<PAGE>
ORIGINAL ELECTRONICALLY TRANSMITTED TO THE SECURITIES AND EXCHANGE COMMISSION
ON SEPTEMBER 14, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE PROCTER & GAMBLE COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OHIO 31-0411980
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
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ONE PROCTER & GAMBLE PLAZA
CINCINNATI, OHIO 45202
(513) 983-1100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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TERRY L. OVERBEY
SECRETARY
THE PROCTER & GAMBLE COMPANY
ONE PROCTER & GAMBLE PLAZA
CINCINNATI, OHIO 45202
(513) 983-4463
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
CHRIS B. WALTHER, ESQ. VALERIE FORD JACOB, ESQ.
THE PROCTER & GAMBLE COMPANY FRIED, FRANK, HARRIS, SHRIVER &
ONE PROCTER & GAMBLE PLAZA JACOBSON
CINCINNATI, OHIO 45202 ONE NEW YORK PLAZA
(513) 983-2513 NEW YORK, NEW YORK 10004
---------------- (212) 820-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement, as determined in
light of market conditions.
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If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
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If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES REGISTERED REGISTERED PER UNIT(2) OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities and War-
rants.................. $500,000,000(1) 100% $500,000,000 $172,415
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</TABLE>
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(1) Such amount represents the issue price of any Warrants and the issue price
rather than the principal amount of any Debt Securities issued at an original
issue discount. Any offering of Debt Securities denominated other than in
U.S. dollars will be treated as the equivalent in U.S. dollars based on the
official exchange rate applicable to the purchase of Debt Securities from the
Registrant.
(2) Estimated solely for purpose of calculating amount of registration fee.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
----------------
Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement contains a combined prospectus that also relates to Registration
Statement No. 33-48835 on Form S-3 previously filed by the Registrant and
declared effective on July 20, 1992 as amended by Post-Effective Amendment No.
1 previously filed by the Registrant and declared effective on September 29,
1992.
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<PAGE>
SUBJECT TO COMPLETION DATED SEPTEMBER 14, 1994
THE PROCTER & GAMBLE COMPANY
DEBT SECURITIES AND WARRANTS
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The Company may from time to time offer Debt Securities consisting of
debentures, notes and/or other unsecured evidences of indebtedness in one or
more series and Warrants to purchase Debt Securities or to buy and sell
government debt securities, foreign currencies, currency units or units of a
currency index or currency basket, units of a stock index or stock basket or a
commodity or a commodity index from which the Company will receive proceeds of
up to an aggregate of $525,000,000 (or the equivalent in foreign currency or
currency units). The Debt Securities and Warrants may be offered independently
or together for sale directly to purchasers or through dealers, underwriters or
agents to be designated. The Debt Securities and Warrants will be offered to
the public on terms determined by market conditions. The Debt Securities and
Warrants may be sold for U.S. dollars, foreign currency or currency units and
the principal and any premium and interest on the Debt Securities may likewise
be payable in U.S. dollars or, at the option of the Company if so specified in
the applicable Prospectus Supplement, in any other foreign currency or currency
units, including composite currencies such as the European Currency Unit.
The specific designation, aggregate principal amount, purchase price,
maturity, rate (or manner of calculation thereof) and time of payment of
interest, if any, any listing on a securities exchange and other specific terms
not set forth herein of the Debt Securities in respect of which this Prospectus
is being delivered, the duration, purchase price, exercise price, detachability
and any other specific terms not set forth herein of any Warrants in respect of
which this Prospectus is being delivered, and the names of any underwriters,
dealers or agents, and the other terms and manner of the sale and distribution
of such Debt Securities and Warrants, are set forth in the accompanying
Prospectus Supplement ("Prospectus Supplement"). See "Description of Debt
Securities", "Description of Warrants" and "Plan of Distribution".
As used from time to time herein, the term "Securities" means the Debt
Securities and the Warrants.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1994.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY STATE.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
at Seven World Trade Center, 13th Floor, New York, New York 10048; and Suite
1400, Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois
60661. Copies of such materials can be obtained by mail from the Public
Reference Branch of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, reports, proxy statements and other
information concerning the Company may also be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, and
the offices of the Cincinnati Stock Exchange, 36 East 4th Street, Suite 906,
Cincinnati, Ohio 45202.
The Company has filed with the Commission a registration statement on Form S-
3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 1-434) pursuant
to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1994 (which incorporates by reference portions of the Company's
definitive Proxy Statement dated September 2, 1994 for the Company's Annual
Meeting of Stockholders to be held on October 11, 1994 and portions of its
1994 Annual Report to Stockholders for the year ended June 30, 1994).
2. All other documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of the Registration Statement or this Prospectus to
the extent that a statement contained herein, in a Prospectus Supplement or
in any other document subsequently filed with the Commission which also is
or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the request of such person, a copy of any or all
of the documents which are incorporated by reference herein, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests should be directed to Linda D.
Rohrer, Assistant Secretary, The Procter & Gamble Company, at One Procter &
Gamble Plaza, Cincinnati, Ohio 45202, telephone: (513) 983-8697.
2
<PAGE>
THE COMPANY
The Procter & Gamble Company (the "Company") is primarily a manufacturer and
distributor of household products. Its products are sold throughout the United
States and abroad. The Company is a corporation that was incorporated under the
laws of Ohio in 1905 and was the outgrowth of a business founded in 1837 by
William Procter and James Gamble. Unless the context otherwise requires, all
references to the Company are to The Procter & Gamble Company and its
consolidated subsidiaries.
The Company's operations fall within four business segments: Laundry and
Cleaning Products, Personal Care Products, Food and Beverage Products and Pulp
and Chemicals. Laundry and Cleaning Products include detergents, hard surface
cleaners and fabric conditioners. Personal Care Products include personal
cleansing products, deodorants, hair care products, skin care products,
cosmetics, oral care products, paper tissue products, disposable diapers,
digestive health products, respiratory care products and other pharmaceuticals.
Sales of disposable diapers represented approximately 15%, 15% and 16% of the
Company's consolidated sales in each of the fiscal years ended June 30, 1994,
1993 and 1992, respectively. Food and Beverage Products include shortening and
oil, snacks, prepared baking mixes, peanut butter, coffee and juice products.
Products of the Laundry and Cleaning, Personal Care and Food and Beverage
Products segments are distributed primarily through grocery stores and other
retail outlets. Pulp and Chemicals are sold direct to customers and through
jobbers. Net sales of Pulp and Chemicals include intersegment sales amounting,
in millions, to $146 in 1994, $309 in 1993 and $449 in 1992.
Among the well-known names under which the Company's products are sold are:
Ace, Always, Ariel, Attends, Bold, Bounce, Bounty, Camay, Cascade, Charmin,
Cheer, Cover Girl, Crest, Crisco, Dash, Dawn, Downy, Duncan Hines, Era, Fairy,
Flash, Folgers, Gain, Hawaiian Punch, Head & Shoulders, Ivory, Jif, Lenor,
Luvs, Max Factor, Mr. Proper, Olay, Old Spice, Pampers, Pantene, Pert,
Pringles, Punica, Rejoice, Safeguard, Scope, Secret, Sunny Delight, Tide,
Vicks, Vidal Sassoon, Whisper and Zest.
International operations, which represented approximately 53% of the
Company's net sales for the fiscal year ended June 30, 1994, are conducted
through self-contained subsidiaries and consist to a very large degree of
manufacturing and marketing household products in Europe and Canada and parts
of Latin America, Asia and Africa. No individual country other than the United
States accounts for 10% of consolidated sales or assets.
At June 30, 1994, the Company owned and operated manufacturing facilities at
45 locations in 22 states in the United States. In addition, it owned and
operated 89 manufacturing facilities in 39 other countries.
The Company's principal executive offices are located at One Procter & Gamble
Plaza, Cincinnati, Ohio 45202, and its telephone number is (513) 983-1100.
USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement, the net
proceeds from the issuance of the Debt Securities and Warrants offered hereby
will be used for general corporate purposes.
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SUMMARY FINANCIAL INFORMATION
The following summary financial information for the years ended June 30, 1993
and 1994 has been derived from the Company's consolidated financial statements
contained in its Annual Report on Form 10-K for the fiscal year ended June 30,
1994. See "Incorporation of Certain Documents by Reference". The summary
financial information for the years ended June 30, 1990, 1991 and 1992 has been
derived from the Company's consolidated financial statements contained in its
Annual Reports to Shareholders for the years 1991 and 1992. Per share amounts
and number of shares have been adjusted for the two-for-one stock split of the
Company's common stock, effective May 15, 1992.
<TABLE>
<CAPTION>
YEARS ENDED JUNE 30,
-------------------------------------------
1990 1991 1992 1993 1994
------- ------- ------- ------- -------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
OPERATING RESULTS:
Net sales................. $24,081 $27,026 $29,362 $30,433 $30,296
Cost of products sold..... 14,658 16,081 17,324 17,683 17,355
Earnings before income
taxes and prior years'
effect of accounting
changes.................. 2,421 2,687 2,885 349(1) 3,346
Income taxes.............. 819 914 1,013 80 1,135
Net earnings before prior
years' effect of
accounting changes....... 1,602 1,773 1,872 269(1) 2,211
Prior years' effect of
accounting changes....... -- -- -- (925) --
Net earnings/(loss)....... 1,602 1,773 1,872 (656)(1) 2,211
Net earnings per common
share before prior years'
effect of accounting
changes.................. $ 2.25 $ 2.46 $ 2.62 $ .25(1) $ 3.09
Net earnings/(loss) per
common share............. $ 2.25 $ 2.46 $ 2.62 $ (1.11)(1) $ 3.09
Net earnings/(loss) per
common share assuming
full dilution............ $ 2.13 $ 2.31 $ 2.45 $ (.96)(1) $ 2.91
Average shares outstanding
(in millions)............ 692.1 689.5 677.4 680.4 683.1
Ratio of earnings to fixed
charges(2)............... 6.0 6.8 5.7 1.4 6.6
FINANCIAL POSITION
(AT PERIOD END):
Working capital........... $ 2,227 $ 1,702 $ 1,724 $ 1,688 $ 1,948
Total assets.............. 18,487 20,468 24,025 24,935 25,535
Long-term debt............ 3,588 4,111 5,223 5,174 4,980
Shareholders' equity...... 7,518 7,736 9,071 7,441 8,832
</TABLE>
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(1)Includes charges of $2,402 million for manufacturing consolidations and
organizational restructuring and $303 million related to the divestiture of
the 100% juice business. The after-tax effect of these provisions is $1,746
million, or $2.57 per share.
(2)Earnings used to compute this ratio are earnings before income taxes and
before fixed charges (excluding interest capitalized during the period) and
after deducting undistributed earnings of 20% to 50% owned affiliates. Fixed
charges consist of interest, whether expensed or capitalized, amortization
of debt discount and expense, and one-third of all rent expense (considered
representative of the interest factor).
YEAR ENDED JUNE 30, 1994 COMPARED TO THE YEAR ENDED JUNE 30, 1993
Worldwide net earnings were $2,211 million including a $102 million after-tax
charge for writing off the option portion of two interest rate swap contracts.
In the previous year, an after-tax loss of $656 million was recorded due to two
unusual items: restructuring reserves totaling $1,746 million after-tax,
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and the prior years' effects of two accounting changes amounting to $925
million. Excluding these unusual items in both years, net earnings would have
been $2,313 million in 1994, up 15% over earnings of $2,015 million in the
previous year. Foreign exchange rates reduced net earnings by less than 3%.
Net sales for the year just ended were $30.3 billion, about even with sales
of $30.4 billion in the previous year. Growth in unit volume increased net
sales by 5%. This increase was offset by less favorable foreign exchange rates,
4%, and the divestiture of our pulp and 100% juice businesses and lower selling
prices, 1%.
Excluding acquisitions and divestitures, worldwide unit volumes were up 5%,
4% in the United States and 7% in International. Including acquisitions and
divestitures, worldwide unit volume would be up 5%, with U.S. up 1% and
International up 10%.
Cost of products sold as a percentage of net sales was 57.3%, which compares
with 58.1% for the preceding year. Restructuring savings contributed .2% of
this .8% decline as plant sourcing savings from lower depreciation and
enrollment reductions are just beginning to be realized.
Marketing, administrative and other operating expenses were 30.9% of sales,
down from 31.5% in the previous year which can entirely be ascribed to
restructuring savings, primarily from enrollment reductions.
Operating income, excluding restructuring reserves in the prior year, was up
13%, and pretax operating margins were 11.8% compared to 10.4% a year ago.
Interest expenses decreased $70 million from the previous year due to lower
borrowing rates and lower debt outstanding. Other income/expense, net decreased
$197 million from the prior year reflecting the $157 million loss on two
interest swaps this past year and $41 million one-time profit in the previous
year from the sale of businesses.
The effective tax rate was 33.9% for 1994, which compares with 22.9% for
1993. The 1993 restructuring reserve reduced pre-tax earnings significantly and
accentuated the percent impact of certain cost elements not tax affected at the
34% U.S. statutory rate. Excluding the restructuring reserve, the 1993
effective tax rate would have been 34.0%.
In the following year-to-year comparison of geographic and business segments,
the previous year's earnings have been adjusted upward to exclude the cost
impact of the restructuring reserves and all volume comparisons exclude the
impact of acquisitions and divestitures to more comparably present on-going
results of the year just ended with those of the prior year.
In the United States, after-tax earnings were up 9% versus the previous year.
Net profit margins improved to a record 11.3% with restructuring benefits and
other cost improvements contributing to the increase over the previous year's
10.1% margin. Unit volume increased 4%, while net sales declined 2%, primarily
due to the divestiture of the pulp and 100% juice businesses and, to a lesser
degree, lower pricing.
Total International after-tax earnings were up 15% over the previous year's
results with net profit margins improving by 14%, from 4.2% to 4.8%.
International unit volume increased 7%, and net sales were up just 1% from the
prior year due primarily to the impact of exchange rates.
Net earnings in Europe were up 24% on a unit volume gain of 5% primarily due
to lower product cost. Net sales were down 6% due to exchange rates. Excluding
exchange effects, sales in Europe would have been up 5%. In the balance of
International, net earnings were up 6% on a unit volume increase of 9%. Net
sales were up 11%.
Worldwide laundry and cleaning products pre-tax earnings were up 6% on unit
volume growth of 3%, primarily in the U.S. Unit shipment increases in the
global laundry and fabric conditioner categories accounted for the largest
increases in unit volumes shipped, while hard surface cleaners led
5
<PAGE>
the U.S. in the percentage increase of units shipped. Net sales were down 3%
due to exchange rate effects and lower pricing.
Personal Care earnings were up 18% on an 8% unit volume increase. The global
hair care business contributed about 50% of this unit volume growth largely due
to the growth of Pantene Pro-V and Vidal Sassoon. The Personal Care net sales
increase of 2% was depressed by the impact of exchange rates and lower pricing.
Food and Beverage earnings were up 45% to a record $371 million, importantly
due to the full year effect of the 100% juice divestiture in fiscal 1993. The
profit margin was 11%, in line with the Company average. Unit volume was up 1%
due largely to the growth of Sunny Delight juice in the U.S. and Pringles
worldwide.
The recent crop freezes in Brazil will reduce the supply of coffee which has
resulted in higher green coffee bean prices. The freeze did not negatively
impact earnings in the year just ended. However, higher selling prices could
contract the size of the coffee market in 1994/95 and beyond. Although this
could negatively impact coffee profits, the effect is not expected to be
material to the Company's earnings.
Pulp and Chemicals earnings and sales declined substantially due to the sale
of all but the timberland portion of our pulp business. This resulted in a
total decline of $38 million in earnings and $422 million in sales. The sale of
the timberlands was concluded in July 1994.
The $163 million decline in pre-tax earnings in the Corporate segment is
primarily due to the previously discussed $157 million pre-tax loss from
closing the option portion of two interest rate swaps.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating
to such Offered Debt Securities.
The Offered Debt Securities are to be issued under an Indenture, dated as of
September 28, 1992 (the "Indenture"), between the Company and The First
National Bank of Chicago, as Trustee (the "Trustee"), a copy of which Indenture
is filed as an exhibit to the Registration Statement. The following summaries
of certain provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all provisions
of the Indenture, including the definitions therein of certain terms. Wherever
particular provisions or defined terms of the Indenture are referred to, such
provisions or defined terms are incorporated herein by reference. Certain
defined terms in the Indenture are capitalized herein.
GENERAL
The Debt Securities will be unsecured obligations of the Company.
The Indenture does not limit the amount of Debt Securities that may be issued
thereunder and provides that Debt Securities may be issued thereunder from time
to time in one or more series.
Reference is made to the Prospectus Supplement relating to the Offered Debt
Securities for the following terms, where applicable, of the Offered Debt
Securities: (1) the title of the Offered Debt Securities; (2) any limit on the
aggregate principal amount of the Offered Debt Securities; (3) the date or
dates on which the Offered Debt Securities will mature; (4) the rate or rates
(which may be fixed or
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<PAGE>
variable) at which the Offered Debt Securities will bear interest, if any, and
the date or dates from which such interest will accrue; (5) the dates on which
such interest, if any, will be payable and the Regular Record Dates for such
Interest Payment Dates; (6) any mandatory or optional sinking fund or analogous
provisions; (7) the price at which, the periods within which, and the terms and
conditions upon which the Offered Debt Securities may, pursuant to any optional
or mandatory redemption provisions, be redeemed at the option of the Company;
(8) the terms and conditions upon which the Offered Debt Securities may be
repayable prior to final maturity at the option of the holder thereof (which
option may be conditional); (9) the portion of the principal amount of the
Offered Debt Securities, if other than the principal amount thereof, payable
upon acceleration of maturity thereof; (10) the right of the Company to defease
the Offered Debt Securities or certain restrictive covenants and certain Events
of Default under the Indenture; (11) if other than in United States dollars,
the currency or currencies, including composite currencies, of payment of
principal of and premium, if any, and interest on the Offered Debt Securities
(and federal income tax consequences and other special considerations
applicable to any such Offered Debt Securities denominated in a currency or
currencies other than United States dollars); (12) any index used to determine
the amount of payments of principal of and premium, if any, and interest, if
any, on the Offered Debt Securities; (13) if the Offered Debt Securities will
be issuable only in the form of a Global Security as described under "Book-
Entry Debt Securities", the Depository or its nominee with respect to the
Offered Debt Securities and the circumstances under which the Global Security
may be registered for transfer or exchange in the name of a Person other than
the Depository or its nominee; (14) if the Offered Debt Securities may be
exchanged, at the option of the Holders thereof, for equity or debt securities
of an issuer other than the Company, the rate or rates of exchange, the period
or periods within which such exchange may be made, the manner of exchange, and
the other detailed terms and provisions of any such exchange; and (15) any
other terms of the Offered Debt Securities. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating to Offered
Debt Securities, principal of and premium, if any, and interest, if any, on the
Debt Securities will be payable, and the Debt Securities will be exchangeable
and transfers thereof will be registrable, at the office of the Trustee at 14
Wall Street, 8th Floor, New York, New York 10005, provided that, at the option
of the Company, payment of interest may be made by: (1) wire transfer on the
date of payment in immediately available federal funds or next day funds to an
account specified by written notice to the Trustee from any Holder of Debt
Securities; (2) any similar manner that such Holder may designate in writing to
the Trustee; or (3) by check mailed to the address of the Person entitled
thereto as it appears in the Security Register. (Sections 301, 305 and 1002)
Any payment of principal and premium, if any, and interest, if any, required to
be made on an Interest Payment Date, Redemption Date or at Maturity which is
not a Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at Maturity, as the case may be, and
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Maturity. (Section 113)
Unless otherwise indicated in the Prospectus Supplement relating to Offered
Debt Securities, the Debt Securities will be issued only in fully registered
form, without coupons, in denominations of $1,000 or any integral multiple
thereof. (Section 302) No service charge will be made for any transfer or
exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount from their stated
principal amount. In addition, under Treasury Regulations it is possible that
Debt Securities which are offered and sold at their stated principal amount
would, under certain circumstances, be treated as issued at an original issue
discount for federal income tax purposes, and special rules may apply to Debt
Securities and Warrants which are considered to be issued as "investment
units". Federal income tax consequences and other special considerations
applicable to any such Original Issue Discount Securities (or other Debt
Securities treated as issued at
7
<PAGE>
an original issue discount) and to "investment units" will be described in the
Prospectus Supplement relating thereto. "Original Issue Discount Security"
means any security which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof upon the occurrence of an Event of Default and the
continuation thereof. (Section 101)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a Depository or its nominee
identified in the Prospectus Supplement relating to the Offered Debt
Securities. In such a case, one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of Outstanding Debt Securities of the series to be represented
by such Global Security or Securities. Unless and until it is exchanged in
whole or in part for Debt Securities in definitive registered form, a Global
Security may not be registered for transfer or exchange except as a whole by
the Depository for such Global Security to a nominee of such Depository and
except in the circumstances described in the Prospectus Supplement relating to
the Offered Debt Securities. (Sections 204 and 305)
EXCHANGEABLE SECURITIES
If so provided in the Prospectus Supplement, Debt Securities may be issued as
Debt Securities exchangeable at the option of the Holders thereof for equity or
debt securities of an issuer other than the Company ("Exchange Securities").
