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EXHIBIT (1)
Pfizer Inc.
Debt Securities
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Underwriting Agreement
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[ ] , 2000
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Pfizer Inc., a Delaware corporation (the "Company"),
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule 1 to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of its debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an
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obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligations of any
of the Underwriters to purchase any of the Securities shall be evidenced by
the Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal amount
of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and, manner of delivery of
such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the
registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-______) (the "Initial
Registration Statement") in respect of the securities has been filed
with the Securities and Exchange Commission (the "Commission"); such
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus contained therein, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission
(other than the prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under Securities Act of 1933, as
amended (the "Act"), each in the form heretofore delivered to the
Representatives on or prior to the date hereof); and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, being hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective but excluding Form T-1, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, including such information as is
incorporated by
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reference, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading when read together with the other information in the
Prospectus, at the time the Registration Statement became effective; and
any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading when read
together with the other information in the Prospectus at the time the
Registration Statement became effective; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration
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Statement and any amendment thereto and as of the applicable filing date
as to the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading when read together with the other information in the
Prospectus at the time the Registration Statement became effective;
provided; however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
of Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Company nor any significant subsidiary of the Company (the
term "significant subsidiary" shall have the meaning defined in Section
210.1-02 of Regulation S-X) has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material change in the consolidated capital stock or any
material increase in the consolidated long-term debt of the Company and
its significant subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in the
consolidated financial position or results of operations of the Company
and its consolidated subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated in Delaware and is validly
existing as a corporation in good standing under the laws of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(f) Each of the significant subsidiaries of the Company has been duly
incorporated, and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership or
leasing of its property requires such qualification, except where
failure to qualify would not have a materially adverse effect upon the
consolidated financial position or results of operations of the Company
and its consolidated subsidiaries taken as a whole;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit
to the Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act and, at the Time of
Delivery for such Designated Securities (as defined in Section 4
hereof),
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the Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities in all material respects;
(h) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of
the Company or any of its significant subsidiaries pursuant to the terms
of any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its significant
subsidiaries is a party or by which the Company or any of its
significant subsidiaries is bound or to which any of the property or
assets of the Company or any of its significant subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation, as amended, or By-Laws of the Company, as
amended, or any statute, order, rule or regulation known to the General
Counsel of the Company of any court or governmental agency or body
having jurisdiction over the Company or any of its significant
subsidiaries or any of their properties except where such violation
would not have a materially adverse effect upon the consolidated
financial position or results of operations of the Company and its
consolidated subsidiaries taken as a whole; and no consent, approval,
authorization, order, registration or qualification of or in any such
court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the
Indenture, except such as have been, or will have been prior to the Time
of Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters; and
(i) There are no legal or governmental proceedings to which the Company or
any of its significant subsidiaries is a party or of which any property
of the Company or any of its significant subsidiaries is the subject
other than as set forth in the Prospectus and other than litigation
incident to the kind of business conducted by the Company and its
significant subsidiaries which, if determined adversely to the Company
or any of its significant subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position or results of operations of the Company and its consolidated
subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
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3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours
prior notice to the Company, shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor
by wire transfer of Federal (same day) funds or other immediately available
funds to the account specified by the Company to the Representatives at
least forty-eight hours in advance or at such other place and time and date
as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to the
applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act, to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after
the date of the Pricing Agreement relating to such Securities and prior
to the Time of Delivery for such Securities which shall be disapproved
by the Representatives for such Securities promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof as they shall reasonably request; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to
advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use of
any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
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(b) Promptly from time to time to take such action, in cooperation with the
Representatives, to qualify such Securities for offering and sale under
the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Securities, provided that
in connection therewith the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of process
in any jurisdiction or to subject itself to tax action in respect of
doing business in any jurisdiction in which it is not otherwise so
subject;
(c) To furnish the Underwriters with copies of the Prospectus as amended or
supplemented in such quantities as the Representatives may from time to
time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representatives and upon their
reasonable request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance.
