATED
By: /s/ Michael Fusco
_________________________________
Name: Michael Fusco
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ Paul Kline
_________________________________
Name: Paul Kline
Title: Vice President
CHASE SECURITIES INC.
By: /s/ E. Zellweger
_________________________________
Name: E. Zellweger
Title: Vice President
22
<PAGE>
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
_________________________________
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
_________________________________
Name: Scott G. Primrose
Title: Authorized Signatory
SALOMON SMITH BARNEY INC.
By: /s/ D. Scott Miller
_________________________________
Name: D. Scott Miller
Title: Managing Director
WARBURG DILLON READ LLC
By: /s/ Chris Forshner
_________________________________
Name: Chris Forshner
Title: Director
23
<PAGE>
SCHEDULE 1
MORGAN STANLEY & CO.
INCORPORATED
1585 Broadway
New York, New York 10036
BANK OF AMERICA SECURITIES LLC
100 North Tryon Street
Charlotte, North Carolina 29255
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
World Financial Center
250 Vesey Street
New York, New York 10281
SALOMON SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
WARBURG DILLON READ LLC
677 Washington Blvd.
Stamford, CT 06901
24
<PAGE>
EXHIBIT A
NABISCO, INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
________ __, 200_
NABISCO, INC.
7 Campus Drive
Parsippany, New Jersey 07054
Attention:
Re: DISTRIBUTION AGREEMENT DATED DECEMBER 21, 1999 (THE "DISTRIBUTION
AGREEMENT")
We agree to purchase your Medium-Term Notes having the following terms:
[We agree to purchase, severally and not jointly, the principal amount of
Notes set forth below opposite our names:
<TABLE>
<CAPTION>
Principal Amount
Name of Notes
- ---------------------------------------------- ------------------
<S> <C>
Morgan Stanley & Co. Incorporated
------------------
Banc of America Securities LLC
------------------
Chase Securities Inc.
------------------
Goldman, Sachs & Co.
------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated
------------------
Salomon Smith Barney Inc.
------------------
Warburg Dillon Read LLC
------------------
Total......................................... $
==================
</TABLE>
A-1
<PAGE>
The Notes shall have the following terms:
<TABLE>
<CAPTION>
ALL NOTES: FIXED RATE NOTES: FLOATING RATE NOTES:
<S> <C> <C>
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability of modified Index maturity:
payment upon acceleration:
Price to public: If yes, state issue price: Spread:
Settlement date and time: Amortization schedule: Spread multiplier:
Place of delivery: Alternate rate event
spread:
Specified currency: Initial interest rate:
Maturity date: Initial interest reset
date:
Initial accrual period OID: Interest reset dates:
Total amount of OID: Interest reset period:
Original yield to maturity: Maximum interest rate:
Optional repayment date(s): Minimum interest rate:
Optional redemption date(s): Interest payment period:
Initial redemption date: Interest payment dates:
Initial redemption percentage: Calculation agent:
Annual redemption percentage
decrease:
Other terms:
</TABLE>
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13 of
the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their
A-2
<PAGE>
respective names above bears to the aggregate amount of Notes set forth opposite
the names of all such non-defaulting Agents, or in such other proportions as
_____________ may specify, to purchase the Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase on such date; PROVIDED that in
no event shall the amount of Notes that any Agent has agreed to purchase
pursuant to this Agreement be increased pursuant to this paragraph by an amount
in excess of one-ninth of such amount of Notes without the written consent of
such Agent. If on the Settlement Date any Agent or Agents shall fail or refuse
to purchase Notes and the aggregate amount of Notes with respect to which such
default occurs is more than one-tenth of the aggregate amount of Notes to be
purchased on such date, and arrangements satisfactory to ___________ and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Agent or the Company. In any such case either ___________ or the
Company shall have the right to postpone the Settlement Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Agent from liability in respect of any default of such
Agent under this Agreement.](1)
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(h), 6, 9, 10 and 13 of the Distribution Agreement shall survive for the
purposes of this Agreement.
- ----------
(1) Delete if the transaction will not be syndicated.
A-3
<PAGE>
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Distribution Agreement will be required:
________________
[NAME OF RELEVANT AGENT(S)]
By:__________________________________
Name:
Title:
Accepted:
NABISCO, INC.
By:__________________________________
Name:
Title:
A-4
<PAGE>
Exhibit 4.1
FACE OF SECURITY
FIXED RATE NOTE
REGISTERED REGISTERED
NO. FXR U.S. $ [PRINCIPAL AMOUNT]
CUSIP:*
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.*
- ----------
* Applies only if this Note is a Registered Global Security.
<PAGE>
NABISCO, INC.
MEDIUM-TERM NOTE
(FIXED RATE)
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE: INTEREST RATE:
- --------------------------------------------------------------------------------
INTEREST ACCRUAL DATE: INITIAL REDEMPTION MATURITY DATE:
PERCENTAGE:
- --------------------------------------------------------------------------------
APPLICABILITY OF ANNUAL ANNUAL REDEMPTION OPTIONAL REPAYMENT
INTEREST PAYMENTS: PERCENTAGE REDUCTION: DATE(S):
================================================================================
</TABLE>
2
<PAGE>
Nabisco, Inc., a New Jersey corporation (together with its successors and
assigns, the "ISSUER"), for value received, hereby promises to pay to , or
registered assignees, the principal sum of U.S. $ , on the Maturity Date
specified above (except to the extent previously redeemed or repaid) and to pay
interest thereon at the Interest Rate per annum specified above from the
Interest Accrual Date specified above until the principal hereof is paid or duly
made available for payment (except as provided below), semiannually in arrears
on the fifteenth day of March and September in each year (each such date an
"INTEREST PAYMENT DATE") commencing on the Interest Payment Date next succeeding
the Interest Accrual Date specified above, and at maturity (or on any redemption
or repayment date); PROVIDED, HOWEVER, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date succeeding the Interest Accrual Date to the registered Holder of this Note
on the Record Date with respect to such second Interest Payment Date; and
PROVIDED, FURTHER, that if this Note is subject to "ANNUAL INTEREST PAYMENTS,"
interest payments shall be made annually in arrears and the term "INTEREST
PAYMENT DATE" shall be deemed to mean the fifteenth day of March in each year.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until the principal hereof has been paid or duly made
available for payment (except as provided below). The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or not
a Business Day) (each such date a "RECORD DATE"); PROVIDED, HOWEVER, that
interest payable on the Maturity Date (or on any redemption or repayment date)
will be payable to the person to whom the principal hereof shall be payable. As
used herein, "BUSINESS DAY" means any day, other than a Saturday or Sunday, that
is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York.
Payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Paying Agent, as defined on the reverse hereof, maintained for that purpose in
the Borough of Manhattan, The City of New York, or at such other paying agency
as the Issuer may determine. Payments of interest, other than interest due at
maturity or on any date of redemption or repayment, will be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Note register; PROVIDED, HOWEVER, that if the registered Holder of this Note
is (i) Cede & Co. or (ii) a holder of U.S. $10,000,000 or more in aggregate
principal amount of Notes having the same Interest Payment Date, such Holder
will be entitled to receive payments of interest, other than interest due at
maturity or on any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received by the Paying Agent in writing not less than 15 calendar days prior to
the applicable Interest Payment Date.
3
<PAGE>
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture, as defined on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed
under its corporate seal.
DATED: NABISCO, INC.
By ___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By _____________________________
Authorized Officer
4
<PAGE>
REVERSE OF SECURITY
This Note is one of a duly authorized issue of Medium-Term Notes having
maturities of nine months or more from the date of issue (the "NOTES") of the
Issuer. The Notes are issuable under an Indenture, dated as of June 5, 1995 (the
"INDENTURE"), between the Issuer and Citibank, N.A., as Trustee (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
of the Issuer, the Trustee and Holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Issuer has appointed
Citibank, N.A. at its corporate trust office in The City of New York as the
paying agent (the "PAYING AGENT," which term includes any additional or
successor Paying Agent appointed by the Issuer) with respect to the Notes. The
terms of individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Indenture. To the extent not inconsistent herewith, the terms of the Indenture
are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or subject to repayment at the option of
the Holder prior to maturity.
If so indicated on the face of this Note, this Note may be redeemed in
whole or in part at the option of the Issuer on or after the Initial Redemption
Date specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as provided below). If this Note is subject to "ANNUAL REDEMPTION
PERCENTAGE REDUCTION," the Initial Redemption Percentage indicated on the face
hereof will be reduced on each anniversary of the Initial Redemption Date by the
Annual Redemption Percentage Reduction specified on the face hereof until the
redemption price of this Note is 100% of the principal amount hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
provided below). Notice of redemption shall be mailed, not less than 30 nor more
than 60 days prior to the date fixed for redemption, to the registered Holders
of the Notes designated for redemption at their addresses as the same shall
appear on the Note register, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the Holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 (provided that any remaining principal amount hereof shall not be less
than the minimum authorized denomination hereof) at the option of the Holder
hereof at a price equal to 100% of the principal amount to be repaid, together
with interest accrued and unpaid hereon to the date of repayment (except as
provided below). For this Note to be repaid at the option of the Holder
5
<PAGE>
hereof, the Paying Agent must receive at its corporate trust office in the
Borough of Manhattan, The City of New York, at least 15 but not more than 30
days prior to the date of repayment, (i) this Note with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States setting forth the name of the
Holder of this Note, the principal amount hereof, the certificate number of this
Note or a description of this Note's tenor and terms, the principal amount
hereof to be repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note, together with the form
entitled "Option to Elect Repayment" duly completed, will be received by the
Paying Agent not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; PROVIDED, that such telegram,
telex, facsimile transmission or letter shall only be effective if this Note and
form duly completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the Holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a new Note or Notes for the
amount of the unpaid portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months.
In the case where the Interest Payment Date or the Maturity Date (or any
redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or on the
Maturity Date (or any redemption or repayment date), and no interest on such
payment shall accrue for the period from and after the Interest Payment Date or
the Maturity Date (or any redemption or repayment date) to such next succeeding
Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and PARI PASSU with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange hereof,
is issuable only in fully registered form, without coupons, in denominations of
U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof.
The Trustee has been appointed registrar for the Notes, and the Trustee
will maintain at its office in The City of New York a register for the
registration and registration of transfer of Notes. The transfer of this Note
may be registered at the aforesaid office of the Trustee by surrendering this
Note for cancellation, accompanied by a written instrument of transfer in form
satisfactory to the
6
<PAGE>
Trustee and duly executed by the registered Holder hereof in person or by the
Holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having a like aggregate
principal amount in authorized denominations, subject to the terms and
conditions set forth herein; PROVIDED, HOWEVER, that the Trustee will not be
required (i) to register the transfer of or exchange any Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the Holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Indenture
with respect to the redemption of Notes. Notes are exchangeable at said office
for other Notes of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such exchanges and
registrations of transfer of Notes will be free of charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and executed by the registered Holder in person or by the Holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or registration of transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated or defaced, or in lieu of the Note so
destroyed or lost or stolen, but, in the case of any destroyed or lost or stolen
Note, only upon receipt of evidence satisfactory to the Trustee and the Issuer
that such Note was destroyed or lost or stolen and, if required, upon receipt
also of indemnity satisfactory to each of them. All expenses and reasonable
charges associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of the
Note mutilated, defaced, destroyed, lost or stolen.
In case an Event of Default with respect to the Notes shall have occurred
and be continuing, the principal hereof and the interest accrued hereon, if any,
may be declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to, the conditions provided in the
Indenture.