The issuer of securities for which the Exchange Securities are exchangeable,
the time period or periods during which the Exchange Securities are
exchangeable and the exchange rate or rates at which the Exchange Securities
are exchangeable will be set forth in the applicable Prospectus Supplement.
Unless otherwise provided in the Prospectus Supplement, in lieu of delivering
Exchange Securities upon such exchange, the Company may elect to pay to the
Holders in cash an amount representing the market value of such Exchange
Securities determined as provided in the Prospectus Supplement. Unless
otherwise provided in the Prospectus Supplement, the Company will deposit any
Exchange Securities with an escrow agent pursuant to the terms of an escrow
agreement to be entered into between the Company and the escrow agent. The
specific terms of the escrow agreement with respect to a series of Debt
Securities will be described in the Prospectus Supplement relating to such
series.
The particular terms of any series of Exchange Securities will be described
in the Prospectus Supplement relating to such series. The Prospectus Supplement
will also describe any special federal income tax consequences and other
considerations applicable to such series of Exchange Securities.
RESTRICTIVE COVENANTS
RESTRICTIONS ON SECURED DEBT
If the Company or any Domestic Subsidiary shall incur, assume or guarantee
any Debt secured by a Mortgage on any Principal Domestic Manufacturing Property
or on any shares of stock or debt of any Domestic Subsidiary, the Company will
secure, or cause such Domestic Subsidiary to secure, the Debt Securities then
outstanding equally and ratably with (or prior to) such Debt, unless after
giving effect thereto the aggregate amount of all such Debt so secured,
together with all Attributable Debt in respect of sale and leaseback
transactions involving Principal Domestic Manufacturing Properties, would not
exceed 5% of the Consolidated Net Tangible Assets of the Company and its
consolidated subsidiaries. The restriction will not apply to, and there shall
be excluded in computing secured Debt for the purpose of such restriction, Debt
secured by (a) Mortgages on property of, or on any shares of stock or debt of,
any corporation existing at the time such corporation becomes a Domestic
Subsidiary, (b) Mortgages in favor of the Company or a Domestic Subsidiary, (c)
Mortgages in favor of U.S. governmental bodies to secure progress or advance
payments, (d) Mortgages on property, shares of stock or debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation), purchase money Mortgages and construction cost Mortgages and
(e) any extension, renewal or refunding of any
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Mortgage referred to in the foregoing clauses (a) through (d), inclusive.
(Section 1004) The Indenture does not restrict the incurrence of unsecured debt
by the Company or its subsidiaries.
RESTRICTIONS ON SALES AND LEASEBACKS
Neither the Company nor any Domestic Subsidiary may enter into any sale and
leaseback transaction involving any Principal Domestic Manufacturing Property,
the completion of construction and commencement of full operation of which has
occurred more than 120 days prior thereto, unless (a) the Company or such
Domestic Subsidiary could incur a lien on such property under the restrictions
described above under "Restrictions on Secured Debt" in an amount equal to the
Attributable Debt with respect to the sale and leaseback transaction without
equally and ratably securing the Debt Securities then outstanding or (b) the
Company, within 120 days, applies to the retirement of its Funded Debt an
amount not less than the greater of (i) the net proceeds of the sale of the
Principal Domestic Manufacturing Property leased pursuant to such arrangement
or (ii) the fair value of the Principal Domestic Manufacturing Property so
leased (subject to credits for certain voluntary retirements of Funded Debt).
This restriction will not apply to any sale and leaseback transaction (a)
between the Company and a Domestic Subsidiary or between Domestic Subsidiaries
or (b) involving the taking back of a lease for a period of less than three
years. (Section 1005)
CERTAIN DEFINITIONS
The term "Attributable Debt" means the total net amount of rent (discounted
at 10% per annum compounded annually) required to be paid during the remaining
term of any lease. (Section 101)
The term "Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other
like intangibles, all as set forth on the most recent balance sheet of the
Company and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles. (Section 101)
The term "Domestic Subsidiary" means a subsidiary of the Company except a
subsidiary which neither transacts any substantial portion of its business nor
regularly maintains any substantial portion of its fixed assets within the
United States or which is engaged primarily in financing the operations of the
Company and its subsidiaries outside the United States. (Section 101)
The term "Funded Debt" means Debt having a maturity of, or by its terms
extendible or renewable for, a period of more than 12 months after the date of
determination of the amount thereof.
The term "Principal Domestic Manufacturing Property" means any facility
(together with the land on which it is erected and fixtures comprising a part
thereof) used primarily for manufacturing or processing, located in the United
States, owned or leased by the Company or a subsidiary of the Company and
having a gross book value in excess of 3/4 of 1% of Consolidated Net Tangible
Assets, other than any such facility or portion thereof (i) which is a
pollution control or other facility financed by obligations issued by a State
or local governmental unit pursuant to Section 103(b)(4)(E), 103(b)(4)(F) or
103(b)(6) of the Internal Revenue Code of 1954, or any successor provision
thereof, or (ii) which, in the opinion of the Board of Directors of the
Company, is not of material importance to the total business conducted by the
Company and its subsidiaries as an entirety. (Section 101)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to Debt
Securities of any series: (a) failure to pay principal of or premium, if any,
on any Debt Security of that series when due; (b) failure to pay any interest
on any Debt Security of that series when due, continued for 30 days; (c)
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<PAGE>
failure to deposit any sinking fund payment, when due, in respect of any Debt
Security of that series; (d) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Debt Securities other than that series),
continued for 90 days after written notice as provided in the Indenture; (e)
certain events in bankruptcy, insolvency or reorganization; and (f) any other
Event of Default provided with respect to Debt Securities of that series.
(Section 501)
If an Event of Default with respect to Outstanding Debt Securities of any
series shall occur and be continuing, either the Trustee or the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of that series
may declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all the Debt Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree based on acceleration has been obtained, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
that series may, under certain circumstances, rescind and annul such
acceleration. (Section 502) For information as to waiver of defaults, see
"Modification and Waiver".
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
The Indenture provides that the Trustee will be under no obligation, subject
to the duty of the Trustee during default to act with the required standard of
care, to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for indemnification of the Trustee, the Holders of a majority in
principal amount of the Outstanding Debt Securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Debt Securities of that series. (Section 512)
The Company will furnish to the Trustee annually a certificate as to
compliance by the Company with all conditions and covenants under the
Indenture. (Section 1007)
DEFEASANCE
The Prospectus Supplement will state if any defeasance provision will apply
to the Offered Debt Securities.
DEFEASANCE AND DISCHARGE
The Indenture provides that, if applicable, the Company will be discharged
from any and all obligations in respect of the Debt Securities of any series
(except for certain obligations to register the transfer or exchange of Debt
Securities of such series, to replace stolen, lost or mutilated Debt Securities
of such series, to maintain paying agencies and to hold monies for payment in
trust) upon the deposit with the Trustee, in trust, of money and/or U.S.
Government Obligations (as defined) which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of and premium, if any, and each
installment of interest on the Debt Securities of such series on the Stated
Maturity of such payments in accordance with the terms of the Indenture and the
Debt Securities of such series. Such a trust may only be established if, among
other things, (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling to the effect that Holders of the
Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit,
10
<PAGE>
defeasance and discharge and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred, and (ii) the
Company has delivered to the Trustee an Opinion of Counsel (who may be an
employee of or counsel for the Company) to the effect that the Debt Securities
of such series, if then listed on the New York Stock Exchange, Inc., will not
be delisted as a result of such deposit, defeasance and discharge. (Section
403)
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT
The Indenture provides that, if applicable, the Company may omit to comply
with certain restrictive covenants in Sections 1004 (Limitation on Liens) and
1005 (Limitation on Sales and Leasebacks), and Section 501(4) (described in
clause (d) under "Events of Default") with respect to Sections 1004 and 1005
shall not be deemed to be an Event of Default under the Indenture and the Debt
Securities of any series, upon the deposit with the Trustee, in trust, of money
and/or U.S. Government Obligations (as defined) which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of and premium, if
any, and each installment of interest on the Debt Securities of such series on
the Stated Maturity of such payments in accordance with the terms of the
Indenture and the Debt Securities of such series. The obligations of the
Company under the Indenture and the Debt Securities of such series other than
with respect to the covenants referred to above and the Events of Default other
than the Event of Default referred to above shall remain in full force and
effect. Such a trust may only be established if, among other things, the
Company has delivered to the Trustee an Opinion of Counsel (who may be an
employee of or counsel for the Company) to the effect that (i) the Holders of
the Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred, and (ii)
the Debt Securities of such series, if then listed on the New York Stock
Exchange, Inc., will not be delisted as a result of such deposit and
defeasance. (Section 1006)
DEFEASANCE AND CERTAIN OTHER EVENTS OF DEFAULT
In the event the Company exercises its option to omit compliance with certain
covenants of the Indenture with respect to the Debt Securities of any series as
described above and the Debt Securities of such series are declared due and
payable because of the occurrence of any Event of Default other than the Event
of Default described in clause (d) under "Events of Default", the amount of
money and U.S. Government Obligations on deposit with the Trustee will be
sufficient to pay amounts due on the Debt Securities of such series at the time
of their Stated Maturity but may not be sufficient to pay amounts due on the
Debt Securities of such series at the time of the acceleration resulting from
such Event of Default. However, the Company shall remain liable for such
payments.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of 66 2/3% in principal amount of
the Outstanding Debt Securities of each series affected by such modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the Holder of each Outstanding Debt Security affected
thereby, (a) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security, (b) reduce the principal
amount of, or the premium, if any, or interest, if any, on, any Debt Security,
(c) reduce the amount of principal of an Original Issue Discount Security
payable upon acceleration of the Maturity thereof, (d) change the place or
currency of payment of principal of, or premium, if any, or interest, if any,
on, any Debt Security, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security, or (f)
reduce the percentage in principal amount of Outstanding Debt Securities of any
series, the consent of the Holders of which is
11
<PAGE>
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults. (Section 902)
The Holders of 66 2/3% in principal amount of the Outstanding Debt Securities
of any series may on behalf of the Holders of all Debt Securities of that
series waive, insofar as that series is concerned, compliance by the Company
with certain restrictive provisions of the Indenture. (Section 1008) The
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may on behalf of the Holders of all Debt Securities of that series
waive any past default under the Indenture with respect to that series, except
a default in the payment of the principal of or premium, if any, or interest on
any Debt Security of that series or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of that series affected. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of Outstanding Debt
Securities, may consolidate or merge with or into, or transfer or lease its
assets as an entirety to, any Person, provided that (i) the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or which acquires or leases the assets of the Company substantially as
an entirety is organized and existing under the laws of any United States
jurisdiction and assumes the Company's obligations on the Debt Securities and
under the Indenture, (ii) after giving effect to such transaction no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing (provided
that a transaction will only be deemed to be in violation of this condition
(ii) as to any series of Debt Securities as to which such Event of Default or
such event shall have occurred and be continuing), and (iii) certain other
conditions are met. (Article Eight)
REGARDING THE TRUSTEE
The First National Bank of Chicago is the Trustee under the Indenture. The
First National Bank of Chicago is also a depositary of the Company and has
performed other services for the Company and its subsidiaries in the normal
course of its business.
DESCRIPTION OF WARRANTS
The following description of the terms of the Warrants sets forth certain
general terms and provisions of the Warrants to which any Prospectus Supplement
may relate. The particular terms of the Warrants offered by any Prospectus
Supplement (the "Offered Warrants") and the extent, if any, to which such
general provisions may apply to the Warrants so offered will be described in
the Prospectus Supplement relating to such Offered Warrants.
The Company may issue Warrants for the purchase of Debt Securities, Warrants
to buy or sell debt securities of or guaranteed by the United States
("Government Debt Securities"), Warrants to buy or sell foreign currencies,
currency units or units of a currency index or currency basket, Warrants to buy
or sell units of a stock index or stock basket and Warrants to buy and sell a
commodity or a commodity index. Warrants may be issued independently or
together with any Debt Securities offered by any Prospectus Supplement and may
be attached to or separate from such Debt Securities. The Warrants will be
settled either through physical delivery or through payment of a cash
settlement value as set forth herein and in any applicable Prospectus
Supplement. The Offered Warrants will be issued under a Warrant Agreement to be
entered into between the Company and a bank or trust company, as Warrant Agent,
all as set forth in the Prospectus Supplement relating to the particular issue
of Warrants. The Warrant Agent will act solely as an agent of the Company in
connection with the Warrant Certificates and will not assume any obligation or
relationship of agency or trust for or with any holders of Warrant
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<PAGE>
Certificates or beneficial owners of Warrants. The following summaries of
certain provisions of the forms of Warrant Agreement do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to the provisions of the forms of Warrant Agreement (including the forms of
Warrant Certificates), copies of which are filed as an exhibit to the
Registration Statement.
GENERAL
The Prospectus Supplement will describe the following terms of the Offered
Warrants (to the extent such terms are applicable to such Warrants): (i) the
offering price; (ii) the currency, currency unit, currency index or currency
basket based on or relating to currencies (including ECU) for which Warrants
may be purchased; (iii) the date on which the right to exercise the Warrants
shall commence and the date on which such right shall expire; (iv) whether the
Warrant Certificates will be issuable in definitive registered form or global
form or both; (v) federal income tax consequences; (vi) whether the Warrant is
for Debt Securities, Government Debt Securities, currencies, currency units,
currency indices or currency baskets, stock indices, stock baskets,
commodities, commodity indices or such other index or reference as therein
described; and (vii) any other terms of the Warrants, including any terms which
may be required or advisable under United States laws or regulations.
If the Offered Warrants are to purchase Debt Securities, the Prospectus
Supplement will also describe (a) the designation, aggregate principal amount,
currency, currency unit or currency basket of denomination and other terms of
the Debt Securities purchasable upon exercise of the Offered Warrants; (b) the
designation and terms of the Debt Securities with which the Offered Warrants
are issued and the number of Offered Warrants issued with each such Debt
Security; (c) the date on and after which the Offered Warrants and the related
Debt Securities will be separately transferable; and (d) the principal amount
of Debt Securities purchasable upon exercise of one Offered Warrant and the
price at which and currency, currency unit or currency basket in which such
principal amount of Debt Securities may be purchased upon such exercise.
If the Offered Warrants are to buy or sell Government Debt Securities or a
foreign currency, currency unit, currency index or currency basket, such
Offered Warrants will be listed on a national securities exchange and the
Prospectus Supplement will describe the amount and designation of the
Government Debt Securities or currency, currency unit, currency index or
currency basket, as the case may be, subject to each Offered Warrant, whether
such Offered Warrants provide for cash settlement or delivery of the Government
Debt Securities or foreign currency, currency unit, units of the currency index
or currency basket upon exercise, and the national securities exchange on which
the Offered Warrants will be listed.
If the Offered Warrants are Offered Warrants on a stock index or a stock
basket, such Offered Warrants will provide for payment of an amount in cash
determined by reference to increases or decreases in such stock index or stock
basket and will be listed on a national securities exchange, and the Prospectus
Supplement will describe the terms of the Offered Warrants, the stock index or
stock basket covered by the Offered Warrants and the market to which such stock
index or stock basket relates, and the national securities exchange on which
the Offered Warrants will be listed.
If the Offered Warrants are Offered Warrants on a commodity or commodity
index, such Offered Warrants will provide for cash settlement or delivery of
the particular commodity or commodities and such Offered Warrants will be
listed on a national securities exchange. The Prospectus Supplement will
describe the terms of the Offered Warrants, the commodity or commodity index
covered by the Offered Warrants and the market, if any, to which such commodity
or commodity index relates and the national securities exchange on which the
Warrants will be listed.
Warrant Certificates may be exchanged for new Warrant Certificates of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office of
the Warrant Agent or any other office indicated in the Prospectus Supplement.
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<PAGE>
Warrants to buy or sell Government Debt Securities or a foreign currency,
currency unit, currency index or currency basket, and Warrants on stock indices
or stock baskets or on commodities or commodity indices, may be issued in the
form of a single Global Warrant Certificate, registered in the name of the
nominee of the depository of the Warrants, or may initially be issued in the
form of definitive certificates that may be exchanged, on a fixed date, or on a
date or dates selected by the Company, for interests in a Global Warrant
Certificate, as set forth in the applicable Prospectus Supplement. Prior to the
exercise of their Warrants, holders of Warrants to purchase Debt Securities
will not have any of the rights of holders of the Debt Securities purchasable
upon such exercise, including the right to receive payments of principal of,
premium, if any, or interest, if any, on the Debt Securities purchasable upon
such exercise or to enforce covenants in the Indenture.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase such principal amount of
Debt Securities or buy or sell such amount of Government Debt Securities or of
a currency, currency unit, currency index or currency basket, stock index or
stock basket, commodity or commodities at such exercise price, or receive such
settlement value in respect of such amount of Government Debt Securities or of
a currency, currency unit, currency index or currency basket, stock index or
stock basket, commodity or commodity index, as shall in each case be set forth
in or calculable from, the Prospectus Supplement relating to the Warrants or as
otherwise set forth in the Prospectus Supplement. Warrants may be exercised at
any time up to 3:00 P.M. New York time on the date set forth in the Prospectus
Supplement relating to such Warrants or as may be otherwise set forth in the
Prospectus Supplement. After such time on that date (or such later date to
which such date may be extended by the Company), unexercised Warrants will
become void.
Subject to any restrictions and additional requirements that may be set forth
in the Prospectus Supplement relating thereto, Warrants may be exercised by
delivery to the Warrant Agent of the Warrant Certificate evidencing such
Warrants properly completed and duly executed and of payment as provided in the
Prospectus Supplement of the amount required to purchase the Debt Securities,
or (except in the case of Warrants providing for cash settlement) payment for
or delivery of the Government Debt Securities or currency, currency unit,
currency index, currency basket, stock index, stock basket, commodity or
commodities index as the case may be, purchased or sold upon such exercise.
Warrants will be deemed to have been exercised upon receipt of such Warrant
Certificate and any such payment, if applicable, at the corporate trust office
of the Warrant Agent or any other office indicated in the Prospectus Supplement
and the Company will, as soon as practicable thereafter, issue and deliver the
Debt Securities purchasable upon such exercise, or buy or sell such Government
Debt Securities or currency, currency unit, currency index or currency basket,
stock index or stock basket, commodity or commodities or pay the settlement
value in respect of such Warrants. If fewer than all of the Warrants
represented by such Warrant Certificate are exercised, a new Warrant
Certificate will be issued for the remaining amount of the Warrants.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities and Warrants to or through underwriters,
and also may sell Debt Securities and Warrants directly to other purchasers or
through agents. Such underwriters may also act as agents.
The distribution of the Debt Securities and Warrants, if any, may be effected
from time to time in one or more transactions at a fixed price or prices, which
may be changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities and Warrants, if any,
underwriters may receive compensation from the Company or from purchasers of
Debt Securities and Warrants, if any, for whom
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<PAGE>
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities and Warrants, if any, to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. Underwriters, dealers and agents
that participate in the distribution of Debt Securities and Warrants, if any,
may be deemed to be underwriters, and any discounts or commissions received by
them from the Company and any profit on the resale of Debt Securities and
Warrants, if any, by them may be deemed to be underwriting discounts and
commissions, under the Securities Act of 1933, as amended (the "Act"). Any such
underwriter or agent will be identified, and any such compensation received
from the Company will be described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Debt Securities and Warrants, if
any, may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the Act.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Debt Securities and Warrants, if any, from
the Company pursuant to contracts providing for payment and delivery on a
future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all cases
such institutions must be approved by the Company. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Offered Debt Securities and Offered Warrants, if any, shall not
at the time of delivery be prohibited under the laws of the jurisdiction to
which such purchaser is subject. The underwriters and such other agents will
not have any responsibility in respect of the validity or performance of such
contracts.
