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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
November 4, 1997
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Date of Report (Date of earliest event reported)
Comdisco, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 1-7725 36-2687938
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(State of incorporation) (Commission (IRS Employer
File No.) Identification No.)
6111 North River Road, Rosemont, Illinois 60018
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(Address of principal executive offices) (Zip code)
(847) 698-3000
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Registrant's telephone number, including area code
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Item 7. Financial Statements and Exhibits.
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(c) Exhibits
1.1 Distribution Agreement dated November 6, 1997 by and among the Company
and Merrill Lynch, Pierce, Fenner & Smith Incorporated, NationsBanc
Montgomery Securities, Inc., Salomon Brothers Inc, Smith Barney Inc.
and UBS Securities Inc., as Agents.
3.1 By-laws of the Company, as amended effective November 4, 1997.
4.1 Form of Series G Fixed Rate Medium-Term Note.
4.2 Form of Series G Floating Rate Medium-Term Note.
5.1 Opinion of Jeremiah M. Fitzgerald, Esq., Vice President and General
Counsel of the Registrant, relating to the legality of the
Registrant's Medium-Term Notes, Series G.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Current Report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
COMDISCO, INC.
Date: November 12, 1997 By: /s/ Philip A. Hewes
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Philip A. Hewes, Senior
Vice President and
Secretary
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Exhibit 1.1
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COMDISCO, INC.
Medium-Term Notes, Series G
DISTRIBUTION AGREEMENT
November 6, 1997
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281-1310
NATIONSBANC MONTGOMERY SECURITIES, INC.
100 N. Tryon Street
Charlotte, North Carolina 28255-0120
SALOMON BROTHERS INC
8700 Sears Tower
Chicago, Illinois 60606
SMITH BARNEY INC.
388 Greenwich Street
New York, NY 10013
UBS SECURITIES LLC
299 Park Avenue, 26th Floor
New York, NY 10171
Ladies and Gentlemen:
Comdisco, Inc., a Delaware corporation (the "Company") confirms its
agreement with each of you (each an "Agent"; collectively, the "Agents") with
respect to the issue and sale by the Company of its Medium-Term Notes, Series G
(the "Notes"). The Notes are to be issued pursuant to an indenture (the
"Indenture") dated as of December 1, 1995, between the Company and Yasuda Bank
and Trust Company (U.S.A.), as trustee (the "Trustee"). As of the date hereof,
the Company has authorized the issuance of up to $600,000,000 aggregate
principal amount of Notes, which may be distributed through the Agents pursuant
to the terms of this Agreement. It is understood, however, that the Company may
from time to time authorize the issuance of additional notes and that such notes
may be distributed through the Agents pursuant to the terms of this Agreement,
or through one or more other agents pursuant to the terms of a separate
agreement, all as though the issuance of such notes was authorized as of the
date hereof.
The Notes will be represented by either a global security registered in the
name of a nominee of The Depository Trust Company (the "Depositary"), as
Depositary (a "Book-Entry Note"), or a certificate issued in definitive form (a
"Certificated Note"), as selected by the purchaser and agreed to by the Company
and specified in the applicable pricing supplement. Beneficial interests in
Book-Entry Notes will be shown on, and transfers thereof will be effected only
through, records maintained by the Depositary and its participants. Book-Entry
Notes will not be issuable in definitive form, except under the circumstances
described in the applicable prospectus supplement. The Notes shall be issued in
the currency or currency unit (the "Specified Currency") and shall have the
maturity ranges, annual interest rate (whether fixed or floating), redemption
provisions, repayment provisions and other terms set forth in the Prospectus
referred to below as it may be supplemented from time to time, including any
pricing supplement (the "Pricing Supplement").
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Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly to investors on
its own behalf or through other agents, dealers or underwriters substantially on
the same terms and conditions provided herein (including, but not limited to the
commission schedule set forth as Exhibit B hereto), the Company hereby (i)
agrees that whenever the Company determines to sell Notes directly to any of the
Agents as principal for resale to others, it will enter into a Terms Agreement
(as hereinafter defined) relating to such sale in accordance with the provisions
of Section 2(a) hereof, and (ii) appoints the Agents as its agents to solicit
orders for, and to sell, all or part of the Notes during a period beginning on
the date hereof and ending when the Notes have been sold, or such other time as
the Company may specify to you in writing. Each Agent will use all reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes from the Company has been solicited by such Agent as
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.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-29813) relating
to the Notes and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933 (the "1933 Act"). Such registration
statement have been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939 (the "1939 Act"). Such
registration statement (and any further registration statements which may be
filed by the Company for the purpose of registering additional notes and in
connection with which this Agreement is included or incorporated by reference as
an exhibit) and the prospectus filed pursuant to Rule 424 under the 1933 Act,
including all documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to the Securities
Exchange Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus", respectively,
except that if any revised prospectus shall be provided to the Agents by the
Company for use in connection with the offering of the Notes which differs from
the Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b) of the rules and regulations under the
1933 Act (the "1933 Act Regulations")), the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided to the
Agents for such use. For purposes of this Agreement, all references to the
Registration Statement, Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to the Electronic Data Gathering, Analysis and Retrieval System ("EDGAR").
SECTION 1. Representations and Warranties.
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(a) The Company represents and warrants to each of the Agents as of the
date hereof (the "Closing Date"), as of the date of each acceptance by the
Company of an offer for the purchase of Notes whether through an Agent as agent
or to an Agent as principal, as of the date of each sale of Notes whether
through an Agent as agent or to an Agent as principal (each such sale to an
Agent as principal being referred to herein as a "Settlement Date"), and as of
the times referred to in Sections 6(a) and 6(b) hereof (each of the times
referenced above being referred to herein as a "Representation Date"), as
follows:
(i) Due Incorporation and Qualification. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification and in which the
failure to so qualify and be in good standing would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(ii) Subsidiaries. No subsidiary of the Company is a "significant
subsidiary" as defined in Rule 405 of Regulation C of the 1933 Act
Regulations.
(iii) Registration Statement and Prospectus. At the time the
Registration Statement became effective, it complied, and as of the
applicable Representation Date will comply, in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations and the 1939
Act. The Registration Statement, at the time it became effective did not,
and as of the applicable Representation Date will not, contain an untrue
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statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration Statement became
effective (unless the term "Prospectus" refers to a prospectus which has
been provided to the Agents by the Company for use in connection with the
offering of the Notes which differs from the Prospectus on file at the
Commission at the time the Registration Statement became effective, in
which case at the time it is first provided to the Agents for such use),
did not, and as of the applicable Representation Date will not, contain an
untrue statement of a material fact or omit 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,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Agents expressly for use in the
Registration Statement or Prospectus or that part of the Registration
Statement which shall constitute the Statement of Eligibility under the
1939 Act and the rules and regulations of the Commission promulgated
thereunder.
(iv) Incorporated Documents. The documents incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were or are made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements and/or omissions from the
Prospectus made in reliance upon and in conformity with the information
furnished to the Company in writing by you expressly for use in the
Prospectus, as amended or supplemented.
(v) Accountants. To the best of the Company's knowledge, the
accountants who certified the financial statements included or incorporated
by reference in the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The consolidated financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Prospectus present fairly the financial position of the Company and its
subsidiaries as at the dates indicated and the results of their operations
for the periods specified; except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the period
or periods involved.
(vii) Material Changes or Material Transactions. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein or contemplated thereby,
(a) there has been no material adverse change in, or any material
development known to management which is likely to result in a material
adverse change in, the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and (b) there have been no transactions considered material to
the Company and its subsidiaries considered as one enterprise entered into
by the Company or any of its subsidiaries other than those in the ordinary
course of business.
(viii) No Defaults, Breaches, Liens; Regulatory Approvals. The Company
is not in violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or any of its
properties may be bound; and the execution and delivery of this Agreement,
the Indenture and each applicable Terms Agreement, if any, and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is a party
or by which it may be bound or to which any of the property or assets of
the Company is subject, nor will such action result in any
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violation of the provisions of the charter or by-laws of the Company or, to
the best of its knowledge, any law, administrative regulation or
administrative or court order or decree; and no consent, approval,
authorization, order or decree of any court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or state securities or
Blue Sky laws.
(ix) Legal Proceedings; Contracts. Except as may be set forth in the
Prospectus, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, with
respect to which the Company has been served, or, to the knowledge of the
Company, threatened against or affecting, the Company or any of its
subsidiaries, which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might materially and
adversely affect the consummation of this Agreement or any Terms Agreement;
and there are no material contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations which
have not been so filed.
(x) Material Licenses and Other Authorizations. The Company owns or
possesses or has obtained all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own, as
the case may be, and to operate its properties and to carry on its business
as presently conducted, except where the failure to possess any such
license, permits, consents, orders, approvals or authorizations would not
have a material adverse effect on the financial condition, or the earnings
or business of the Company.
(xi) Trademarks, Service Marks and Trade Names. The Company owns or
possesses, or can acquire on reasonable terms, adequate trademarks, service
marks and trade names necessary to conduct the business now operated by it,
and the Company has not received any notice of infringement of or conflict
with asserted rights of others with respect to any trademarks, service
marks or trade names which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially adversely
affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one enterprise.
(xii) Authorization and Validity of the Notes. The Notes have been
duly authorized for issuance and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and of the Indenture against payment of the consideration
therefor specified herein or in any Terms Agreement, the Notes will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, or other laws relating to or affecting
creditors' rights generally or by general equity principles, and will be
entitled to the benefits provided by the Indenture, which will be
substantially in the form heretofore delivered to the Agents; and the Notes
and the Indenture conform in all material respects to all statements
relating thereto contained in the Prospectus.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes shall be deemed a representation and
warranty by the Company to the Agents as to the matters covered thereby.
SECTION 2. Purchases as Principal; Solicitations as Agent.
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(a) Purchases as Principal. Unless otherwise agreed by the Company and the
applicable Agent, Notes shall be purchased by such Agent as principal. Such
purchase shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by such Agent. Each such separate agreement
(which may be an oral agreement and confirmed in writing as described below
between the Agent and the Company) is herein referred to as a "Terms Agreement".
Each such Terms Agreement, whether oral (and confirmed in writing, which may be
by facsimile transmission) or in writing, shall be with respect to
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such information (as applicable) as is specified in Exhibit A hereto. Unless
otherwise agreed to between the Company and the Agent in a Terms Agreement, any
Note sold to an Agent (i) shall be purchased by such Agent at a price equal to
100% of the principal amount thereof less a percentage equal to the commission
applicable to an agency sale of a Note of identical maturity and (ii) may be
resold by such Agent at varying prices from time to time. In connection with any
resale of Notes purchased, an Agent may use a selling or dealer group and may
reallow any portion of the discount or commission payable pursuant hereto to
dealers or other purchasers.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed to by the Company and the applicable Agent, such Agent as an
agent of the Company, will use its reasonable efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth in the Prospectus.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend solicitation of purchases of the Notes commencing at any time
for any period of time or permanently. As soon as practicable, but in any event
not later than one business day after receipt of instructions from the Company,
the Agents will suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent, as consideration for soliciting the
sale of any Notes, a commission in the form of a discount equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by each respective Agent as set forth in
Exhibit B hereto. Except as provided in Section 2(a), without the prior approval
of the Company, the Agent may not re-allow any portion of the commission payable
pursuant hereto to dealers or purchasers in connection with the offer and sale
of any Notes.
As agent, each Agent is authorized to solicit orders for the Notes at a
purchase price which shall be agreed upon by the Company and the Agents and set
forth in a supplement to the Prospectus and (except as may be otherwise provided
in an applicable supplement to the Prospectus) only in denominations of $1,000
or any integral multiple thereof. Each Agent shall communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes received by it.
The Company shall have the sole right to accept offers to purchase the Notes and
may reject any such offer in whole or in part. Each Agent shall have the right
to reject, in its discretion reasonably exercised, any offer to purchase the
Notes in whole or in part, and any such rejection shall not be deemed a breach
of the Agent's agreements contained herein.
(c) Administrative Procedures. Administrative procedures respecting the
sale of Notes shall be agreed upon from time to time in writing by the Agents
and the Company (the "Procedures"). The Agents and the Company agree to perform
the respective duties and obligations specifically provided to be performed by
the Agents herein and in the Procedures.
(d) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the office of Brown & Wood LLP, One World
Trade Center, New York, New York 10048 on the date hereof or such other time as
the Agents and the Company may agree in writing.
Any Notes which are purchased by an Agent as principal shall be purchased,
and any Notes the placement of which an Agent arranges, shall be placed by such
Agent, in reliance on the representations and warranties of the Company herein
contained and on to the terms and conditions and in the manner provided herein.
SECTION 3. Covenants of the Company.
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The Company covenants with each of the Agents as follows:
(a) Notice of Certain Events. The Company will notify each of the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement (including any post-effective amendment), (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments
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from the Commission with respect to the Registration Statement or the
Prospectus, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment;
provided, however, that the Company shall have no such obligation during any
period from the time (i) the Agents shall have suspended solicitation of offers
to purchase Notes in their capacity as agents pursuant to a request from the
Company and (ii) the Agents shall not then hold any Notes as principal purchased
pursuant to a Terms Agreement (or, if the Agents hold Notes as principal
purchased pursuant to a Terms Agreement, the Agents have held such Notes for
more than 90 days), to the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently enter into a new
Terms Agreement with the Agents.
(b) Notice of Certain Proposed Filings. The Company will give the Agents
notice of its intention to file any additional registration statement with
respect to the registration of additional notes, any amendment to the
Registration Statement (including any post-effective amendment) or any amendment
or supplement to the Prospectus (including any revised prospectus which the
Company proposes for use by the Agents in connection with the offering of the
Notes which differs from the prospectus on file at the Commission at the time
the Registration Statement became effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise, and will furnish the Agents with copies of any such
amendment or supplement or other documents proposed to be filed or used a
reasonable time in advance of such filing or use, and will not file any such
amendment or supplement or other documents in a form to which you or your
counsel shall reasonably object.
(c) Copies of Registration Statement, Prospectus. The Company will deliver
to the Agents as many signed and conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as the Agents may reasonably request. The Company
will furnish to the Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes. Copies of the Registration Statement, each
amendment hereto, the Prospectus and any amendments or supplements thereto
furnished to the Agents will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T of the 1933 Act Regulations.
(d) Revisions of Prospectus -- Material Changes. If at any time when the
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Notes or an Agent holds any Notes as principal purchased pursuant to a
Terms Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of the Agents' counsel or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes an Agent
may then own as principal, and the Company will promptly prepare and file with
the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
comply with such requirements.
(e) Prospectus Revisions -- Periodic Financial Information. On or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include or incorporate by reference capsule
financial information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act
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Regulations; provided, however, that if on the date of such release the Agents
shall have suspended solicitation of offers to purchase Notes in each Agent's
capacity as agent pursuant to a request from the Company, and shall not then
hold any Notes as principal purchased pursuant to a Terms Agreement, the Company
shall not be obligated so to amend or supplement the Prospectus until such time
as the Company shall determine that solicitation of offers to purchase Notes
should be resumed or shall subsequently enter into a Terms Agreement with an
Agent.
(f) Prospectus Revisions -- Audited Financial Information. On or prior to
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations;
provided, however, that if on the date of such release the Agents shall have
suspended solicitation of offers to purchase Notes in each Agent's capacity as
agent pursuant to a request from the Company, and shall not then hold any Notes
as principal purchased pursuant to a Terms Agreement, the Company shall not be
obligated so to amend or supplement the Prospectus until such time as the
Company shall determine that solicitation of offers to purchase Notes should be
resumed or shall subsequently enter into a Terms Agreement with an Agent.
(g) Section 11(a) Earnings Statements. The Company will make generally
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158 under the 1933 Act) 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 such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(h) Copies of Financial Reports. The Company will furnish to the Agents,
at the earliest time the Company makes the same available to others, copies of
its annual reports and other financial reports furnished or made available to
the public generally.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may reasonably designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes; the
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject or expend amounts in excess of $1,000 for filing fees in any one
jurisdiction.