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule
158(c)), an earning statement of the Company and its subsidiaries (which
need not be audited) complying with the last paragraph of Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158);
(e) During the period beginning from the date of the Pricing Agreement for
such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representative and (ii)
the Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without
the prior written consent of the Representatives, which consent shall
not be unreasonably withheld; and
(f) If the Company elects to rely upon Rule 462(b) under the Act, the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule
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462(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act, with respect to the applicable
Pricing Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following; (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and
any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) the cost of preparing, issuing and delivering the
certificate for the Securities; (vii) the fees and expenses of any Trustee
and any agent of any Trustee and the fees and disbursements of counsel for
any Trustee in connection with any Indenture and the Securities; and (viii)
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section;
but the Company shall not in any event be liable to any of the Underwriters
for damages on account of loss of anticipated profits from the sale by them
of the Securities. It is understood, however, that except as provided in
this Section 6, Section 8 and Section 11 hereof, the Underwriters will pay
all of their own costs and expenses, including but not limited to expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under the
Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct in all material respects, the
condition that the Company shall have performed all of its obligations
hereunder shall have theretofore been performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation to the applicable
Designated Securities shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and
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regulations under the Act and in accordance with Section 5(a) hereof; if
the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P. M.,
Washington, D.C. time, on the date of the applicable Pricing Agreement;
no stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission
shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the Representatives
such opinion or opinions, dated the Time of Delivery for such Designated
Securities, with respect to the incorporation of the Company, the
validity of the Indenture, the Designated Securities, the Registration
Statement, the Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) The Vice President-Corporate Governance of the Company (or such other
internal legal counsel or outside legal firm reasonably satisfactory to
the Representatives at such time of delivery), shall have furnished to
the Representative a written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the state of Delaware and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership or
leasing of property requires such qualification, except where failure to
qualify would not have a materially adverse effect upon the consolidated
financial position or results of operations of the Company and its
consolidated subsidiaries taken as a whole;
(ii) Each of the significant subsidiaries of the Company has been duly
incorporated, and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in each
jurisdiction which the conduct of its business or the ownership or
leasing of its property requires such qualification, except where
failure to qualify would not have a materially adverse effect upon the
consolidated financial position or results of operations of the Company
and its consolidated subsidiaries taken as a whole;
(iii) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
significant subsidiaries is a party or of which any property of the
Company or of any of its significant subsidiaries is the subject, other
than as set forth in the Prospectus and other than litigation or
proceedings which individually or in the aggregate are not materially
adverse to the consolidated financial position or results of operations
of the Company
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and its consolidated subsidiaries taken as a whole; to the best of such
counsel's knowledge, no such proceedings are threatened by governmental
authorities or others; and such counsel has not received notice that any
such proceedings are contemplated by governmental authorities;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered
by the Company;
(v) The Designated Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the Indenture; and the Designated Securities and the Indenture conform
to the descriptions thereof in the Prospectus as amended or
supplemented;
(vi) The Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(vii) The issue and sale of the Designated Securities and the compliance
by the Company with all of the provisions of the Designated Securities,
the Indenture, this Agreement and the Pricing Agreement with respect to
the Designated Securities will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Company or any of its
significant subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its significant
subsidiaries is a party or by which the Company or any of its
significant subsidiaries is bound or to which any of the property or
assets of the Company or any of its significant subsidiaries is subject,
except for any breaches, conflicts, defaults, liens, charges or
encumbrances that are not material to the consolidated financial
position or results of operations of the Company and its consolidated
subsidiaries taken as a whole, nor will such action result in any
violation of the provisions of the Certificate of Incorporation, as
amended, or the By-Laws of the Company, as amended, or any statute,
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
of its significant subsidiaries or any of their properties; and no
consent, approval, authorization order, registration or qualification of
or with any such court or governmental agency body, to such counsel's
knowledge, is required for the issue and sale by the Company of the
Designated Securities or the execution and delivery and performance by
the Company of this Agreement, the Pricing Agreement or the Indenture,
except such as have been obtained under the Act and the Trust Indenture
Act and such consents, approvals,
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authorizations, registrations or qualifications as may be required under
State Securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(viii)The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements, notes
thereto, and related schedules therein, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such documents,
when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading when read together with the
other information in the Prospectus at the time the Registration
Statement became effective, or, in the case of other documents which
were filed under the Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such documents were so
filed, not misleading when read together with the other information in
the Prospectus at the time the Registration Statement became effective;
and
(ix) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements, notes thereto, and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and regulations
thereunder; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other than
the financial statements, notes thereto, and related schedules therein,