LEGAL OPINIONS
Unless otherwise indicated in the Prospectus Supplement relating to Offered
Debt Securities and Offered Warrants, if any, the validity of Offered Debt
Securities and Offered Warrants, if any, will be passed upon for the Company by
Chris B. Walther, Esq., Counsel, The Procter & Gamble Company, One Procter &
Gamble Plaza, Cincinnati, Ohio 45202, and for the underwriters or agents, as
the case may be, by Fried, Frank, Harris, Shriver & Jacobson (a partnership
including professional corporations), One New York Plaza, New York, New York
10004. Mr. Walther may rely as to matters of New York law upon the opinion of
Fried, Frank, Harris, Shriver & Jacobson, and Fried, Frank, Harris, Shriver &
Jacobson may rely as to matters of Ohio law upon the opinion of Mr. Walther.
Fried, Frank, Harris, Shriver & Jacobson from time to time perform legal
services for the Company.
EXPERTS
The consolidated financial statements and financial statement schedules
incorporated in this Prospectus by reference from the Company's Annual Report on
Form 10-K have been audited by Deloitte & Touche LLP, independent certified
public accountants, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon such reports given
upon the authority of that firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of estimated expenses (other than
underwriting discounts and commissions) to be incurred in connection with the
sale of the Debt Securities and Warrants:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee (actual)....... $172,415
Printing and engraving expenses.................................... 150,000
Accounting fees and expenses....................................... 52,000
Legal fees and expenses............................................ 25,000
Blue sky and legal investment fees and expenses.................... 14,000
Fees and expenses of Trustee....................................... 100,000
Rating agency fees................................................. 270,000
Miscellaneous...................................................... 10,000
--------
Total.......................................................... $793,415
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of the Ohio Revised Code provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any person who
was or is a party, or is threatened to be made a party, to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, other than an action by or in the right
of the corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company or a partnership,
joint venture, trust, or other enterprise, against expenses, including
attorney's fees, judgments, fines, and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, if he had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit,
or proceeding by judgment, order, settlement, or conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any person who was
or is a party, or is threatened to be made a party, to any threatened,
pending, or completed action or suit by or in the right of the corporation
to procure a judgment in its favor, by reason of the fact that he is or was
a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee, member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of his
duty to the corporation unless, and only to the extent that, the court
of common pleas or the court in which such action or suit was brought
determines, upon application, that, despite the adjudication of
liability, but in view of
II-1
<PAGE>
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common pleas or
such other court shall deem proper;
(b) Any action or suit in which the only liability asserted against a
director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense
of any action, suit, or proceeding referred to in division (E)(1) or (2) of
this section, or in defense of any claim, issue, or matter therein, he
shall be indemnified against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the action, suit, or
proceeding.
(4) Any indemnification under division (E)(1) or (2) of this section,
unless ordered by a court, shall be made by the corporation only as
authorized in the specific case, upon a determination that indemnification
of the director, trustee, officer, employee, member, manager, or agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in division (E)(1) or (2) of this section. Such
determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors of the
indemnifying corporation who were not and are not parties to or
threatened with any such action, suit, or proceeding referred to in
division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested
directors so directs, in a written opinion by independent legal counsel
other than an attorney, or a firm having associated with it an
attorney, who has been retained by or who has performed services for
the corporation or any person to be indemnified within the past five
years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which such action,
suit, or proceeding referred to in division (E)(1) or (2) of this
section was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or
brought the action or suit by or in the right of the corporation under
division (E)(2) of this section, and, within ten days after receipt of such
notification, such person shall have the right to petition the court of
common pleas or the court in which such action or suit was brought to
review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that is the
subject of an action, suit, or proceeding referred to in division (E)(1) or
(2) of this section, the articles or the regulations of a corporation
state, by specific reference to this division, that the provisions of this
division do not apply to the corporation and unless the only liability
asserted against a director in an action, suit, or proceeding referred to
in division (E)(1) or (2) of this section is pursuant to section 1701.95 of
the Revised Code, expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid by the
corporation as they are incurred, in advance of the final disposition of
the action, suit, or proceeding, upon receipt of an undertaking by or on
behalf of the director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the corporation or undertaken with reckless
disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the action,
suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director, trustee,
officer, employee, member, manager, or agent in defending any action, suit,
or proceeding referred to in division (E)(1) or (2) of this section, may be
paid by the corporation as they are incurred, in advance of the
II-2
<PAGE>
final disposition of the action, suit, or proceeding as authorized by the
directors in the specific case, upon receipt of an undertaking by or on
behalf of the director, trustee, officer, employee, member, manager, or
agent to repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be exclusive
of, and shall be in addition to, any other rights granted to those seeking
indemnification under the articles or the regulations or any agreement,
vote of shareholders or disinterested directors, or otherwise, both as to
action in their official capacities and as to action in another capacity
while holding their offices or positions, and shall continue as to a person
who has ceased to be a director, trustee, officer, employee, member,
manager, or agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
(7) A corporation may purchase and maintain insurance or furnish similar
protection, including, but not limited to, trust funds, letters of credit,
or self-insurance, on behalf of or for any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under this section. Insurance may be
purchased from or maintained with a person in which the corporation has a
financial interest.
(8) The authority of a corporation to indemnify persons pursuant to
division (E)(1) or (2) of this section does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other
protection that may be provided pursuant to divisions (E)(5), (6), and (7)
of this section. Divisions (E)(1) and (2) of this section do not create any
obligation to repay or return payments made by the corporation pursuant to
divisions (E)(5), (6), or (7).
(9) As used in this division, references to `corporation' include all
constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer,
employee, member, manager, or agent of such a constituent entity, or is or
was serving at the request of such constituent entity as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust, or other
enterprise, shall stand in the same position under this section with
respect to the new or surviving corporation as he would if he had served
the new or surviving corporation in the same capacity.
Section 1701.13 (F)(7) of the Ohio Revised Code provides as follows:
(F) In carrying out the purposes stated in its articles and subject to
limitations prescribed by law or in its articles, a corporation may:
(7) Resist a change or potential change in control of the corporation if
the directors by a majority vote of a quorum determine that the change or
potential change is opposed to or not in the best interests of the
corporation:
(a) Upon consideration of the interests of the corporation's
shareholders and any of the matters set forth in division (E) of
section 1701.59 of the Revised Code; or
(b) Because the amount or nature of the indebtedness and other
obligations to which the corporation or any successor or the property
of either may become subject in connection with the change or potential
change in control provides reasonable grounds to believe that, within a
reasonable period of time, any of the following would apply:
(i) The assets of the corporation or any successor would be or
become less than its liabilities plus its stated capital, if any;
(ii) The corporation or any successor would be or become
insolvent;
(iii) Any voluntary or involuntary proceeding under the federal
bankruptcy laws concerning the corporation or any successor would be
commenced by any person.
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<PAGE>
Section 1701.59 of the Ohio Revised Code provides as follows:
(A) Except where the law, the articles, or the regulations require action
to be authorized or taken by shareholders, all of the authority of a
corporation shall be exercised by or under the direction of its directors.
For their own government, the directors may adopt bylaws that are not
inconsistent with the articles or the regulations. The selection of a time
frame for the achievement of corporate goals shall be the responsibility of
the directors.
(B) A director shall perform his duties as a director, including his
duties as a member of any committee of the directors upon which he may
serve, in good faith, in a manner he reasonably believes to be in or not
opposed to the best interests of the corporation, and with the care that an
ordinarily prudent person in a like position would use under similar
circumstances. In performing his duties, a director is entitled to rely on
information, opinions, reports, or statements, including financial
statements and other financial data, that are prepared or presented by:
(1) One or more directors, officers, or employees of the corporation
who the director reasonably believes are reliable and competent in the
matters prepared or presented;
(2) Counsel, public accountants, or other persons as to matters that
the director reasonably believes are within the person's professional
or expert competence;
(3) A committee of the directors upon which he does not serve, duly
established in accordance with a provision of the articles or the
regulations, as to matters within its designated authority, which
committee the director reasonably believes to merit confidence.
(C) For purposes of division (B) of this section:
(1) A director shall not be found to have violated his duties under
division (B) of this section unless it is proved by clear and
convincing evidence that the director has not acted in good faith, in a
manner he reasonably believes to be in or not opposed to the best
interests of the corporation, or with the care that an ordinarily
prudent person in a like position would use under similar
circumstances, in any action brought against a director, including
actions involving or affecting any of the following:
(a) A change or potential change in control of the corporation,
including a determination to resist a change or potential change in
control made pursuant to division (F)(7) of Section 1701.13 of the
Revised Code;
(b) A termination or potential termination of his service to the
corporation as a director;
(c) His service in any other position or relationship with the
corporation.
(2) A director shall not be considered to be acting in good faith if
he has knowledge concerning the matter in question that would cause
reliance on information, opinions, reports, or statements that are
prepared or presented by the persons described in divisions (B)(1) to
(3) of this section to be unwarranted.
(3) Nothing contained in this division limits relief available under
section 1701.60 of the Revised Code.
(D) A director shall be liable in damages for any action he takes or
fails to take as a director only if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to
act involved an act or omission undertaken with deliberate intent to cause
injury to the corporation or undertaken with reckless disregard for the
best interests of the corporation. Nothing contained in this division
affects the liability of directors under section 1701.95 of the Revised
Code or limits relief available under section 1701.60 of the Revised Code.
This division does not apply if, and only to the extent that, at the time
of a director's act or omission that is the subject of complaint, the
articles or the regulations of the corporation state by specific reference
to this division that the provisions of this division do not apply to the
corporation.
(E) For purposes of this section, a director, in determining what he
reasonably believes to be in the best interests of the corporation, shall
consider the interests of the corporation's shareholders and, in his
discretion, may consider any of the following:
II-4
<PAGE>
(1) The interests of the corporation's employees, suppliers,
creditors, and customers;
(2) The economy of the state and nation;
(3) Community and societal considerations;
(4) The long-term as well as short-term interests of the corporation
and its shareholders, including the possibility that these interests
may be best served by the continued independence of the corporation.
(F) Nothing contained in division (C) or (D) of this section affects the
duties of either of the following:
(1) A director who acts in any capacity other than his capacity as a
director;
(2) A director of a corporation that does not have issued and
outstanding shares that are listed on a national securities exchange or
are regularly quoted in an over-the-counter market by one or more
members of a national or affiliated securities association, who votes
for or assents to any action taken by the directors of the corporation
that, in connection with a change in control of the corporation,
directly results in the holder or holders of a majority of the
outstanding shares of the corporation receiving a greater consideration
for their shares than other shareholders.
Section 1701.95 of the Ohio Revised Code provides as follows:
(A)(1) In addition to any other liabilities imposed by law upon directors
of a corporation and except as provided in division (B) of this section,
directors shall be jointly and severally liable to the corporation as
provided in division (A)(2) of this section if they vote for or assent to
any of the following:
(a) The payment of a dividend or distribution, the making of a
distribution of assets to shareholders, or the purchase or redemption
of the corporation's own shares, contrary in any such case to law or
the articles;
(b) A distribution of assets to shareholders during the winding up of
the affairs of the corporation, on dissolution or otherwise, without
the payment of all known obligations of the corporation, or without
making adequate provision for their payment;
(c) The making of a loan, other than in the usual course of business,
to an officer, director, or shareholder of the corporation, other than
in either of the following cases: (i) In the case of a savings and loan
association or of a corporation engaged in banking or in the making of
loans generally; (ii) At the time of the making of the loan, a majority
of the disinterested directors of the corporation voted for the loan
and, taking into account the terms and provisions of the loan and other
relevant factors, determined that the making of the loan could
reasonably be expected to benefit the corporation.
(2)(a) In cases under division (A)(1)(a) of this section, directors shall
be jointly and severally liable up to the amount of the dividend,
distribution, or other payment, in excess of the amount that could have
been paid or distributed without violation of law or the articles but not
in excess of the amount that would inure to the benefit of the creditors of
the corporation if it was insolvent at the time of the payment or
distribution or there was reasonable ground to believe that by such action
it would be rendered insolvent, plus the amount that was paid or
distributed to holders of shares of any class in violation of the rights of
holders of shares of any other class.
(b) In cases under division (A)(1)(b) of this section, directors
shall be jointly and severally liable to the extent that the
obligations of the corporation that are not otherwise barred by statute
are not paid, or for the payment of which adequate provision has not
been made.
(c) In cases under division (A)(1)(c) of this section, directors
shall be jointly and severally liable for the amount of the loan with
interest on it at the rate set forth in section 1343.03 of the Revised
Code until the amount has been paid.
(B)(1) A director is not liable under division (A)(1) (a) or (b) of this
section if, in determining the amount available for any dividend, purchase,
redemption, or distribution to shareholders, he in good faith relied on a
financial statement of the corporation prepared by an officer or
II-5
<PAGE>
employee of the corporation in charge of its accounts or certified by a
public accountant or firm of public accountants, or in good faith he
considered the assets to be of their book value, or he followed what he
believed to be sound accounting and business practice.
(2) A director is not liable under division (A)(1)(c) of this section for
making any loan to, or guaranteeing any loan to or other obligation of, an
employee stock ownership plan, as defined in section 4975(e)(7) of the
Internal Revenue Code.
(C) A director who is present at a meeting of the directors or a
committee of the directors at which action on any matter is authorized or
taken and who has not voted for or against the action shall be presumed to
have voted for the action unless his written dissent from the action is
filed, either during the meeting or within a reasonable time after the
adjournment of the meeting, with the person acting as secretary of the
meeting or with the secretary of the corporation.
(D) A shareholder who knowingly receives any dividend, distribution, or
payment made contrary to law or the articles shall be liable to the
corporation for the amount received by him that is in excess of the amount
which could have been paid or distributed without violation of law or the
articles.
(E) A director against whom a claim is asserted under or pursuant to this
section and who is held liable on the claim shall be entitled to
contribution, on equitable principles, from other directors who also are
liable. In addition, any director against whom a claim is asserted under or
pursuant to this section or who is held liable shall have a right of
contribution from the shareholders who knowingly received any dividend,
distribution, or payment made contrary to law or the articles, and such
shareholders as among themselves shall also be entitled to contribution in
proportion to the amounts received by them respectively.
(F) No action shall be brought by or on behalf of a corporation upon any
cause of action arising under division (A)(1)(a) or (b) of this section at
any time after two years from the day on which the violation occurs.
(G) Nothing contained in this section shall preclude any creditor whose
claim is unpaid from exercising such rights as he otherwise would have by
law to enforce his claim against assets of the corporation paid or
distributed to shareholders.
(H) The failure of a corporation to observe corporate formalities
relating to meetings of directors or shareholders in connection with the
management of the corporation's affairs shall not be considered a factor
tending to establish that the shareholders have personal liability for
corporate obligations.
Section 8 of Article III of the Company's Regulations provides as follows:
Section 8. Indemnification of Directors and Officers. The Company shall
indemnify each present and future Director and officer, his heirs,
executors and administrators against all costs, expenses (including
attorneys' fees), judgments, and liabilities, reasonably incurred by or
imposed on him in connection with or arising out of any claim or any
action, suit or proceeding, civil or criminal, in which he may be or become
involved by reason of his being or having been a Director or officer of the
Company, or of any of its subsidiary companies, or of any other company in
which he served or serves as a Director or officer at the request of the
Company, irrespective of whether or not he continues to be a Director or an
officer at the time he incurs or becomes subjected to such costs, expenses
(including attorneys' fees), judgments, and liabilities; but such
indemnification shall not be operative with respect to any matter as to
which in any such action, suit or proceeding he shall have been finally
adjudged to have been derelict in the performance of his duties as such
Director or officer. Such indemnification shall apply when the adjudication
in such action, suit or proceeding is otherwise than on the merits and also
shall apply when a settlement or compromise is effected, but in such cases
indemnification shall be made only if the Board of Directors of the
Company, acting at a meeting at which a majority of the quorum of the Board
is unaffected by self
II-6
<PAGE>
interest, shall find that such Director or officer has not been derelict in
the performance of his duty as such Director or officer with respect to the
matter involved, and shall adopt a resolution to that effect and in cases
of settlement or compromise shall also approve the same; in cases of
settlement or compromise such indemnification shall not include
reimbursement of any amounts which by the terms of the settlement or
compromise are paid or payable to the Company itself by the Director or
officer (or in the case of a Director or officer of a subsidiary or another
company in which such Director or officer is serving at the request of the
Company any amounts paid or payable by such Director or officer to such
company). If the Board of Directors as herein provided refuses or fails to
act or is unable to act due to the self interest of some or all of its
members, the Company at its expense shall obtain the opinion of counsel and
indemnification shall be had only if it is the opinion of such counsel that
the Director or officer has not been derelict in the performance of his
duties as such Director or officer with respect to the matter involved.
The right of indemnification provided for in this section shall not be
exclusive of other rights to which any Director or officer may be entitled
as a matter of law and such rights, if any, shall also inure to the benefit
of the heirs, executors or administrators of any such Director or officer.
The Company's Directors, officers and certain other key employees of the
Company are insured by directors and officers liability insurance policies. The
Company pays the premiums for this insurance. The Company's basic directors and
officers liability insurance provides coverage up to an annual aggregate
liability limitation of $25,000,000, and this policy is specifically
incorporated herein by reference to Exhibit (99-1) of the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 1994. The Company has
also contracted for excess directors and officers liability insurance coverage
with an annual aggregate liability limitation of $75,000,000, and the relevant
policies are specifically incorporated herein by reference to Exhibits (99-2)
and (99-3) of the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1994.
The Company's Directors, officers and certain other key employees of the
Company are insured against liabilities arising under the Employee Retirement
Income Security Act of 1974 and certain other liabilities by fiduciary
responsibility insurance with an annual aggregate liability limitation of
$30,000,000. This policy is specifically incorporated herein by reference to
Exhibit (99-4) of the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1994.
The form of Underwriting Agreement provides for indemnification of the
Company and its Directors, officers and certain other persons under certain
circumstances described therein by each underwriter participating in an
offering of Debt Securities and Warrants.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
(1) --Form of Underwriting Agreement (including form of Delayed
Delivery Contract).
*(4)(i)(a) --Indenture, dated as of September 28, 1992, between the Com-
pany and The First National Bank of Chicago, as Trustee.
(4)(i)(b) --Form of Debt Securities (included in Exhibit (4)(i)(a) at
pages 15 through 21).
(4)(i)(c) --Form of Warrant Agreement (to purchase Debt Securities).
(4)(i)(d) --Form of Warrant Agreement.
(5) --Opinion of Chris B. Walther, Esq., Counsel of the Company,
as to the legality of the Debt Securities and Warrants being
registered.
**(12) --Statement re Computation of Ratio of Earnings to Fixed
Charges.
(23)(i)(a) --Consent of Deloitte & Touche LLP.
(23)(i)(b) --Consent of Chris B. Walther, Esq. is contained in his opin-
ion filed as Exhibit (5).
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
(25) --Statement of Eligibility of The First National Bank of Chicago,
as Trustee, on Form T-1.
</TABLE>
- --------
* Incorporated by reference to Registration Statement No. 33-43919 filed on
November 13, 1991 as amended by Post-Effective Amendment No.1 filed on
September 29, 1992.
** Incorporated by reference to Exhibit 12 to Annual Report on Form 10-K for
the fiscal year ended June 30, 1994.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(b) For purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-8
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF CINCINNATI, STATE OF OHIO, ON SEPTEMBER 14, 1994.
THE PROCTER & GAMBLE COMPANY
/s/ Edwin L. Artzt
By___________________________________
EDWIN L. ARTZT CHAIRMAN OF THE
BOARD AND CHIEF EXECUTIVE
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED
ON SEPTEMBER 14, 1994.
SIGNATURE TITLE
/s/ Edwin L. Artzt Chairman of the Board and Chief
_____________________________________ Executive and Director (Principal
EDWIN L. ARTZT Executive Officer)
/s/ Erik G. Nelson Senior Vice President (Principal
_____________________________________ Financial Officer)
ERIK G. NELSON
/s/ Edwin H. Eaton, Jr. Vice President and Comptroller
_____________________________________ (Principal Accounting Officer)
EDWIN H. EATON, JR.