The Indenture contains provisions which provide that, without prior notice
to any Holders, the Company and the Trustee may amend the Indenture and the
Securities of any series issued thereunder ("THE SECURITIES") with the written
consent of the holders of a majority in principal amount of the outstanding
Securities of all series affected by such supplemental indenture (all such
series voting as one class), and the holders of a majority in principal amount
of the outstanding Securities of all series affected thereby (all such series
voting as one class) by written notice to the Trustee may waive future
compliance by the Company with any provision of the Indenture or the
7
<PAGE>
Securities of such series; PROVIDED that, without the consent of each Holder of
the Securities of each series affected thereby, an amendment or waiver,
including a waiver of past defaults, may not:
(i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security,
or reduce the principal amount thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any
premium payable with respect thereto, or adversely affect the rights of
such Holder under any mandatory redemption or repurchase provision or any
right of redemption or repurchase at the option of such Holder, or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity or the
amount thereof provable in bankruptcy, or change any place of payment
where, or the currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of the Indenture or certain Defaults and their
consequences provided for in the Indenture;
(iii) waive a Default in the payment of principal of or interest on
any Security of such Holder; or
(iv) modify any of the provisions of the Indenture governing
supplemental indentures with the consent of Securityholders except to
increase any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the
holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain conditions,
the holders of at least a majority in principal amount of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the payment
of principal of or interest on any Security or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the holder of each outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, registration of transfer and exchange as
aforesaid of the
8
<PAGE>
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be such
an agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for payment of the principal of or interest or premium, if any, on
any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the Holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such moneys shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
with respect to such moneys shall thereupon cease, without, however, limiting in
any way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place, and
rate, and in the coin or currency, herein prescribed unless otherwise agreed
between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, 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.
----------
10
<PAGE>
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 TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
11
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (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 Note is to be
repaid, specify the portion thereof 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 Notes to be issued
to the Holder for the portion of the within Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid): ____________________________.
Dated:________________ ___________________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the within
Note in every particular without alteration
or enlargement or any change whatsoever.
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.
12
<PAGE>
Exhibit 4.2
FACE OF SECURITY
FLOATING RATE NOTE
REGISTERED REGISTERED
NO. FLR U.S. $ [PRINCIPAL AMOUNT]
CUSIP:*
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.*
- ----------
* Applies only if this Note is a Registered Global Security.
<PAGE>
NABISCO, INC.
MEDIUM-TERM NOTE
(FLOATING RATE)
<TABLE>
- --------------------------------------------------------------------------------
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
- --------------------------------------------------------------------------------
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
- --------------------------------------------------------------------------------
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
- --------------------------------------------------------------------------------
ALTERNATE RATE EVENT INITIAL INTEREST RESET INTEREST RESET PERIOD:
SPREAD: DATE:
- --------------------------------------------------------------------------------
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
- --------------------------------------------------------------------------------
REPORTING SERVICE: MINIMUM INTEREST RATE: CALCULATION AGENT:
- --------------------------------------------------------------------------------
INDEX CURRENCY: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
- --------------------------------------------------------------------------------
EXCHANGE RATE AGENT: INITIAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE:
- --------------------------------------------------------------------------------
OTHER PROVISIONS: ANNUAL REDEMPTION ORIGINAL YIELD TO
PERCENTAGE REDUCTION: MATURITY:
- --------------------------------------------------------------------------------
OPTIONAL REPAYMENT INITIAL ACCRUAL PERIOD OID:
DATE(S):
- --------------------------------------------------------------------------------
DESIGNATED CMT TELERATE
PAGE:
- --------------------------------------------------------------------------------
DESIGNATED CMT MATURITY
INDEX:
================================================================================
</TABLE>
2
<PAGE>
Nabisco, Inc., a New Jersey corporation (together with its successors and
assigns, the "ISSUER"), for value received, hereby promises to pay to , or
registered assignees, the principal sum of U.S. $ , on the Maturity Date
specified above (except to the extent redeemed or repaid prior to the Maturity
Date) and to pay interest thereon, from the Interest Accrual Date specified
above at a rate per annum equal to the Initial Interest Rate specified above
until the Initial Interest Reset Date specified above, and thereafter at a rate
per annum determined in accordance with the provisions specified on the reverse
hereof until the principal hereof is paid or duly made available for payment.
The Issuer will pay interest in arrears monthly, quarterly, semiannually or
annually as specified above as the Interest Payment Period on each Interest
Payment Date (as specified above), commencing with the first Interest Payment
Date next succeeding the Interest Accrual Date specified above, and on the
Maturity Date (or any redemption or repayment date); PROVIDED, HOWEVER, that if
the Interest Accrual Date occurs between a Record Date, as defined below, and
the next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date succeeding the Interest Accrual Date to the
registered Holder of this Note on the Record Date with respect to such second
Interest Payment Date; and PROVIDED, FURTHER, that, subject to the next
succeeding sentence, if an Interest Payment Date would fall on a day that is not
a Business Day, as defined on the reverse hereof, such Interest Payment Date
shall be postponed to the following day that is a Business Day, except that if
the Base Rate specified above is LIBOR or EURIBOR and such next Business Day
falls in the next calendar month, the Interest Payment Date shall be the
immediately preceding day that is a Business Day. If the Maturity Date or
redemption or repayment date would fall on a day that is not a Business Day, the
payment of principal and interest will be made on the next succeeding Business
Day, and no interest on such payment shall accrue for the period from and after
such Maturity Date or redemption or repayment date, as the case may be.
Interest on this Note will accrue from the most recent date to which
interest has been paid or duly provided for, or, if no interest has been paid or
duly provided for, from the Interest Accrual Date, until the principal hereof
has been paid or duly made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or not
a Business Day) (each such date a "RECORD DATE"); PROVIDED, HOWEVER, that
interest payable on the Maturity Date (or any redemption or repayment date) will
be payable to the person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the interest due at
the Maturity Date (or any redemption or repayment date), unless this Note is
denominated in a Specified Currency other than U.S. dollars and is to be paid in
whole or in part in such Specified Currency, will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Paying Agent, as defined on the reverse hereof, maintained for that purpose in
the Borough of Manhattan, The City of New York, or at such other paying agency
as the Issuer may determine. Payments of interest, other than interest due at
maturity or any date of redemption or repayment, will be made by check mailed to
the address of the person entitled thereto as such address shall appear in the
Note
3
<PAGE>
register; PROVIDED, HOWEVER, that if the registered Holder of this Note is (i)
Cede & Co. or (ii) a holder of U.S. $10,000,000 (or the equivalent in a
Specified Currency) or more in aggregate principal amount of Notes having the
same Interest Payment Date, such Holder will be entitled to receive payments of
interest, other than interest due at maturity or any date of redemption or
repayment, by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received by the Paying Agent in writing not less
than 15 calendar days prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other than U.S.