(j) 1934 Act Filings. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act.
(k) Stand-Off Agreement. Between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior consent of each Agent that is a party to said Terms Agreement,
offer or sell or enter into any agreement to sell, any debt securities of the
Company (other than the Notes which are to be sold pursuant to such Terms
Agreement and commercial paper, tax-exempt securities or other securities (which
contain terms which are not substantially similar to the Notes which are to be
sold pursuant to such Terms Agreement) offered and sold by the Company in the
ordinary course of its business, including, but not limited to, securities
issued by the Company in connection with the non-recourse financing of lease
receivables), except as may otherwise be provided in any such Terms Agreement.
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SECTION 4. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto;
(ii) The preparation, issuance and delivery of the Notes;
(iii) The fees and disbursements of the Company's accountants and of
the Trustee and its counsel;
(iv) The reasonable fee and disbursements of the Agents' counsel;
(v) The qualification of the Notes under securities laws in
accordance with the provisions of Section 3(i), including filing fees and
the reasonable fees and disbursements of the Agents' counsel in connection
therewith and in connection with the preparation of any Blue Sky Survey and
any Legal Investment Survey;
(vi) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(vii) The printing and delivery to the Agents of copies of the
Indenture and any Blue Sky Survey and any Legal Investment Survey;
(viii) Any fees charged by rating agencies for the rating of the
Notes;
(ix) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.; and
(x) Any advertising and other out-of-pocket expenses incurred with
the approval of the Company.
SECTION 5. Conditions of Obligations.
Each Agent's obligations to purchase the Notes as principal and to solicit
offers to purchase the Notes as agent of the Company and the obligation of any
purchaser of Notes sold through an Agent as agent, will be subject at all times
to the accuracy of the representations and warranties on the part of the Company
herein and to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed and to the following additional
conditions precedent:
(a) Legal Opinions. At the Closing Date and at each Settlement Date with
respect to any applicable Terms Agreement, if called for by such Terms
Agreement, each Agent shall have received the following documents:
(1) Opinion of Company Counsel. The opinion of Philip A. Hewes, Esq.,
Senior Vice President/Legal of the Company, or Jeremiah M. Fitzgerald,
Esq., Vice President and General Counsel of the Company dated as of such
Closing Date or Settlement Date, in form and substance satisfactory to the
Agents and the Agents' counsel, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
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(ii) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Prospectus.
(iii) To the best of such counsel's knowledge, the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification and in which failure of the Company to be so qualified
and in good standing would have a material adverse effect upon the
Company and its subsidiaries considered as a single enterprise.
(iv) This Agreement (and, if the opinion is being given
pursuant to Section 6(c) hereof as a result of the Company having
entered into a Terms Agreement requiring such opinion, the applicable
Terms Agreement) has been duly authorized, executed and delivered by
the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid
and binding agreement of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally, or by general equity principles.
(vi) The Notes are in the form contemplated by the Indenture,
have been duly authorized by all necessary corporate action and, when
executed and authenticated as specified in the Indenture and delivered
against payment of the consideration therefor in accordance with this
Agreement, as supplemented by the applicable Terms Agreement, if any,
will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, or other laws relating to or
affecting creditors' rights generally, or by general equity
principles, and each holder of Notes will be entitled to the benefits
of the Indenture.
(vii) The statements in the Prospectus under the caption
"Description of Debt Securities" and in the Prospectus Supplement
under the caption "Description of the Notes", insofar as they purport
to summarize certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(x) At the time the Registration Statement became effective,
the Registration Statement (other than the financial statements and
other financial or statistical data included or incorporated by
reference therein, as to which no opinion need be rendered) appeared
on its face to comply as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the regulations under
each of those Acts.
(xi) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than
those disclosed therein, and all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of
which any of their property is the subject which are not described in
the Prospectus, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material.
(xii) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other
than those described or referred to
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therein or filed or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct, and, except
for certain minor matters which, either individually or in the
aggregate, will not or do not have a material adverse effect on the
Company or its business, no default exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, loan agreement, note,
lease or other instrument so described, referred to, filed or
incorporated by reference.
(xiii) No consent, approval, authorization, or order of any court
or governmental authority or agency is required in connection with the
sale of the Notes, except such as may be required under the 1933 Act,
the 1939 Act, the 1933 Act Regulations, or state securities laws; and,
to the best of such counsel's knowledge, the execution and delivery of
this Agreement (and, if the opinion is being given pursuant to Section
6(c) hereof on account of the Company having entered into a Terms
Agreement, the applicable Terms Agreement) and the Indenture and the
consummation of the transactions contemplated herein and therein will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel and to which the Company is a
party or by which it may be bound or to which any of the property or
assets of the Company is subject, or any law, administrative
regulation or administrative or court decree, known to such counsel to
be applicable to the Company, of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the
Company, except that such counsel need express no opinion as to any
state securities or Blue Sky laws, or any rules or regulations
thereunder; nor will such action result in any violation of the
provisions of the charter or bylaws of the Company.
(xiv) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included therein or
omitted therefrom, as to which counsel need not comment), appeared on
its face to comply when filed as to form in all material respects with
the 1934 Act and the rules and regulations promulgated thereunder.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of the State of New York, to the extent
deemed proper and specified in such opinion, upon the opinion of Brown &
Wood LLP, counsel for the Agents, delivered pursuant to subsection (a)(2)
hereof and (B) as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and public officials.
(2) Opinion of Counsel to the Agents. The opinion of Brown & Wood
LLP, counsel to the Agents, dated as of such Closing Date or Settlement
Date, covering the matters referred to in subparagraph (1) under the
subheadings (i) and (iv) to (x), inclusive.
(3) In giving their opinions required by subsection (a)(1) and (a)(2)
of this Section, Mr. Hewes or Mr. Fitzgerald and Brown & Wood LLP shall
each additionally state that nothing has come to their attention that would
lead them to believe that the Registration Statement (except for the
financial statements and other financial or statistical data included
therein or omitted therefrom, as to which counsel need not comment), at the
time it became effective, or if an amendment to the Registration Statement
or an Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration Statement,
then at the time of the most recent such amendment or filing, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as amended or supplemented at the
Closing Date, the Settlement Date or the date of such opinion, as the case
may be, contains an 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.
(b) Officer's Certificate. At the Closing Date and at each Settlement Date
with respect to any Terms Agreement, there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus or since the date of such Terms Agreement, any material
adverse change in, or any material
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development known to management which is likely to result in a material adverse
change in, the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and the
Agents shall have received a certificate of the President and the Chief
Financial Officer of the Company at the Closing Date and, if called for by the
applicable Terms Agreement, at each Settlement Date, dated as of the Closing
Date or such Settlement Date, to the effect that (i) there has been no such
material adverse change or material development known to management which is
likely to result in a material adverse change, (ii) the other representations
and warranties of the Company contained in Section 1 are true and correct with
the same force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the date
of such certificate, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(c) Comfort Letter. The Agents shall have received on the date hereof,
a letter from KPMG Peat Marwick LLP, dated as of the date hereof, in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) Based upon limited procedures set forth in detail in such
letter (which shall include, without limitation, the procedures specified
by the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim Financial
Information, with respect to the unaudited consolidated financial
statements of the Company and its subsidiaries included in the Registration
Statement), nothing has come to their attention which causes them to
believe that:
(A) any material modifications should be made to the unaudited
consolidated financial statements included in the Registration
Statement for them to be in conformity with generally accepted
accounting principles; or
(B) the unaudited consolidated financial statements included in
the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations;
or
(C) at a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock or any
increase in the long-term debt of the Company and its subsidiaries
consolidated or any decrease in consolidated net assets, in each case
as compared with amounts shown in the most recent consolidated balance
sheet incorporated by reference in the Registration Statement, except
in each case for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur; or
(D) for the period from the date of the most recent financial
statements incorporated by reference in the Registration Statement to
a specified date not more than five days prior to the date of such
letter, there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues or net
earnings, except in each case for increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur.
(iv) In addition to the examination referred to in their report
incorporated by reference in the Registration Statement and the Prospectus,
they have carried out certain other specified procedures, not constituting
an audit,
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with respect to certain amounts, percentages and financial information
which are included in the Registration Statement and the Prospectus and
which are specified by the Agents, and have found such amounts, percentages
and financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries identified
in such letter.
(d) Other Documents. At the date hereof, at the Closing Date and at each
Settlement Date with respect to any applicable Terms Agreement, counsel to the
Agents shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to the Agents' counsel.
(e) Further Conditions. The obligations of each of the Agents to purchase
Notes pursuant to any Terms Agreement will be subject to the following further
conditions: (i) the rating assigned by any nationally recognized securities
rating agency to any debt securities or other obligations of the Company as of
the date of the applicable Terms Agreement shall not have been lowered since
that date nor shall any such rating agency have publicly announced that it has
placed any obligations of the Company on what is commonly termed a "watch list"
for possible downgrading, and (ii) there shall not have come to such Agent's
attention any facts that would cause such Agent to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
If any condition specified in this Section shall not have been fulfilled,
this Agreement and any Terms Agreement may be terminated by the Agents by notice
to the Company at any time at or prior to the Closing Date or the applicable
Settlement Date, and such termination shall be without liability of any party to
any other party, except that the covenants set forth in Section 3(g) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 7 and 8 hereof, and the provisions of Sections 9 and 13 hereof
shall remain in effect.
SECTION 6. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
it of an offer for the purchase of Notes, and each sale of Notes to the Agents
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to the Agents, of the
Notes or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended and supplemented to each such time);
(b) Subsequent Delivery of Certificates. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
Notes or a change in the principal amount of Notes remaining to be sold or
similar changes) or there is filed with the Commission any document incorporated
by reference into the Prospectus or, if so indicated in the applicable Terms
Agreement, the Company sells Notes to the Agents pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished to the Agents forthwith a
certificate in form satisfactory to the Agents to the effect that the statements
contained in the certificates referred to in Section 5(b) hereof which were last
furnished to the Agents are true and correct at the time of such amendment or
supplement or filing or sale, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 5(b), modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificates;
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(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or a change in the principal amount of Notes remaining to be
sold or similar changes) or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K) or, if so indicated in the applicable Terms Agreement, the Company
sells Notes to the Agents pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to the Agents and to the Agents'
counsel a written opinion of Philip A. Hewes, Esq., Senior Vice President/Legal
of the Company or Jeremiah M. Fitzgerald, Esq., Vice President and General
Counsel of the Company, or other counsel satisfactory to the Agents, dated the
date of delivery of such opinion, in form satisfactory to the Agents, of the
same tenor as the opinion referred to in Section 5(a) hereof but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agents with a letter to the effect that the Agents may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance); and
(d) Subsequent Delivery of Comfort Letters. Prior to the initial sale of
any of the Notes within any fiscal quarter, the Company shall cause KPMG Peat
Marwick LLP to furnish the Agents a letter, dated the date of such initial sale,
or the date of the filing of an amendment, supplement or document including or
incorporating by reference additional financial information in the Registration
Statement or the Prospectus; such letter shall be in form satisfactory to the
Agents, of the same tenor as the portions of the letter referred to in clauses
(i) and (ii) of Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date of such
letter, and of the same general tenor as the portions of the letter referred to
in clauses (iii) and (iv) of said Section 5(c) with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, KPMG Peat
Marwick LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial, or statistical nature is of such a
nature that, in the Agents' reasonable judgment, such letter should cover such
other information.
SECTION 7. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each of the Agents and each person, if any, who controls any Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, as originally filed (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (if used within the period set
forth in Section 3(e) hereof and as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or the
omission or alleged omission therefrom of 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, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon
any untrue statement or omission or such alleged untrue statement or
omission (A) which has been made therein or omitted therefrom in reliance
upon and in conformity with written information furnished to the Company by
any Agent expressly for use in the registration statement as originally
filed (or any amendment thereto) or the prospectus as originally filed (or
any amendment or supplement thereto) or (B) which has been made or omitted
from the Statement of Eligibility of the Trustee on Form T-1, other than
any such untrue statement or omission or alleged untrue statement or
omission made therein or omitted therefrom in reliance upon information
furnished in writing to the Trustee by the Company for use therein; the
foregoing indemnification with respect to any preliminary prospectus shall
not
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inure to the benefit of any Agent from whom the person asserting any such
losses, claims, damages or liabilities purchased Notes, or any person
controlling such Agent, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Agent to
such person, if such delivery is required by law, at or prior to the
written confirmation of the sale of such Notes to such person and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by the Agents), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission
(except as made in reliance upon and in conformity with information
furnished by the Agents as aforesaid), to the extent that any such expense
is not paid under (i) or (ii) above.
Insofar as this indemnity may permit indemnification for liabilities under
the 1933 Act of any person who is a partner of an Agent or who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and who, at the date of this Agreement, is a director, officer or controlling
person of the Company, such indemnity agreement is subject to the undertaking of
the Company in the Registration Statement.
(b) Indemnification of Company. Each Agent severally agrees to indemnify
and hold the Company, its directors, each of its officers who signed the
Registration Statement as originally filed (or any amendment thereto), and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, harmless from and against any and all
loss, liability, claim, damage and expense to the same extent described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in or omitted from the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Tax Indemnity. The Company agrees to indemnify and hold harmless each
Agent against any documentary stamp or similar issue tax and any related
interest or penalties on the issue or sale of the Notes to the Agents which are
due in the United States of America, the United Kingdom or any other
jurisdiction.
(d) General. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of any action
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof, and in the event that such
indemnified party shall not so notify the indemnifying party within 30 days
following receipt of any such notice by such indemnified party, the indemnifying
party shall have no further liability under such subdivision to such indemnified
party unless such indemnifying party shall have received other notice addressed
and delivered in the manner provided in Section 11 hereof of the commencement of
such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. Any indemnified party or any such
controlling person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel has been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party has failed to assume the defense
and employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party and the indemnifying
party and such indemnified party has been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying
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party shall not have the right to assume the defense of such action on behalf of
such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related action in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to local
counsel) for all such indemnified parties, which firm shall be designated in
writing by you).
SECTION 8. Contribution.
------------
If the indemnification provided for in Section 7 is unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
contributing Agent on the other from the offering of the Notes to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the indemnification provided for in Section 7 is unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, if the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 7(d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the contributing Agent on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the contributing Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the sale of
Notes (before deducting expenses) received by the Company bear to the total
commissions or discounts received by the contributing Agent in respect thereof
(or, in the case of Notes sold pursuant to a Terms Agreement, the aggregate
commissions that would have been received by such Agent if such commissions had
been payable). The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand or by
the contributing Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the contributing Agent agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 8 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes purchased by or through such
Agent were sold exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Agent, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. Any amounts to be paid a
party pursuant to this Section 8 for losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Section 8 shall be paid as
incurred; provided, however, that amounts so paid shall be returned to the
paying party in the event that it is ultimately determined that the party that
received payment was not entitled to such payment.
15
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SECTION 9. Indemnifications, Contributions, Representations, Warranties and
----------------------------------------------------------------
Agreements to Survive Delivery.
------------------------------
The indemnification and contribution agreements contained in Sections 7 and
8 and the representations, warranties and agreements contained in this Agreement
or any Terms Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment of any of the Notes.
SECTION 10. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
Agreement) may be terminated for any reason, at any time by either the Company
as to any Agent or one of the Agents (with respect to such Agent), upon the
giving of 3 days written notice of such termination to the other parties hereto.
