<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 2
to
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1) OF THE
SECURITIES EXCHANGE ACT OF 1934
and
AMENDMENT NO. 1
to
SCHEDULE 13D
UNDER THE
SECURITIES EXCHANGE ACT OF 1934
------------------
STIMSONITE CORPORATION
(Name Of Subject Company)
VISION ACQUISITION CORPORATION
AVERY DENNISON CORPORATION
(Bidders)
---------------------
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title Of Class Of Securities)
860832104
(Cusip Number Of Class Of Securities)
--------------------
ROBERT G. VAN SCHOONENBERG
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
AVERY DENNISON CORPORATION
150 N. ORANGE GROVE BOULEVARD
PASADENA, CALIFORNIA 91103
(626) 304-2000
(Name, Address And Telephone Number Of Person Authorized To
Receive Notice And Communications On Behalf Of Person(s) Filing Statement)
-------------------------
COPIES TO:
MICHAEL W. STURROCK, ESQ.
LATHAM & WATKINS
633 WEST FIFTH STREET, SUITE 4000
LOS ANGELES, CALIFORNIA 90071
(213) 485-1234
<PAGE>
CUSIP No. 860832104
- -------------------------------------------------------------------------------
(1) Name of reporting persons:
AVERY DENNISON CORPORATION
I.R.S. Identification No. of above person (entities only): 951492269
---------
- -------------------------------------------------------------------------------
(2) Check the appropriate box if a member of a group (see instructions):
(a) [_]
(b) [_]
- -------------------------------------------------------------------------------
(3) SEC use only
- -------------------------------------------------------------------------------
(4) Source of funds (see instructions):
[OO]
- -------------------------------------------------------------------------------
(5) Check box if disclosure of legal proceedings is required pursuant to Items
2(e) or 2(f)
[_]
- -------------------------------------------------------------------------------
(6) Citizenship or place of organization:
State of Delaware
- -------------------------------------------------------------------------------
(7) Aggregate amount beneficially owned by each reporting person:
1,701,666
- -------------------------------------------------------------------------------
(8) Check box if the aggregate amount in Row (7) excludes certain shares (see
instructions):
[_]
- -------------------------------------------------------------------------------
(9) Percent of class represented by amount in Row (7):
20.2%
- -------------------------------------------------------------------------------
(10) Type of reporting person (see instructions):
CO
- -------------------------------------------------------------------------------
<PAGE>
CUSIP No. 860832104
- -------------------------------------------------------------------------------
(1) Name of reporting persons:
VISION ACQUISITION CORPORATION
I.R.S. Identification No. of above person (entities only):
--------------------
- -------------------------------------------------------------------------------
(2) Check the appropriate box if a member of a group (see instructions):
(a) [_]
(b) [_]
- -------------------------------------------------------------------------------
(3) SEC use only
- -------------------------------------------------------------------------------
(4) Source of funds (see instructions):
AF
- -------------------------------------------------------------------------------
(5) Check box if disclosure of legal proceedings is required pursuant to Items
2(e) or 2(f)
[_]
- -------------------------------------------------------------------------------
(6) Citizenship or place of organization:
State of Delaware
- -------------------------------------------------------------------------------
(7) Aggregate amount beneficially owned by each reporting person:
1,701,666
- -------------------------------------------------------------------------------
(8) Check box if the aggregate amount in Row (7) excludes certain shares (see
instructions):
[_]
- -------------------------------------------------------------------------------
(9) Percent of class represented to amount in Row (7):
20.2%
- -------------------------------------------------------------------------------
(10) Type of reporting person (see instructions):
CO
- -------------------------------------------------------------------------------
<PAGE>
This Amendment No. 2 to the Schedule 14D-1 and Amendment No. 1 to the
Schedule 13D amends and supplements the Tender Offer Statement on Schedule 14D-1
filed with the Securities and Exchange Commission (the "Commission") on June 10,
1999 (as amended by Amendment No. 1 to the Schedule 14D-1 filed with the
Commission on June 22, 1999, the "Schedule 14D-1") and Schedule 13D filed with
the Commission on June 10, 1999 (the "Schedule 13D") relating to the cash tender
offer by Vision Acquisition Corporation, a Delaware corporation ("Purchaser")
and a wholly-owned subsidiary of Avery Dennison Corporation, a Delaware
corporation ("Parent") to purchase all of the outstanding shares of common
stock, par value $.01 per share, of Stimsonite Corporation, a Delaware
corporation (the "Company") at a purchase price of $14.75 per Share, net to the
seller in cash (subject to applicable withholding of taxes), without any
interest thereon, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated June 10, 1999 (the "Offer to Purchase") and the related
Letter of Transmittal. Capitalized terms used and not defined herein shall have
the meanings given to them in the Offer to Purchase.