dollars, and the Holder does not elect (in whole or in part) to receive payment
in U.S. dollars pursuant to the next succeeding paragraph, payments of interest,
principal or any premium with regard to this Note will be made by wire transfer
of immediately available funds to an account maintained by the Holder hereof
with a bank located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent in writing [not less than 15
calendar days prior to the applicable payment date]** [, with respect to
payments of interest, on or prior to the fifth Business Day after the applicable
Record Date and, with respect to payments of principal or any premium, at least
ten Business Days prior to the Maturity Date or any redemption or repayment
date, as the case may be]***; PROVIDED THAT, if payment of interest, principal
or any premium with regard to this Note is payable in euro, the account must be
a euro account in a country for which the euro is the lawful currency, PROVIDED,
FURTHER, that if such wire transfer instructions are not received, such payments
will be made by check payable in such Specified Currency mailed to the address
of the person entitled thereto as such address shall appear in the Note
register; and PROVIDED, FURTHER, that payment of the principal of this Note, any
premium and the interest due at maturity (or on any redemption or repayment
date) will be made upon surrender of this Note at the office or agency referred
to in the preceding paragraph.
If so indicated on the face hereof, the Holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the fifth
Business Day after such Record Date or at least ten Business Days prior to the
Maturity Date or any redemption or repayment date, as the case may be. Such
election shall remain in effect unless such request is revoked by written notice
to the Paying Agent as to all or a portion of payments on this Note at least
five Business Days prior to such Record Date, for payments of interest, or at
least ten days prior to the Maturity Date or any redemption or repayment date,
for payments of principal, as the case may be.
- ----------
** Applies for a Registered Note that is not in global form.
*** Applies only for a Registered Global Security.
4
<PAGE>
If the Holder elects to receive all or a portion of payments of principal
of and any premium and interest on this Note, if denominated in a Specified
Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate Agent (as
defined on the reverse hereof) will convert such payments into U.S. dollars. In
the event of such an election, payment in respect of this Note will be based
upon the exchange rate as determined by the Exchange Rate Agent based on the
highest bid quotation in The City of New York received by such Exchange Rate
Agent at approximately 11:00 a.m., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of which may be the Exchange Rate Agent unless such Exchange Rate
Agent is an affiliate of the Issuer) for the purchase by the quoting dealer of
U.S. dollars for the Specified Currency for settlement on such payment date in
the aggregate amount of the Specified Currency payable in the absence of such an
election to such Holder and at which the applicable dealer commits to execute a
contract. If such bid quotations are not available, such payment will be made in
the Specified Currency. All currency exchange costs will be borne by the Holder
of this Note by deductions from such payments.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture, as defined on the reverse
hereof, or be valid or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed
under its corporate seal.
DATED: NABISCO, INC.
By ______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
CITIBANK, N.A., as Trustee
By ______________________________
Authorized Officer
6
<PAGE>
REVERSE OF SECURITY
This Note is one of a duly authorized issue of Medium-Term Notes, having
maturities of nine months or more from the date of issue (the "NOTES") of the
Issuer. The Notes are issuable under an Indenture, dated as of June 5, 1995 (the
"INDENTURE"), between the Issuer and Citibank, N.A., as Trustee (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
of the Issuer, the Trustee and Holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Issuer has appointed
Citibank, N.A. at its corporate trust office in The City of New York as the
paying agent (the "PAYING AGENT," which term includes any additional or
successor Paying Agent appointed by the Issuer) with respect to the Notes. The
terms of individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Indenture. To the extent not inconsistent herewith, the terms of the Indenture
are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or subject to repayment at the option of
the Holder prior to maturity.
If so indicated on the face of this Note, this Note may be redeemed in
whole or in part at the option of the Issuer on or after the Initial Redemption
Date specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption. If
this Note is subject to "Annual Redemption Percentage Reduction," the Initial
Redemption Percentage indicated on the face hereof will be reduced on each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction specified on the face hereof until the redemption price of this Note
is 100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption. Notice of redemption shall be mailed,
not less than 30 nor more than 60 days prior to the date fixed for redemption,
to the registered Holders of the Notes designated for redemption at their
addresses as the same shall appear on the Note register, subject to all the
conditions and provisions of the Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the amount of the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the Holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 or, if this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the Holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment. For this Note to be repaid
at the option of the Holder hereof, the Paying Agent must receive at its
corporate trust office in the
7
<PAGE>
Borough of Manhattan, The City of New York, at least 15 but not more than 30
days prior to the date of repayment, (i) this Note with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States setting forth the name of the
Holder of this Note, the principal amount hereof, the certificate number of this
Note or a description of this Note's tenor and terms, the principal amount
hereof to be repaid, a statement that the option to elect repayment is being
exercised thereby and a guarantee that this Note, together with the form
entitled "Option to Elect Repayment" duly completed, will be received by the
Paying Agent not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; PROVIDED, that such telegram,
telex, facsimile transmission or letter shall only be effective if this Note and
form duly completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the Holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a new Note or Notes for the
amount of the unpaid portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in accordance with the
applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or
minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier, if
any, specified on the face hereof. Commencing with the Initial Interest Reset
Date specified on the face hereof, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date (as used herein, the term
"INTEREST RESET DATE" shall include the Initial Interest Reset Date). The
Interest Reset Dates will be the Interest Reset Dates specified on the face
hereof; PROVIDED, HOWEVER, that (i) the interest rate in effect for the period
from the Interest Accrual Date to the Initial Interest Reset Date will be the
Initial Interest Rate and (ii) the interest rate in effect hereon for the 10
days immediately prior to the Maturity Date hereof (or, with respect to any
principal amount to be redeemed or repaid, any redemption or repayment date)
shall be that in effect on the tenth calendar day preceding the Maturity Date
hereof or such date of redemption or repayment, as the case may be. If any
Interest Reset Date would otherwise be a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next succeeding day that is a
Business Day, except that if the Base Rate specified on the face hereof is LIBOR
or EURIBOR and such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day. As used
herein, "BUSINESS DAY" means any day, other than a Saturday or Sunday, (a) that
is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close (x) in The City of New York
or (y) if this Note is denominated in a Specified Currency other than U.S.
dollars, Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated in
Australian dollars, in Sydney and (b) if this Note is denominated in euro, that
is also a day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer System ("TARGET") is operating (a "TARGET SETTLEMENT DAY").