(b) Termination of a Terms Agreement. Each Agent named in a Terms
Agreement may terminate such Terms Agreement, immediately upon notice to the
Company, at any time at or prior to the Settlement Date relating thereto (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in, or any material development known to management
which is likely to result in a material adverse change in, the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in such Agent's reasonable judgment, impracticable to market the Notes or
enforce contracts for the sale of the Notes, or (iii) if trading in the Common
Stock of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium in
the United States generally or in the City or the State of New York has been
declared by either Federal or New York authorities or if a banking moratorium
has been declared by the relevant authorities in the country or countries of
origin of any foreign currency or currencies underlying the Notes, or (iv) if
the rating assigned by any nationally recognized securities rating agency to any
debt securities or other obligations of the Company has been lowered since the
date of the applicable Terms Agreement or if any such rating agency shall have
publicly announced that it has placed any debt securities or other obligations
of the Company on what is commonly termed a "watch list" for possible
downgrading, or (v) if there shall have come to such Agent's attention any facts
that would cause the Agent to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at the time
of such delivery, not misleading.
(c) General. In the event of any such termination, no party will have any
liability to any other party hereto, except that (i) each Agent shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 2(a) hereof, (ii) if at the time of termination (a) either an Agent
shall own any Notes purchased pursuant to a Terms Agreement with the intention
of reselling them or (b) an offer to purchase any of the Notes has been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto has not occurred, the covenants set forth in
Sections 3 and 6 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth in Section 3(g)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof, and the provisions of Sections
9 and 13 hereof shall remain in effect.
In the event of termination with respect to any Agent this Agreement shall
remain in full force and effect with respect to any Agent as to which such
termination has not occurred.
16
<PAGE>
SECTION 11. Notices.
-------
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Agents shall be directed to Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, North Tower,
10th Floor, 250 Vesey Street, New York, New York 10281-1310, attention of MTN
Product Management, telecopy: (212)449-2234; NationsBanc Montgomery Securities,
Inc., 100 N. Tryon Street, Charlotte, North Carolina 28255-0120, attention:
Jeff Kane; Salomon Brothers Inc, 8700 Sears Tower, Chicago, Illinois 60606,
attention of Anne Clarke Wolff; Smith Barney Inc., 388 Greenwich Street, New
York, New York 10013, attention of Donald L. Rigoni, Jr. and UBS Securities LLC,
299 Park Avenue, 26th Floor, New York, New York 10171, attention of Richard
Messina, Capital Markets Group; notices to the Company shall be directed to it
at Comdisco, Inc., 6111 North River Road, Rosemont, Illinois 60018, attention of
Edward A. Pacewicz, Vice President and Treasurer, with a copy to the General
Counsel at the same address.
SECTION 12. Parties.
-------
This Agreement and any Terms Agreement shall inure to the benefit of and be
binding upon each of the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or any Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law.
-------------
This Agreement and any Terms Agreement and the rights and obligations of
the parties created hereby shall be governed by the laws of the State of New
York applicable to agreements made and to be performed in such state. Any suit,
action or proceeding brought by the Company against the Agents in connection
with, or arising under, this Agreement shall be brought in the state or federal
court of appropriate jurisdiction located in either the Borough of Manhattan,
the City of New York, New York or the City of Chicago, Illinois.
SECTION 14. Counterparts.
------------
This Agreement may be executed in one or more counterparts, and when a
counterpart has been executed by each party hereto all such counterparts taken
together shall constitute one and the same Agreement.
17
<PAGE>
[SIGNATURE PAGE FOR November 6, 1997 DISTRIBUTION AGREEMENT]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agents and the Company in accordance with its terms.
Very truly yours,
COMDISCO, INC.
By: /s/ Edward A. Pacewicz
--------------------------------
Edward A. Pacewicz,
Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date
first above written:
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED SMITH BARNEY INC.
By: /s/ Richard N. Doyle By: /s/ Donald L. Rigoni, Jr.
------------------------------ --------------------------------
Its: Authorized Signatory Its: Authorized Signatory
NATIONSBANC MONTGOMERY SECURITIES, INC. UBS SECURITIES LLC
By: /s/ Lynn McConnell By: /s/ Bruce Weidis
------------------------------ ---------------------------------
Its: Authorized Signatory Its: Authorized Signatory
SALOMON BROTHERS INC
By: /s/ Anne Clarke Wolff
------------------------------
Its: Authorized Signatory
18
<PAGE>
EXHIBIT A
$___,000,000
COMDISCO, INC.
Medium-Term Notes
TERMS AGREEMENT
___________, 19__
[MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1310]
[NATIONSBANC MONTGOMERY SECURITIES, INC.
100 North Tryon Street
Charlotte, North Carolina 28255-0120]
[SALOMON BROTHERS INC
8700 Sears Tower
Chicago, Illinois 60606]
[SMITH BARNEY INC.]
388 Greenwich Street
New York, New York 10013
[UBS SECURITIES LLC
299 Park Avenue, 26th Floor
New York, New York 10171]
Attention: ____________
Re: Distribution Agreement dated August _____, 1997
The undersigned agrees to purchase the following principal amount of
Medium-Term Notes, Series G:
$________________
Specified Currency:
Principal:
Interest:
Aggregate principal amount U. S. $ other
Price to Public:
Provisions relating to redemption, if any:
Provisions relating to repayment, if any:
19
<PAGE>
IF FIXED RATE NOTES:
Interest Rate:
Maturity:
Amortization Schedule:
IF FLOATING RATE NOTES:
Base Rate:
Initial Interest Date:
Interest Determination Date:
Interest Reset Date:
Interest Reset Period:
Record Date:
Interest Payment Dates:
Index Maturity:
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Indexed Currency or Currencies (if any):
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
Form of Note (Book Entry or Certificated)
Method of and Specified Funds for Payment of
Purchase Price: By certified or official
bank check or checks, payable to the order of
the Company, in immediately available funds
By wire transfer to a bank account specified
by the Company in next day immediately
available funds
Provisions relating to underwriter default,
if any:
Other termination provisions, if any:
Exceptions, if any, to Section 3(k) of the Distribution Agreement:
20
<PAGE>
[The certificate referred to in Section 6(b) of the Distribution Agreement,
the opinions referred to in Section 6(c) of the Distribution Agreement and the
accountants' letter referred to in Section 6(d) of the Distribution Agreement
will be required.]
[MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated]
[NATIONSBANC MONTGOMERY SECURITIES, INC.]
[SALOMON BROTHERS INC]
[SMITH BARNEY INC.]
[UBS SECURITIES LLC]
By:___________________________________
Title:
Accepted:
COMDISCO, INC.
By:_____________________________
Title:
21
<PAGE>
EXHIBIT B
Commission Schedule for Agency Transactions
-------------------------------------------
Term Commission Rate*
---- ---------------
From 9 months but less than 1 year .125%
From 1 year but less than 18 months .150%
From 18 months but less than 2 years .200%
From 2 years but less than 3 years .250%
From 3 years but less than 4 years .350%
From 4 years but less than 5 years .450%
From 5 years but less than 6 years .500%
From 6 years but less than 7 years .550%
From 7 years but less than 8 years .600%
From 8 years but less than 9 years .600%
From 9 years but less than 10 years .600%
From 10 years to 15 years .625%
*Commission rates for Notes denominated in a foreign currency vary from the
commission rate schedule set forth above, with respect to Notes with the
following maturities:
From 8 years but less than 9 years .650%
From 9 years but less than 10 years .700%
From 10 years to 15 years .750%
Notes sold to an Agent as principal will be sold at a discount negotiated
at the time of sale.
22
<PAGE>
Exhibit 3.1
AMENDED AS OF
November 4, 1997
BY-LAWS
of
COMDISCO, INC.
ARTICLE I.
Stockholders
Section 1. Annual Meeting. Unless Directors are elected by written consent
in lieu of an annual meeting, an annual meeting of the stockholders of the
Corporation shall be held on such date, at such time and at such place within or
without the State of Delaware as may be designated by the Board of Directors,
for the purpose of electing Directors and for the transaction of such other
business as properly may be brought before the meeting. Stockholders may, unless
the certificate of incorporation otherwise provides, act by written consent to
elect directors, provided, however, that if such consent is less than unanimous,
such action by written consent may be in lieu of holding an annual meeting only
if all of the directorships to which directors could be elected at an annual
meeting held at the effective time of such action are vacant and are filled by
such action.
Section 2. Special Meetings. Special meetings of the stockholders for any
proper purpose or purposes may be called by the Board of Directors, the Chairman
of the Board, Chief Executive Officer or the President. Any special meeting
shall be held on such date, at such time and at such place within or without the
State of Delaware as the Board of Directors or the officer calling the meeting
may designate. Only such business shall be conducted at a special meeting as
shall have been stated in the notice of the meeting as the purpose or purposes
for the meeting.
Section 3. Notice and Adjournment of Meetings. The Secretary shall give
written notice of each meeting of the stockholders to the stockholders of record
entitled to vote thereat not less than ten nor more than sixty days before the
meeting, directed to each such stockholder at his address as it appears on the
records of the Corporation and stating the date, time and place of the meeting
and, in the case of a special meeting, the purpose or purposes for which such
meeting is called. Except when a stockholder attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the grounds that the meeting is not lawfully called or convened,
presence in person or by proxy of a stockholder shall constitute a waiver of
notice of such meeting. Further, a written waiver of any notice required by law
or these By-Laws, signed by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent notice. Any previously
scheduled meeting of the stockholders may be postponed, and (unless the
Certificate of Incorporation otherwise provides) any special meeting of the
stockholders may be canceled, by resolution of the Board of Directors, upon
public announcement made prior to the date previously scheduled for such meeting
of stockholders.
The Chairman of the meeting or the holders of a majority of the shares
entitled to vote, present in person or by proxy, may adjourn the meeting from
time to time, whether or not there is then a quorum present. When a meeting of
stockholders is adjourned to another date, time or place, notice need not be
given of the adjourned meeting if the date, time and place thereof are announced
at the meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than thirty days or if, after the adjournment, a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting. At the adjourned meeting any business may be transacted which may have
been transacted at the original meeting.
1
<PAGE>
Section 4. Quorum. At any meeting of the stockholders, the holders of a
majority of all the shares of the capital stock of the Corporation issued and
outstanding and entitled to vote, present in person or represented by proxy,
shall constitute a quorum of the stockholders for all purposes, unless the
representation of a larger number shall be required by law, by the Certificate
of Incorporation or by these By-Laws for the purpose of a quorum, and in that
case the representation of the number so required shall constitute a quorum.
Section 5. Qualifications to Vote. The stockholders of record on the books
of the Corporation at the close of business on the record date as determined in
accordance with these By-Laws and only such stockholders shall be entitled to
vote at any meeting of stockholders or any adjournment thereof.
It shall be the duty of the Secretary, or at his direction an Assistant
Secretary, to prepare and make at least ten days before every meeting of
stockholders a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary, business hours, for a period of at
least ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 6. Organization. The Chairman of the Board or, in his absence, the
Chief Executive Officer or the President, shall call meetings of the
stockholders to order and shall act as Chairman of such meetings. In the absence
of the Chairman of the Board, the Chief Executive Officer or the President, the
Board of Directors may appoint an officer of the Corporation to perform these
duties.
The Secretary of the Corporation shall act as Secretary of all meetings of
the stockholders; but in the absence of the Secretary at any meeting of
stockholders, the Chairman may appoint any person to act as Secretary of the
meeting.
Section 7. Voting. Subject to the provisions of the Certificate of
Incorporation or of law, every stockholder shall be entitled to one vote in
person or by proxy for each share of the capital stock registered in the name of
such stockholder upon the books of the Corporation, but no proxy shall be voted
on after three years from its date, unless said proxy provides for a longer
period. The vote for Directors and, upon the demand of any stockholder, the vote
upon any matter before the meeting, shall be by ballot, and except as otherwise
provided by law, by the Certificate of Incorporation or by these By-Laws, all
elections shall be decided by a plurality vote. All other matters brought before
any meeting at which a quorum is present shall be decided by the vote of the
holders of a majority of stock having voting power present in person or by
proxy, unless the question is one upon which by express provision of the
statutes, these By-Laws or of the Certificate of Incorporation (including
Articles 11 and 12 thereof), a different vote is required, in which case such
express provision shall govern and control the decision of such question.
Section 8. Authorization of Proxies. Without limiting the manner in which a
stockholder may authorize another person or persons to act for him as proxy, the
following are valid means of granting such authority. A stockholder may execute
a writing authorizing another person or persons to act for him as proxy.
Execution may be accomplished by the stockholder or his authorized officer,
director, employee or agent signing such writing or causing his or her signature
to be affixed to such writing by any reasonable means including, but not limited
to, by facsimile signature. A stockholder may also authorize another person or
persons to act for him as proxy by transmitting or authorizing the transmission
of a telegram,
2
<PAGE>
cablegram or other means of electronic transmission to the person who will be
the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder
of the proxy to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams of other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon which
they relied. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this section may
be substituted or used in lieu of the original writing or transmission for any
and all purposes for which the writing or transmission could be used, provided
that such copy, facsimile telecommunication or other reproduction shall be
complete reproduction of the entire original writing or transmission.
Section 9. Inspectors. At each meeting of the stockholders, the polls shall
be opened and closed, the proxies and ballots shall be received and be taken in
charge, and all questions relating to the qualifications of voters, the validity
of proxies and the acceptance or rejection of votes shall be decided by one or
more Inspectors. Such Inspectors shall be appointed by the Board of Directors
before the meeting or, if no such appointment shall have been made, then by the
presiding officer at the meeting. If, for any reason, any of the Inspectors
previously appointed shall fail to attend, or refuse or be unable to serve,
Inspectors in place of any so failing to attend, or refusing or unable to
attend, shall be appointed in like manner.
Section 10. Procedures Governing Business of Meetings of Stockholders. At
an annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary. To be timely, a stockholder's notice must
be delivered to or mailed and received at the principal executive offices of the
Corporation, (a) not less than 120 days nor more than 150 days in advance of a
day corresponding to the date of mailing the Corporation's proxy statement in
connection with the previous year's annual meeting, or (b) if no annual meeting
was held in the previous year or the date of the applicable annual meeting has
been changed by more than 30 days from the date contemplated at the time of the
previous year's proxy statement, not less than a reasonable time, as determined
by the Board of Directors, prior to the date of the applicable annual meeting.
In no event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. A stockholder's notice to the Secretary shall set forth as to the matter
the stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting,
including the complete text of any resolutions to be presented at the annual
meeting, and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, and of the beneficial owner, if any, on
whose behalf the proposal is made, and of any other stockholder known by such
stockholder to be supporting such proposal on the date of such stockholder's
notice, (c) the class and number of shares of the Corporation which are owned
beneficially and of record by the stockholder, and such beneficial owner and
such other stockholders (d) any material interest of the stockholder in such
business and of such beneficial owner and such other stockholders, and (e) a
representation that the stockholder intends to appear at the meeting in person
or by proxy to submit the business specified in such notice. In addition, the
stockholder making the proposal shall promptly provide any other information
3
<PAGE>
reasonably requested by the Corporation. Notwithstanding anything in the By-Laws
to the contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 9 and in Rule 14a-8
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") as
the same (or any substitute provision thereof) may be in effect from time to
time. The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 9, and if he should so
determine, the Chairman shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted. Nothing in this
By-Law shall be construed to prevent the consideration and approval or
disapproval at the Annual Meeting of reports of officers, directors, and
committees of the Board of Directors, but in connection with such reports, no
business shall be acted upon at such Annual Meeting unless the presentation of
such business is in compliance with the provisions of this By-Law.
Notwithstanding the foregoing provisions of this Section 9, a stockholder who
seeks to have any proposal included in the Corporation's proxy statement shall
comply with all the requirements of Regulation 14A under the Exchange Act.