/s/ David M. Abshire Director
_____________________________________
DAVID M. ABSHIRE
/s/ Norman R. Augustine Director
_____________________________________
NORMAN R. AUGUSTINE
/s/ Donald R. Beall Director
_____________________________________
DONALD R. BEALL
/s/ Gordon F. Brunner Director
_____________________________________
GORDON F. BRUNNER
/s/ Richard B. Cheney Director
_____________________________________
RICHARD B. CHENEY
/s/ Harald Einsmann Director
_____________________________________
HARALD EINSMANN
II-9
<PAGE>
SIGNATURE TITLE
* Director
_____________________________________
RICHARD J. FERRIS
/s/ Joseph T. Gorman Director
_____________________________________
JOSEPH T. GORMAN
Director
/s/ Robert A. Hanson
_____________________________________
ROBERT A. HANSON
/s/ Durk I. Jager Director
_____________________________________
DURK I. JAGER
/s/ Jerry R. Junkins Director
_____________________________________
JERRY R. JUNKINS
/s/ Joshua Lederberg Director
_____________________________________
JOSHUA LEDERBERG
Director
/s/ Charles R. Lee
_____________________________________
CHARLES R. LEE
/s/ John E. Pepper Director
_____________________________________
JOHN E. PEPPER
/s/ John G. Smale Director
_____________________________________
JOHN G. SMALE
/s/ Robert D. Storey Director
_____________________________________
ROBERT D. STOREY
/s/ Marina v.N. Whitman Director
_____________________________________
MARINA v. N. WHITMAN
II-10
<PAGE>
EXHIBIT INDEX
<TABLE>
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EXHIBIT NO. PAGE NO.
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(1) --Form of Underwriting Agreement (including form of
Delayed Delivery Contract).
*(4)(i)(a) --Indenture, dated as of September 28, 1992, be-
tween the Company and The First National Bank of
Chicago, as Trustee.
(4)(i)(b) --Form of Debt Securities (included in Exhibit
(4)(i)(a) at pages 15 through 21).
(4)(i)(c) --Form of Warrant Agreement (to purchase Debt Secu-
rities).
(4)(i)(d) --Form of Warrant Agreement.
(5) --Opinion of Chris B. Walther, Esq., Counsel of the
Company, as to the legality of the Debt Securities
and Warrants being registered.
**(12) --Statement re Computation of Ratio of Earnings to
Fixed Charges.
(23)(i)(a) --Consent of Deloitte & Touche LLP.
(23)(i)(b) --Consent of Chris B. Walther, Esq. is contained in
his opinion filed as Exhibit (5).
(25) --Statement of Eligibility of The First National
Bank of Chicago, as Trustee, on Form T-1.
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* Incorporated by reference to Registration Statement No. 33-43919 filed on
November 13, 1991 as amended by Post-Effective Amendment No. 1 filed on
September 29, 1992.
** Incorporated by reference to Exhibit 12 to Annual Report on Form 10-K for
the fiscal year ended June 30, 1994.
<PAGE>
EXHIBIT 1
THE PROCTER & GAMBLE COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT*
...... , 199..
To the Representatives of the
several Underwriters named in
the respective Pricing Agreements
hereinafter described.
Dear Sirs/Mesdames:
From time to time The Procter & Gamble Company (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 I 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"), less the principal amount of Designated Securities covered by
Delayed Delivery Contracts, if any, as provided in Section 3 hereof and as may
be specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, any Designated Securities to be covered by Delayed Delivery
Contracts being herein sometimes referred to as "Contract Securities" and the
Designated Securities to be purchased by the Underwriters (after giving effect
to the deduction, if any, for Contract Securities) being herein sometimes
referred to as "Underwriters' 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 obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase any of the Securities. The obligation of
the Company to issue and sell any of the Securities and the obligation 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, the principal amount of such
Designated Securities to be purchased by each Underwriter and whether any of
such Designated Securities shall be covered by Delayed Delivery Contracts (as
defined in Section 3 hereof) and the commission payable to the Underwriters
with respect thereto 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.
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* Appropriate modifications may be made to this form of Underwriting Agreement
in the event of an offering of Securities and warrants to purchase
Securities.
<PAGE>
The Pricing Agreement also may specify such additional terms and conditions as
the parties thereto may agree. 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 (File No. 33-48835) and a registration
statement (File No. 33- ), each in respect of a portion of the
Securities, have been filed with the Securities and Exchange Commission
(the "Commission") in the forms heretofore delivered or to be delivered to
the Representatives and, excluding exhibits to such registration
statements, but including all documents incorporated by reference in the
combined prospectus relating to all the Securities contained in the latest
registration statement (File No. 33- ), to the Representatives for each
of the other Underwriters and such registration statements in such forms
have been declared effective by the Commission and no stop order suspending
the effectiveness of either such registration statement has been issued and
no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in either such registration
statement being hereinafter called a "Preliminary Prospectus"; the various
parts of each such registration statement, including all exhibits thereto
but excluding Form T-1, each such part as amended at the time such part
became effective, being hereinafter collectively called the "Registration
Statement"; the combined prospectus relating to the Securities, in the form
in which it has most recently been filed, or mailed for filing, with the
Commission on or prior to the date of this Agreement, 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
Securities Act of 1933, as amended (the "Act"), as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the Prospectus
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; 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 first filed with the Commission pursuant to Rule 424(b)
under the Act, 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 not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented related to
such Securities;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the
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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 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 not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by 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 of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus 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 which is material to the Company and its
subsidiaries considered as a whole, 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 capital stock or long-term
debt of the Company or in the consolidated capitalization of the Company
and its consolidated subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
consolidated subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) 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 and, in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts
with respect to such Contract 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, at the Time of Delivery (as defined in Section 4
hereof) the Indenture will be duly qualified under the Trust Indenture Act
and will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof in
the Prospectus as amended or supplemented;
(f) In the event any of the Securities are purchased pursuant to Delayed
Delivery Contracts, each of such Delayed Delivery Contracts has been duly
authorized by the Company and, when executed and delivered by the Company
and the purchaser named therein, will constitute a valid and legally
binding agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and any Delayed Delivery Contracts
will conform to the description thereof in the Prospectus as amended or
supplemented;
(g) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, each
of the Delayed Delivery Contracts, if any, 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 of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its domestic subsidiaries is a party or by
which the Company or any of its domestic subsidiaries is bound or to which
any of the property or assets of the Company or any of its domestic
subsidiaries is subject, nor will such action result in
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any violation of the provisions of the Amended Articles of Incorporation,
Regulations or By Laws of the Company or any applicable statute or any
applicable order, rule or regulation known to the Company of any court or
governmental agency or body having jurisdiction over the Company or any of
its domestic subsidiaries or any of its or their properties; and no
consent, approval, authorization, order, registration or qualification of
or with 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
other transactions contemplated by this Agreement or any Pricing Agreement
or the Indenture or any Delayed Delivery Contract, 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
(h) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is subject other than (i) as set
forth in the Prospectus and (ii) legal or governmental proceedings which,
if determined adversely to the Company or any of its subsidiaries, would
not in the aggregate have a material adverse effect on the financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries considered as a whole; and no such proceedings are known
by the Company to be threatened or contemplated by governmental authorities
or threatened by others.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of the
Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement applicable to
any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex III attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery, such commission, if any, as may be set
forth in such Pricing Agreement. Delayed Delivery Contracts, if any, are to be
with investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any responsibility
in respect of the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the principal
amount of Designated Securities to be purchased by each Underwriter as set
forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as
the Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set
forth in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m., New York City time, on the third business day preceding the
Time of Delivery specified in the applicable Pricing Agreement (or such other
time and date as the Representatives and the Company may agree upon in writing)
a written notice setting forth the principal amount of Contract Securities.
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4. Underwriters' 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 in the funds and in
the manner specified in such Pricing Agreement, all at the place and time and
date specified in such Pricing Agreement 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.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Securities in the amount of any compensation
payable by the Company to the Underwriters in respect of any Delayed Delivery
Contracts as provided in Section 3 hereof and in the Pricing Agreement relating
to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) 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 reasonably 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; 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 has become effective or any supplement to the Prospectus or any amended
Prospectus has been filed or mailed for filing, 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;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request 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 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;
(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
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state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their 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 security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement, an earning statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158); and
(e) During the period beginning on 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 Representatives 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.
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
Delayed Delivery Contracts, 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 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 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 the
Indenture and the Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising 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 such Pricing Agreement are, at and as of the Time
of Delivery for such
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Designated Securities, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed,
and the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Fried, Frank, Harris, Shriver & Jacobson, 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 Delayed Delivery Contracts, if any, 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. In rendering
such opinion or opinions, such counsel may rely as to all matters governed
by Ohio law upon the opinion referred to in subsection (c) of this Section;
(c) Chris B. Walther, Esq., Counsel for the Company, shall have furnished
to the Representatives his 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 and is validly existing as
a corporation in good standing under the laws of the State of Ohio,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) Each domestic subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the
issued shares of capital stock of each such subsidiary have been duly
and validly authorized and issued and are fully paid and non-assessable
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its domestic
subsidiaries);
(iv) The Company and each of its domestic subsidiaries are duly
authorized and are in good standing to do business in each jurisdiction
in the United States, other than their respective jurisdictions of
incorporation, in which they own or lease properties, or conduct any
business, so as to require such qualification (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions
of local counsel and in respect of matters of fact upon certificates of
officers of the Company or its domestic subsidiaries);
(v) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
domestic subsidiaries is a party or of which any property of the
Company or any of its domestic subsidiaries is the subject, other than
as set forth in the Prospectus and other than legal or governmental
proceedings which, if determined adversely to the Company and its
domestic subsidiaries, would not in the aggregate have a material
adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries
considered as a whole; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered
by the Company;
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(vii) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized, executed and delivered by
the Company and, assuming such Contract has been duly executed and
delivered by the purchaser named therein, constitutes a valid and
legally binding agreement of the Company enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and any
Delayed Delivery Contracts conform to the description thereof in the
Prospectus as amended or supplemented;
(viii) The Designated Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated, issued
and delivered and constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture; the
Contract Securities, if any, when executed, authenticated, issued and
delivered pursuant to the Indenture and Delayed Delivery Contracts, if
any, will 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;
(ix) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been duly qualified
under the Trust Indenture Act;
(x) 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, each of the Delayed Delivery Contracts, if
any, this Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
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 domestic subsidiaries is a party or by which the Company or
any of its domestic subsidiaries is bound or to which any of the
property or assets of the Company or any of its domestic subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Amended Articles of Incorporation, Regulations or By
Laws of the Company or any applicable statute or any applicable 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
domestic subsidiaries or any of its or their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Designated Securities or the consummation
by the Company of the other transactions contemplated by this Agreement
or such Pricing Agreement or the Indenture or any of such Delayed
Delivery Contracts, except such as have been obtained under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material respects with
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; 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
8
<PAGE>
the case of a registration statement which became effective under the
Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of other documents
which were filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were
so filed, not misleading; and
(xii) 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 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 the effective date of the
Registration Statement, either the Registration Statement or the
Prospectus (or, as of its date, any further amendment or supplement
thereto made by the Company prior to the Time of Delivery) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus (or any such further amendment
or supplement thereto) contains an untrue statement of a material fact
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; such counsel
does not know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended
or supplemented 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; and the
statements in the Prospectus as amended or supplemented describing the
Designated Securities are accurate and fairly present the information
required or purported to be shown;
In rendering such opinion or opinions, such counsel may rely as to all
matters governed by New York law upon the opinions referred to in
subsection (b) of this Section;
(d) On the date of the Pricing Agreement for such Designated Securities
and at the Time of Delivery for such Designated Securities, Deloitte &
Touche LLP, who have rendered their opinion on 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 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 to such letter dated such Time of Delivery, 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 subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor 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 or long-term debt of the Company or
any of its subsidiaries or in the consolidated capitalization of the
Company and its consolidated subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries
9
<PAGE>
considered as a whole, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which, in any such
case described in Clause (i) or (ii), is in the judgment of 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) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities 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 defined by the Commission
for purposes of Rule 436(g)(2) under the Act and no public announcement
shall have been made by any such organization that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(g) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States, on or after the
date of such Pricing Agreement, of a national emergency or war, if the
effect of any such event specified in this Clause (iii) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Underwriters' Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities
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 such Underwriter against
any losses, claims, damages or liabilities, joint or several, in 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 or any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse 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 supplemented or any other prospectus
relating to the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by 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
10
<PAGE>
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 or any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by
such 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 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
11
<PAGE>
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.
(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
Underwriters' Securities which it has agreed to purchase under the Pricing
Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Underwriters' 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 Underwriters' 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 Underwriters' 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 Underwriters' Securities, or the
Company notifies the Representatives that it has so arranged for the purchase
of such Underwriters' Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for such Underwriters' 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 and the Pricing Agreement with respect to such Securities
shall include any person substituted under this Section with like effect as if
such person had originally been a party to such Pricing Agreement with respect
to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' 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
Underwriters' 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
12
<PAGE>
Underwriters' 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.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' 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 Underwriters' 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 Underwriters' 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 of 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 or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered, or sent by registered mail to the 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 registered mail 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.
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
13
<PAGE>
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.
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,
THE PROCTER & GAMBLE COMPANY
By:................................
14
<PAGE>
ANNEX I
PRICING AGREEMENT
. . . . . . . . ., 199. .
[Name of Representatives,]
[Name of any Co-Representative(s),]
As representatives of the several Underwriters
named in Schedule I hereto,
[c/o Representatives,]
[Address of Representatives].
Dear Sirs/Mesdames:
The Procter & Gamble Company (the "Company") proposes, subject to the terms
and conditions stated herein and in the Underwriting Agreement, dated
. . . . . . . . ., 199. . (the "Underwriting Agreement"), to issue and sell to
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 in Section 2 of the Underwriting Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
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, or in the case of
a supplement mailed for filing, 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, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified
in such Schedule II.
If the foregoing is in accordance with your understanding, please sign and
return to us . . . . 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 may be pursuant to the authority
set forth in a form of Agreement among
<PAGE>
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,
THE PROCTER & GAMBLE COMPANY
By:................................
Accepted as of the date hereof:
.....................................
(Name of Representative Partnership)
[Name of Representative Corporation]
By:.................................
(Title)
.....................................
(Name of Co-Representative
Partnership)
[Name of Co-Representative Corporation]
By:.................................
(Title)
On behalf of each of the
Underwriters
2
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
DESIGNATED SECURITIES
UNDERWRITER TO BE PURCHASED
<S> <C>
[Name of Representatives]................................ [$]
[Name(s) of any Co-Representatives]......................
[Names of any other Underwriters]........................
-----
Total................................................ [$]
-----
-----
</TABLE>
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
[Warrants]
AGGREGATE PRINCIPAL AMOUNT:
[$]
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 ]
METHOD OF AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[By certified or official bank check or checks, payable to the order of the
Company in [New York Clearing House] [same day] funds]
[By wire transfer to a bank account specified by the Company in same day
funds]
[Other specified method]
INDENTURE:
Indenture, dated as of September 28, 1992, between the Company and The First
National Bank of Chicago, as Trustee
TIME OF DELIVERY:
[Time and date], 199 .
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
SECURITIES EXCHANGE:
[Securities to be listed on the [New York] Stock Exchange]
<PAGE>
DELAYED DELIVERY:
[None] [Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been entered
into. Such commission shall be payable to the order of .]
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 ,
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
</TABLE>
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date 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] [non-cumulative] redemptions at the option of the
Company to retire an additional $ principal amount of Designated Securities
in the years through at 100% of their principal amount plus accrued
interest.]
2
<PAGE>
[If Securities are Extendible Debt Securities, insert--
EXTENDIBLE 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] 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 of -month Treasury bills);
[from and thereafter the rate will be the then current yield equivalent
plus % of Interest Differential].]
DEFEASANCE:
[The provisions of Sections 403 and 1006 of the Indenture relating to
defeasance shall apply to the Designated Securities.]
[OTHER TERMS]*:
- --------
* A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary, to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the form
in which such features will be described in the Prospectus Supplement for the
offering.
3
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte & Touche LLP
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for 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 subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q
and the related published rules and regulations thereunder or are not
in conformity with generally accepted accounting principles applied on
a basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data
and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived 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
for the most recent fiscal year;
<PAGE>
(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 shareholders' equity or other items specified
by the Representatives, or any increases in any items specified by the
representatives of the Underwriters (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; or
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the date
specified by the Representatives there were any decreases in
consolidated net sales or earnings from operations before income taxes
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 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), 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.
2
<PAGE>
ANNEX III
DELAYED DELIVERY CONTRACT
. . . . . . . . . , 199 . .
THE PROCTER & GAMBLE COMPANY,
c/o [Name and address of appropriate
Representatives].
Attention:
Dear Sirs/Mesdames:
The undersigned hereby agrees to purchase from The Procter & Gamble Company
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
[$].......................................
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated
. . . . . . . . . , 199 . ., as amended or supplemented, receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal
amount thereof [, plus accrued interest from the date from which interest
accrues as set forth below,] [and accrued amortization, if any, from
[. . . . . . . . . ] [the date from which interest accrues as set forth below]]
and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the Company on
. . . . . . . . . , 199 . . (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from . . . . . . . . . , 199 . .
[The undersigned will purchase the Designated Securities from the Company on
the delivery date or dates and in the principal amount or amounts set forth
below:
<TABLE>
<CAPTION>
PRINCIPAL DATE FROM WHICH
DELIVERY DATE AMOUNT INTEREST ACCRUES
------------- --------- ----------------
<S> <C> <C>
. . . . . . . . . . . , 199. . [$] . . . . . . . . . . . , 199. .
. . . . . . . . . . . , 199. . [$] . . . . . . . . . . . , 199. .
</TABLE>
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to [the Company or its
order by certified or official bank check in [New York Clearing House] [same
day] funds at the office of . . . . . . . . . , . . . . . . . . . ,
. . . . . . . . . , or by wire transfer of same day funds to a bank account
specified by the Company] [or specify other means], on [the] [such] Delivery
Date upon delivery to the undersigned of the Designated Securities then to be
purchased by the undersigned in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communications addressed to the Company not less than
five full business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [the] [each] Delivery Date shall be subject to the
condition that the purchase of Designated
<PAGE>
Securities to be made by the undersigned shall not on [the] [such] Delivery
Date be prohibited under the laws of the jurisdiction to which the undersigned
is subject. The obligation of the undersigned to take delivery of and make
payment for Designated Securities shall not be affected by the failure of any
purchaser to take delivery of and make payment for Designated Securities
pursuant to other contracts similar to this contract.
[The undersigned understands that underwriters (the "Underwriters") are also
purchasing Designated Securities from the Company, but that the obligations of
the undersigned hereunder are not contingent on such purchases. Promptly after
completion of the sale to the Underwriters the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith.]
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and
that, without limiting the foregoing, acceptances of such contracts need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered by
the Company.
Yours very truly,
...................................
(Name of Purchaser)
By...................................
(Signature)
...................................
(Name and Title)
...................................
(Address)
Accepted,..................., 199 . .
THE PROCTER & GAMBLE COMPANY
By...................................
Title
2
<PAGE>
EXHIBIT 4(I)(C)
FORM OF WARRANT AGREEMENT/1/
WARRANT AGREEMENT dated as of , 19 , between The Procter & Gamble
Company (the "Company") and , a [national association] [banking
corporation] organized and existing under the laws of the [United States of
America] [State of New York], as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated September 28, 1992
(the "Indenture"), with The First National Bank of Chicago, a national banking
association, existing under the laws of the United States, as Trustee (the "
Trustee", which term includes any successor trustee under the Indenture),
providing for the issuance from time to time of its unsecured notes, bonds,
debentures or other evidences of indebtedness.
WHEREAS, the Company proposes to issue [$ ] aggregate principal amount of
its % [Notes] [Bonds] [Debentures] Due [ ] (the "Offered Debt
Securities") with warrant certificates evidencing one or more warrants (the
"Warrants" or, individually a "Warrant") representing the right to purchase up
to [$ ] aggregate principal amount of its % [Notes] [Bonds] [Debentures]
Due [ ] (the "Warrant Debt Securities"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
such warrant certificates (such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates")/2/, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the
terms and conditions on which they may be issued, exchanged, exercised and
replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
Issuance, Execution and Delivery of Warrant Certificates
Section 1.01. Issuance of Warrant Certificates. Warrant Certificates shall
be initially issued in connection with the issuance of the Offered Debt
Securities [but shall be separately transferable on and after , (the
"Detachable Date")] [and shall not be separately transferable] and each
Warrant Certificate shall evidence one or more Warrants. Each Warrant
evidenced thereby shall represent the right, subject to the provisions
contained herein and therein, to purchase a Warrant Debt Security in the
principal amount of [$ ]. Warrant Certificates shall be initially issued in
units with the Offered Debt Securities and each Warrant Certificate included
in such a unit shall evidence Warrant[s] for each [$ ] principal amount of
Offered Debt Securities included in such unit.
- --------
/1/The provisions of this Form will be completed or modified as appropriate to
reflect the terms of the Warrants, Offered Debt Securities and the Warrant
Debt Securities and the designation of the Warrant Agent. Monetary amounts may
be in U.S. Dollars, in foreign denominated currency or in units based on or
relating to currencies (including European Currency Units (ECU)).