as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements, notes thereto, and related schedules therein, as
to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein in light of the circumstances
in which they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus as amended
or supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements, notes thereto, and related schedules therein, as to which
such counsel need express no opinion) contains
11
<PAGE>
an untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading, and such counsel does not know
of any amendment to the Registration Statement required to be filed or
any contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be incorporated
by reference into the Prospectus as amended or supplemented or required
to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by reference
or described as required;
(d) On the date of the Pricing Agreement for such Designated Securities and
at the Time of Delivery for such Designated Securities, the independent
accountants of the Company who have certified the financial statements
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
representatives a letter, dated (i) the date of such Pricing Agreement
or (ii) the effective date of the Registration Statement or the date of
the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement,
if the date of such report is later than such effective date, and a
letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto, and with respect, as to such other matters as
the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e)(i) Neither the Company nor any of its significant subsidiaries shall
have sustained since the date of the latest financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented there
shall not have been any change in the capital stock of the Company
(except for the issuance of shares of common stock pursuant to any plan
sponsored by the Company or pursuant to the conversion of convertible
indebtedness) or any increase in the consolidated long-term debt of the
Company and its significant subsidiaries or any material change, or any
development involving a prospective material adverse change, in the
consolidated financial position or results of operations of the Company
and its consolidated subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented,
the effect of which is in any such case described in Clause (i) or (ii)
is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the Designated
Securities (i) no downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally recognized statistical
rating organization," as that term is
12
<PAGE>
defined by the Commission for purposes of Rule 436(g)(2) under the Act
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(g) On or after the date of the Pricing Agreement relating to the Designated
Securities there shall not have occurred any of the following: (i) a
suspension of trading of the Company's Common Stock by the Commission or
the New York Stock Exchange precipitated by the announcement by the
Company of a material adverse event with respect to the Company's
business or financial position; (ii) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange, (iii)
a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities directly involving the United
States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this clause (iv) in
the reasonable judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated by the
Prospectus as amended and supplemented; and
(h) The Company shall have furnished or caused to be furnished at the Time
of Delivery for the Designated Securities a certificate or certificates
of officers of the Company satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Company herein at
and as of such Time of Delivery, as to the performance by the Company of
all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (e)
of this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or
13
<PAGE>
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by
such Underwriter through the Representatives expressly for use therein;
and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under such subsection.
In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above in
14
<PAGE>
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
Underwriters of the Designated Securities on the other from the offering
of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and the Underwriters of the Designated Securities 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 such
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
15
<PAGE>
(e) The obligations of the Company under this Section 8 shall be in addition
to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter
the Representatives do not arrange for the purchase of such Designated
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have
so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or
in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby
be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect
as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principle amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the
principal amount of Designated Securities which such Underwriter agreed
to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
16
<PAGE>
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of
the Designated Securities, as referred to in subsection (b) above, or if
the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
the Company, or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in
writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Designated Securities, but the Company
shall then be under no further liability to any Underwriter with respect to
such Designated Securities except as provided in Section 6 and Section 8
hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by
such Representatives jointly or by such of the Representatives, if any, as
may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as set
forth in the Pricing Agreement; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the
17
<PAGE>
address of the Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of
this Agreement or any such Pricing Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein
"business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
PFIZER INC.
By:_____________________________
Name:
Title:
Accepted as of the date hereof:
[Name of Representative]
18
<PAGE>
[Names of Co-Representative]
By:____________________________
Name
Title
19
<PAGE>
ANNEX I
-------
PRICING AGREEMENT
-----------------
[Names of Representatives]
As the Representatives of the
several Underwriters
[Name/Address]
Ladies and Gentlemen:
Pfizer Inc., a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
_____________, 2000 (the "Underwriting Agreement"), between the Company and the
Representatives of the several Underwriters to issue and sell to each of the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto, plus any additional principal amount of
Designated
<PAGE>
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 9 of the Underwriting Agreement.
If the foregoing is in accordance with your understanding, please sign
and return to us [one for the Issuer and each of the Representatives plus one
for each counsel] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
an Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
PFIZER INC.
By:
Name:
Title:
Accepted as of the date hereof:
_______________________________________
[Names of Representatives]
By:____________________________________
Name:
Title:
2
<PAGE>
SCHEDULE I
----------
<TABLE>
<CAPTION>
Principal Amount of
Designated Securities to be
Underwriter Purchased
----------- ---------
<S> <C>
[Names(s) of Representative(s)]..............................