The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to the CD Rate, Commercial Paper
Rate, Federal Funds Rate, Prime
8
<PAGE>
Rate and CMT Rate will be the second Business Day preceding such Interest Reset
Date. The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to EURIBOR (or to LIBOR when the
Index Currency is euros) shall be the second TARGET Settlement Day preceding
such Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to LIBOR
(other than for LIBOR Notes for which the Index Currency is euros) shall be the
second London Banking Day preceding such Interest Reset Date, except that the
Interest Determination Date pertaining to an Interest Reset Date for a LIBOR
Note for which the Index Currency is pounds sterling will be such Interest Reset
Date. As used herein, "LONDON BANKING DAY" means any day on which dealings in
deposits in U.S. dollars are transacted in the London interbank market. The
Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to the Treasury Rate shall be the day
of the week in which such Interest Reset Date falls on which Treasury bills
normally would be auctioned; PROVIDED, HOWEVER, that if as a result of a legal
holiday an auction is held on the Friday of the week preceding such Interest
Reset Date, the related Interest Determination Date shall be such preceding
Friday; and PROVIDED, FURTHER, that if an auction shall fall on any Interest
Reset Date, then the Interest Reset Date shall instead be the first Business Day
following the date of such auction.
The "CALCULATION DATE" pertaining to any Interest Determination Date will
be the earlier (i) of the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business Day or
(ii) the Business Day preceding the applicable Interest Payment Date or
maturity, as the case may be.
DETERMINATION OF CD RATE. If the Base Rate specified on the face hereof is
the CD Rate, the CD Rate with respect to this Note shall be determined on each
Interest Determination Date and shall be the rate on such date for negotiable
certificates of deposit having the Index Maturity specified on the face hereof
as 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 "CDs (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the CD Rate will be the rate on such
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity specified on the face hereof set forth in the daily update of H.15(519)
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update or any
successor site or publication ("H.15 DAILY UPDATE"). If neither of such rates is
published by 3:00 P.M., New York City time, on such Calculation Date, then the
CD Rate on such Interest Determination Date will be calculated by the
Calculation Agent referred to on the face hereof and will be the arithmetic mean
of the secondary market offered rates as of 10:00 A.M., New York City time, on
such Interest Determination Date for certificates of deposit in an amount that
is representative for a single transaction in that market at that time with a
remaining maturity closest to the Index Maturity specified on the face hereof of
three leading nonbank dealers in 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 center banks of the highest
credit standing in the market for
9
<PAGE>
negotiable certificates of deposit; PROVIDED, HOWEVER, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the rate of interest in effect for the applicable period will be
the same as the CD Rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the rate of interest payable hereon
shall be the Initial Interest Rate).
DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate specified on the
face hereof is the Commercial Paper Rate, the Commercial Paper Rate with respect
to this Note shall be determined on each Interest Determination Date and shall
be the Money Market Yield (as defined herein) of the rate on such date for
commercial paper having the Index Maturity specified on the face hereof, as such
rate shall be published in H.15(519) under the heading "Commercial
Paper-Nonfinancial," or if not so published prior to 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the Commercial Paper Rate shall be the Money Market Yield of the rate on such
Interest Determination Date for commercial paper of the Index Maturity specified
on the face hereof as published in the H.15 Daily Update under the heading
"Commercial Paper-Nonfinancial." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield of the arithmetic mean of the offered rates
as of 11:00 A.M., New York City time, on such Interest Determination Date of
three leading dealers in 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; PROVIDED, HOWEVER,
that if the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the rate of interest in effect for the
applicable period will be the same as the Commercial Paper Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
"MONEY MARKET YIELD" shall be the yield calculated in accordance with the
following formula:
D x 360
Money Market Yield = -------------- x 100
360 - (D x M)
where "D" refers to the applicable 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 for which interest is being calculated.
DETERMINATION OF EURIBOR RATE. If the Base Rate specified on the face
hereof is "EURIBOR," for any Interest Determination Date, EURIBOR with respect
to this Note shall be the rate for deposits in euros as sponsored, calculated
and published jointly by the European Banking Federation and ACI - The Financial
Market Association, or any company established by the joint sponsors for
purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Bridge
Telerate, Inc., or any successor service,
10
<PAGE>
on page 248 or any other page as may replace page 248 on that service ("TELERATE
PAGE 248") as of 11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot be
determined as described above:
(i) if the above rate does not appear, the Calculation Agent shall
request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its
offered rate for deposits in euros, at approximately 11:00 a.m. (Brussels
time) on the Interest Determination Date, to prime banks in the Euro-zone
interbank market for the Index Maturity specified on the face hereof
commencing on the applicable Interest Reset Date, and in a principal
amount not less than the equivalent of U.S. $1 million in euro that is
representative of a single transaction in euro, in that market at that
time. If at least quotations are provided, EURIBOR shall be the arithmetic
mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone,
as selected by the Calculation Agent (after consultation with the Issuer)
at approximately 11:00 a.m. (Brussels time), on the applicable Interest
Reset Date for loans in euro to leading European banks for a period of
time equivalent to the Index Maturity specified on the face hereof
commencing on that Interest Reset Date in a principal amount not less than
the equivalent of U.S.$1 million in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as the EURIBOR rate then in effect on
the Interest Determination Date.
"EURO-ZONE" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "TREATY").