Section 11. Notice of Stockholder Nominations. Only persons who are
nominated in accordance with the procedures set forth in this Section 10 shall
be eligible for election as Directors by the stockholders. Nominations of
persons for election to the Board of Directors of the Corporation may be made at
a meeting of stockholders (i) by or at the direction of the Board of Directors
or (ii) by any stockholder of the Corporation entitled to vote for the election
of Directors at the meeting who complies with the notice procedures set forth in
this Section 10. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation (a)
not less than 120 days nor more than 150 days in advance of a day corresponding
to the date of mailing the Corporation's proxy statement in connection with the
previous year's annual meeting or (b) if no annual meeting was held in the
previous year or the date of the applicable annual meeting has been changed by
more than 30 days from the date contemplated at the time of the previous year's
proxy statement, not less than reasonable time, as determined by the Board of
Directors, prior to the date of the applicable annual meeting. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a Director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the Corporation which are beneficially owned by such person, (iv) a
representation that the stockholder intends to appear at the meeting in person
or by proxy to make the nomination specified in such notice, (v) a description
of all arrangements or understandings among the stockholder and each nominee and
any other person or persons (naming such persons or persons) pursuant to which
the nomination or nominations are to be made by the stockholder, and (vi) any
other information relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including without limitation such person's written consent to being
named in the proxy statement as a nominee and to serving as a Director if
elected); and (b) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination is made, (i) the name and address,
as they appear on the Corporation's books, of such stockholder and such
beneficial owner and any other stockholder known by such stockholder to be
supporting such nominee on the date of such stockholder notice and (ii) the
class and number of shares of the Corporation which are beneficially owned and
of record by such stockholder and such beneficial owner and any other
stockholder known by such stockholder to be supporting such nominee on the date
of such stockholder notice. At the request of the Board of Directors any person
nominated by the Board of Directors for election as a Director shall furnish to
the Secretary, that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a Director of the Corporation unless
4
<PAGE>
nominated in accordance with the procedures set forth in this Section 10. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the By-Laws, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
Section 12. Action by Consent. (a) Unless otherwise provided in the
Certificate of Incorporation, any action which is required to be or may be taken
at any annual or special meeting of stockholders of the Corporation, subject to
the provisions of subsections (b), (c), and (d) of this Section 12, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall have been signed
by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or to take such action at a meeting
at which all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation. Prompt notice of the taking of the corporate
action without a meeting and by less than unanimous written consent shall be
given to those stockholders who have not consented in writing and, who, if the
action had been taken at a meeting would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take action were
delivered to the Corporation.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered to the Corporation, written consents signed by
a sufficient number of holders to take action are delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of the meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
(c) The record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be fixed by the Board of
Directors. Any stockholder seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
to the Secretary, request the Board of Directors to fix a record date. Upon
receipt of such a request, the Secretary shall, as promptly as practicable, call
a special meeting of the Board of Directors to be held as promptly as
practicable, but in any event not more than 10 days following the date of
receipt of such a request. At such meeting, the Board of Directors shall fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Notice
of the record date shall be published in accordance with the rules and policies
of the principal stock exchange in the United States on which securities of the
Corporation are then listed. If no record date has been so fixed by the Board
of Directors, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by the Delaware General Corporation Law, shall be
the first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation, by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of the
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by the Delaware General
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
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(d) In the event of the delivery, in the manner provided by Paragraph (c),
to the Corporation of the requisite written consent or consents to take
corporate action and any related revocation or revocations, the Corporation may
engage nationally recognized independent inspectors of elections for the purpose
of promptly performing a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be effective until
such date as the independent inspectors certify to the Corporation that the
consents delivered to the Corporation in accordance with Paragraph (c) represent
at least the minimum number of votes that would be necessary to take the
corporate action. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including , without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
ARTICLE II.
Board of Directors
Section 1. Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors which may exercise all powers of the
Corporation and do all lawful acts and things not by statute or by the
Certificate of Incorporation or these By-Laws required to be exercised or done
by the stockholders.
Section 2. Number, Classes and Term of Office. The Board of Directors shall
consist of not less than four nor more than fifteen members which may have an
office and keep the books of the Corporation (except as may be otherwise
provided by law) in such place or places within or without the State of Delaware
as the Board of Directors from time to time by resolution may determine. Within
the limits specified above, the number of Directors shall be fixed from time to
time by the Board of Directors by resolution and the number so fixed shall
constitute the whole Board of Directors; provided, however, that no decrease in
the size of the Board shall serve to reduce the term of any Director then in
office. The Directors shall be divided into three classes as nearly equal in
number as possible. At the annual meeting held in 1986, one class of directors
(Class I) was elected for a one-year term, one class (Class II) was elected for
a two-year term and one class (Class III) was elected for a three year term. At
each succeeding annual meeting of stockholders, successors to the class of
directors whose term expires in that year will be elected for a three-year term.
None of the Directors need be a stockholder of the Corporation and none need be
a resident of the State of Delaware. The Directors shall, except as hereinafter
otherwise provided for filling vacancies, be elected by ballot at the annual
meeting of the stockholders in the manner set forth in Article I of these By-
Laws, and shall continue in office until the annual meeting for the year in
which their term expires or until their successors shall have been elected and
shall qualify. In case any increase in the number of Directors shall be effected
at any time or from time to time by the Board of Directors pursuant to this
Section, the additional offices so created may be filled as vacancies by
affirmative vote of a majority of the Directors in office at the time such
increase becomes effective. The Directors elected to such additional offices
shall serve until the annual meeting for the year in which their term expires
and until their successors have been elected and shall qualify.
Section 3. Vacancies. Vacancies and newly created directorships within any
class resulting from any increase in the authorized number of Directors, may be
filled by a majority of Directors then in office,
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though less than a quorum, and any Director so chosen shall hold office for a
term which shall coincide with the term of such class to which he is elected. If
there are no Directors in office, then an election of Directors may be held in
the manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship within any class, the Directors then in office shall
constitute less than a majority of the whole board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such Directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the Directors chosen by the Directors then
in office. Sections 1 and 2 of this Article II may only be amended by the Board
of Directors pursuant to Section 4 of Article II of these By-Laws or by the
affirmative vote of not less than 66 2/3% of the stock then entitled to vote in
an election of Directors.
Section 4. Resignations. Any Director or member of a committee of the Board
of Directors may resign at any time. Such resignation shall be made in writing
and shall take effect at the time specified therein and if no time be specified,
at the time of its receipt by the President or Secretary.
Section 5. Meetings and Consents in Lieu of Meetings. Meetings of the Board
of Directors shall be held on such dates, at such times and at such places
within or without the State of Delaware as the Board by resolution may from time
to time determine or as called by or at the order of the Chairman of the Board
or by a majority of the Directors then in office.
Regular meetings of the Board of Directors may be held without other notice
at such time and place as shall from time to time be determined by resolution of
the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman of the Board or the President or upon request of two
directors.
The Secretary shall give notice of the date, time and place of each meeting
by mailing the same at least five days before the meeting or by facsimile the
same at least one day before the meeting, to each Director, but such notice may
be waived by any Director.
Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting if each of the Directors or any
committee thereof consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board or committee.
Section 6. Participation in Meeting by Telephone. Unless otherwise
restricted by the Certificate off Incorporation or these By-Laws, members of the
Board of Directors or of any committee thereof may participate in a meeting of
such Board of Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participation in the
meeting can hear each other and participation in a meeting in such manner shall
constitute presence in person at such meeting.
Section 7. Quorum. A majority of the whole Board of Directors shall
constitute a quorum for the transaction of business and the vote of a majority
of the Directors present at a meeting at which a quorum is present shall be the
act of the Board, except as may be otherwise specifically provided by statute or
by the Certificate of Incorporation. If at any meeting of the Board there be
less than a quorum present, a majority of those present may adjourn the meeting
from time to time without notice other than announcement at the meeting, until a
quorum shall be obtained. All Directors present at any meeting of the Board may
be counted in determining the presence of a quorum for all purposes and for all
matters before the meeting regardless of the interest a Director may have in any
matter brought before the meeting.
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Section 8. Organization. At all meetings of the Board of Directors, the
Chairman of the Board shall preside. In the absence of the Chairman of the
Board, the Directors present shall appoint a chairman of the meeting.
Section 9. Compensation of Directors. Each Director not an officer or an
employee of the Corporation shall be entitled to receive as compensation
(payable in cash or equity in the Corporation) for his services an annual fee
and, for each day on which he shall be present at any meeting of the Board of
Directors, a meeting fee in amounts which the Board by resolution may from time
to time determine. Each Director, whether or not an officer or employee of the
Corporation, shall be entitled to reimbursement for all expenses incurred by him
in attending any meeting of the Board of Directors. Such meeting fee and
reimbursement for expenses shall be payable even though the meeting is adjourned
because of the absence of a quorum.
ARTICLE III.
Committees
Section 1. Executive Committee. The Board of Directors, may appoint from
among its members an Executive Committee, such members to serve at the pleasure
of the Board. The number of Directors to be appointed as members of the
Executive Committee shall be fixed from time to time by resolution of the Board.
In the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of each absent or
disqualified member. The Executive Committee shall concern itself with all
matters affecting the fiscal policies and financial affairs of the Corporation
and shall have and may exercise, when the Board is not in session, all the
powers of the Board in the management of the business and affairs of the
Corporation, except that it shall not have any of the powers of the Board in
connection with (i) approving or adopting, or recommending to the stockholders,
any action or matter expressly required to be submitted to stockholders for
approval or (ii) altering, amending or repealing these By-Laws (or any
resolution of the Board of Directors that by its terms provides that the
Executive Committee shall not alter, amend or repeal it.) The Executive
Committee may authorize the seal of the Corporation to be affixed to all papers
that may require it.
Section 2. Other Committees. The Board of Directors, may create from time
to time additional committees to be constituted in such manner and to have such
organization and powers as the Board of Directors in such resolution shall
provide (subject to the restrictions set forth in (i) and (ii) of the preceding
Section). All of the members of any such committee having any of the powers of
the Board of Directors shall be Directors, and the members of any such committee
not having any of the powers of the Board of Directors need not be Directors.
Section 3. Alternate Members. The Board of Directors, may designate
alternate members of any committee who shall possess the same qualifications for
eligibility as regular members and who may replace any absent or disqualified
member at any meeting of the committee in the order, if any, designated in the
resolution appointing such alternate members. In the absence or disqualification
of a committee member, the member or members present at any meeting and not
disqualified from voting, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member.
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Section 4. Committee Proceedings. A quorum for transacting business by any
committee shall be one-third of the number of members of the committee as then
constituted, not including the number of alternate members, but the alternate
members present at any meeting shall be counted for the purpose of determining
if a quorum is present at the meeting. The vote of a majority of the members,
including alternate members sitting as members, present at a meeting at which a
quorum is present shall be the act of the committee. All members present at any
meeting of a committee may be counted in determining the presence of a quorum
for all purposes and for all matters before the meeting regardless of the
interest a member may have in any matter brought before the meeting. Each of the
committees may appoint a secretary of the committee, who need not be a Director.
Each of the committees shall have power to fix the date, time and place of
holding its meetings and the method of giving notice thereof and to adopt its
own rules of procedure. Each of them shall keep minutes of all its meetings
which shall be open to the inspection of any Director at any time.
Section 5. Compensation. Each member of a committee, and each alternate
member of a committee, who is not an officer or an employee of the Corporation
shall be entitled to receive, for his services as a member or as an alternate
member of such committee, compensation (in cash or equity in the Corporation) in
such amounts as the Board of Directors by resolution may from time to time
determine. Each member of a committee, and each alternate member of a committee,
whether or not an officer or an employee of the Corporation, shall be entitled
to reimbursement for all expenses incurred by him in attending any meeting of
such committee.
ARTICLE IV.
Officers
Section 1. Officers. The officers of the Corporation shall be a Chairman of
the Board, a Chief Executive Officer, a Chief Operating Officer, a President,
one or more Executive Vice Presidents, one or more Senior Vice Presidents, one
or more Vice Presidents, a Controller, a Treasurer and a Secretary. Any number
of offices may be held by the same person. All such officers shall be elected by
the Board of Directors at the meeting of the Board of Directors held on the date
of each annual meeting of the stockholders. The Board of Directors may elect
such other officers as they deem necessary, who shall have such authority and
shall perform such duties as the Board of Directors from time to time prescribe.
In its discretion, the Board of Directors may leave any office unfilled.
All officers shall be subject to removal at any time by the vote of the
Board of Directors or by the Executive Committee of the Board of Directors.
The President or Chief Operating Officer may also appoint officers of the
Corporation's divisions or business units, but such individuals will not be
deemed to be officers of the Corporation.
Section 2. Powers and Duties of the Chairman of the Board. The Chairman of
the Board shall preside at all meetings of the stockholders and of the Board of
Directors. He shall from time to time secure information concerning the business
and affairs of the Corporation and shall promptly lay such information before
the Board of Directors. He shall communicate to the Board all matters presented
by any officer of the Corporation for its consideration, and shall from time to
time communicate to the officers such action of the Board of Directors as may in
his judgment affect the performance of their official duties.
Section 3. Powers and Duties of the Chief Executive Officer. The Chief
Executive Officer shall be the chief executive officer of the Corporation and,
subject to the supervision, direction and control of the
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Board of Directors and Chairman of the Board (if any), shall have general
supervision, direction and control of the business and officers of the
Corporation with all such powers as may be reasonably incident to such
responsibilities. The Chief Executive Officer shall implement the general
directives, plans and policies formulated by the Board of Directors and shall
further have such duties responsibilities and authorities as may be assigned to
him by the Board of Directors. The Chief Executive Officer shall have the
general powers and duties of management usually vested in the chief executive
officer of a corporation.
During the time of any vacancy in the office of Chairman of the Board or in
the event of the absence or disability of the Chairman of the Board, the Chief
Executive Officer shall have the duties and powers of the Chairman of the Board
unless otherwise determined by the Board of Directors. In the absence of the
Chairman of the Board, if one be elected, the Chief Executive Officer shall
preside at meetings of the Stockholders and Board of Directors. During any time
of any vacancy in the office of Chief Operating Officer or in the event of the
absence or disability of the Chief Operating Officer, the Chief Executive
Officer shall have the duties and powers of the Chief Operating Officer unless
otherwise determined by the Board of Directors.
Section 4. Powers and Duties of the Chief Operating Officer. The Chief
Operating Officer shall be the chief operating officer of the Corporation and,
subject to the supervision, direction and control of the Chief Executive Officer
and the Board of Directors, shall manage the day-to-day operations of the
Corporation. He shall have the general powers and duties of management usually
vested in the chief operating officer of a corporation and such other powers and
duties as may be assigned to him by the Board of Directors, the Chief Executive
Officer or these By-Laws. In the absence of the Chief Operating Officer, his
duties shall be performed and his authority may be exercised by the Chief
Executive Officer or an Executive Vice President of the Corporation as may have
been designated by the Chief Operating Officer with the right reserved to the
Board of Directors to designate or supersede any designation so made.
During the time of any vacancy in the offices of the Chairman of the Board
and Chief Executive Officer or in the event of the absence or disability of the
Chairman of the Board and the Chief Executive Officer, the Chief Operating
Officer shall have the duties and powers of the Chief Executive Officer unless
otherwise determined by the Board of Directors.
Section 5. Powers and Duties of the President. The President shall have
such powers and perform such duties as may from time to time be assigned to him
by these By-Laws, the Board of Directors, the Chairman of the Board or the Chief
Executive Officer.
Section 6. Powers and Duties of the Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents. Each Executive Vice President, each Senior Vice
President and each Vice President shall have such powers and perform such duties
as may from time to time be assigned to him by these By-Laws, the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the
President.
Section 7. Powers and Duties of the Controller. The Controller shall be the
principal officer in charge of the accounts of the Corporation, and shall
perform such duties as from time to time may be assigned to him by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the
President.
Section 8. Powers and Duties of the Treasurer. The Treasurer shall have
custody of all the funds and securities of the Corporation which may have come
into his hands; when necessary or proper, he may endorse or cause to be endorsed
on behalf of the Corporation for collection, checks, notes and other obligations
and shall deposit the same to the credit of the Corporation in such bank or
banks or depository
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or depositories as may have been designated by the Board of Directors or the
Executive Committee or by any officer authorized by the Board of Directors or
the Executive Committee to make such designation; whenever required by the Board
of Directors or Executive Committee he shall render a statement of the funds and
securities of the Corporation in his custody; and he shall perform all acts
incident to the position of Treasurer, subject to the control of the Board of
Directors and the Executive Committee.