/2/If the Warrants are to be uncertificated, the provisions of this Form will
be modified as appropriate to reflect the terms of exercise and transfer of
uncertificated Warrants and other matters relating to the use of the specified
system for uncertificated Warrants.
1
<PAGE>
Section 1.02. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in [bearer or] [registered] form [or
both] substantially in the form of Exhibit A hereto, shall be dated as of
, , and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board, its President, one of its
Vice Presidents or its Treasurer under its corporate seal and attested by its
Secretary or one of its Assistant Secretaries. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no Warrant
evidenced hereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificates executed by the Company shall
be conclusive evidence that the Warrant Certificates so countersigned have been
duly issued hereunder.
In case any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned and delivered by the Warrant Agent, such
Warrant Certificates may be countersigned and delivered notwithstanding that
the person who signed such Warrant Certificates ceased to be such officer of
the Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such officer.
[If bearer Warrants--The term "holder" or "holder of Warrant Certificate" as
used herein shall mean [If Offered Debt Securities with Warrants which are not
immediately detachable--prior to the Detachable Date, the registered owner of
the Offered Debt Security to which such Warrant Certificate was initially
attached (or the bearer, if the Offered Debt Security is in bearer form), and
after such Detachable Date] the bearer of such Warrant Certificate.]
[If registered Warrants--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [If Offered Debt Securities with Warrants which
are not immediately detachable--or upon the register of the Offered Debt
Securities prior to the Detachable Date. The Company will or will cause the
registrar of the Offered Debt Securities to make available at all times to the
Warrant Agent such information as to holders of the Offered Debt Securities
with Warrants as may be necessary to keep the Warrant Agent's records up to
date].]
Section 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
[$ ] aggregate principal amount of Warrant Debt Securities (except as
provided in Section 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Agreement or from
time to time thereafter. The Warrant Agent shall, upon receipt of the Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
[$ ] aggregate principal amount of the Warrant Debt Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant
2
<PAGE>
Certificate is issued in exchange or substitution for one or more previously
countersigned Warrant Certificates [If registered Warrants -- or in connection
with their transfer], as hereinafter provided.
ARTICLE II
Warrant Price, Duration and Exercise of Warrants
Section 2.01. Warrant Price. During the period from and including , 19
to and including , 19 , the exercise price of each Warrant will be [ % of
the principal amount of the Warrant Debt Securities] [$ ] plus [accrued
amortization of the original issue discount] [accrued interest from the most
recently preceding ]. [During the period from , 19 , to and including
, 19 , the exercise price of each Warrant will be [ % of the principal
amount of the Warrant Debt Securities] [$ ] plus [accrued amortization of the
original issue discount] [accrued interest from the most recently preceding
]. [In each case, the original issue discount will be amortized at a %
annual rate, computed on an annual basis using a 360-day year consisting of 12
30-day months.] Such purchase price of the Warrant Debt Securities is referred
to in this Agreement as the "Warrant Price". [The original issue discount for
each [$ ] principal amount of Warrant Debt Securities is [$ ].
Section 2.02. Duration of Warrants. Each Warrant may be exercisable in whole
at any time, as specified herein, on or after [the date thereof] [ , 19 ]
and at or before 3:00 p.m., New York time, on , , or such later date as
the Company may designate in writing to the Warrant Agent, with notice to the
holders of Warrants (such date of expiration is herein referred to as the
"Expiration Date"). Each Warrant Certificate not exercised at or before 3:00
p.m., New York time, on the Expiration Date shall become void, and all rights
of the holder of the Warrant Certificate evidencing such Warrant thereunder,
and under this Agreement, shall cease.
Section 2.03. Exercise of Warrant Certificates.
(a) During the period specified in Section 2.02, any whole number of
Warrants may be exercised [, subject to Section 2.03(c),] by delivery of
the Warrant Certificates evidencing such Warrants at the place or places
set forth in the Warrant Certificate, with the purchase form set forth in
the Warrant Certificate duly executed, accompanied by payment in full, [in
lawful money of the United States of America,] [by bank wire transfer in
immediately available funds] [or by other such means as specified in the
Warrant Certificate], of the Warrant Price for each Warrant exercised to
the Warrant Agent [or at ]. The date on which the duly completed and
executed Warrant Certificate and payment in full of the Warrant Price is
received by the Warrant Agent shall be deemed to be the date on which the
Warrant is exercised. The Warrant Agent shall deposit all funds received by
it in payment of the Warrant Price in an account of the Company maintained
with it and shall advise the Company by telephone at the end of each day on
which a [wire transfer] for the exercise of Warrants is received or the
amount so deposited to its account. The Warrant Agent shall promptly
confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of
Warrants exercised; (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the
Warrant Debt Securities to which such holder is entitled upon such
exercise; (iii) delivery of Warrant Certificates evidencing the balance, if
any, of the Warrants remaining after such exercise; and (iv) such other
information as the Company or the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the Company
shall issue, pursuant to the Indenture, in authorized denominations to or
upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Debt Securities to which such holder is entitled, [in
fully registered form registered in such name or names] [or in bearer form]
as may be directed by such holder [; provided, however, the Company shall
deliver Warrant Debt Securities in
3
<PAGE>
bearer form only outside the United States and only upon delivery from the
person entitled to physical delivery of such Warrant Debt Securities of an
executed certificate substantially in the form of Exhibit B hereto]. If
less than all of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of the
Warrant Agent shall manually countersign and deliver, a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any
transfer involved in the issuance of the Warrant Debt Securities; and the
Company shall not be required to issue or deliver any Warrant Debt Security
unless and until such tax or other governmental charge shall have been paid
or it has been established to the Company's satisfaction that no such tax
or other governmental charge is due.
ARTICLE III
Other Provisions Relating to Rights of Holders of Warrant Certificates
Section 3.01. No Rights as Holders of Warrant Debt Securities Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Debt Securities, including, without limitation, the right to receive
payment of principal of, premium, if any, or interest on Warrant Debt
Securities or to enforce any of the covenants of the Warrant Debt Securities or
the Indenture [, except to the extent that the consent of the holders of
Warrant Certificates is expressly required by the terms of the Warrant Debt
Securities for certain modifications of the Warrant Debt Securities], [No
amendment or modification of the Indenture or the forms of the Warrant Debt
Securities which would adversely affect the rights of the holders of Warrant
Certificates shall be made prior to the issuance of any Warrant Debt Securities
without the written consent of the holders of Warrant Certificates evidencing
the right to purchase at least a majority of the maximum principal amount of
the Warrant Debt Securities which may be issued.]
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably satisfactory
to them and, in the case of mutilation, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser or holder in due course, the Company may (or in the case of
mutilation, shall) execute, and in such event an authorized officer of the
Warrant Agent shall manually countersign and deliver, in exchange or in lieu of
the lost, stolen destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants. Upon
the issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and delivered pursuant to this
Section in lieu of any lost, stolen or destroyed Warrant Certificate shall
constitute an additional contractual obligation of the Company, whether or not
the allegedly lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other
rights or remedies notwithstanding any law or statute existing or hereinafter
enacted to the contrary with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
4
<PAGE>
Section 3.03. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder of
any Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the holder of any Warrant Debt Security or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, his right to exercise the
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
ARTICLE IV
Exchange and Transfer of Warrants
Section 4.01. Exchange and Transfer of Warrant Certificates. [If Offered Debt
Securities with Warrants which are immediately detachable--Upon] [If Offered
Debt Securities with Warrants which are not immediately detachable--Prior to
the Detachable Date a Warrant Certificate may be exchanged or transferred only
together with the Offered Debt Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction
with an exchange or transfer of such Offered Debt Security. Prior to the
Detachable Date, each transfer of the Offered Debt Security [on the register of
the Offered Debt Securities] shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ], Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants [If Registered Warrants--or the transfer of such
Warrants may be registered in whole or in part]; provided that such other
Warrant Certificates evidence a like number of Warrants as the Warrant
Certificates so surrendered. [If registered and bearer Warrants (subject to any
limitations imposed with respect to such exchanges)]--[After the Detachable
Date, upon] [Upon] surrender at the corporate trust office of the Warrant Agent
[or ], Warrant Certificates in bearer form may be exchanged for Warrant
Certificates in registered form evidencing a like number of Warrants and
Warrant Certificates in bearer form may be exchanged for Warrant Certificates
in registered form evidencing a like number of Warrants.] [If registered
Warrants--The Warrant Agent shall keep, at its corporate trust office [and at
], books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers
of outstanding Warrant Certificates, upon surrender of the Warrant Certificates
to the Warrant Agent at its corporate trust office [or ] for exchange [or
registration of transfer], properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent.] No service
charge shall be made for any exchange [or registration of transfer] of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any exchange [or registration of transfer] of Warrant
Certificates. Whenever any Warrant Certificates are so surrendered for exchange
[or registration of transfer], an authorized officer of the Warrant Agent shall
manually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any
exchange [or registration of transfer] which will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange [or registration of transfer] of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange [or registration of transfer].
Section 4.02. Treatment of Holders of Warrant Certificates. [If Offered Debt
Securities with bearer Warrants which are not immediately detachable--Subject
to Section 4.01, each] [If Offered Debt Securities with bearer Warrants which
are immediately detachable--Each] Warrant Certificate shall be
5
<PAGE>
transferable by delivery and shall be deemed negotiable and the bearer of each
Warrant Certificate may be treated by the Company, the Warrant Agent and all
other persons dealing with said holder as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.] [If
registered Warrants]--Every holder of a Warrant Certificate, by accepting the
same, consents and agrees with the Company, the Warrant Agent and with every
subsequent holder of such Warrant Certificate that until the transfer of the
Warrant Certificate is registered on the books of the Warrant Agent [, and the
registrar of the Offered Debt Securities prior to the Detachable Date] the
Company and the Warrant Agent [, and the registrar of the Offered Debt
Securities prior to the Detachable Date,] may treat such registered holder as
the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.]
Section 4.03. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange (, registration of transfer) or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered
to the Warrant Agent, and all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall
not be reissued and, except as expressly permitted by this Agreement, no
Warrant Certificate shall be issued hereunder in exchange therefor in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE V
Concerning the Warrant Agent
Section 5.01. Warrant Agent. The Company hereby appoints as Warrant Agent
of the Company with respect to the Warrants and the Warrant Certificates upon
the terms and subject to the conditions herein set forth; and hereby accepts
such appointment. The Warrant Agent shall have the powers and authority granted
to and conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
Section 5.02. Condition of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth, upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expenses incurred without negligence or bad faith on the part of the
Warrant Agent, arising out of or in connection with its acting as Warrant
Agent hereunder, as well as the costs and expenses of defending against any
claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action
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taken or omitted to be taken or suffered by it hereunder in good faith and
in accordance with the opinion of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in,
Warrants with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of the
Offered Debt Securities or the Offered Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. [Nothing in this Warrant Agreement shall be deemed to prevent
the Warrant Agent from acting as Trustee under the Indenture.]
(f) No Liability for Interest. The Warrant Agent shall not be under any
liability for interest on any monies at any time received by it pursuant to
any of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not incur any
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations herein or in the
Warrant Certificates contained (except as to the Warrant Agent's
countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against the Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Warrant Agent shall not be accountable or under
any duty or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to the
Company pursuant to this Agreement or for the application by the Company of
the proceeds of the Warrant Certificates. The Warrant Agent shall have no
duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained in the Warrant
Certificates or in the case of the receipt of any written demand from a
holder of a Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02 hereof, to make any demand
upon the Company.
Section 5.03. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to time
of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective, provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company, as
hereinafter
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provided, of a successor Warrant Agent (which shall be a bank or trust
company authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such appointment
by such successor Warrant Agent. The obligations of the Company under
Section 5.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a petition seeking relief under the
Federal Bankruptcy Code, as now constituted or hereafter amended, or under
any other applicable Federal or state bankruptcy law or similar law or make
an assignment for the benefit of its creditors or consent to the
appointment for the benefits of its creditors or consent to the appointment
of a receiver or custodian of all or any substantial part of its property
or shall admit in writing its inability to pay or meet its debts as they
mature, or if a receiver or custodian of it or of all or any substantial
part of its property shall be appointed, or if an order of any court shall
be entered for relief against it under the provisions of the Federal
Bankruptcy Code, as now constituted or hereafter amended, or under any
other applicable Federal or state bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or
of its property or affairs, for the purpose of rehabilitation, conversion
or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the latter of such appointment, the Warrant
Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit
with or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any
corporation to which the Warrant Agent shall sell or otherwise transfer all
or substantially all the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
(f) The Company may designate agencies for the surrender for exercise of
Warrant Certificates at such place or places as the Company may determine,
and the Company shall keep the Warrant Agent advised of the names and
locations of such agencies, if any are so designated. The Warrant Agent
shall arrange directly with such agencies for the delivery of Securities
upon exercise of Warrant Certificates surrendered for exercise at such
agencies. The Warrant Agent shall be in no way responsible or accountable
for the action or failure to act of any agencies designated pursuant to
this Section 5.03(f).
ARTICLE VI
Miscellaneous
Section 6.01. Amendment. This Agreement may be amended by the parties hereto,
without the consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing,
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correcting or supplementing any defective provision contained herein, or making
any other provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary or desirable,
provided such action shall not adversely affect the interests of the holders of
the Warrant Certificates.
Section 6.02. Notices and Demand to the Company and the Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by
the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.03. Addresses. Any communications from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to , ,
Attention: [Corporate Trust Department], and any communications from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to The Procter & Gamble Company, Attention: , One Procter & Gamble Plaza,
Cincinnati, Ohio 45202 (or such address as shall be specified in writing by the
Warrant Agent or by the Company).
Section 6.04. Notices to Holders of Warrants. Any notice to holders of
Warrants which by any provisions of this Warrant Agreement is required or
permitted to be given [If registered Warrants--by first class mail postage
prepaid at such holder's address as appears on the books of the Warrant Agent
[or on the register of the Offered Debt Securities prior to the Detachable
Date]] [If bearer Warrants--by publication at least once in a daily morning
newspaper in New York City (which, if practicable, will be The Wall Street
Journal (Eastern Edition)) and in London (which, if practicable, shall be the
Financial Times of London)].
Section 6.05. Applicable Law. The validity, interpretation and performance of
this Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York.
Section 6.06. Delivery of Prospectus. The Company will furnish to the Warrant
Agent copies of a prospectus with an accompanying prospectus supplement
relating to the Warrant Debt Securities, and the Warrant Agent agrees that upon
the exercise of any Warrant Certificate by the holder thereof, the Warrant
Agent will deliver to such holder, prior to or concurrently with the delivery
of the Warrant Debt Securities issued upon such exercise, a copy of such
prospectus and prospectus supplement.
Section 6.07. Obtaining Governmental Approvals. The Company will from time to
time take all action which may be necessary to obtain and keep effective any
and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and state
laws, which may be or become requisite in connection with the issuance, sale,
transfer and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Debt
Securities issued upon exercise of the Warrants or upon the expiration of the
period during which the Warrants are exercisable.
Section 6.08. Persons Having Rights under Warrant Agreement. Nothing in this
Agreement expressed or implied and nothing that may be inferred from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the Company, the Warrant Agent and the
holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof; and all covenants, conditions, stipulations, promises and
agreements in this Agreement contained shall be for the sole exclusive benefit
of the Company and the Warrant Agent and their successors and of the holders of
the Warrant Certificates.
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Section 6.09. Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
Section 6.10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
Section 6.11. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit this Warrant Certificate for
inspection by it.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
The Procter & Gamble Company
By: _________________________________
_____________________________________
[Warrant Agent]
By: _________________________________
Title
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EXHIBIT A
[Form of Warrant Certificate]
[Face of Warrant Certificate]
[Form of Legend if Debt Securities with Warrants which are not immediately
detachable: Prior to , 19 , this Warrant Certificate cannot be transferred
or exchanged unless attached to a [Title of Offered Debt Securities]].
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED HEREIN
No.
THE PROCTER & GAMBLE COMPANY
WARRANT TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
VOID AFTER 3:00 P.M., NEW YORK TIME, ON ,
This certifies that [the bearer is the] [ or registered assigns is the
registered] owner of the above indicated number of Warrants, each Warrant
entitling such [bearer] [registered owner] to purchase at any time [after 3:00
p.m., New York time, on , 19 and] on or before 3:00 p.m. New York time on
, 19 (or such later date as may be selected by the Company with notice to
the holder thereof as provided in the Warrant Agreement (as hereinafter
defined)), [$ ] principal amount of [Title of Warrant Debt Securities] (the
"Warrant Debt Securities") of The Procter & Gamble Company (the "Company"), to
be issued under the Indenture (as hereinafter defined), on the following basis:
during the period from and including , 19 , to and including , 19 ,
the exercise price of each Warrant will be [ % of the principal amount of the
Warrant Debt Securities] [$ ] plus [accrued amortization of the original
issue discount] [accrued interest from the most recently preceding ];
[during the period from , 19 , to and including , 19 , the exercise
price of each Warrant will be [ % of the principal amount of the Warrant Debt
Securities] [$ ] plus [accrued amortization of the original issue discount]
[accrued interest from the most recently preceding ]]; [[in each case,]
the original issue discount will be amortized at a % annual rate, computed on
an annual basis, using a 360-day year consisting of 12 30-day months] (the
"Warrant Price"). [The original issue discount for each $1,000 principal amount
of Warrant Debt Securities is [$ ].] The holder may exercise the Warrants
evidenced hereby by delivery to the Warrant Agent (as hereinafter defined) of
this Warrant Certificate, with the form of election to purchase on the reverse
hereof properly completed and duly executed and by paying in full, [in lawful
money of the United States of America,] [by bank wire transfer in immediately
available funds or by other such means as specified in this Warrant
Certificate], the Warrant Price for each Warrant exercised to the Warrant
Agent, such delivery and payment to be made at the corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the "Warrant
Agent"), [or , each] currently at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Debt Securities [in registered form in
denominations of [$ ] and any integral multiples thereof] [in bearer form in
the denomination of [$ ]] [or both]. Upon any exercise of less than all of
the Warrants evidenced by this Warrant Certificate, there shall be issued to
the holder hereof a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of , (the "Warrant Agreement"), between the Company
and the Warrant Agent and is subject to the terms and provisions contained in
the Warrant Agreement, to all of which terms and
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provisions the holder of this Warrant Certificate consents by acceptance
hereof. Terms used herein and not otherwise defined shall have the meanings set
forth in the Warrant Agreement. Copies of the Warrant Agreement are on file at
the above-mentioned office of the Warrant Agent [and at ].
The Warrant Debt Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with the Indenture dated as of September 28, 1992, (the
"Indenture"), between the Company and The First National Bank of Chicago
("First Chicago"), a national banking association, existing under the laws of
the United States, as trustee (First Chicago and any successor as such being
hereinafter referred to as the "Trustee") and will be subject to the terms and
provisions contained in the Warrant Debt Securities and in the Indenture.
Copies of the Indenture, including the form of Warrant Debt Securities, are on
file at the corporate trust office of the Trustee, currently at , in the
Borough of Manhattan, City and State of New York, [and at ].
[If Offered Debt Securities with bearer Warrants which are not immediately
detachable--Prior to , 19 this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Debt Securities] (the
"Offered Debt Securities") to which this Warrant Certificate was initially
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Debt Securities. After such date, this]
[If Offered Debt Securities with bearer Warrants which are immediately
detachable--This] Warrant Certificate, and all rights hereunder, may be
transferred by delivery and the Company and the Warrant Agent may treat the
bearer hereof as the owner for all purposes.]
[If Offered Debt Securities with registered Warrants which are not
immediately detachable--Prior to , 19 this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Debt
Securities] (the "Offered Debt Securities") to which this Warrant Certificate
was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Debt Securities.
After such date, transfer of this] [If Offered Debt Securities with registered
Warrants which are immediately detachable--Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing,
in the manner and subject to the limitations provided in the Warrant
Agreement.]
[If Offered Debt Securities with Warrants which are not immediately
detachable--Except as provided in the immediately preceding paragraph, after]
[If Offered Debt Securities with Warrants which are immediately detachable--
After] countersignature by the Warrant Agent and prior to the expiration of
this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates,
representing the same aggregate number of Warrants, [in registered form] [in
bearer form] [in either registered or bearer form].