DETERMINATION OF FEDERAL FUNDS RATE. If the Base Rate specified on the
face hereof is the Federal Funds Rate, the Federal Funds Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
the rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)," as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace the
applicable page on that service, or, if not so published by 9:00 A.M., New York
City time, on the Calculation Date pertaining to such Interest Determination
Date, the Federal Funds Rate will be the rate on such Interest Determination
Date as published in the H.15 Daily Update under the heading "Federal
Funds/Effective Rate." If neither of such rates is published by 3:00 P.M., New
York City time, on such Calculation Date, the Federal Funds Rate for such
Interest Determination Date will be
11
<PAGE>
calculated by the Calculation Agent and will be the arithmetic mean of the rates
for the last transaction in overnight Federal funds as of 9:00 A.M., New York
City time, on such Interest Determination Date arranged by three leading brokers
in Federal funds transactions in The City of New York selected by the
Calculation Agent, after consultation with the Company; PROVIDED, HOWEVER, that
if the brokers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the rate of interest in effect for the applicable
period will be the same as the Federal Funds Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the rate
of interest payable hereon shall be the Initial Interest Rate).
DETERMINATION OF LIBOR. If the Base Rate specified on the face hereof is
LIBOR, LIBOR with respect to this Note shall be determined as follows:
(i) With respect to a LIBOR Interest Determination Date, LIBOR will
be, as specified on the face hereof, either: (a) the arithmetic mean of
the offered rates for deposits in U.S. dollars having the Index Maturity
specified on the face hereof, commencing on the second London Banking Day
immediately following the LIBOR Interest Determination Date, that appear
on the Reuters Screen LIBO Page as of 11:00 A.M., London time, on that
LIBOR Interest Determination Date, if at least two such offered rates
appear on the Reuters Screen LIBO Page ("LIBOR REUTERS"), or (b) the rate
for deposits in U.S. dollars having the Index Maturity specified on the
face hereof, commencing on the second London Banking Day immediately
following that LIBOR Interest Determination Date, that appears on the
Telerate Page 3750 as of 11:00 A.M., London time, on that LIBOR Interest
Determination Date ("LIBOR TELERATE"). "Reuters Screen LIBO Page" means
the display designated as page "LIBO" on the Reuters Monitor Money Rates
Service (or such other page as may replace the LIBO page on that service
for the purpose of displaying London interbank offered rates of major
banks). "Telerate Page 3750" means the display designated as page " 3750"
on the Telerate Service (or such other page as may replace the 3750 page
on that service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying London
interbank offered rates for U.S. dollar deposits). If neither LIBOR
Reuters nor LIBOR Telerate is specified on the face hereof, LIBOR will be
determined as if LIBOR Telerate had been specified. If fewer than two
offered rates appear on the Reuters Screen LIBO Page, or if no rate
appears on the Telerate Page 3750, as applicable, LIBOR in respect of that
LIBOR Interest Determination Date will be determined as if the parties had
specified the rate described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Reuters Screen LIBO Page, as
specified in (i)(a) above, or on which no rate appears on Telerate Page
3750, as specified in (i)(b) above, as applicable, LIBOR will be
determined on the basis of the rates at which deposits in U.S. dollars
having the Index Maturity specified on the face hereof are offered at
approximately 11:00 A.M., London time, on that LIBOR Interest
Determination Date by four major banks in the London interbank market
selected by the Calculation Agent ("REFERENCE BANKS") to prime banks in
the London interbank market commencing on the second London Banking Day
immediately
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following that LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in such market at such
time. The Calculation Agent will request the principal London office of
each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR in respect of that LIBOR
Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR in respect of
that LIBOR Interest Determination Date will be the arithmetic mean of the
rates quoted at approximately 11:00 A.M., New York City time, on that
LIBOR Interest Determination Date by three major banks in The City of New
York selected by the Calculation Agent for loans in U.S. dollars to
leading European banks having the Index Maturity specified on the face
hereof commencing on the second London Banking Day immediately following
that LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such market at such time;
PROVIDED, HOWEVER, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
with respect to such LIBOR Interest Determination Date will be the rate of
LIBOR in effect on such date.
DETERMINATION OF PRIME RATE. If the Base Rate specified on the face hereof
is the Prime Rate, the Prime Rate with respect to this Note shall be determined
on each Interest Determination Date and shall be the rate set forth in H.15(519)
for such date opposite the caption "Bank Prime Loan." If such rate is not yet
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Prime Rate for such Interest
Determination Date will be the rate published in the H.15 Daily Update under the
heading "Bank Prime Loan". If such rate is not yet published in either H.15(519)
or H.15 Daily Update prior to 3:00 P.M., on the Calculation Date pertaining to
such Interest Determination Date, the Prime Rate for such Interest Determination
Date will be the arithmetic mean of the rates of interest publicly announced by
each bank named on the Reuters Screen USPRIME 1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Interest
Determination Date as quoted on the Reuters Screen USPRIME 1 Page on such
Interest Determination Date, or, if fewer than four such rates appear on the
Reuters Screen USPRIME 1 Page for such Interest Determination Date, the rate
shall be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by 360 as of the close of business on
such Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than four quotations are provided, the Prime
Rate shall be calculated by the Calculation Agent and shall be determined as the
arithmetic mean on the basis of the prime rates of at least three major banks in
The City of New York selected by the Calculation Agent, after consultation with
the Company, to quote such rate or rates; PROVIDED, HOWEVER, that if the
substitute banks or trust companies selected as aforesaid are not quoting as
mentioned in this sentence, the Prime Rate for such Interest Reset Period will
be the Prime Rate in effect for the immediately preceding Interest Reset Period
(or, if there is no such Interest Reset Period, the Initial Interest Rate).
"Reuters Screen USPRIME 1 Page" means the display designated as Page "USPRIME 1"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the USPRIME 1 Page on that service for the purpose of displaying prime rates or
base lending rates of major United States banks).