Section 9. Powers and Duties of the Secretary. The Secretary shall keep the
minutes of all meetings of the Board of Directors and the minutes of all
meetings of the stockholders in books provided for that purpose; he shall attend
to the giving or serving of all notices of the Corporation; he may sign with the
Chairman of the Board, the President, any Executive Vice President, any Senior
Vice President or any Vice President, in the name of the Corporation, all
contracts authorized by the Board of Directors or by any committee of the
Corporation having the requisite authority and, when so ordered by the Board of
Directors or such committee, he shall affix the seal of the Corporation thereto;
he shall have charge of the stock certificate books, transfer books and stock
ledgers and such other books and papers as the Board of Directors or the
Executive Committee shall direct, all of which shall at all reasonable times be
open to the examination of any Director, upon application at the office of the
Corporation during business hours; and he shall in general perform all the
duties incident to the office of Secretary, subject to the control of the Board
of Directors and the Executive Committee.
Section 10. Powers and Duties of Additional Officers. The Board of
Directors or the Executive Committee may from time to time by resolution
delegate to any Assistant Vice President or Vice President, Assistant Controller
or Controllers, any Assistant Treasurer or Treasurers and/or any Assistant
Secretary or Secretaries, elected by the Board, any of the powers or duties
herein assigned to the Vice President, Controller, the Treasurer or the
Secretary, respectively.
Section 11. Giving of Bond by Officers. All officers of the Corporation, if
required to do so by the Board of Directors, shall furnish bonds to the
Corporation for the faithful performance of their duties, in such penalties and
with such conditions and security as said Board may require.
ARTICLE V.
Capital Stock - Seal - Fiscal Year
Section 1. Certificates for Shares. The certificates for shares of the
capital stock of the Corporation shall be in such form not inconsistent with the
Certificate of Incorporation as shall be approved by the Board of Directors. The
certificates shall be signed by the Chairman of the Board or the President and
also by the Secretary or the Treasurer and shall not be valid unless so signed.
If a certificate is counter-signed (1) by a transfer agent other than the
Corporation or its employee, or (2) by a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. If any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as though he were such officer, transfer
agent or registrar at the date of issue.
All certificates shall be consecutively numbered. The name of the person
owning the shares represented thereby with the number of such shares and the
date of issue thereof shall be entered in the Corporation's books. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold
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liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
Except as hereinafter provided, all certificates surrendered to the
Corporation shall be canceled and no new certificates shall be issued until
former certificates for the same number of shares of the same class shall have
been surrendered and canceled.
Section 2. Replacing Lost, Stolen, Destroyed or Escheated Stock
Certificates. The Board of Directors of the Corporation, or any officer or
officers of the Corporation to whom the Board of Directors has delegated
authority, may authorize any transfer agent of the Corporation to issue at any
time and from time to time until otherwise directed new certificates of stock in
the place of certificates previously issued by the Corporation, alleged to have
been lost, stolen or destroyed, upon receipt by the transfer agent of (a)
evidence of loss, theft or destruction (which may be the affidavit of the
applicant), (b) an undertaking to indemnify the Corporation and any transfer
agent and registrar of stock of the Corporation against claims that may be made
against it or them on account of the lost, stolen or destroyed certificate or
the issue of a new certificate, (c) a bond of indemnity to secure such
undertaking, of such kind, in such amount (which may be either a fixed or open
amount), and secured by such surety, as the Board of Directors, any financial
officer, or any other authorized officer or officers shall have authorized the
transfer agent to accept generally or as the Board of Directors or such officer
or officers shall approve in particular cases, and (d) any other documents or
instruments that the Board of Directors or an authorized officer or officers may
from time to time require.
The Board of Directors of the Corporation, or any officer or officers of
the Corporation to whom the Board of Directors has delegated authority, may
authorize any transfer agent of the Corporation to issue at any time and from
time to time until otherwise directed new certificates of stock, in the place of
certificates previously issued by the Corporation, representing shares of stock
of the Corporation which, together with all unclaimed dividends thereon, are
claimed and demanded by any State of the United States in accordance with
escheat laws, or unclaimed or abandoned property laws which contain a statutory
provision which relieves the issuing corporation, and any transfer agent,
registrar or other person acting for the corporation from all liability to any
person or from any loss or damage resulting from the issuance and delivery of
any such replacement certificates to the State.
Section 3. Transfer of Shares. A transfer book shall be kept by the
Corporation or by one or more agents appointed by it, in which the shares of the
capital stock of the Corporation shall be transferred. Shares of the capital
stock of the Corporation shall be transferred on the books of the Corporation by
the holder thereof in person or by his attorney duly authorized in writing, upon
surrender and cancellation of certificates for a like number of shares.
Section 4. Regulations. The Board of Directors shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
the capital stock of the Corporation.
The Board of Directors may appoint one or more transfer agents and
registrars of transfers and may require all stock certificates to bear the
signature of one of the transfer agents and of one of the registrars of
transfers so appointed.
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Section 5. Fixing of Record Dates. In order to determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action (other than action by consent, which is the subject of
Article I, Section 11 of these By-Laws), the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Dividends. Subject to the provisions of the Certificate of
Incorporation of the Corporation, the Board of Directors may declare dividends
from the surplus of the Corporation or from the net profits arising from its
business.
Subject to the provisions of the Certificate of Incorporation of the
Corporation, the dividends on any class of stock of the Corporation, if
declared, shall be payable on dates to be fixed by the Board of Directors.
Section 7. Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation, which seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors, a duplicate
of the seal may be kept and be used by the Treasurer, any Assistant Secretary or
any Assistant Treasurer.
Section 8. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of October and terminate on the thirtieth day of September in each
year.
ARTICLE VI.
Signing of Checks, Notes, Etc.
All checks, drafts, bills of exchange, notes or other obligations or orders
for the payment of money shall be signed by such officer or officers or employee
or employees of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors or by any officer of the
Corporation authorized by resolution of the Board of Directors to sign on behalf
of the Corporation with respect to such obligations.
ARTICLE VII.
Indemnification.
The Corporation (i) shall indemnify every person who is or was a director
or officer of the corporation or is or was serving at the Corporation's request
as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise; and has been successful on the merits or otherwise in
defense of any action, suit or proceeding or in defense of any claim, issue or
matter and (ii) shall, if the Board of Directors so determines that
indemnification is proper with respect to a person who is a Director
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or officer at the time of such determination, indemnify such Director or
officer; (iii) and shall upon a determination that indemnification is proper
indemnify any person who is or was a Director, Officer, employee or agent of the
Corporation or is or was serving at the Corporation's request as a Director,
Officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise to the extent, in the manner, and subject to
compliance with the applicable standards of conduct, provided by Section 145 of
the General Corporation Law of the State of Delaware as the same (or any
substitute provision thereof) may be in effect from time to time.
Such indemnification (i) shall not be deemed exclusive of any other rights
to which any person seeking indemnification under or apart from this Article VI
may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and (ii) shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
The Corporation shall pay the expenses (including attorneys' fees) incurred
in defending any civil, criminal, administrative or investigative action, suit
or proceeding in advance of the final disposition of such action, suit or
proceeding, provided, however, that the payment of expenses incurred by a
director, officer, employee or agent in advance of the final disposition of the
action, suit or proceeding shall be made only upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay all amounts
advanced if it should be ultimately determined that such person is not entitled
to be indemnified under this Article VII or otherwise.
ARTICLE VIII.
Offices.
Section 1. The registered office shall be in the City of Wilmington, County
of New Castle, state of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE IX.
Amendments.
Except as provided in the Certificate of Incorporation of the Corporation,
these By-Laws may be altered, amended or repealed, or new By-Laws may be
adopted, by the Board of Directors or by the stockholders at any meeting the
notice of which shall have stated the amendment of the By-Laws as one of the
purposes of the meeting. Any By-Laws adopted by the Board of Directors may be
altered, amended or
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repealed by the stockholders at any annual meeting or at any special meeting,
provided that notice of such proposed alteration, amendment or repeal shall have
been given in the notice of the meeting.
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Exhibit 4.1
IF THE REGISTERED OWNER OF THIS NOTE (AS INDICATED BELOW) IS THE DEPOSITORY
TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST COMPANY, THIS NOTE IS A
GLOBAL SECURITY AND THE FOLLOWING LEGENDS APPLY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), 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 DEPOSITARY (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), 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.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE COMPLETED
SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT RULES.
REGISTERED CUSIP NO. PRINCIPAL AMOUNT
No.FXR- $
COMDISCO, INC.
MEDIUM-TERM NOTE, SERIES G
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATES REGULAR RECORD DATES
(IF OTHER THAN MARCH 1 AND SEPTEMBER 1): (IF OTHER THAN
FEBRUARY 15 AND
AUGUST 15):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
RATE: PERCENTAGE: PERCENTAGE
REDUCTION:
OPTIONAL REPAYMENT DATE(S):
3
<PAGE>
DAY COUNT CONVENTION
[_] 30/360 FOR THE PERIOD FROM TO
[_] ACTUAL/360 FOR THE PERIOD FROM TO
[_] ACTUAL/ACTUAL FOR THE PERIOD FROM TO
[_] IF BOX IS CHECKED, THE SPECIFIED CURRENCY OF THE NOTE IS OTHER THAN U.S.
DOLLARS AND INFORMATION REGARDING THE SPECIFIED CURRENCY, AUTHORIZED
DENOMINATIONS AND EXCHANGE RATE AGENT IS PROVIDED IN AN ADDENDUM.
[_] IF BOX IS CHECKED, THE NOTE IS AN AMORTIZING NOTE AND INFORMATION REGARDING
AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED IN AN
ADDENDUM.
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT ("OID"):
[_] YES [_] YES
[_] NO [_] NO
TOTAL AMOUNT OF OID:
YIELD TO MATURITY:
INITIAL ACCRUAL PERIOD:
OTHER/ADDITIONAL PROVISIONS:
-2-
<PAGE>
Comdisco, Inc., a Delaware corporation ("Issuer" or the "Company", which
terms include any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to_____________________________
______________________, or registered assigns, the principal amount stated
above, on the Stated Maturity Date specified above (except to the extent
redeemed or repaid by the Company prior to the Stated Maturity Date), and to pay
interest thereon at the Interest Rate per annum specified above, until the
principal hereof is paid or duly made available for payment. Reference herein to
"this Note", "hereof", "herein" and comparable terms shall include an Addendum
hereto if an Addendum is specified above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (as defined below) (the date of each
such Stated Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture, being referred to
hereinafter as the "Maturity Date" with respect to principal payable on such
date); provided, however, that if the Original Issue Date occurs between a
Regular Record Date (as defined below) and the next succeeding Interest Payment
Date, interest payments will commence on the Interest Payment Date immediately
following the next succeeding Regular Record Date to the registered Holder on
such next succeeding Regular Record Date. Except as provided above, interest
payments will be made on the Interest Payment Dates shown above. Unless
otherwise specified above, the "Regular Record Date" with respect to any
Interest Payment Date shall be the February 15 or August 15 (whether or not a
Business Day), as the case may be, immediately preceding such Interest Payment
Date. 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
Original Issue Date specified above, to but excluding such Interest Payment Date
or Maturity Date as the case may be. In the case where the Interest Payment Date
or the Maturity Date falls on a day which is not a Business Day, the related
payment of principal, premium, if any and/or interest will be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date or Maturity Date, as the case may be, and no interest
shall accrue on the amount so payable for the period from and after the Interest
Payment Date or Maturity Date, as the case may be. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such Interest Payment Date. Any such interest which is
payable, but not punctually paid or duly provided for on any Interest Payment
Date (herein called "Defaulted Interest"), shall forthwith cease to be payable
to the registered Holder on such Regular Record Date, and may either be paid to
the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Indenture. Interest payable at the Maturity Date will be
payable to the Person to whom the principal hereof shall be payable.
Payment of the principal of, premium, if any, and/or interest on this Note
on a Maturity Date will be made in immediately available funds upon surrender of
this Note at the office of the Trustee maintained for that purpose in The City
of New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. Payment
of interest other than interest due on a Maturity Date will be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register at the close of Business on the Regular Record
Date immediately preceding the applicable Interest Payment Date or, at the
option of the registered Holder hereof, to such other place in the United States
of America as the registered Holder hereof shall designate to the Trustee in
writing. Notwithstanding the foregoing, the Holder of $10,000,000 or more in
aggregate principal amount of the Notes having the same Interest Payment Date
shall be entitled to receive interest payments (other than on a Maturity Date)
by wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee at least 16 days prior
to the applicable Interest Payment Date. Said wire instructions, upon receipt by
the Trustee, shall remain in effect until revoked by such Holder.
-3-
<PAGE>
Notwithstanding anything else contained herein, if this Note is a Global
Security as specified on the face hereof and is held in book-entry form through
the facilities of the Depositary, payments on this Note will be made to the
Depositary or its nominee in accordance with the arrangements then in effect
between the Trustee and the Depositary.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company, which series of the Securities is
limited to an aggregate principal amount of not more than $600,000,000 (or the
equivalent thereof, determined as of the respective dates of issuance, in any
other currency or currencies) (the issue price of any original issue discount
Notes being treated as the principal amount thereof), designated as its Medium-
Term Notes, Series G (the "Notes"); provided, however, that the foregoing limit
may be increased by the Company.
The Notes are issued and to be issued under an Indenture, dated as of
December 1, 1995 (the "Indenture"), between the Company and Yasuda Bank and
Trust Company (U.S.A.) to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee (as defined below) and the Holders of the Notes and the terms upon which
the Notes are to be authenticated and delivered. Yasuda Bank and Trust Company
(U.S.A.) shall act as Trustee with respect to the Notes (herein called the
"Trustee", which term includes any successor Trustee with respect to the Notes,
under the Indenture). The terms of individual Notes may vary with respect to
interest rates or interest rate formulas, issue dates, maturity, redemption,
repayment currency of payment and otherwise.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes denominated as
authorized, as requested by the Holder surrendering the same.
Except as otherwise provided in the Indenture and as set forth below, the
Notes will be issued in global form only, registered in the name of the
Depositary or its nominee and ownership of the Notes shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary. If this Note is a Global Security, this Note is
exchangeable only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Security and a
successor depositary is not appointed by the Company within 60 days, (ii) at any
time the Depositary ceases to be clearing agency registered under the Securities
Exchange Act of 1934, as amended, (iii) the Company in its sole discretion
determines that this Global Security shall be exchangeable for definitive
Securities of this series in registered form or (iv) an Event of Default with
respect to the Notes represented hereby has occurred and is continuing.
This Note is not subject to any sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Stated Maturity Date.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate, and in the coin or currency
herein prescribed.
If so provided above, this Note may be redeemed by the Company on any date
on or after the Initial Redemption Date, if any, specified above. If no Initial
Redemption Date is set forth above, this Note may not be redeemed prior to the
Stated Maturity Date. On and after the Initial Redemption Date, if any, this
Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (unless otherwise specified above) at the option of the
Company at the applicable Redemption Price (as defined below), together with
interest thereon payable to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
days prior to the Redemption Date. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
-4-
<PAGE>
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and, if greater than 100%, shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date(s), if any, indicated above. If no Optional Repayment
Date(s) are set forth above, this Note is not subject to repayment at the option
of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date this Note shall be repayable in whole or in part in increments of
$1,000 (unless otherwise specified above) at the option of the Holder hereof at
a repayment price equal to 100% of the principal amount to be repaid, together
with accrued but unpaid interest, if any, hereon at the applicable rate payable
to the relevant Optional Repayment Date. For this Note to be repaid in whole or
in part at the option of the Holder hereof, this Note must be received, with the
form entitled "Option To Elect Repayment" below duly completed, by the Trustee
at Yasuda Bank and Trust Company (U.S.A.), 666 Fifth Street, 8th Floor, New
York, New York 10101, Attention: Corporate Trust Administration, or such address
which the Company shall from time to time notify the Holders of the Notes, not
more than 60 nor less than 20 days prior to an Optional Repayment Date. 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 for the unrepaid portion
hereof shall be issued in the name of the Holder hereof upon the surrender
hereof.