This Warrant Certificate shall not entitle the holder hereof to any of the
rights of a holder of the Warrant Debt Securities, including, without
limitation, the right to receive payment of principal of and premium, if any,
or interest on the Warrant Debt Securities or to enforce any of the covenants
of the Warrant Debt Securities or the Indenture, except to the extent that the
consent of the holder of this Warrant Certificate is expressly required by the
terms of the Warrant Debt Securities for certain modifications of the Warrant
Debt Securities.
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This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
Dated as of:
The Procter & Gamble Company
By:__________________________________
Countersigned:
____________________________________,
as Warrant Agent
By:__________________________________
Authorized Signature
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[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in full [by
bank wire transfer in immediately available funds] [or by other such means as
specified in this Warrant Certificate], the Warrant Price for Warrants
exercised to [insert name of Warrant Agent], Corporate Trust Department,
[insert address of Warrant Agent], Attention: [or ] which [wire
transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below and present this Warrant Certificate in person or by mail
(registered mail is recommended) to the Warrant Agent at the addresses set
forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent together with such [wire transfer]. [If the
undersigned is requesting delivery of Warrant Debt Securities in bearer form,
the person entitled to physical delivery of such Warrant Debt Securities will
be required to deliver a certificate (copies of which may be obtained from the
Warrant Agent [or ]) certifying that such Warrant Debt Securities are not
being acquired by or on behalf of a U.S. person or for resale to a U.S. person
unless such U.S. person is a qualified financial institution as defined under
United States tax laws and regulations.
(To be executed upon exercise of Warrant.)
The undersigned hereby irrevocably elects to exercise Warrants,
evidenced by this Warrant Certificate, to purchase [$ ] principal amount of
the [Title of Warrant Debt Securities] (the "Warrant Debt Securities") of The
Procter & Gamble Company and represents that he has tendered payment for such
Warrant Debt Securities [by bank wire transfer in immediately available funds]
[or by other such means as specified in this Warrant Certificate], to the order
of The Procter & Gamble Company, care of , in the amount of [$ ] in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Debt Securities be in [bearer form in the authorized
denominations] [fully registered form, in the authorized denominations,
registered in such names and delivered] all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in instructions below.
Dated:
_____________________________________ Name: _______________________________
(Please Print)
_____________________________________
(Insert Social Security or Other Address: ____________________________
Identifying Number of Holder)
_____________________________________
Signature: __________________________
This Warrant may be exercised at the following addresses:
By hand at
_______________________________________________________________________________;
or
By mail at_____________________.
_______________________________________________________________________________.
(Instructions as to form and delivery of Warrant Debt Securities and/or Warrant
Certificates evidencing unexercised Warrants)
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<PAGE>
[IF REGISTERED WARRANT]
ASSIGNMENT
(Form of Assignment To Be Executed If Holder Desires To Transfer Warrants
Evidenced Hereby)
FOR VALUE RECEIVED_____________________ hereby sells, assigns and transfers unto
_____________________________________ _____________________________________
(Please print name and address including zip code)
________________________________________________________________________________
_____________________________________ _____________________________________
(Please insert social security or
other identifying number)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ______ as Attorney, to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution
in the premises.
Dated:
_____________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear a
signature and Medallion Guarantee
pursuant to the Securities Transfer
Agents Medallion Program.(TM))
Signature Guaranteed
Medallion Guaranteed
_____________________________________
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EXHIBIT B
Form of Certificate for Delivery of Bearer Warrant Debt Securities
The Procter & Gamble Company
[Title of Warrant Debt Securities]
To: The Procter & Gamble Company c/o The First National Bank of Chicago, as
Trustee
This certificate is submitted in connection with the undersigned's request
that you deliver to us [$ ] principal amount of [Title of Warrant Debt
Securities] (the "Warrant Debt Securities") in bearer form upon exercise of
Warrants.
The undersigned hereby certifies that as of the date hereof (the date of
delivery to the undersigned of the Warrant Debt Securities) the Warrant Debt
Securities which are to be delivered to the undersigned in bearer form are not
being acquired, directly or indirectly, by or on behalf of a U.S. person, or
for offer to resell or for resale to a U.S. person or any person inside the
United States or, if any beneficial owner of the Warrant Debt Securities is a
U.S. person, such U.S. person is a financial institution or is acquiring
through a financial institution. If the undersigned is a clearing organization,
the undersigned represents that this certificate is based on statements
provided to it by its member organizations. If the undersigned is a dealer, the
undersigned agrees to obtain a similar certificate from each person entitled to
delivery of any of the Warrant Debt Securities in bearer form purchased from
it. Notwithstanding the foregoing, if the undersigned has actual knowledge that
the information contained in such certificate is false, the undersigned will
not deliver a Warrant Debt Security in bearer form to the person who signed
such certificate notwithstanding the delivery of such certificate to the
undersigned. Absent documentary evidence that the beneficial owner is not a
U.S. person, the undersigned will be deemed to have actual knowledge that the
beneficial owner, other than a financial institution, is a U.S. Person for this
purpose if the undersigned has a United States address for the beneficial owner
of the Security. As used herein, "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and all other areas subject to its jurisdiction; "U.S. person"
means a citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United States or
any political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income tax regardless of its source;
"financial institution" means any person defined in (S) 1.165-12(c)(1)(v) of
the Treasury Department Regulations that has agreed to comply with (S)
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as may be
amended from time to time, and the regulations thereunder and that is not
purchasing for offer to resell or resale inside the United States; and a
"clearing organization" means an entity which is in the business of holding
obligations for member organizations and transferring obligations among such
members by credit or debit to the account of a member without the necessity of
physical delivery of the obligation.
We understand that this certificate is required in connection with United
States tax laws and regulations. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
_____________________________________
(Signature)
Dated:
_____________________________________
(Please print name)
Address:
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EXHIBIT 4(I)(D)
WARRANT AGREEMENT
THIS AGREEMENT, dated as of , 199 , between The Procter & Gamble
Company, an Ohio corporation (the "Company"), and , a duly
incorporated and existing under the laws of (the "Warrant Agent"),
WITNESSETH THAT:
WHEREAS, the Company proposes to sell up to of its Warrants expiring
(the "Warrants" or, individually, a "Warrant"), each Warrant representing
the right to receive from the Company the Cash Settlement Value (as defined
herein) in respect of such Warrant; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the Company
in connection with the issuance, transfer and exercise of the Warrants, and
wishes to set forth herein, among other things, the provisions of the Warrants
and the terms and conditions on which they may be issued, transferred,
exercised and cancelled;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION, DELIVERY AND REGISTRATION OF WARRANTS
Section 1.01. Issuance of Warrants. (a) The Warrants will constitute direct,
unconditional and unsecured obligations of the Company and will rank pari
passu, without any preference among themselves, with all of the Company's other
existing and future unsecured and unsubordinated obligations.
(b) Each Warrant shall represent the right, subject to the provisions
contained herein, to receive the Cash Settlement Value of such Warrant. In no
event shall a beneficial owner of a Warrant (each a "Warrantholder") be
entitled to receive any interest on any Cash Settlement Value.
(c) Upon the issuance of the Warrants, all Warrants shall be evidenced by
certificates in registered form with such appropriate insertions, omissions,
substitutions and other variations as are desirable for such certificates and
as required or permitted by this Agreement (the "Warrant Certificates").
Following the issuance of the Warrant Certificates, the Company may, at its
option, elect to make the Warrants available in book-entry form through the
book-entry deposit system of The Depository Trust Company ("DTC", and together
with any successor depository, the "Depository"). In such event, Warrants held
in the form of Warrant Certificates ("Certificated Warrants") may be exchanged
for Warrants in book-entry form ("Book-Entry Warrants") in accordance with the
procedures set forth in Section 1.07 and in the letter agreement dated the date
hereof among the Company, the Depository and the Warrant Agent. Unless and
until the Company shall elect to permit Certificated Warrants to be exchanged
for Book-Entry Warrants as provided in this Section 1.01(c), the provisions of
this Agreement concerning Book-Entry Warrants and the Global Warrant (other
than the provisions of this Section 1.01(c)) shall not be of any force or
effect.
(d) All Book-Entry Warrants shall be represented by one or more global
certificates with such appropriate insertions, omissions, substitutions and
other variations as are desirable for such certificates and required or
permitted by this Agreement (the "Global Warrant"). The Global Warrant
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shall at all times be registered in the name of the Depository or its nominee
and shall be held by the Depository or its agent. For so long as any warrants
are Book-Entry Warrants, (i) the beneficial ownership of the holders of Book-
Entry Warrants will be evidenced solely through the book-entry record system
maintained by the Depository (by book-entry made in the records of the
Depository or the records of a person or entity maintaining an account with the
Depository (either as a Participant (as defined below) or as an indirect
participant, in accordance with the rules of the Depository)), (ii) transfers
of such Book-Entry Warrants shall be made on the books and records of the
Depository and its Participants and indirect participants, (iii) ownership and
transfers of such Book-Entry Warrants shall be governed by applicable rules
established by the Depository, (iv) the Company and the Warrant Agent may deal
with the Depository and its Participants as representatives of the
Warrantholders of such Book-Entry Warrants for purposes of exercising the
rights of Warrantholders under this Agreement, and requests and directions for
such representatives will not be deemed inconsistent if they are made with
respect to different Warrantholders, (v) with respect to such Book-Entry
Warrants the Company and the Warrant Agent may rely and shall be fully
protected in relying upon information furnished by the Depository and its
Participants with respect to their Warrantholders, (vi) all payments due on
account of or with respect to such Book-Entry Warrants shall be made to the
Depository or its Participants as provided herein, and neither the Company, the
Warrant Agent, nor any agent of either of them shall have any responsibility or
liability for the disbursement of such payments to Warrantholders, and (vii)
such Book-Entry Warrants may not be exchanged for Certificated Warrants except
according to the provisions set forth in Section 1.01(e) hereof. For purposes
of this Agreement, the term "Participant" shall mean a bank, broker, dealer,
other financial institution or other entity for whom from time to time the
Depository effects book-entry transfers and pledges of securities deposited
with the Depository.
(e) If (i) the Depository at any time is unwilling or unable to continue as
securities depository for the Book-Entry Warrants and a successor Depository is
not appointed by the Company within 90 days, or (ii) the Company shall be
adjudged a bankrupt or insolvent or make an assignment for the benefit of its
creditors or institute proceedings to be adjudicated a bankrupt or shall
consent to the filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking reorganization under applicable law, or
shall consent to the filing of any such petition, or shall consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian of it or all or any substantial part
of its property shall be appointed, or if any public officer shall have taken
charge or control of the Company or of its property or affairs, for the purpose
of rehabilitation, conservation or liquidation, the Company will issue Warrant
Certificates in exchange for the Global Warrant. In addition, the Company may
at any time determine not to have Book-Entry Warrants and, in such event, will
issue Warrant Certificates in exchange for the Global Warrant. In any instances
referred to in the two preceding sentences, and in accordance with the
provisions of this Agreement, the Company shall notify the Warrant Agent and
the Depository, and instruct the Depository to notify each Participant, of the
availability of Warrant Certificates, and each Warrantholder then owning Book-
Entry Warrants will be entitled, upon delivery to the Company and the Warrant
Agent by the Depository or its nominee of the Global Warrant and a written
certification of such Warrantholder's beneficial interest in form satisfactory
to the Company and the Warrant Agent, duly executed by the Depository or its
nominee, to have a number of Certificated Warrants equivalent to such
Warrantholder's beneficial interest in the Global Warrant registered in the
name of the Warrantholder and will be entitled to physical delivery of Warrant
Certificates evidencing such Warrants by the Participant through which such
Warrantholder's beneficial interest is maintained. Upon receipt of such
certification with respect to a Warrantholder, the Company will deliver to the
Depository Warrant Certificates in the correct denomination registered in the
name of the Warrantholder.
(f) Following an initial election by the Company to permit Certificated
Warrants to be exchanged for Book-Entry Warrants as provided in Section 1.01(c)
hereof, the Company may from time to time
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select a new entity to act as Depository with respect to the Book-Entry
Warrants and, if such selection is made, the Company shall promptly give the
Warrant Agent notice to such effect identifying the new Depository, and the
Global Warrant shall be delivered to the Warrant Agent and shall be transferred
to the new Depository as provided in Section 1.04(a) as promptly as possible.
Appropriate changes may be made in the forms of the Global Warrant, and the
Notice of Exercise (as defined herein) to be delivered in connection with an
exercise to reflect the selection of the new Depository.
(g) The Warrant Agent shall maintain records (which may be maintained
electronically) evidencing the number of Book-Entry Warrants evidenced by the
Global Warrant. Such records shall be adjusted on a daily basis, in accordance
with such procedures as shall be agreed among the Company, the Warrant Agent
and the Depository, to reflect increases in such number of Book-Entry Warrants
caused by exchanges of Certificated Warrants into Book-Entry Warrants, and
shall also be adjusted to reflect decreases in such number of Book-Entry
Warrants as provided in Section 2.02(d) hereof.
Section 1.02. Form, Execution and Delivery of Global Warrant and Warrant
Certificates. (a) The Global Warrant and the Warrant Certificates each may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and which are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed or to
conform to usage. The Global Warrant and each of the Warrant Certificates shall
be signed on behalf of the Company by its President, any Vice President, its
Chairman of the Board or any Vice Chairman of the Board, either manually or by
facsimile signature, under its corporate seal, which may be a facsimile,
attested either manually or by facsimile signature by its Secretary or any
Assistant Secretary. Typographical and other minor errors or defects in any
such reproduction of the seal or any such signature shall not affect the
validity or enforceability of the Global Warrant or any Warrant Certificate if
such instrument has been duly countersigned and delivered by the Warrant Agent.
(b) In case any officer of the Company who shall have signed the Global
Warrant or any Warrant Certificate either manually or by facsimile signature
shall cease to be such officer before the instrument so signed shall have been
countersigned and delivered by the Warrant Agent to the Company or delivered by
the Company, such instrument nevertheless may be countersigned and delivered as
though the person who signed such instrument had not ceased to be such officer
of the Company; and the Global Warrant and each Warrant Certificate may be
signed on behalf of the Company by such persons who, at the actual date of the
execution of any such instrument, shall be the proper officers of the Company,
although at the date of the execution of this Agreement any such person was not
such officer.
Section 1.03. Global Warrant and Warrant Certificates. The Global Warrant and
each Warrant Certificate, when signed on behalf of the Company in accordance
with Section 1.02, shall be delivered to the Warrant Agent, which shall
manually countersign such instrument, and deliver the same to or upon the
written order of the Company. The Global Warrant and each Warrant Certificate
shall be dated the date of its countersignature. The Global Warrant and each
Warrant Certificate shall not be valid for any purpose unless so countersigned.
Such countersignature by the Warrant Agent upon the Global Warrant or any
Warrant Certificate signed by the Company in accordance with Section 1.02 shall
be conclusive evidence that such instrument so countersigned has been duly
issued hereunder.
Section 1.04. Registration of Transfers and Exchanges. (a) Except as
otherwise provided herein or in the Global Warrant, the Warrant Agent shall
from time to time register the transfer of the Global Warrant in its records
only to the Depository, to a nominee of the Depository, to a successor
Depository, or to a nominee of a successor Depository, upon surrender of such
Global Warrant to the
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Warrant Agent at the Warrant Agent's Office (as defined herein), duly endorsed,
or accompanied by a written instrument or instruments of transfer in form
satisfactory to the Warrant Agent and the Company duly signed by the registered
holder thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed pursuant to the
Securities Transfer Agents Medallion Program(TM). Upon any such registration of
transfer, a new Global Warrant shall be issued to the transferee.
(b) The Company shall cause to be kept at the Warrant Agent's Office a
register (the registers maintained in such office and in any other office or
agency maintained by or on behalf of the Company for such purpose being herein
sometimes collectively referred to as the "Warrant Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Certificated Warrants and of transfers of Certificated
Warrants. The Warrant Agent is hereby appointed "Warrant Registrar" for the
purpose of registering Certificated Warrants and transfer of Certificated
Warrants as herein provided. The Warrant Agent shall register the transfer of
any outstanding Certificated Warrants upon the Warrant Register subject to such
reasonable regulations as the Company or the Warrant Agent may prescribe, upon
surrender of the related Warrant Certificates, duly endorsed, or accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Warrant Agent, duly executed by the registered holder(s) thereof or by the duly
appointed legal representative thereof or by its duly authorized attorney, such
signature to be guaranteed pursuant to the Securities Transfer Agents Medallion
Program (TM). Upon any such registration of transfer, a new Warrant Certificate
shall be issued to the transferee(s) and the surrendered Warrant Certificate
shall be cancelled by the Warrant Agent.
(c) At the option of a Warrantholder, Warrant Certificates and (subject to
the limitations set forth in Section 1.04(a)), at the option of the registered
holder thereof, the Global Warrant, may be exchanged for other Warrant
Certificates or a new Global Warrant, as applicable, representing a like number
of Warrants, upon surrender to the Warrant Agent of the Warrant Certificates or
the Global Warrant, as applicable, to be exchanged at its offices maintained
for such purpose (the location of which shall be provided to the Company),
which shall be south of Chambers Street in the Borough of Manhattan, The City
of New York (the "Warrant Agent's Office"), and which are, on the date of this
Agreement, , New York, New York , Attention: [Corporate Trust Services],
or at the office of any successor Warrant Agent (as provided in Section 5.03).
Upon surrender of any Warrant Certificate or Global Warrant for exchange, the
Warrant Agent shall cancel such Warrant Certificate or Global Warrant, and the
Company shall execute, and the Warrant Agent shall countersign and deliver, in
accordance with Sections 1.02 and 1.03, one or more new Warrant Certificates or
a new Global Warrant, as applicable, representing a like number of Warrants.
(d) Warrant Certificates or a new Global Warrant issued upon transfer or
exchange pursuant to Section 1.04(a), (b) or (c) shall be valid obligations of
the Company, evidencing the same obligations of the Company as the Warrant
Certificates or Global Warrant surrendered for transfer or exchange, and
entitled to the same benefits under this Agreement as were such Warrant
Certificates or Global Warrant prior to such surrender.
(e) Except as provided in Section 1.05, no service charge shall be made for
any registration of transfer or exchange of Warrant Certificates or a Global
Warrant, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Warrant Certificates or a Global
Warrant, other than exchanges pursuant to this Section 1.04 not involving any
transfer.
(f) In the event that upon any exercise of Warrants evidenced by a Warrant
Certificate the number of Warrants exercised shall be less than the total
number of Warrants evidenced by such Warrant
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Certificate, there shall be issued to the holder thereof or his assignee a new
Warrant Certificate evidencing the number of Warrants not exercised.
(g) Warrant Certificates delivered in exchange for the Global Warrant
pursuant to Section 1.01(e) hereof shall be registered in the Warrant Register
in such names and addresses (including tax identification numbers) and in such
denominations as shall be specified by the Depository or its nominee in the
written certification of beneficial interest delivered by it pursuant to such
Section 1.01(e).
Section 1.05. Mutilated or Missing Warrant Certificates. (a) If any Warrant
Certificate is mutilated, lost, stolen or destroyed, the Company may in its
discretion execute, and the Warrant Agent may countersign and deliver, in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of the Warrant Certificate lost, stolen or destroyed, a
new Warrant Certificate of like tenor and representing an equivalent number of
Warrants, bearing an identification number not contemporaneously outstanding,
but only (in case of loss, theft or destruction) upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and security or indemnity, if
requested, also satisfactory to them. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company or the Warrant Agent may
prescribe.
(b) In case any such mutilated, lost, stolen or destroyed Warrant Certificate
has been or is about to be exercised, or deemed to be exercised, the Company in
its absolute discretion may, instead of issuing a new Warrant Certificate,
direct the Warrant Agent to treat the same as if it had received Proper
Delivery (as defined herein) of the related Warrants and of a Notice of
Exercise in respect thereof, as provided herein, with which directions the
Warrant Agent shall comply.
(c) Each new Warrant Certificate issued pursuant to this Section 1.05 in lieu
of any lost, stolen or destroyed Warrant Certificate shall be an original,
additional contractual obligation of the Company, whether or not, in the case
of any lost, stolen or destroyed Warrant Certificate, such Warrant Certificate
shall at any time be enforceable by anyone, and shall be entitled to the same
benefits under this Agreement as the Warrant Certificate that was lost, stolen
or destroyed.
(d) Upon the issuance of any new Warrant Certificate in accordance with this
Section 1.05, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Warrant Agent)
connected therewith.
(e) The provisions of this Section 1.05 are exclusive and shall preclude (to
the extent lawful) any other rights and remedies with respect to the
replacement or payment of mutilated, lost, stolen or destroyed Warrant
Certificates.