[Names of other Underwriters]................................
TOTAL................................................... $________
</TABLE>
<PAGE>
SCHEDULE II
<TABLE>
<S> <C> <C> <C> <C>
Title of Designated Securities:
[1%] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
Aggregate Principal Amount:
[$]
Price to Public:
[ ] % of the principal amount of the Designated Securities, plus accrued interest, from
[ to ] and accrued amortization, if any, from
to ].
Purchase Price by Underwriters:
[ ] % of the principal amount of the Designated Securities, plus accrued interest, from
to [and accrued amortization, if any from
to ].
</TABLE>
Form of designated securities
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the Office of [the depositary
or its designated custodian] [the Representative].]
[Book-entry only form represented by one or more global securities deposited
with the depositary or its designated custodian, to be made available for
checking by the Representative at least twenty-four hours prior to the Time of
Delivery at the office of the depositary.]
[Bearer form]
Specified Funds for Payment of Purchase Price:
[Wire transfer of immediately available] [New York] [Clearing House] funds.
Indenture:
Indenture dated [ ], , between the Company and The Chase Manhattan
Bank, as Trustee.
<PAGE>
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[Months and Dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$] or an integral multiple thereof
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before %, and
if] redeemed during the 12-month period beginning
Year Redemption Price
---- ----------------
and thereafter at 100% of their principal amount, together in each case
with accrued interest up to and including to the redemption date.]
[on any interest payment dated falling on or after , at the election
of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law.]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their
principal amount plus accrued interest] [, together with
[cumulative] [noncumulative] redemptions at the option of the Company
to
2
<PAGE>
retire an additional [$] principal amount of Designated Securities
in the years through at 100% of their principal
amount plus accrued interest].
[If Securities are extendable debt Securities, insert --
Extendable Provisions:
Securities are repayable on , [insert date
and years], at the option of the holder, at their principal amount
with accrued interest. Initial annual interest rate will be %,
and thereafter annual interest rate will be adjusted on
and to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year
maturities as of the [insert date 15 days prior to maturity date] prior
to such [insert maturity date].]
[if Securities are Floating Rate debt Securities, insert--
Floating Rate Provisions:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , and
] [to an annual rate of % above the average rate
for -year [month] [securities] [certificates of deposit] issued
by and [insert names of banks],]
[and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess, if
any, of (i) then current weekly average per annum secondary market
yield for -month certificates of deposit over (ii) then
current interest yield equivalent of the weekly average per annum
market discount rate for - month Treasury bills): [from
and thereafter the rate will be the then current interest yield
equivalent plus % of the Interest Differential].]
Defeasance Provisions:
Time of Delivery:
Closing Location:
Additional Closing Conditions:
Paragraph 7 (g) of the Underwriting Agreement should be modified in the
event that the Securities are denominated in, indexed to, or principal interest
are paid in, a currency other than
3
<PAGE>
the U.S. dollar, or more than one currency. The country or countries issuing
such currency should be added to the banking moratorium and hostilities clauses
and the following additional clause should be added to the paragraph (the entire
paragraph should be restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by
such currency, currencies or composite currency]".
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]*:
--------------------------
* Set forth or reference to an attached description any particular tax,
accounting or other unusual features of the Securities.
4
<PAGE>
ANNEX II
--------
Pursuant to Section 7(d) of the Underwriting Agreement, the
independent public accountants shall furnish letters to the Underwriters to the
effect that:
(i) They are independent public accountants with respect to the
Company and its significant subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, prospective
financial statements and/or pro forma financial information examined) by them
and included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the "Representatives");
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year and restated financial statement agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were included
or incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its selected
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related published
rules and regulations thereunder are not in conformity with generally
accepted accounting principles applied on a basis substantially consistent
with the basis for the audited consolidated statements of income,
consolidated balance sheets and consolidated
<PAGE>
statements of cash flows included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year and
restated financial statement;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding in
the audited consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K and restated
financial statement for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (a) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially consistent with the
basis for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K and restated
financial statement for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical amounts
in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or net assets or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(v) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries
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and other procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents incorporated
by reference therein), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the Representatives,
and have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
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