Interest Payments on this Note shall include interest accrued from and
including the Original Issue Date, indicated above, or the most recent date to
which interest has been paid or duly provided for, to but excluding the related
Interest Payment Date or the Maturity Date, as the case may be. Interest
payments for this Note shall be computed and paid on the basis of a 360-day year
of twelve 30-day months if the Day Count Convention specified above is "30/360"
for the period specified thereunder, on the basis of the actual number of days
in the related month and a 360-day year if the Day Count Convention specified
above is "Actual/360" for the period specified thereunder or on the basis of the
actual number of days in the related year and month if the Day Count Convention
specified above is "Actual/Actual" for the period specified thereunder.
As used herein, "Business Day" means, unless otherwise specified above, 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, regulation or
executive order to close in The City of New York.
Any provision contained herein with respect to the calculation of the rate
of interest applicable to this Note, its Interest Payment Dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above.
The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of Holders of a majority in principal amount of the
Notes, to enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of the Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by provisions in
the Indenture relating to amendments and modifications without the consent of
Holders, the rights of such Holders. However, without the consent of each Holder
affected thereby, an amendment or modification may not: (a) change the Maturity
Date or any Interest Payment Date or the redemption price; (b) reduce the
principal amount of, or the interest on, any Note or reduce the amount of
principal of any Original Issue Discount Note which could be declared due and
payable upon a declaration of acceleration prior to the Maturity Date; (c)
change the place, method of calculation of interest or currency of any payment
of principal or interest on any Note (except as otherwise provided in the
Indenture); (d) impair the right to institute suit for the enforcement of any
payment on or with respect to any Note; or (e) reduce the percentage in
principal amount of Notes, the consent of whose Holders is required for any
supplemental indenture or the consent of whose Holders is required to waive any
compliance with certain provisions of, or past default under, the Indenture, or
reduce the requirements for quorum or voting provided by the Indenture. Except
with respect to certain fundamental provisions, the Holders of at least a
majority in principal amount of Notes may, with respect to the Notes, waive past
defaults under the Indenture and waive compliance by the Company with certain
provisions of the Indenture. The Indenture also contains provisions permitting
the Company and the
-5-
<PAGE>
Trustee to effect certain modifications and amendments without the consent of
the Holders to cure ambiguities, correct inconsistencies and make other changes,
provided such modifications and amendments do not adversely affect the interest
of the Holders in any material respect.
If an Event of Default with respect to Notes should occur and be
continuing, the principal amount of the Notes and interest accrued thereon may,
by written notice to the Company, be declared due and payable by the Trustee or
the Holders of not less than 25% in principal amount of all outstanding Notes.
Such declaration of acceleration may, if all payments due have been made and all
Events of Default have been remedied or waived, be rescinded by the Holders of a
majority in principal amount of all outstanding Notes.
Any Event of Default may be waived by the Holders of a majority in
principal amount of all outstanding Notes, except that default in payment of the
principal, premium, or interest on any Note, or in respect of a covenant under
the Indenture which cannot be modified absent the consent of the Holders of each
outstanding Note, cannot be waived.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless: (i) such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes; (ii) the Holders of not less than 25% in principal amount of the Notes at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity; (iii) the Trustee shall not have received during
such 60-day period from the Holders of a majority in principal amount of the
Notes at the time Outstanding a direction inconsistent with such request; and
(iv) the Trustee shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional to pay the principal of and interest on this Note at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by its
attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary. The
Trustee shall not be required to make any transfers, registrations or exchanges
of this Note for a period of fifteen (15) days preceding any Interest Payment
Date.
The Trustee has been appointed Registrar for the Notes, and the Company
will cause the Trustee to maintain at its office in the City of New York a
register for the registration and transfer of Notes. So long as this Note shall
be outstanding, the Company will maintain an office or agency for the payment of
the principal and interest on this Note as herein provided in The City of New
York, State of New York, United States of America, and an office or agency in
The City of New York for the registration, transfer and exchange as aforesaid of
the Notes. The Company may designate other agencies for the payment of said
principal and interest at such place or
-6-
<PAGE>
places (subject to applicable laws and regulations) as the Company may decide.
The Company shall keep the Trustee advised of the names and locations of such
agencies, if any are so designated.
Any action by the Holder of this Note shall bind all future Holders of this
Note, and of any Note issued in exchange or substitution herefor or in place
hereof, in respect of anything done or permitted by the Company or by the
Trustee in pursuance of such action.
No recourse under or upon any covenant contained in this Note or because of
the creation of the indebtedness represented hereby, shall be had against any
official or other representative, past, present or future, as such, of the
Company whether by virtue of any statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, it being expressly agreed and understood
that this Note is solely the obligation of the Company and that no personal
liability whatever shall attach to or be incurred by any such officials or other
representatives, as such, because of the execution of this Note. Each Holder, by
accepting this Note, waives and releases all such liability. The waiver and
release are part of the consideration for the issue of this Note.
This Note is unsecured and ranks pari passu with all other unsecured and
unsubordinated indebtedness of the Company.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
Unless the certificate of authentication hereon has been executed by or on
behalf of Yasuda Bank and Trust Company (U.S.A.), the Trustee for this Note
under the Indenture, or its successor thereunder, by the manual signature of one
of its authorized officers, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
Capitalized terms used herein without definition which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
-7-
<PAGE>
---------------------
IN WITNESS WHEREOF, Comdisco, Inc. has caused this Note to be signed
manually or by facsimile, by its duly authorized officers, under its corporate
seal (which may be printed, engraved or otherwise reproduced hereon by facsimile
or otherwise).
DATED:
------------------
COMDISCO, INC.
By:
------------------------
President
[SEAL]
Attest:
- ------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described herein and referred
to in the within-mentioned Indenture.
YASUDA BANK AND TRUST COMPANY (U.S.A.)
AS TRUSTEE
By:
------------------------
Authorized Officer
-8-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof, together with interest to the
repayment date, to the undersigned, at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of the undersigned)
For this Note to be repaid, the Trustee must receive at Yasuda Bank and
Trust Company (U.S.A.), 666 Fifth Avenue, 8th Floor, New York, New York 10103,
Attention: Corporate Trust Department, or at such other place or places of
which the Company shall from time to time notify the Holder of this Note, not
more than 60 nor less than 20 days prior to an Optional Repayment Date, if any,
shown on the face of this Note, this Note with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000 unless otherwise
specified in the Note) which the Holder elects to have repaid and specify the
authorized denomination or denominations of the Notes to be issued to the Holder
for the portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
$
--------------------- --------------------------------------------------
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as written
upon the face of this Note in every particular,
without alteration or enlargement or any change
whatever.
Date:
---------------
-9-
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
_______________________________________________________________________________
____________________________________ the within Note and all rights thereunder,
hereby irrevocably constituting and appointing ________________________________
_______________________________________________________________________________
______________________ attorney to transfer said Note on the books of the
Company, with full power of substitution in the premises.
Date _____________________________ Signature ______________________________
NOTICE: The signature on this Assignment
must correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
-10-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--__________________ Custodian_____________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
-11-
<PAGE>
Exhibit 4.2
-----------
IF THE REGISTERED OWNER OF THIS NOTE (AS INDICATED BELOW) IS THE DEPOSITORY
TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST COMPANY, THIS SECURITY IS A
GLOBAL NOTE AND THE FOLLOWING LEGENDS APPLY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), 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 DEPOSITARY (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), 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.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE COMPLETED
SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT RULES.
REGISTERED CUSIP NO. PRINCIPAL AMOUNT:
No. FLR- $
COMDISCO, INC.
MEDIUM-TERM NOTE, SERIES G
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF PRIME RATE: IF CMT RATE:
[_] LIBOR Reuters [_] Major Banks Designated CMT Telerate Page:
[_] LIBOR Telerate [_] H.15 Designated CMT Maturity Index:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD (PLUS OR MINUS): INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
<PAGE>
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT:
INTEREST CALCULATION:
[_] REGULAR FLOATING RATE NOTE
[_] FLOATING RATE/FIXED RATE
FIXED RATE COMMENCEMENT DATE:
FIXED INTEREST RATE:
[_] INVERSE FLOATING RATE NOTE
FIXED INTEREST RATE:
DAY COUNT CONVENTION
[_] 30/360 FOR THE PERIOD FROM TO
[_] ACTUAL/360 FOR THE PERIOD FROM TO
[_] ACTUAL/ACTUAL FOR THE PERIOD FROM TO
[_] IF BOX IS CHECKED, THE SPECIFIED CURRENCY OF THE NOTE IS OTHER THAN U.S.
DOLLARS AND INFORMATION REGARDING THE SPECIFIED CURRENCY, AUTHORIZED
DENOMINATIONS AND EXCHANGE RATE AGENT IS PROVIDED IN AN ADDENDUM.
[_] IF BOX IS CHECKED, THE NOTE IS AN AMORTIZING NOTE AND INFORMATION REGARDING
AMORTIZING PAYMENT DATES AND AMORTIZING PAYMENT AMOUNTS IS PROVIDED IN AN
ADDENDUM.
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT ("OID"):
[_] YES [_] YES
[_] NO [_] NO
TOTAL AMOUNT OF OID:
YIELD TO MATURITY:
INITIAL ACCRUAL PERIOD:
OTHER/ADDITIONAL PROVISIONS:
2
<PAGE>
Comdisco, Inc., a Delaware corporation ("Issuer" or the "Company", which
terms include any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ____________________________,
or registered assigns, the principal amount stated above on the Stated Maturity
Date specified above (except to the extent redeemed or repaid by the Company
prior to the Stated Maturity Date), and to pay interest thereon 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 hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, if any, and such other
terms specified above, until the principal hereof is paid or duly made available
for payment. Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
The Company will pay interest monthly, quarterly, semi-annually, annually
or such other period as specified above under "Interest Payment Period", on each
Interest Payment Date specified above, commencing on the first Interest Payment
Date specified above next succeeding the Original Issue Date, and on the Stated
Maturity Date or any Redemption Date or Optional Repayment Date (as defined
below) (the date of each such Stated Maturity Date, Redemption Date and Optional
Repayment Date and the date on which principal or an installment of principal is
due and payable by declaration of acceleration pursuant to the Indenture, being
referred to hereinafter as the "Maturity Date" with respect to principal payable
on such date); provided, however, that if the Original Issue Date occurs between
a Regular Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the Interest Payment Date
immediately following the next succeeding Regular Record Date to the registered
Holder on such next succeeding Regular Record Date; and provided further, that
if an Interest Payment Date (other than an Interest Payment Date on a Maturity
Date) would otherwise fall on a day that is not a Business Day (as defined
below), such Interest Payment Date shall be postponed to the next succeeding
Business Day, except that if an Interest Rate Basis is LIBOR, as indicated
above, and the next succeeding Business Day falls in the next succeeding
calendar month, such Interest Date shall be the immediately preceding day that
is a Business Day. Except as provided above, interest payments will be made on
the Interest Payment Dates shown above. Unless otherwise specified above, the
"Regular Record Date" with respect to any Interest Payment Date shall be the
date 15 calendar days (whether or not a Business Day) immediately preceding such
Interest Payment Date. If the Maturity Date of this Note falls on a day which is
not a Business Day, the payment of principal of premium, if any, and/or interest
due on the Maturity Date will be made on the next succeeding Business Day with
the same force and effect as if made on such Maturity Date and no interest shall
accrue on the amount so payable for the period from and after such Maturity
Date. The interest so payable, and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture , be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such Interest Payment Date.
Any such interest which is payable, but not punctually paid or duly provided for
on any Interest Payment Date (herein called "Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on such Regular Record
Date, and may either be paid to the Person in whose name this Note (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of this Note not less than
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner, all as more fully provided in the Indenture. Interest
payable at the Maturity Date will be payable to the Person to whom the principal
hereof shall be payable.
Notwithstanding anything else contained herein, if this Note is a Global
Security as specified on the face hereof and is held in book-entry form through
the facilities of the Depositary, payments on this Note will be made to the
Depositary or its nominee in accordance with the arrangements then in effect
between the Trustee and the Depositary.
Payment of the principal of, premium, if any, and/or interest on this Note
on the Maturity Date will be made in immediately available funds upon surrender
of this Note at the office of the Trustee maintained for that purpose in The
City of New York, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Payment of interest other than interest due on a Maturity Date will be made by
check mailed to the address of the Person entitled thereto as such address shall
3
<PAGE>
appear in the Security Register at the close of Business on the Regular Record
Date immediately preceding the applicable Interest Payment Date or, at the
option of the registered Holder hereof, to such other place in the United States
of America as the registered Holder hereof shall designate to the Trustee in
writing. Notwithstanding the foregoing, the Holder of $10,000,000 or more in
aggregate principal amount of the Notes having the same Interest Payment Date
shall be entitled to receive interest payments (other than on a Maturity Date)
by wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee at least 16 days prior
to the applicable Interest Payment Date. Said wire instructions, upon receipt by
the Trustee, shall remain in effect until revoked by such Holder.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company, which series of the Securities is
limited to an aggregate principal amount of not more than $600,000,000 (or the
equivalent thereof, determined as of the respective dates of issuance, in any
other currency or currencies) (the issue price of any original issue discount
Notes being treated as the principal amount thereof), designated as its Medium-
Term Notes, Series G (the "Notes"); provided, however, that the foregoing limit
may be increased by the Company.
The Notes are issued and to be issued under an Indenture, dated as of
December 1, 1995 (the "Indenture"), between the Company and Yasuda Bank and
Trust Company (U.S.A.) to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee (as defined below) and the Holders of the Notes and the terms upon which
the Notes are to be authenticated and delivered. The Yasuda Bank and Trust
Company (U.S.A.) shall act as Trustee with respect to the Notes (herein called
the "Trustee", which term includes any successor Trustee with respect to the
Notes, under the Indenture). The terms of individual Notes may vary with respect
to interest rates or interest rate formulas, issue dates, maturity, redemption,
repayment currency of payment and otherwise.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes denominated as
authorized, as requested by the Holder surrendering the same.
Except as otherwise provided in the Indenture and as set forth below, the
Notes will be issued in global form only, registered in the name of the
Depositary or its nominee and ownership of the Notes shall be maintained in
book-entry form by the Depositary for the accounts of participating
organizations of the Depositary. If this Note is a Global Security, this Note is
exchangeable only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Security and a
successor depositary is not appointed by the Company within 60 days, (ii) at any
time the Depositary ceases to be clearing agency registered under the Securities
Exchange Act of 1934, as amended, (iii) the Company in its sole discretion
determines that this Global Security shall be exchangeable for definitive
Securities of this series in registered form or (iv) an Event of Default with
respect to the Notes represented hereby has occurred and is continuing.