Section 1.06. Registered Holders of Certificated Warrants. Prior to due
presentment for registration of transfer, the Company, the Warrant Agent, and
any agent of the Company or the Warrant Agent, may deem and treat the person in
whose name a Certificated Warrant shall be registered in the Warrant Register
(a "Registered Holder") as the absolute owner of the Warrants evidenced thereby
(notwithstanding any notation of ownership or other writing thereon) for any
purpose whatsoever, and as the person entitled to exercise the rights
represented by such Certificated Warrant, and neither the Company nor the
Warrant Agent, nor any agent of the Company or the Warrant Agent, shall be
affected by any notice to the contrary. This Section 1.06 shall be without
prejudice to the rights of Warrantholders as described elsewhere herein.
For all purposes of this Agreement, in order to determine whether a
Registered Holder of Certificated Warrants is a Warrantholder or whether such
Registered Holder holds certificated warrants for the account of a
Warrantholder(s), the Warrant Agent may rely conclusively on a certificate from
the
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Registered Holder of any Certificated Warrants which states that (i) such
Registered Holder is the Warrantholder of such Certificated Warrants or (ii) a
specified number of such Certificated Warrants are beneficially owned by a
Warrantholder(s), identifying the name and mailing address of each such
Warrantholder and the number of Certificated Warrants beneficially owned by
each such Warrantholder.
Section 1.07. Exchange Procedures. In the event that the Company elects to
make the Warrants available in book-entry form it will notify the Depository,
and it will notify each Registered Holder by first class mail to the address of
such Registered Holder in the Warrant Register. Such notice will be given to
the Depository no less than five days prior to the date on which exchanges of
Certificated Warrants for Book-Entry Warrants will commence. Exchanges of
Warrant Certificates into Warrants in book-entry form will commence on a date
(the "Initial Exchange Date") that is approximately five days after the date on
which the Company notifies the Depository of its election to permit such
exchanges.
Warrant Certificates received by the Depository for conversion into book-
entry form during the period commencing on the Initial Exchange Date and ending
on the 45th day after the Initial Exchange Date (the "Initial Exchange Period")
will be converted into book-entry form by the close of business, on the date
received by the Depository (if received by the Depository at its then
applicable cut-off time for same day credit), or on the following New York
Business Day (if received by the Depository at its then applicable cut-off time
for next day credit). After the last day of the Initial Exchange Period, the
Depository will not be required to accept delivery of Warrant Certificates for
exchange into book-entry form, but may permit Warrants to be so exchanged on a
case by case basis. Warrants surrendered for conversion at any time may not be
exercised or delivered for settlement or transfer until such conversion has
been effected.
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
Section 2.01. Duration of Warrants: Minimum Exercise Amounts; Notice of
Exercise. Subject to the limitations set forth herein, each Warrant may be
exercised in whole but not in part on any New York Business Day (as defined
herein) from its date of issuance until 3:00 P.M., New York City time, five New
York Business Days prior to (i) (the "Expiration Date") or (ii) its
earlier automatic exercise as provided in Section 2.03. Except in the case of
automatic exercise, each Warrant may be exercised only (i) upon receipt by the
Warrant Agent of such Warrant, in the case of a Book-Entry Warrant, through
delivery of such Book-Entry Warrant free on the records of the Depository to
the Warrant Agent's Depository Participant Account (entitled ), or such
other account of the Warrant Agent at the Depository as the Warrant Agent shall
designate in writing to the Depository (the "Warrant Account"), and in the case
of a Certificated Warrant, through delivery of the Warrant Certificate
representing such Warrant to the Warrant Agent (at its address set forth in
Exhibit A hereto or at such other address as the Warrant Agent may notify the
Warrantholders from time to time) and (ii) pursuant to a Notice of Exercise (as
defined below) duly completed and executed, in the case of a Book-Entry
Warrant, by the Participant holding such Book-Entry Warrant on the records of
the Depository, and in the case of a Certificated Warrant, by the Registered
Holder, a duly appointed legal representative thereof or a duly authorized
attorney thereof; provided, however, that notices of exercise are subject to
rejection by the Warrant Agent as provided herein. Not fewer than
Warrants may be exercised by or on behalf of any one Warrantholder at any one
time, except that no such minimum exercise amount shall apply in the case of
automatic exercise on the Expiration Date or earlier automatic exercise as
provided in Section 2.03 of this Agreement. "Notice of Exercise" means an
irrevocable Notice of Exercise to the Warrant Agent at its address as specified
by the Warrant Agent
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from time to time, which notice may be given by facsimile transmission and
shall be substantially in the form as the Company and the Warrant Agent may
approve. The phrase "Proper Delivery" when used in this Agreement with respect
to a Warrant Exercise, shall mean delivery of such Warrant to the Warrant Agent
for exercise in the manner prescribed for a Warrant of such type in the second
sentence of this Section 2.01, and when used with respect to a related Notice
of Exercise shall mean delivery of such Notice of Exercise in proper form, duly
completed and executed by the proper party in accordance with the second
sentence of this Section 2.01 and the definition of Notice of Exercise set
forth in this Section. As used herein, "New York Business Day" means any day
other than a Saturday or a Sunday or a day on which banking institutions in New
York City are authorized or required by law or executive order to close, and
"Business Day" means any day other than a Saturday or a Sunday or a day on
which banking institutions in New York City [or ] are authorized or
required by law or executive order to close. Except as provided in Section
2.02(b), the Warrant Agent shall be entitled to rely conclusively on any Notice
of Exercise received by it with no duty of inquiry by the Warrant Agent.
Section 2.02. Exercise and Delivery of Warrants. (a) Except in the case of
automatic exercise on the Expiration Date or earlier automatic exercise as
provided in Section 2.03 of this Agreement, the exercise date (the "Exercise
Date") for a Warrant shall be the New York Business Day next succeeding the
date on which the Warrant Agent has received Proper Delivery of such Warrant
and the related Notice of Exercise at or prior to 3:00 P.M., New York City
time; and if the Warrant Agent shall receive Proper Delivery of such Warrant
and the related Notice of Exercise after 3:00 P.M., New York City time on such
date, or Proper Delivery of such Warrant and Notice of Exercise is received by
the Warrant Agent on a day which is not a New York Business Day, then Proper
Delivery of such Warrant and Notice of Exercise shall be deemed to have been
received at or prior to 3:00 P.M., New York City time, on the next succeeding
New York Business Day, and in such event the Exercise Date shall be the second
New York Business Day succeeding the date on which the Warrant Agent received
Proper Delivery of such Warrant and Notice of Exercise. Any Notice of Exercise
received after 3:00 P.M., New York City time, on the fifth New York Business
Day preceding the earlier to occur of (i) the Expiration Date or (ii) the date
(the "Delisting Date") on which the Warrants are delisted from or permanently
suspended from trading (within the meaning of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder) on The
American Stock Exchange (the "AMEX") and not accepted at the same time for
listing on another national securities exchange (as such term is used in
Section 4c(f) of the Commodity Exchange Act), shall be void and of no effect
and shall be deemed not to have been delivered; provided that if the date (the
"Delisting Notification Date") on which notification of such delisting or
suspension (the "Delisting Notice") is received by the Warrant Agent from the
Company is subsequent to the fifth New York Business Day preceding the
Delisting Date, then each Warrant may be irrevocably exercised, in whole but
not in part, at or prior to 3:00 P.M., New York City time, on the New York
Business Day next preceding the Delisting Notification Date.
(b) Following receipt of Proper Delivery of a Warrant, accompanied by a
completed Notice of Exercise in the applicable form, the Warrant Agent shall:
(i) promptly determine whether the Notice of Exercise has been duly completed
and is in proper form duly executed, in the case of a Book-Entry Warrant, by
the Participant tendering such Warrant, and in the case of a Certificated
Warrant, by the Registered Holder, a duly appointed legal representative
thereof, or a duly authorized attorney thereof, and if the Warrant Agent
determines that the Notice of Exercise has not been duly completed or is not in
proper form, or has not been so executed, the Warrant Agent shall reject the
Notice of Exercise and shall send to the person or entity that executed such
notice (at the address specified in such notice) a notice of rejection
substantially in the form included in Exhibit E hereto and shall return the
related Warrant to the Warrantholder (at no expense to the Warrantholder), in
the case of Book-Entry Warrants, by redelivering such Warrant free through the
facilities of the Depository to the account of the Participant that delivered
such Warrant to the Warrant Agent, and in the case of Certificated Warrants,
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by redelivering the Warrant Certificates evidencing such Warrants to the
Registered Holder thereof; (ii) notify the Company and the Spot Rate Reference
Agent (as defined in paragraph (e) of this Section) by 5:00 P.M., New York City
time, on the New York Business Day that Proper Delivery of Warrants has been
received (or shall be deemed to have been received) of the number of Warrants
in respect of which Notices of Exercise, not rejected pursuant to clause (i)
above, were received, (A) on the immediately preceding day or days, if any,
that were not New York Business Days, (B) after 3:00 P.M., New York City time,
on the preceding New York Business Day and (C) at or prior to 3:00 P.M., New
York City time, on such date; (iii) obtain the Spot Rate (as defined in
paragraph (e) of this Section) for such date from the Spot Rate Reference Agent
and determine the Cash Settlement Value of the exercised Warrants in the manner
described in paragraph (e) of this Section; (iv) advise the Company by 5:00
P.M., New York City time, on the Exercise Date of the amount payable in respect
of the exercise of such Warrants, and of the Cash Settlement Value with respect
to such Warrants, and send notice of confirmation substantially in the form
included in Exhibit E hereto to the persons or entities which executed the
related Notice of Exercise (at the address specified in such notice); and (v)
advise the Company of such other matters relating to the exercised Warrants as
the Company shall reasonably request. Any notice to be given to the Company by
the Warrant Agent pursuant to this Section 2.02 or Section 2.03 shall be by
telephone and shall be promptly confirmed in writing by facsimile transmission.
Any notice to be given to the Spot Rate Reference Agent pursuant to this
Section 2.02 or Section 2.03 shall be by facsimile transmission to the address
of the Spot Rate Reference Agent set forth in Section 6.03.
(c) Provided that the Company has made adequate funds available to the
Warrant Agent in a timely manner, which shall in no event be later than 3:00
P.M., New York City time, on the second Business Day (the "Settlement Date")
following an Exercise Date of Warrants, the Warrant Agent will make payment (a)
in respect of Book-Entry Warrants, to the Participants, and (b) in respect of
Certificated Warrants, to the person designated in the related Notice of
Exercise. Payments made by the Warrant Agent to the Participants will be made
on such Settlement Date in New York Clearing House funds or other next day
funds. Payments made by the Warrant Agent in respect of Certificated Warrants
shall be made available to the person designated in the related Notice of
Exercise after 3:00 P.M., New York City time, but prior to the close of
business, on such Settlement Date, in the form of a cashier's check or an
official bank check, or (at the Registered Holder's election as specified in
the Notice of Exercise in the case of payments of at least $250,000) by wire
transfer to a U.S. dollar account specified in the Notice of Exercise. Each
such payment shall be in the amount of the aggregate Cash Settlement Value in
respect of the Warrants as to which the Warrant Agent received (or was deemed
to have received) Proper Delivery (together with Proper Delivery of the related
Notice of Exercise) on the related Exercise Date.
(d) The Warrant Agent shall cause its records to be marked to reflect the
reduction in the number of Warrants represented by the Global Warrant by the
number of Book-Entry Warrants as to which the Warrant Agent received (or was
deemed to have received) Proper Delivery (together with Proper Delivery of the
related Notice of Exercise) and for which payment has been made as provided in
Section 2.02(c) promptly after such delivery and payment.
(e) Except as provided in Section 2.03, "Cash Settlement Value" of an
exercised Warrant is an amount stated in U.S. dollars which is the greater of
(i) zero and (ii) the amount computed by subtracting from U.S. $50 an amount
equal to U.S. $50 times a fraction, the numerator of which is (the "Strike
Price") and the denominator of which is the Spot Rate on the Exercise Date. The
"Spot Rate" on any date will be the (the "Index") [determination of
Index].
Section 2.03. Automatic Exercise of Warrants; Cancellation of
Warrants. (a) All Warrants with respect to which the Warrant Agent has not
received Proper Delivery of such Warrants and of a related Notice of Exercise
by 3:00 P.M., New York City time, on the fifth New York Business Day preceding
the
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earlier to occur of (i) the Expiration Date and (ii) the Delisting Date (or, if
the Delisting Notification Date is subsequent to the fifth New York Business
Day preceding the Delisting Date, then by 3:00 P.M., New York City time, on the
New York Business Day next preceding the Delisting Notification Date) (the
"Unexercised Warrants"), will be deemed automatically exercised on such
Expiration Date or Delisting Date, without any requirement of notice of
exercise to the Warrant Agent. The Spot Rate and Cash Settlement Value of such
Warrants shall be determined in the case of clause (i), on the Expiration Date,
or, if the Expiration Date is not a New York Business Day, then on the New York
Business Day following the Expiration Date, and, in the case of clause (ii), on
the New York Business Day following the Delisting Date. The Company will advise
the Warrant Agent of the date of any expected delisting or permanent suspension
of trading of the Warrants as soon as is practicable and will immediately
inform the Warrant Agent after the Company has received notice that such
delisting or suspension has occurred but in no event will notice of such
delisting or suspension be given to the Warrant Agent later than 9:30 A.M., New
York City time, on the New York Business Day following the Delisting Date.
(b) By 5:00 P.M., New York City time, on the fifth New York Business Day
preceding the Expiration Date, the Warrant Agent shall advise the Company of
the number of Unexercised Warrants outstanding after 3:00 P.M., New York City
time, on such day. On the Expiration Date or, if the Expiration Date is not a
New York Business Day, then on the New York Business Day next following the
Expiration Date, the Warrant Agent shall (i) obtain the Spot Rate (which Spot
Rate shall be the Spot Rate on such day) from the Spot Rate Reference Agent,
(ii) determine the Cash Settlement Value (in the manner provided in Section
2.02(e) of this Agreement) of the Warrants to be automatically exercised, (iii)
advise the Company by 5:00 P.M., New York City time, on the Expiration Date or,
if the Expiration Date is not a New York Business Day, then on the New York
Business Day next following the Expiration Date, of the Cash Settlement Value
with respect to such Warrants and (iv) advise the Company of such other matters
relating to the automatically exercised Warrants as the Company shall
reasonably request. Provided that the Company has made adequate funds available
to the Warrant Agent in a timely manner which shall, in no event, be later than
3:00 P.M., New York City time, on the second Business Day following the date on
which the Spot Rate is obtained, the Warrant Agent will make payment available
(i) in the case of Book-Entry Warrants, in the form of a cashier's check or an
official bank check to the Depository, against receipt of the Global Warrant,
and (ii) in the case of Certificated Warrants, in the form of a cashier's check
or an official bank check to the appropriate Registered Holder, or (in the case
of payments of at least $250,000) by wire transfer to a U.S. Dollar account
maintained by such Registered Holder (at the Registered Holder's election),
against receipt by the Warrant Agent at the Warrant Agent's Office from such
Registered Holder of its Warrant Certificates, in either case after 3:00 P.M.,
New York City time, but prior to the close of business, on such second Business
Day following the date on which the Spot Rate is obtained, such check to be in
the amount of the aggregate Cash Settlement Value in respect of Warrants that
have been automatically exercised. Warrant Certificates delivered to the
Warrant Agent, and the Global Warrant, shall thereafter be promptly canceled by
the Warrant Agent.
(c) Following receipt by the Warrant Agent of the Delisting Notice, the
Warrant Agent shall (i) advise the Company and the Spot Rate Reference Agent of
the number of Unexercised Warrants outstanding at 3:00 P.M., New York City
time, on the fifth New York Business Day preceding the Delisting Date (or, if
the Delisting Notification Date is subsequent to the fifth New York Business
Day preceding the Delisting Date, then at 3:00 P.M., New York City time, on the
New York Business Day next preceding the Delisting Notification Date), (ii) on
the New York Business Day following the Delisting Date obtain the Spot Rate
from the Spot Rate Reference Agent (which Spot Rate shall be the Spot Rate on
the New York Business Day following the Delisting Date), (iii) determine the
Cash Settlement Value (in the manner provided in Section 2.02(e) of this
Agreement) of the Warrants to be automatically exercised, (iv) advise the
Company promptly thereafter of the number of Unexercised Warrants outstanding
on the Delisting Date and of the amount payable in respect of the automatic
exercise of such Warrants and of the Cash Settlement Value with respect to such
Warrants and (v) advise the
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Company of such other matters relating to the automatically exercised Warrants
as the Company shall reasonably request. Provided that the Company has made
adequate funds available to the Warrant Agent in a timely manner which shall,
in no event, be later than 3:00 P.M. on the second Business Day following the
date on which the Spot Rate is obtained, the Warrant Agent will make payment
available (i) in the case of Book-Entry Warrants, in the form of a cashier's
check or an official bank check to the Depository, against receipt of the
Global Warrant, and (ii) in the case of Certificated Warrants, in the form of a
cashier's check or an official bank check to the appropriate Registered Holder,
or (in the case of payments of at least $250,000) by wire transfer to a U.S.
dollar account maintained by such Registered Holder (at the Registered Holder's
election), against receipt by the Warrant Agent at the Warrant Agent's Office
from such Registered Holder of its Warrant Certificates, in either case after
3:00 P.M., New York City time, but prior to the close of business, on the
second Business Day following the date on which the Spot Rate is obtained, such
payment to be in the amount of the aggregate Cash Settlement Value in respect
of Warrants that have been automatically exercised. Warrant Certificates
delivered to the Warrant Agent, and the Global Warrant, shall thereafter be
promptly cancelled by the Warrant Agent.
(d) The Company will use its best efforts to notify the Warrantholders, or
cause the Warrantholders to be notified, as promptly as practicable of any
expected delisting or suspension of trading of the Warrants.
Section 2.04. Covenant of the Company. The Company covenants, for the benefit
of the Warrantholders, that it will not seek the delisting of the Warrants, or
suspension of their trading on, the AMEX unless the Company has, at the same
time, arranged for listing on another national securities exchange.
Section 2.05. Return of Money Held Unclaimed for Two Years. Except as
otherwise provided herein, any money deposited with or paid to the Warrant
Agent for the payment of the Cash Settlement Value of any Warrants and not
applied but remaining unclaimed for two years after the date upon which such
Cash Settlement Value shall have become due and payable, shall be repaid by the
Warrant Agent to the Company and the holder of such Warrants shall thereafter
look only to the Company for any payment which such holder may be entitled to
collect and all liability of the Warrant Agent with respect to such money shall
thereupon cease; provided that the Warrant Agent, before making any such
repayment, may at the expense of the Company notify the Warrantholders
concerned that said money has not been so applied and remains unclaimed and
that after a date named therein any unclaimed balance of said money then
remaining will be returned to the Company.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
Section 3.01. Holder of Warrant May Enforce Rights. Notwithstanding any of
the provisions of this Agreement, any Warrantholder, without the consent of the
Warrant Agent, may, in and for his own behalf, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, his right to exercise, and to receive
payment for, his Warrants as provided in this Agreement.
Section 3.02. Merger, Consolidation, Sale, Transfer or Conveyance. If at any
time there shall be a merger, consolidation, sale, transfer, conveyance or
other disposition of substantially all of the assets of the Company, then in
any such event the successor or assuming corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein and in the Warrants as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and, in the
event of any such sale, transfer, conveyance (other than by way of lease) or
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other disposition, the Company as the predecessor corporation may thereupon or
at any time there-after be dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, (i) new Warrant Certificates
representing Certificated Warrants not theretofore exercised, in exchange and
substitution for the Warrant Certificates theretofore issued and (ii) a new
Global Warrant, representing Book-Entry Warrants not theretofore exercised in
exchange and substitution for the Global Warrant theretofore issued. Such
Warrant Certificates and Global Warrant shall in all respects have the same
respective legal rank and benefit under this Agreement as the Warrant
Certificates and Global Warrant theretofore issued in accordance with the terms
of this Agreement as though such new Warrant Certificates and Global Warrant
had been issued at the date of the execution hereof. In case of any such
consolidation, merger, sale, transfer, conveyance or other disposition of
substantially all of the assets of the Company, such changes in phraseology and
form (but not in substance) may be made in the new Global Warrant and Warrant
Certificates as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, sale, transfer,
conveyance or other disposition of substantially all of the assets of the
Company complies with the provisions of this Section 3.02.