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DETERMINATION OF TREASURY RATE. If the Base Rate specified on the face
hereof is the Treasury Rate, the Treasury Rate with respect to this Note shall
be determined on each Interest Determination Date and shall be the rate for the
auction held on such date of direct obligations of the United States ("TREASURY
BILLS") having the Index Maturity specified on the face hereof, as that rate
appears under the caption "INVESTMENT RATE" on the display on Bridge Telerate,
Inc., or any other successor service, on page 56 or any successor to such page
("TELERATE PAGE 56") or page 57 or any successor to such page ("TELERATE PAGE
57"). If such rate is not published on Telerate Page 56 or Telerate Page 57 by
3:00 p.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then the Treasury Rate will be the bond equivalent
yield of the rate for the applicable Treasury Bills as published in H.15 Daily
Update under the caption "U.S. Government Securities/Treasury Bills/Auction
High" or if not so published by 3:00 p.m., New York City time, on such
Calculation Date, the bond equivalent yield of the auction rate of the
applicable Treasury Bills announced by the United States Department of the
Treasury. In the event that the results of the auction of Treasury Bills having
the Index Maturity specified on the face hereof are not announced by the United
States Department of Treasury, or if the auction is not held, then the Treasury
Rate will be the bond equivalent yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market", or if such rate is not so published
by 3:00 p.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the rate on such date as published in H.15 Daily
Update under the caption "U.S. Government Securities/Treasury Bills/Secondary
Market". If the rate referred to in the immediately preceding sentence is not so
published by 3:00 p.m., New York City time, on such Calculation Date, then the
Treasury Rate will be calculated by the Calculation Agent as the bond equivalent
yield of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 p.m., New York City time, on such Interest Determination
Date, of three leading primary United States government securities dealers
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;
PROVIDED, HOWEVER, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate for such
Interest Reset Date will be the same as the Treasury Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable thereon shall be the Initial Interest Rate).
DETERMINATION OF CMT RATE. If the Base Rate specified on the face hereof
is the CMT Rate, the CMT Rate with respect to this Note shall be determined on
each Interest Determination Date and shall be the rate displayed for the Index
Maturity specified on the face hereof on the Designated CMT Telerate Page (as
defined below) under the caption ". . . Treasury Constant Maturities . . .
Federal Reserve Board Release H.15," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7051, the rate on such 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 Interest Determination Date
occurs. If such rate is no longer displayed on the relevant page, or is not
displayed by 3:00 p.m., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, then the CMT Rate for such Interest
Determination Date will be such Treasury Constant Maturity
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<PAGE>
rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). 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, then the CMT Rate for
such Interest Determination Date will be such Treasury Constant Maturity rate
for the Designated CMT Maturity Index (or other United States Treasury rate for
the Designated CMT Maturity Index) for the Interest Determination Date with
respect to the related 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). If such information is not provided by
3:00 p.m., New York time, on the related Calculation Date, then the CMT Rate for
the Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity, 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 the Interest Determination Date 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
affiliates of the Issuer) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent, after consultation with the
Issuer, 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 remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Notes quotations, the CMT
Rate for such Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 p.m., New York City
time, on the Interest Determination Date of three Reference Dealers in The City
of New York (from five such Reference Dealers selected by the Calculation Agent,
after consultation with the Issuer, 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 $100,000,000. If three or four (and
not five) of such Reference Dealers are quoting as described above, then the CMT
Rate 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; PROVIDED,
HOWEVER, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described herein, the CMT Rate for such Interest Reset Date
will be the same as the CMT Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate). If two Treasury Notes with
an original maturity as described in the second preceding sentence 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.
"DESIGNATED CMT TELERATE PAGE" means the display on the Dow Jones Telerate
Service specified on the face hereof (or any other page as may replace such page
on that service for the
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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 on the face hereof, the Designated CMT
Telerate Page shall be 7052, for the most recent week.
"DESIGNATED CMT MATURITY INDEX" shall be 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 hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, 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, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Calculation Date.
At the request of the Holder hereof, the Calculation Agent will provide to
the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate that will become effective as of the next Interest Reset Date.
Unless otherwise indicated on the face hereof, interest payments on this
Note will include interest accrued to but excluding the Interest Payment Dates
or the Maturity Date (or any earlier redemption or repayment date), as the case
may be; PROVIDED, HOWEVER, that if the Interest Reset Period with respect to
this Note is daily or weekly, interest payable on any Interest Payment Date,
other than interest payable on any date on which principal hereof is payable,
will include interest accrued through and including the Record Date next
preceding the applicable Interest Payment Date. Accrued interest hereon shall be
an amount calculated by multiplying the face amount hereof by an accrued
interest factor. Such accrued interest factor shall be computed by adding the
interest factor calculated for each day in the period for which interest is
being paid. The interest factor for each such date shall be computed by dividing
the interest rate applicable to such day (i) by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR (except
if the Index Currency is pounds sterling) as specified on the face hereof, (ii)
by 365 if the Base Rate is LIBOR and the Index Currency is pounds sterling or
(iii) by the actual number of days in the year if the Base Rate is the Treasury
Rate or the CMT Rate, as specified on the face hereof. All percentages resulting
from any calculation of the rate of interest on this Note will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point
(.0000001), with five one-millionths of a percentage point rounded upward, and
all dollar amounts used in or resulting from such calculation on this Note will
be rounded to the nearest cent (with one-half cent rounded upward). The interest
rate in effect on any Interest Reset Date will be the applicable rate as reset
on such date. The interest rate applicable to any other day is the interest rate
from the immediately preceding Interest Reset Date (or, if none, the Initial
Interest Rate).
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and PARI PASSU with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
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This Note, and any Note or Notes issued upon transfer or exchange hereof,
is issuable only in fully registered form, without coupons, in denominations of
U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
unless a higher minimum denomination is required by applicable law, it is
issuable only in denominations of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to the noon dollar buying rate in The City
of New York for cable transfers of such Specified Currency in which a payment on
any note was to be made published by the Federal Reserve Bank of New York (the
"MARKET EXCHANGE RATE") on the Business Day immediately preceding the date of
issuance. If that rate of exchange is not then available or is not published for
a particular payment currency, the market exchange rate will be based on the
highest bid quotation in The City of New York received by the exchange rate
agent at approximately 11:00 a.m, New York City time, on the second business day
preceding the applicable payment date from three recognized foreign exchange
dealers for the purchase by the quoting dealer:
o of the specified currency for U.S. dollars for settlement on the
payment date;
o in the aggregate amount of the specified currency payable to those
holders or beneficial owners of notes; and
o at which the applicable dealer commits to execute a contract.