This Note is not subject to any sinking fund and, unless otherwise provided
above in accordance with the provisions of the following paragraphs, is not
redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any date
on or after the Initial Redemption Date, if any, specified above. If no Initial
Redemption Date is set forth above, this Note may not be redeemed prior to the
Stated Maturity Date. On and after the Initial Redemption Date, if any, this
Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (unless otherwise specified above) at the option of the
Company at the applicable Redemption Price (as defined below), together with
interest thereon payable to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
days prior to the Redemption Date. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
4
<PAGE>
Unless otherwise specified above, the "Redemption Price" shall initially be
the Initial Redemption Percentage, specified above, of the principal amount of
this Note to be redeemed and, if greater than 100%, shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder on the
Optional Repayment Date(s), if any, indicated above. If no Optional Repayment
Date(s) are set forth above, this Note is not subject to repayment at the option
of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date this Note shall be repayable in whole or in part in increments of
$1,000 (unless otherwise specified above) at the option of the Holder hereof at
a repayment price equal to 100% of the principal amount to be repaid, together
with accrued but unpaid interest, if any, hereon at the applicable rate payable
to the relevant Optional Repayment Date. For this Note to be repaid in whole or
in part at the option of the Holder hereof, this Note must be received, with the
form entitled "Option To Elect Repayment" below duly completed, by the Trustee
at Yasuda Bank and Trust Company (U.S.A.), 666 Fifth Street, 8th Floor, New
York, New York 10103, Attention: Corporate Trust Administration, or such address
which the Company shall from time to time notify the Holders of the Notes, not
more than 60 nor less than 20 days prior to an Optional Repayment Date. 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 for the unrepaid portion
hereof shall be issued in the name of the Holder hereof upon the surrender
hereof.
The interest rate borne by this Note will be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note above, or if
no designation is made for Interest Calculation above, then except as described
below, under "Other/Additional Provisions" above, or in an Addendum hereto, this
Note shall bear interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases shown above (i) plus or minus the applicable
Spread, if any, and/or (ii) multiplied by the applicable Spread Multiplier, if
any, specified and applied in the manner described above. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is payable
shall be reset as of each Interest Reset Date specified above; provided,
however, that the interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date will be the Initial
Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate Note above,
then, except as described below or in an Addendum hereto, this Note shall bear
interest at the rate determined by reference to the applicable Interest Rate
Basis or Bases shown above (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any, specified
and applied in the manner described above. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note is payable will be reset as
of each Interest Reset Date specified above; provided, however, that (i) the
interest rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate and (ii) the
interest rate in effect, commencing on, and including, the Fixed Rate
Commencement Date to the Maturity Date shall be the Fixed Interest Rate, if such
rate is specified above or, if no such Fixed Interest Rate is so specified, the
interest rate in effect hereon on the Business Day immediately preceding the
Fixed Rate Commencement Date.
3. If this Note is designated as an Inverse Floating Rate Note above, then,
except as described below or in an Addendum hereto, this Note will bear interest
at the Fixed Interest Rate minus the rate determined by reference to the
applicable Interest Rate Basis or Bases shown above (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described above;
provided, however, that, unless otherwise specified above, the interest rate
hereon will not be less than zero percent. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note is payable shall be reset as
of each Interest Reset Date specified above; provided, however, that the
interest rate in effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date will be the Initial Interest Rate.
Notwithstanding the foregoing, if this Note is designated above as having
an Addendum attached or as having "Other/Additional Provisions" applicable, this
Note shall bear interest in accordance with the terms described in such Addendum
or above under "Other/Additional Provisions."
5
<PAGE>
Except as provided above, the interest rate in effect on each day shall be
(a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis shall
be the rate determined in accordance with the applicable provision below. If any
Interest Reset Date (which term includes the term Initial Interest Reset Date
unless the context otherwise requires) 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 an Interest Rate Basis specified
above is LIBOR and such next Business Day falls in the next succeeding calendar
month, such Interest Reset Date shall be the immediately preceding Business Day.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and including
the next preceding Interest Payment Date in respect of which interest has been
paid (or from and including the Original Issue Date specified above, if no
interest has been paid), to but excluding the related Interest Payment Date or
the Maturity Date, as the case may be.
Unless otherwise specified above, 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 accrued interest is being
calculated. Unless otherwise specified above, the interest factor for each such
day shall be computed and paid on the basis of a 360-day year of twelve 30-day
months if the Day Count Convention specified above is "30/360" for the period
specified thereunder, or by dividing the interest rate applicable to such day by
360 if the Day Count Convention specified above is "Actual/360" for the period
specified thereunder or by the actual number of days in the year if the Day
Count Convention specified above is "Actual/Actual" for the period specified
thereunder. If interest on this Note is to be calculated with reference to two
or more Interest Rate Bases as specified above, the interest factor will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied.
Unless otherwise specified above, the "Interest Determination Date"
pertaining to the Interest Reset Date for each of the Commercial Paper Rate (the
"Commercial Paper Rate Interest Determination Date"), the Federal Funds Rate
(the "Federal Funds Rate Interest Determination Date"), the Prime Rate (the
"Prime Rate Interest Determination Date") and the CMT Rate (the "CMT Rate
Interest Determination Date") will be the second Business Day preceding each
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate (the "Eleventh District Cost of Funds Rate
Interest Determination Date") will be the last working day of the month
immediately preceding the applicable Interest Reset Date on which the Federal
Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the
Index (as defined below); the "Interest Determination Date" pertaining to an
Interest Reset Date for LIBOR (the "LIBOR Interest Determination Date") shall be
the second London Business Day (as defined below) preceding the Interest Reset
Date with respect to such Note, unless the Index Currency (as defined below) is
British pounds sterling, in which case the Interest Determination Date will be
the applicable Interest Reset Date; the "Interest Determination Date" with
respect to the Treasury Rate (the "Treasury Rate Interest Determination Date")
will be the day of the week on which Treasury bills (as defined below) would
normally be auctioned in the week in which such Interest Reset Date falls.
Treasury bills are normally sold at auction on Monday of each week, unless that
day is a legal holiday, in which case the auction is normally held on the
following Tuesday, except that such auction may be held on the preceding Friday.
If, as a result of a legal holiday, an auction is so held on a preceding Friday,
such Friday will be the Treasury Rate Interest Determination Date pertaining to
the Interest Reset Date occurring in the next succeeding week. If an auction
date shall fall on any day which would otherwise be an Interest Reset Date, then
the Interest Reset Date shall instead be the first Business Day following such
auction date. If the interest rate of this Note is determined with reference to
two or more Interest Rate Bases as specified above, the Interest Determination
Date pertaining to this Note will be the most recent Business Day which is at
least two Business Days prior to the applicable Interest Reset Date on which
each Interest Rate Basis is determinable. Each Interest Rate Basis shall be
determined on such date, and the applicable interest rate shall take effect on
the applicable Interest Reset Date.
6
<PAGE>
The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. Unless
otherwise specified under the caption "Calculation Agent" on the face hereof,
the Calculation Agent with respect to this Note shall be Yasuda Bank and Trust
Company (U.S.A.), or such successor as is duly appointed by the Company.
Unless otherwise specified above, the "Calculation Date", pertaining to any
Interest Determination Date will be the earlier of (i) 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 Date, as the case may be. All
calculations on this Note shall be made by the Calculation Agent.
All percentages resulting from any calculation on this Note will be
rounded, if necessary, to the nearest one-hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or 0.09876545) would be rounded to 9.87655% (or 0.0987655) and
9.876544% (or 0.09876544) would be rounded to 9.87654% (or 0.0987654)), 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).
As used herein, "Business Day" means, unless otherwise specified above, 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, regulation or
executive order to close in The City of New York, provided that, if an Interest
Rate Basis shown above is LIBOR, such day is also a London Business Day. "London
Business Day" means a day on which dealings in the Index Currency (as defined
below) are transacted in the London interbank market.
Determination of Commercial Paper Rate. If an Interest Rate Basis for this
Note is the Commercial Paper Rate, the Commercial Paper Rate shall be determined
as of the applicable Commercial Paper Interest Determination Date, as the Money
Market Yield (as defined below) on such date of the rate for commercial paper
having the Index Maturity specified above published by the Board of Governors of
the Federal Reserve System in its weekly statistical release entitled
"Statistical Release H.15(519), Selected Interest Rates," or any successor
publication ("H.15(519)"), under the caption "Commercial Paper - Nonfinancial ".
In the event such rate is not published by 3:00 P.M., New York City time, on the
related Calculation Date pertaining to such Commercial Paper Interest
Determination Date, then the Commercial Paper Rate on such Commercial Paper
Interest Determination Date will be the Money Market Yield of the rate for
commercial paper of the specified Index Maturity as published by the Federal
Reserve Bank of New York in its daily statistical release, entitled "Composite
3:30 P.M. Quotations for U.S. Government Securities," or any successor
publication ("Composite Quotations"), under the heading "Commercial Paper" (with
an Index Maturity of one month or three months being deemed to be equivalent to
an Index Maturity of 30 days or 90 days respectively). If such rate is not yet
published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on the related Calculation Date, the Commercial Paper Rate on such
Commercial Paper Interest Determination Date will be calculated by the
Calculation Agent and will be the Money Market Yield of the arithmetic mean of
the offered rates at approximately 11:00 A.M., New York City time, on such
Commercial Paper Interest Determination Date, of three leading dealers of
commercial paper in The City of New York (which may include one or more of the
Agents or their respective affiliates) selected by the Calculation Agent (after
consultation with the Company) for commercial paper having the Index Maturity
placed for a non-financial entity whose bond rating is "Aa", or the equivalent,
from a nationally recognized statistical rating organization; provided, however,
that if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date shall be the Commercial Paper
Rate in effect on such Commercial Paper Interest Determination Date.
7
<PAGE>
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360
--------------------------- 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 interest period for which interest is being calculated.
Determination of Federal Funds Rate. If an Interest Rate Basis for this
Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate shall
be determined as of the applicable Federal Funds Rate Interest Determination
Date as the rate on such date for U.S. dollar federal funds as is published in
H.15(519) under the heading "Federal Funds (Effective)". If such rate is not
published by 3:00 P.M., New York City time, on the related Calculation Date
pertaining to such Federal Funds Interest Determination Date, the Federal Funds
Rate will be the rate on such Federal Funds Interest Determination Date as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate". If such rate was neither published in H.15(519) nor in Composite
Quotations by 3:00 P.M. New York City time, on the related Calculation Date
pertaining to such Federal Funds Interest Determination Date, the Federal Funds
Rate on such Federal Funds Rate Interest Determination Date shall be calculated
by the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight U.S. dollar federal funds arranged by three
leading brokers of federal funds transactions in The City of New York (which may
include one or more of the Agents or their respective affiliates) selected by
the Calculation Agent (after consultation with the Company) prior to 9:00 A.M.,
New York City time, on such Federal Funds Interest Determination Date; provided,
however, that if the brokers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Federal Funds Rate determined as of
such Federal Funds Interest Determination Date shall be the Federal Funds Rate
in effect on such Federal Funds Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Note is LIBOR,
as indicated above, LIBOR will be determined as of the applicable LIBOR Interest
Determination Date as follows:
(i) (A) if LIBOR Reuters is specified above as the method for
determining LIBOR, with respect to a LIBOR Interest Determination Date,
LIBOR will be determined on the basis of the arithmetic mean of offered
rates (unless the specified Designated LIBOR Page specified above by its
terms provides only for a single rate, in which case such single rate shall
be used) for deposits in the Index Currency (as defined below) having the
Index Maturity designated above, commencing on the applicable Interest
Reset Date, that appear (or, if only a single rate is required as
aforesaid, appears) on the Designated LIBOR Page specified above as of
11:00 A.M., London time, on such LIBOR Interest Determination Date, if at
least two such offered rates appear (unless, as aforesaid, only a single
rate is required) on such Designated LIBOR Page, or (B) if LIBOR Telerate,
is specified above as the method for determining LIBOR, or if no method of
calculation of LIBOR is specified above as the method for determining
LIBOR, with respect to a LIBOR Interest Determination Date for this Note,
LIBOR will be the rate for deposits in the Index Currency having the Index
Maturity designated above that appears on the Designated LIBOR Page
specified above as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear (unless the
specified Designated LIBOR Page by its terms provides for a single rate),
or if no such rate appears, as applicable, LIBOR in respect of the related
LIBOR Interest Determination Date will be determined in accordance with the
provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or if no rate appears, as the case may
be, on the applicable Designated LIBOR Page specified in clause (i) above,
the Calculation Agent will request the principal London offices of each of
four major reference banks (which may include affiliates of certain of the
Agents) in the London interbank market, as selected by the Calculation
Agent (after consultation with the Company), to provide the Calculation
Agent with its offered quotation for deposits in the Index Currency for the
period of the Index Maturity specified above, commencing on the applicable
Interest Reset Date to prime banks in the London interbank market
8
<PAGE>
at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount equal to an amount that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are so provided, then
LIBOR determined on such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are so
provided, then LIBOR determined on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00
A.M., in the applicable Principal Financial Center, on such LIBOR Interest
Determination Date for loans by three major banks (which may include
affiliates of certain of the Agents), in such Principal Financial Center
selected by the Calculation Agent (after consultation with the Company),
for loans in such Index Currency to leading European banks, having the
Index Maturity specified above, and in a principal amount that is
representative for a single transaction in such Index Currency 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 determined as of such LIBOR Interest Determination Date
will be LIBOR in effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency (including composite currencies)
specified above as to which LIBOR shall be calculated or, if no such currency or
composite currency is specified above, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified in the
applicable Pricing Supplement, the display on the Reuter Monitor Money Rates
Service (or any successor service) on the page specified in such Pricing
Supplement (or any other page as may replace such page or such service) for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency, or (b) if "LIBOR Telerate" is specified in the
applicable Pricing Supplement or neither "LIBOR Reuters" or "LIBOR Telerate" is
specified in the applicable Pricing Supplement as the method for calculating
LIBOR, the display on the Dow Jones Markets Limited (or any successor service)
on the page specified in such Pricing Supplement (or any other page as may
replace such page or such service) for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency.
"Principal Financial Center" means, unless otherwise specified in the
applicable Pricing Supplement, (i) the capital city of the country issuing the
Specified Currency (except with respect to ECU) or (ii) the capital city of the
country to which the Index Currency, if applicable, relates (or, in the case of
ECU, Luxembourg), except, in each case, that with respect to United States
dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilder,
Italian lire and Swiss francs, the "Principal Financial Center" shall be The
City of New York, Sydney, Toronto, Frankfurt, Amsterdam, Milan (solely in the
case of the Specified Currency) and Zurich, respectively.