ARTICLE IV
CANCELLATION OF WARRANTS, PAYMENT OF TAXES
Section 4.01. Cancellation of Warrants. In the event the Company shall
purchase or otherwise acquire Warrants, such Warrants may, at the option of the
Company, be delivered to the Warrant Agent, in the case of Book-Entry Warrants,
by delivering such Warrants free through a Participant to the Depository for
credit to the Warrant Account, and in the case of Certificated Warrants, by
delivering the Warrant Certificates evidencing such Warrants to the Warrant
Agent at its address set forth in Exhibits A and B hereto, and, if so
delivered, the Warrant Agent shall promptly note the cancellation of such
Warrants by notation, in the case of Book-Entry Warrants, on its records with
respect to the Global Warrant, and in the case of Certificated Warrants, on the
Warrant Register. No Warrant Certificate shall be countersigned, and no Book-
Entry Warrant shall be issued, in lieu of or in exchange for any Warrant which
is cancelled as provided herein, except as otherwise expressly permitted by
this Agreement.
Any cancelled Warrant Certificate held by the Warrant Agent under this
Agreement (whether acquired pursuant to Section 2.03 or this Section 4.01)
shall be destroyed by the Warrant Agent and the Warrant Agent shall deliver a
certificate of destruction to the Company evidencing the same.
At such time as all of the Book-Entry Warrants have been exercised (including
pursuant to an automatic exercise) or otherwise cancelled, the Warrant Agent
shall cancel and destroy the Global Warrant (unless instructed by the Company
to deliver the Global Warrant to the Company) and shall provide a certificate
of destruction to the Company.
Section 4.02. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrants; provided, however,
that, anything in this Agreement to the contrary notwithstanding, the Company
shall not be required to pay any tax or other governmental charge which may be
payable in respect of any transfer involving any beneficial or record interest
in, or ownership interest of, any Warrants.
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ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.01. Warrant Agent. (a) The Company hereby appoints as
Warrant Agent of the Company in respect of the Warrants upon the terms and
subject to the conditions set forth herein; and hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in this Agreement and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Global Warrant and the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
(b) The Warrant Agent covenants and agrees to maintain offices, staffed by
qualified personnel, with adequate facilities for the discharge of its
responsibilities under this Warrant Agreement, including without limitation the
computation of the Cash Settlement Values and the timely settlement of the
Warrants upon exercise thereof.
Section 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrants shall be
subject:
(a) The Company agrees promptly to pay the Warrant Agent the compensation to
be agreed upon with the Company for all services rendered by the Warrant Agent
and to reimburse the Warrant Agent for its reasonable out-of-pocket expenses
(including counsel fees and expenses) incurred by the Warrant Agent without
negligence, bad faith or breach of this Agreement on its part in connection
with the services rendered by it hereunder. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense (including reasonable attorneys' fees and expenses)
incurred without negligence, bad faith or breach of this Agreement on the part
of the Warrant Agent, arising out of or in connection with its acting as such
Warrant Agent hereunder, as well as the costs and expenses of defending against
any claim of liability in the premises.
(b) In acting under this Agreement, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or relationship of
agency or trust for or with any of the owners or holders of the Warrants.
(c) The Warrant Agent may consult with counsel satisfactory to it, and the
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the opinion of such counsel.
(d) The Warrant Agent shall be protected and shall incur no liability for or
in respect of any action taken or thing suffered by it in reliance upon any
notice, direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) The Warrant Agent, and its officers, directors and employees, may become
the owner of, or acquire any interest in, any Warrants or other obligations of
the Company, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depository, trustee or agent for, any committee
or body of holders of Warrants or other obligations of the Company as freely as
if it were not the Warrant Agent hereunder.
(f) The Warrant Agent shall not be under any liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement nor shall it be obligated to segregate such monies from other monies
held by it, except as required by law. The Warrant Agent shall not be
responsible for advancing funds on behalf of the Company.
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(g) The Warrant Agent shall not be under any responsibility with respect to
the validity or sufficiency of this Agreement or the execution and delivery
hereof (except the due execution and delivery hereof by the Warrant Agent) or
with respect to the validity or execution of the Global Warrant or the Warrant
Certificates (except its countersignature thereof).
(h) The recitals contained herein shall be taken as the statements of the
Company and the Warrant Agent assumes no responsibility for the correctness of
the same.
(i) The Warrant Agent shall be obligated to perform such duties as are herein
specifically set forth and no implied duties or obligations shall be read into
this Agreement against the Warrant Agent. The Warrant Agent shall not be under
any obligation to take any action hereunder likely to involve it in any expense
or liability, the payment of which is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty or
responsibility for the application by the Company of any proceeds. The Warrant
Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained in the
Global Warrant or any Warrant Certificate or in the case of the receipt of any
written demand from a Warrantholder with respect to such default, including,
without limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 6.02 hereof, to make any demand upon the Company.
Section 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the holders from time to time of the Warrants, that
there shall at all times be a Warrant Agent hereunder until all the Warrants
have been exercised.
(b) The Warrant Agent may at any time resign as such agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective, subject to the
appointment of a successor Warrant Agent by the Company and acceptance of such
appointment by such successor Warrant Agent, as hereinafter provided. The
Warrant Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a banking institution
organized under the laws of the United States of America or one of the states
thereof and have an office or an agent's office south of Chambers Street in the
Borough of Manhattan, The City of New York) and the acceptance of such
appointment by such successor Warrant Agent. In the event a successor Warrant
Agent has not been appointed and accepted its duties within 90 days of the
Warrant Agent's notice of resignation, the Warrant Agent may apply to any court
of competent jurisdiction for the designation of a successor Warrant Agent. The
obligation of the Company under Section 5.02(a) shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent.
(c) In case at any time the Warrant Agent shall give notice to the Company of
its intent to resign, or shall be removed, or shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if any public officer shall have taken charge or control of the
Warrant Agent or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as aforesaid,
shall be promptly appointed by the Company by an instrument in writing, filed
with the successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the letter of such appointment, the
Warrant Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and
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thereupon such successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like effect as if
originally named as Warrant Agent hereunder, and such predecessor, upon payment
of its charges and disbursements then unpaid, shall thereupon become obligated
to transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with
or held by such predecessor (including, without limitation, the Warrant
Register), as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion, or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
corporate trust assets and business of the Warrant Agent, provided that it
shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Amendment. (a) This Agreement and the terms of the Warrant
Certificates or the Global Warrant may be amended by the Company and the
Warrant Agent, without the consent of the Warrantholders, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
or inconsistent provision contained herein or therein, or in any other manner
which the Company may deem necessary or desirable and which will not adversely
affect the interests of the Warrantholders. Notwithstanding anything in this
Section 6.01 to the contrary, this Agreement may not be amended to provide for
the countersigning by the Warrant Agent of Warrant Certificates (other than
Warrant Certificates countersigned in exchange and substitution for mutilated
Warrant Certificates or in lieu of lost, stolen or destroyed Warrant
Certificates) which, together with the Global Warrant, evidence in the
aggregate in excess of Warrants unless and until the Warrant Agent
has received notice from the AMEX or any successor national securities exchange
that the additional Warrants in excess of have been approved for
listing on such exchange.
(b) The Company and the Warrant Agent may modify or amend this Agreement, the
Warrant Certificates or the Global Warrant, with the consent of Warrantholders
holding not less than a majority in number of the then outstanding Warrants
affected by such modification or amendment, for any purpose; provided, however,
that no such modification or amendment that increases the Strike Price,
shortens the period of time during which the Warrants may be exercised, or
otherwise materially and adversely affects the exercise rights of the
Warrantholders or reduces the percentage of the number of outstanding Warrants,
the consent of whose holders is required for modification or amendment of this
Agreement, may be made without the consent of each Warrantholder affected
thereby.
Section 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by
any Warrantholder pursuant to the provisions of this Agreement, the Warrant
Agent shall promptly forward such notice or demand to the Company.
Section 6.03. Addresses for Notices. Any communications from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
, New York, New York , Attention: [Corporate Trust
Administration] (telephone: (212) ; facsimile: (212) ), and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to One Procter & Gamble Plaza, Cincinnati, Ohio
45202, Attention:
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Assistant Treasurer, Finance and Investments (telephone: (513) 983-5180;
facsimile: (513) 983-7793 (or such other address, telephone number or facsimile
number as shall be specified in writing by the Warrant Agent or by the Company,
respectively). Any communications from the Warrant Agent to the Spot Rate
Reference Agent with respect to this Agreement shall be addressed to Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Attention:
(telephone: ; facsimile: (or such other address, telephone number or
facsimile number as shall be specified in writing by the Spot Rate Reference
Agent).
Section 6.04. Notices to Warrantholders. The Company may cause to have notice
given to Warrantholders which own Certificated Warrants by providing the
Warrant Agent with a form of notice to be distributed by the Warrant Agent to
the Registered Holders thereof. Delivery by the Warrant Agent to the Registered
Holder of a Warrant of any notice required hereunder to be delivered to the
beneficial owner of such Warrant shall be deemed for purposes of this
Agreement, so long as the Warrant Agent does not have actual notice of the
beneficial owner of such Warrant, to be delivery of such notice to such
beneficial owner. The Company or the Warrant Agent, as the case may be, may
cause notice to be given to Warrantholders which own Book-Entry Warrants by
providing the Depository with a form of such notice to be distributed by the
Depository to Participants in accordance with the custom and practices of the
Depository.
Section 6.05. Applicable Law. THE VALIDITY, INTERPRETATION AND PERFORMANCE OF
THIS AGREEMENT AND EACH WARRANT ISSUED HEREUNDER AND OF THE RESPECTIVE TERMS
AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
Section 6.06. Obtaining of Governmental Approvals. The Company will from time
to time take all action which may be necessary to obtain and keep effective (a)
any and all permits, consents and approvals of governmental agencies and
authorities and the AMEX or any successor national securities exchange and (b)
any and all filings or notices under United States Federal and State securities
laws, which may be or become requisite in connection with the issuance, sale,
trading, transfer or delivery of the Warrants (whether Certificated Warrants or
Book-Entry Warrants) or the exercise of the Warrants.
Section. 6.07. Persons Having Rights Under Agreement. Nothing in this
Agreement expressed or implied and nothing that may be inferred from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the Company, the Warrant Agent, the
registered holder of the Global Warrant and the Warrantholders any right,
remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all covenants,
conditions, stipulations, promises and agreements contained in this Agreement
shall be for the sole and exclusive benefit of the Company and the Warrant
Agent and their successors and of the registered holder of the Global Warrant
and the Warrantholders.
Section 6.08. Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
Section. 6.09. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
Section. 6.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the Warrant Agent's Office for inspection
by the registered holder of the Global Warrant and the Warrantholders.
Section 6.11. References to Currencies. References herein to "U.S. dollars",
"U.S. $" or "$" are to the currency of the United States of America.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
[ISSUER]
By __________________________________
Name:
___________________________________
Title:
[WARRANT AGENT] Warrant Agent
By __________________________________
Name:
___________________________________
Title:
16
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EXHIBIT (5)
THE PROCTER & GAMBLE COMPANY
Legal Division
P.O. Box 599, Cincinnati, Ohio 45201
September 14, 1994
The Procter & Gamble Company
One Procter & Gamble Plaza
Cincinnati, Ohio 45202
Gentlemen/Mesdames:
This opinion is rendered for use in connection with the Registration
Statement on Form S-3, filed by The Procter & Gamble Company (the "Company")
with the Securities and Exchange Commission on September 14, 1994 (the
"Registration Statement"), under which $500,000,000 aggregate principal amount
of debt securities (the "Debt Securities") consisting of debentures, notes
and/or other unsecured evidences of indebtedness of the Company and warrants to
purchase Debt Securities or to buy and sell government securities, foreign
currencies, currency units or units of a currency index or currency basket,
units of a stock index or stock basket or a commodity or a commodity index (the
"Warrants") to be offered as set forth in the Registration Statement are being
registered for sale to the public.
As counsel for the Company, I have examined and am familiar with originals or
copies, certified or otherwise, identified to my satisfaction, of such
statutes, documents, corporate records, certificates of public officials and
other instruments as I have deemed necessary for the purpose of this opinion,
including the Amended Articles of Incorporation, Regulations and By Laws of the
Company and the records of the proceedings of the shareholders and directors of
the Company.
Upon the basis of the foregoing, I am of the opinion that:
(a) The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of Ohio;
(b) When the Registration Statement shall have been declared effective by
order of the Securities and Exchange Commission, the terms of the Debt
Securities and Warrants and of their issue and sale have been duly
established, with respect to the Debt Securities, in conformity with the
Indenture dated as of September 28, 1992 between the Company and The First
National Bank of Chicago, as Trustee, and, with respect to the Warrants, in
conformity with the Warrant Agreement (for Debt Securities) or the Warrant
Agreement, as the case may be, and the Debt Securities and Warrants shall
have been duly executed by the Company and, with respect to the Debt
Securities, authenticated and delivered by the Trustee in accordance with
said Indenture and the Debt Securities and Warrants issued and sold as
contemplated in the Registration Statement, then the Debt Securities and
Warrants will be legally issued and will constitute valid and binding
obligations of the Company in accordance with their terms and shall be
entitled to the benefits of said Indenture and Warrant Agreements, as the
case may be, respectively.
I hereby consent to the filing of this opinion as Exhibit (5) to the
Registration Statement and to the reference to my name in the Registration
Statement.
Very truly yours,
Chris B. Walther Counsel
<PAGE>
EXHIBIT (23)(1)(a)
CONSENT OF DELOITTE & TOUCHE LLP
(INDEPENDENT AUDITORS' CONSENT)
The Procter & Gamble Company:
We consent to the incorporation by reference in this Registration Statement
of The Procter & Gamble Company on Form S-3 of our reports dated August 10,
1994 (expressing an unqualified opinion and including an explanatory paragraph
regarding the changes in accounting for other post retirement benefits and
income taxes effective July 1, 1992) appearing in and incorporated by reference
in the Annual Report on Form 10-K of The Procter & Gamble Company for the year
ended June 30, 1994 and to the reference to us under the heading "Experts" in
the Prospectus which is part of this Registration Statement.
Deloitte & Touche LLP
Cincinnati, Ohio
September 14, 1994
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EXHIBIT 25
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) [_]
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THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. employer identification number)
ONE FIRST NATIONAL PLAZA, CHICAGO, 60670-0126
ILLINOIS (Zip Code)
(Address of principal executive
offices)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(Name, address and telephone number of agent for service)
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THE PROCTER AND GAMBLE COMPANY
(Exact name of obligor as specified in its charter)
OHIO 31-0411980
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
ONE PROCTER & GAMBLE PLAZA 45202
CINCINNATI, OHIO (Zip Code)
(Address of principal executive
offices)
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DEBT SECURITIES
(Title of Indenture Securities)
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence
business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not Applicable.
9.Not Applicable.
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
THE TRUSTEE, THE FIRST NATIONAL BANK OF CHICAGO, A NATIONAL BANKING ASSOCIATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY
CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF CHICAGO AND STATE OF
ILLINOIS, ON THE 14TH DAY OF SEPTEMBER, 1994.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
/s/ R. D. Manella
BY: _________________________________
R. D. MANELLA
VICE PRESIDENT
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* Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 26(b) to the Registration Statement on Form
S-3 of Dow Capital B.V. and The Dow Chemical Company, filed with the
Securities and Exchange Commission on June 3, 1991 (Registration No. 33-
36314).
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EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(B) OF THE ACT
SEPTEMBER 14, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between The Procter &
Gamble Company and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
The First National Bank of Chicago
/s/ R. D. Manella
By: _________________________________
R. D. MANELLA
VICE PRESIDENT
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EXHIBIT 7
A copy of the latest report of conditions of the trustee published pursuant
to law or the requirements of its supervising or examining authority.
Legal Title of Bank: The First National Bank of Chicago
Call Date: 6/30/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS FOR JUNE 30, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------ Left
THOUSANDS RCFD BIL MIL THOU Arrow
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<C> <S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from
depository institutions
(from Schedule RC-A):
a. Noninterest-bearing
balances and currency and
coin(1)................... 0081 2,999,432 1.a.
b. Interest-bearing
balances(2)............... 0071 7,408,337 1.b.
2. Securities
a. Held-to-maturity
securities (from Schedule
RC-B, column A) .......... 1754 114,178 2.a.
b. Available-for-sale
securities (from Schedule
RC-B, column D)........... 1773 354,495 2.b.
3. Federal funds sold and
securities purchased under
agreements to resell in
domestic offices of the
bank and its Edge and
Agreement subsidiaries, and
in IBFs:
a. Federal Funds sold....... 0276 3,997,507 3.a.
b. Securities purchased
under agreements to
resell.................... 0277 756,008 3.b.
4. Loans and lease financing
receivables:
a. Loans and leases, net of
unearned income (from
Schedule RC-C)............ RCFD 2122 14,441,302 4.a.
b. LESS: Allowance for loan
and lease losses.......... RCFD 3123 336,826 4.b.
c. LESS: Allocated transfer
risk reserve.............. RCFD 3128 0 4.c.
d. Loans and leases, net of
unearned income,
allowance, and reserve
(item 4.a minus 4.b and
4.c)...................... 2125 14,104,476 4.d.
5. Assets held in trading
accounts................... 3545 9,635,521 5.
6. Premises and fixed assets
(including capitalized
leases).................... 2145 489,446 6.
7. Other real estate owned
(from Schedule RC-M)....... 2150 59,331 7.
8. Investments in
unconsolidated subsidiaries
and associated companies
(from Schedule RC-M)....... 2130 6,886 8.
9. Customers' liability to this
bank on acceptances
outstanding................ 2155 445,848 9.
10. Intangible assets (from
Schedule RC-M)............. 2143 131,253 10.
11. Other assets (from Schedule
RC-F)...................... 2160 1,283,273 11.
12. Total assets (sum of items 1
through 11)................ 2170 41,785,991 12.
</TABLE>
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
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Legal Title of Bank: The First National Bank of Chicago
Call Date: 6/30/94 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC--CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
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<C> <S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices
(sum of totals of
columns A and C from
Schedule RC-E, part
1).................... RCON 2200 14,100,202 13.a.
(1) Noninterest-
bearing(1)............ RCON 6631 5,795,942 13.a.(1)
(2) Interest-bearing.... RCON 6636 8,304,260 13.a.(2)
b. In foreign offices,
Edge and Agreement
subsidiaries, and IBFs
(from Schedule RC-E,
part II).............. RCFN 2200 9,752,314 13.b.
(1) Noninterest bearing. RCFN 6631 459,474 13.b.(1)
(2) Interest-bearing.... RCFN 6636 9,292,840 13.b.(2)
14. Federal funds purchased
and securities sold
under agreements to
repurchase in domestic
offices of the bank and
of its Edge and
Agreement subsidiaries,
and in IBFs:
a. Federal funds
purchased............. RCFD 0278 2,766,451 14.a.
b. Securities sold under
agreements to
repurchase............ RCFD 0279 355,648 14.b.
15. a. Demand notes issued
to the U.S. Treasury.. RCON 2840 101,744 15.a.
b. Trading Liabilities.. RCFD 3548 6,864,567 15.b.
16. Other borrowed money:
a. With original
maturity of one year
or less............... RCFD 2332 1,955,477 16.a.
b. With original
maturity of more than
one year.............. RCFD 2333 488,023 16.b.
17. Mortgage indebtedness
and obligations under
capitalized leases..... RCFD 2910 273,578 17.
18. Bank's liability on
acceptance executed and
outstanding............ RCFD 2920 445,848 18.
19. Subordinated notes and
debentures............. RCFD 3200 1,175,000 19.
20. Other liabilities (from
Schedule RC-G)......... RCFD 2930 765,341 20.
21. Total liabilities (sum
of items 13 through
20).................... RCFD 2948 39,044,193 21.
22. Limited-Life preferred
stock and related
surplus................ RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred
stock and related
surplus................ RCFD 3838 0 23.
24. Common stock............ RCFD 3230 200,858 24.
25. Surplus (exclude all
surplus related to
preferred stock)....... RCFD 3839 2,254,940 25.
26. a. Undivided profits and
capital reserves...... RCFD 3632 287,009 26.a.
b. Net unrealized
holding gains (losses)
on available-for-sale
securities............ RCFD 8434 (38) 26.b.
27. Cumulative foreign
currency translation
adjustments............ RCFD 3284 (971) 27.
28. Total equity capital
(sum of items 23
through 27)............ RCFD 3210 2,741,798 28.
29. Total liabilities,
limited-life preferred
stock, and equity
capital (sum of items
21, 22, and 28)........ RCFD 3300 41,785,991 29.
Memorandum
To be reported only with the March
Report of Condition. NUMBER
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1. Indicate in the box at the right the number
of the statement below that best describes
the most comprehensive level of auditing [_]
work performed for the bank by independent
external auditors as of any date during
1993......................................... RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
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