The Trustee has been appointed registrar for the Notes, and the Trustee
will maintain at its office in The City of New York a register for the
registration and registration of transfer of Notes. The transfer of this Note
may be registered at the aforesaid office of the Trustee by surrendering this
Note for cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered Holder hereof in
person or by the Holder's attorney duly authorized in writing, and thereupon the
Trustee shall issue in the name of the transferee or transferees, in exchange
herefor, a new Note or Notes having identical terms and provisions and having a
like aggregate principal amount in authorized denominations, subject to the
terms and conditions set forth herein; PROVIDED, HOWEVER, that the Trustee will
not be required (i) to register the transfer of or exchange any Note that has
been called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the Holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Indenture
with respect to the redemption of Notes. Notes are exchangeable at said office
for other Notes of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such exchanges and
registrations of transfer of Notes will be free of charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and executed by the registered Holder in
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<PAGE>
person or by the Holder's attorney duly authorized in writing. The date of
registration of any Note delivered upon any exchange or transfer of Notes shall
be such that no gain or loss of interest results from such exchange or
registration of transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated or defaced, or in lieu of the Note so
destroyed or lost or stolen, but, in the case of any destroyed or lost or stolen
Note, only upon receipt of evidence satisfactory to the Trustee and the Issuer
that such Note was destroyed or lost or stolen and, if required, upon receipt
also of indemnity satisfactory to each of them. All expenses and reasonable
charges associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of the
Note mutilated, defaced, destroyed, lost or stolen.
In case an Event of Default with respect to the Notes shall have occurred
and be continuing, the principal hereof and the interest accrued hereon, if any,
may be declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to, the conditions provided in the
Indenture.
The Indenture contains provisions which provide that, without prior notice
to any Holders, the Company and the Trustee may amend the Indenture and the
securities of any series issued thereunder (the "SECURITIES") with the written
consent of the holders of a majority in principal amount of the outstanding
Securities of all series affected by such supplemental indenture (all such
series voting as one class), and the holders of a majority in principal amount
of the outstanding Securities of all series affected thereby (all such series
voting as one class) by written notice to the Trustee may waive future
compliance by the Company with any provision of the Indenture or the Securities
of such series; PROVIDED that, without the consent of each Holder of the
Securities of each series affected thereby, an amendment or waiver, including a
waiver of past defaults, may not:
(i) extend the stated maturity of the principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security,
or reduce the principal amount thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any
premium payable with respect thereto, or adversely affect the rights of
such Holder under any mandatory redemption or repurchase provision or any
right of redemption or repurchase at the option of such Holder, or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity or the
amount thereof provable in bankruptcy, or change any place of payment
where, or the currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the due date therefor;
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(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of the Indenture or certain Defaults and their
consequences provided for in the Indenture;
(iii) waive a Default in the payment of principal of or interest on
any Security of such Holder; or
(iv) modify any of the provisions of the Indenture governing
supplemental indentures with the consent of Securityholders except to
increase any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain conditions,
the holders of at least a majority in principal amount of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the payment
of principal of or interest on any Security or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of the Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the Holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate on the date of such payment or, if the Market Exchange Rate is not
available on such date, if that rate of exchange is not then available or is not
published for a particular payment currency, the market exchange rate will be
based on the highest bid quotation in The City of New York received by the
exchange rate agent at approximately 11:00 a.m, New York City time, on the
second business day preceding the applicable payment date from three recognized
foreign exchange dealers for the purchase by the quoting dealer:
o of the specified currency for U.S. dollars for settlement on the
payment date;
o in the aggregate amount of the specified currency payable to those
holders or beneficial owners of notes; and
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o at which the applicable dealer commits to execute a contract;
PROVIDED, HOWEVER, that if the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the Holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue of,
the treaty establishing the EC, as amended by the Treaty. Any payment made under
such circumstances in U.S. dollars or euro where the required payment is in an
unavailable Specified Currency will not constitute an Event of Default. If such
Market Exchange Rate is not then available to the Issuer or is not published for
a particular Specified Currency, the Market Exchange Rate will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
AgenT at approximately 11:00 a.m., New York City time, on the second Business
Day preceding the date of such payment from three recognized foreign exchange
dealers (the "EXCHANGE DEALERS") for the purchase by the quoting Exchange Dealer
of the Specified Currency for U.S. dollars for settlement on the payment date,
in the aggregate amount of the Specified Currency payable to those Holders or
beneficial owners of Notes and at which the applicable Exchange Dealer commits
to execute a contract. One of the Exchange Dealers providing quotations may be
the Exchange Rate Agent unless the Exchange Rate Agent is an affiliate of the
Issuer. If those bid quotations are not available, the Exchange Rate Agent shall
determine the market exchange rate at its sole discretion.
The "EXCHANGE RATE AGENT" shall be Citibank, N.A. , unless otherwise
indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the Issuer
or by, or on behalf of, the Exchange Rate Agent shall be at such entity's sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and binding on Holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, registration of transfer and exchange as
aforesaid of the Notes. The Issuer may designate other agencies for the payment
of said principal, premium and interest at such place or places (subject to
applicable laws and regulations) as the Issuer may decide. So long as there
shall be such an agency, the Issuer shall keep the Trustee advised of the names
and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for payment of the principal of or interest or premium, if any, on
any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the Holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such
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moneys shall be so repaid to the Issuer. Upon such repayment all liability of
the Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer may
have to pay the principal of or interest or premium, if any, on this Note as the
same shall become due.
No provision of this Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place, and
rate, and in the coin or currency, herein prescribed unless otherwise agreed
between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, 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 ______________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act _____________________________
(State)
Additional abbreviations may also be used though not in the above list.
----------------
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- ---------------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
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[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated: _________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
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<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (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
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof 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 Notes to be issued to the Holder for the
portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid): .
Dated: ______________________
___________________________________
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.
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