Determination of Prime Rate. If an Interest Rate Basis for this Note is the
Prime Rate as indicated above, the Prime Rate shall be determined as of the
applicable Prime Rate Interest Determination Date by the Calculation Agent in
accordance with the provisions set out in clause (i) or in clause (ii) below,
depending upon whether such rate is specified as "Prime Rate - Major Banks" or
as "Prime Rate - H.15" in the applicable Pricing Supplement:
(i) If Prime Rate - Major Banks is specified above then the Prime Rate
will be determined, with respect to a Prime Rate Interest Determination
Date, on the basis of the arithmetic mean of the prime rates of interest
publicly announced by three major banks in The City of New York as its
United States dollar prime rate or base lending rate as in effect for that
day. Each change in the prime rate or base lending rate of any bank so
announced by such bank will be effective as of the effective date of the
announcement or, if no effective date is specified, as of the date of the
announcement. If fewer than three such quotations are provided, the Prime
Rate will be calculated by the Calculation Agent and will be determined as
the arithmetic mean on the basis of the prime rates quoted in The City of
New York by three substitute banks or trust companies organized and doing
business under the laws of the United States, or any state thereof, each
having total equity capital of at least $500 million and being subject to
supervision or examination by a federal or state authority, selected by the
Calculation Agent to quote such rate or rates; provided, however, that if
the banks or trust companies so selected by the Calculation
9
<PAGE>
Agent are not quoting as mentioned in this sentence, the Prime Rate with
respect to such Prime Rate Interest Determination Date will be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
(ii) If Prime Rate - H.15 is specified above, or if neither Prime
Rate - Major Banks or Prime Rate - H.15 is specified above as the method of
determining the Prime Rate, then the Prime Rate will be, with respect to a
Prime Rate Interest Determination Date, the rate on such date as such rate
is published in H.15(519) under the heading "Bank Prime Loan". If such
rate is not published prior to 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Prime Rate Interest Determination Date,
the Prime Rate will be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen USPRIME1
Page (as defined below) as such bank's prime rate or base lending rate as
in effect for that Prime Rate Interest Determination Date. If fewer than
four such rates appear on the Reuters Screen USPRIME1 Page for such Prime
Rate Interest Determination Date, the Prime Rate shall be the arithmetic
mean as calculated by the Calculation Agent on such Calculation Date of the
prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of
New York (which may include affiliates of certain of the Agents) selected
by the Calculation Agent (after consultation with the Company). If fewer
than four money center banks provide such quotations, the Prime Rate shall
be determined by the Calculation Agent and will be the arithmetic mean of
four prime rates quoted on the basis of the actual number of days in the
year divided by a 360-day year as of the close of business on such Prime
Rate Interest Determination Date as furnished in The City of New York by
the money center banks, if any, that have provided such quotations and as
many substitute banks or trust companies as necessary in order to obtain
four such prime rate quotations provided such substitute banks or trust
companies are organized and doing business under the laws of the United
States, or any state thereof, each having total equity capital of at least
U.S. $500,000,000 and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent (after
consultation with the Company) to provide such rate or rates; provided that
if the banks or trust companies selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Prime Rate
determined as of such Prime Rate Determination Date will be the Prime Rate
in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display on the Reuters Monitor
Money Rates Service (or any successor service) for the purpose of displaying
prime rates or base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this Note is
the Treasury Rate, as specified above, the Treasury Rate shall be determined as
of the applicable Treasury Rate Interest Determination Date as the rate from the
auction held on such Treasury Interest Determination Date (the "Auction") of
direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified above as such rate is published in H.15(519) under the
heading "Treasury Bills-auction average (investment)" on each Treasury Interest
Determination Date, or if not so published by 3:00 P.M., New York City time, on
the related Calculation Date pertaining to such Treasury Interest Determination
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent, on the basis, of a year of 365 or 366 days, as applicable, and
applied on a daily basis), as otherwise announced by the United States
Department of the Treasury. In the results of the Auction of Treasury Bills
having the Index Maturity specified above are not reported as provided above by
3:00 P.M., New York City time, on the related Calculation Date, or if no such
Auction is held then the Treasury Rate will be calculated by the Calculation
Agent and shall be a yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
of the arithmetic mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time, on such Treasury Rate Interest Determination
Date, of three leading primary United States government securities dealers
(which may include one or more of the Agents or their respective affiliates)
selected by the Calculation Agent (after consultation with the Company) for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified above; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate
10
<PAGE>
determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Interest Determination Date.
Determination of Eleventh District Cost of Funds Rate. If an Interest Rate
Basis for this Note is the Eleventh District Cost of Funds Rate, as indicated
above, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Eleventh District Cost of Funds Rate Interest Determination Date as
the rate equal to the monthly weighted average cost of funds for the calendar
month immediately preceding the month in which such Eleventh District Cost of
Funds Rate Interest Determination Date falls, as set forth under the caption
"11th district" on Telerate Page 7058 (as defined below) as of 11:00 A.M., San
Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, the Eleventh
District Cost of Funds Rate on such Eleventh District Cost of Funds Rate
Interest Determination Date shall be the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of San Francisco as such
cost of funds for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date. If the FHLB of San
Francisco fails to announce the Index on or prior to such Eleventh District Cost
of Funds Rate Interest Determination Date for the calendar month immediately
preceding such Eleventh District Cost of Funds Rate Interest Determination Date,
the Eleventh District Cost of Funds Rate determined as of such Eleventh District
Cost of Funds Rate Interest Determination Date will be the Eleventh District
Cost of Funds Rate in effect on such Eleventh District Cost of Funds Rate
Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on the Dow
Jones Telerate Service (or such other page as may replace the 7058 page on that
service for the purpose of displaying the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank District).
Determination of CMT Rate. If an Interest Rate Basis for this Note is the
CMT Rate, as indicated above, the CMT Rate shall be determined as of the
applicable CMT Rate Interest Determination Date, as the rate displayed on the
Designated CMT Telerate Page under the caption "... Treasury Constant Maturities
... Federal Reserve Board Release H.15 ... Mondays approximately 3:45 P.M., "
under the column for the Designated CMT Maturity Index (as defined below) for
(i) if the Designated CMT Telerate Page is 7055, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the weekly or monthly average, as specified above, for the week or the
month, as applicable, ended immediately preceding the week or month, as
applicable, in which the related CMT Rate Interest Determination Date falls. If
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index as published in
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 CMT Rate 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 CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
page and published in H.15(519). If such information is not provided by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
the CMT Rate 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 offered rates as of approximately 3:30 P.M., New York City
time, on such CMT Rate 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
one or more of the Agents or their respective affiliates) selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent (after consultation with the Company) and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less than such Designated
CMT Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such
11
<PAGE>
Treasury Note quotations, the CMT Rate on such CMT Rate 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 offered rates as of
approximately 3:30 P.M., New York City time, on the CMT Rate Interest
Determination Date of three Reference Dealers in The City of New York (from five
such Reference Dealers selected by the Calculation Agent (after consultation
with the Company) 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 the maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100 million. 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 offered rates obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided
however, that if fewer than three Reference Dealers so selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined as of
such CMT Rate Interest Determination Date will be the CMT Rate in effect on such
CMT Rate Interest Determination Date. If two Treasury Notes with an original
maturity as mentioned in the second preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the Calculation
Agent will obtain quotations for the Treasury Note with the shorter remaining
term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones Markets
Limited (or any successor service) on the page specified above (or any page as
may replace such page on such service) for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519). If no such page is specified
above, the Designated CMT Telerate Page shall be page 7052.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified above with respect to which the CMT Rate will be calculated, or if no
such maturity is specified above, 2 years.
Any provision contained herein, including the determination of an Interest
Rate Basis, the specification of an Interest Rate Basis, calculation of the
interest rate applicable to this Note, its Interest Payment Dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above.
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 above. In addition to any Maximum Interest
Rate applicable hereto pursuant to the above provisions, the interest rate on
this Note will in no event be higher than the maximum rate permitted by New York
law, as the same may be modified by the United States law of general
application.
The Calculation Agent shall calculate the interest rate hereof 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 which will become effective as of the next Interest Reset Date.
If an Event of Default with respect to Notes should occur and be
continuing, the principal amount of the Notes and interest accrued thereon may,
by written notice to the Company, be declared due and payable by the Trustee or
the Holders of not less than 25% in principal amount of all outstanding Notes.
Such declaration of acceleration may, if all payments due have been made and all
Events of Default have been remedied or waived, be rescinded by the Holders of a
majority in principal amount of all outstanding Notes. Any Event of Default may
be waived by the Holders of a majority in principal amount of all outstanding
Notes, except that default in payment of the principal, premium, or interest on
any Note, or in respect of a covenant under the Indenture which cannot be
modified absent the consent of the Holders of each outstanding Note, cannot be
waived.
The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of Holders of a majority in principal amount of the
Notes, to enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of the Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by provisions in
the Indenture relating to amendments and
12
<PAGE>
modifications without the consent of Holders, the rights of such Holders.
However, without the consent of each Holder affected thereby, an amendment or
modification may not: (a) change the Maturity Date or any Interest Payment Date
or the redemption price; (b) reduce the principal amount of, or the interest on,
any Note or reduce the amount of principal of any Original Issue Discount Note
which could be declared due and payable upon a declaration of acceleration prior
to the Maturity Date; (c) change the place, method of calculation of interest or
currency of any payment of principal or interest on any Note (except as
otherwise provided in the Indenture); (d) impair the right to institute suit for
the enforcement of any payment on or with respect to any Note; or (e) reduce the
percentage in principal amount of Notes, the consent of whose Holders is
required for any supplemental indenture or the consent of whose Holders is
required to waive compliance with certain provisions of, or any past default
under the Indenture, or reduce the requirements for quorum or voting provided by
the Indenture. Except with respect to certain fundamental provisions, the
Holders of at least a majority in principal amount of Notes may, with respect to
the Notes, waive past defaults under the Indenture and waive compliance by the
Company with certain provisions of the Indenture. The Indenture also contains
provisions permitting the Company and the Trustee to effect certain
modifications and amendments without the consent of the Holders to cure
ambiguities, correct inconsistencies and make other changes, provided such
modifications and amendments do not adversely affect the interest of the Holders
in any material respect.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless: (i) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes; (ii) the Holders of not less than 25% in principal amount of the Notes at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity; (iii) the Trustee shall not have received during
such 60-day period from the Holders of a majority in principal amount of the
Notes at the time Outstanding a direction inconsistent with such request; and
(iv) the Trustee shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate, and in the coin or currency
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by its
attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall be
made for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary. The Trustee shall not be required to make any transfers,
registrations or exchanges of this Note for a period of fifteen (15) days
preceding any Interest Payment Date.
The Trustee has been appointed Registrar for the Notes, and the Company
will cause the Trustee to maintain at its office in the City of New York a
register for the registration and transfer of Notes. So long as this Note shall
be outstanding, the Company will maintain an office or agency for the payment of
the principal and interest on this Note as herein provided in The City of New
York, State of New York, United States of America, and an office or agency in
The City of New York for the registration, transfer and exchange as aforesaid of
the Notes. The Company may designate other agencies for the payment of said
principal and interest at such place or
13
<PAGE>
places (subject to applicable laws and regulations) as the Company may decide.
The Company shall keep the Trustee advised of the names and locations of such
agencies, if any are so designated.
Any action by the Holder of this Note shall bind all future Holders of this
Note, and of any Note issued in exchange or substitution herefor or in place
hereof, in respect of anything done or permitted by the Company or by the
Trustee in pursuance of such action.
No recourse under or upon any covenant contained in this Note or because of
the creation of the indebtedness represented hereby, shall be had against any
official or other representative, past, present or future, as such, of the
Company whether by virtue of any statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, it being expressly agreed and understood
that this Note is solely the obligation of the Company and that no personal
liability whatever shall attach to or be incurred by any such officials or other
representatives, as such, because of the execution of this Note. Each Holder,
by accepting this Note, waives and releases all such liability. The waiver and
release are part of the consideration for the issue of this Note.
This Note is unsecured and ranks pari passu with all other unsecured and
unsubordinated indebtedness of the Company.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
Unless the certificate of authentication hereon has been executed by Yasuda
Bank and Trust Company (U.S.A.), the Trustee with respect to the Notes under the
Indenture, or its successors thereunder, by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
Capitalized terms used herein without definition which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
14
<PAGE>
IN WITNESS WHEREOF, Comdisco, Inc. has caused this Note to be signed
manually or by facsimile, by its duly authorized officers, under its corporate
seal (which may be printed, engraved or otherwise reproduced hereon by facsimile
or otherwise).
DATED:
--------------------
COMDISCO, INC.
By:
----------------------------------------
President
[SEAL]
Attest:
- ----------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described herein and referred
to in the within-mentioned Indenture.
YASUDA BANK AND TRUST COMPANY (U.S.A.)
AS TRUSTEE
By:
---------------------------------
Authorized Officer
15
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to the principal amount hereof, together with interest to the
repayment date, to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of the undersigned)
For this Note to be repaid, the Trustee must receive at Yasuda Bank and
Trust Company (U.S.A.), 666 Fifth Avenue, 8th Floor, New York, New York 10103,
Attention: Corporate Trust Department or at such other place or places of which
the Company shall from time to time notify the Holder of this Note, not more
than 60 nor less than 20 days prior to an Optional Repayment Date, if any, shown
on the face of this Note, this Note with this "Option to Elect Repayment" form
duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000 unless otherwise
specified in the Note) which the Holder elects to have repaid and specify the
authorized denomination or denominations of the Notes to be issued to the Holder
for the portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
$
------------------ ------------------------------------------------------
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as written upon
the face of this Note in every particular, without
alteration or enlargement or any change whatever.
Date:
-----------------
16
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned required registered Holder hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of assignee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and all rights thereunder,
- -------------------------------
hereby irrevocably constituting and appointing
--------------------------------
- --------------------------------------------------------------------------------
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Date Signature
------------- ---------------------------------------
NOTICE: The signature on this Assignment must
correspond with the name as written upon the face of
this Note in every particular, without alteration or
enlargement or any change whatever.
17
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--__________________ Custodian_____________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
179826-2
18
<PAGE>
Exhibit 5.1
[LETTERHEAD OF JEREMIAH M. FITZGERALD,
VICE PRESIDENT AND GENERAL COUNSEL]
November 6, 1997
The Board of Directors of
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Re: Issuance of up to $600 Million in Medium Term Notes, Series G of Comdisco,
Inc.
Ladies and Gentlemen:
Reference is made to the form of the Registration Statement on Form S-3
(File No. 33-29813, the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission") by Comdisco, Inc., a Delaware corporation
(the "Company"), under the Securities Act of 1933, as amended (the "Act"),
relating to $1,200,000,000 in aggregate principal amount of Debt Securities of
the Company (the "Debt Securities") and Common Stock as may be issuable from
time to time upon conversion or exchange or Debt Securities to the extent such
Debt Securities are, by their terms, convertible or exchangeable for Debt
Securities pursuant to Rule 415 under the Act for issuance from time to time.
This opinion is being furnished to you for filing on a Current Report on
Form 8-K which will be incorporated by reference as a supplemental exhibit to
the Registration Statement.
I am familiar with the proceedings taken and proposed to be taken by the
Company in connection with the proposed authorization, issue and sale of up to
$600 million in aggregate participant amount of Medium Term Notes, Series G to
be offered by the Company as Debt Securities under the Registration Statement
(the "Notes") and I have examined the originals, or copies, certified or
otherwise identified, of corporate records of the Company, certificates of
public officials and the representatives of the Company, statutes and other
documents and instruments, as the basis for the opinion hereinafter expressed. I
have also examined the form of Indenture between the Company and Yasuda Bank and
Trust Company (U.S.A.), as Trustee, under which the Notes are to be issued (the
"Indenture") and the form of Distribution Agreement by and among the Company,
and certain Agents pursuant to which the Notes will be distributed (the
"Distribution Agreement"), the forms of each of which have been filed as
exhibits to the Registration Statement. I am also familiar with the form of
Prospectus Supplement and Prospectus relating to the Notes and their offering by
the Company, each dated November 6, 1997 and to be filed with the Commission on
or about November 6, 1997. I am also familiar with the proposed opinion of legal
counsel qualified to practice in New York concerning the validity,
<PAGE>
Comdisco, Inc.
August __, 1997
Page 2
legality and binding effect of the Notes under New York law, upon which I will
rely in delivering my opinion pursuant to the Distribution Agreement and upon
which opinion I am relying in connection with this opinion.
Based upon the foregoing examination, and in reliance thereon, I am of the
opinion that, subject to the terms of the Notes being otherwise in compliance
with applicable law, the Notes, when duly authorized, executed, authenticated
and delivered in the form contemplated by the Indenture and in accordance with
the terms of the applicable resolutions of the Board of Directors of the
Company, and any legally required consents, approvals, authorizations and other
orders of the Commission or any other judicial or regulatory authorities
required to be obtained, against payment therefor as described in the
Registration Statement, will be legally issued and will be binding obligations
of the Company, entitled to the benefits of Indenture.
The foregoing opinion is subject to (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) with respect to the enforceability of any agreement to
general principles of equity (regardless of whether such enforceability is
considered in an action at law or in equity).
I am qualified to practice law in the State of Illinois and do not purport
to be an expert on, or to express any opinion herein concerning any law other
than the laws of the State of Illinois, the corporation laws of the State of
Delaware, and the federal laws of the United States. Without limiting the
generality of the foregoing, I express no opinion as to the effect of the law of
any jurisdiction other than the State of Illinois or the corporate law of
Delaware.
I hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K to be incorporated by reference into the
Registration Statement.
Very truly yours,
/s/ Jeremiah M. Fitzgerald
----------------------------------
Jeremiah M. Fitzgerald
Vice President and General Counsel