ITEM 4. Source and Amount of Funds or Other Consideration.
Item 4(b) of the Schedule 14D-1 is hereby amended and supplemented as
follows:
On June 23, 1999, Parent entered into dealer agreements with Goldman,
Sachs & Co. ("Goldman") pursuant to which Goldman has agreed to act as dealer
for the private placement of commercial paper which Parent intends to issue in
connection with the Offer and for the private placement of extendible commercial
notes which Parent intends to issue in connection with the Offer. Such dealer
agreements are attached hereto as Exhibits (b)(1) and (b)(2) and are hereby
incorporated by reference. On June 23, 1999, Parent also entered into a
Commercial Paper Issuing and Paying Agent Agreement with Citibank, N.A.
("Citibank") pursuant to which Citibank has agreed to act as agent in connection
with the issuance and payment of the foregoing commercial paper and extendible
commercial notes. Such agreement is attached hereto as Exhibit (b)(3) and is
hereby incorporated by reference. The commercial paper which Parent intends to
issue is expected to be unsecured and is expected to have maturities of less
than 366 days from the date of issuance and bear interest at prevailing market
rates. The commercial paper is expected to be back-stopped by a credit facility
provided by various banks. The extendible commercial notes which Parent intends
to issue are expected to be unsecured and are expected to have maturities of
less than 390 days from the date of issuance and bear interest at prevailing
market rates.
ITEM 11. Material to be Filed as Exhibits.
Item 11 is hereby amended and supplemented as follows:
Exhibit (a)(9). Press Release issued by Parent on June 22, 1999.
Exhibit (b)(1). Commercial Paper Dealer Agreement, dated as of June 23, 1999,
between Parent and Goldman, Sachs & Co.
Exhibit (b)(2). Extendible Commercial Notes Dealer Agreement, dated as of June
23, 1999, between Parent and Goldman, Sachs & Co.
<PAGE>
Exhibit (b)(3). Commercial Paper Issuing and Paying Agent Agreement, dated as of
June 23, 1999, between Parent and Citibank, N.A.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this Amendment No. 2
to the Schedule 14D-1 and Amendment No. 1 to the Schedule 13D is true, complete
and correct.
Dated: June 25, 1999
VISION ACQUISITION CORPORATION
By: /s/ Robert G. van Schoonenberg
-------------------------------
Name: Robert G. van Schoonenberg
Title: President
AVERY DENNISON CORPORATION
By: /s/ Robert G. van Schoonenberg
-------------------------------
Name: Robert G. van Schoonenberg
Title: Senior Vice President, General
Counsel and Secretary
<PAGE>
EXHIBIT (a)(9)
Media Relations: For Immediate Release
Charles E. Coleman (626) 304-2014
[email protected]
Investor Relations:
Wayne H. Smith (626) 304-2001
[email protected]
AVERY DENNISON ANNOUNCES
CLEARANCE OF HART-SCOTT-RODINO WAITING PERIOD
FOR STIMSONITE ACQUISITION
PASADENA, Calif. - June 22, 1999 - Avery Dennison Corporation
(NYSE/PSE:AVY) announced today that it has received notice of early termination
of the applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 regarding the previously announced merger of Avery
Dennison Corporation and Stimsonite Corporation (NASDAQ:STIM).
A definitive merger agreement relating to the merger was announced on June
4, 1999. Under the terms of the merger agreement, a wholly-owned subsidiary of
Avery Dennison commenced a tender offer on June 10, 1999 to purchase all
outstanding shares of Stimsonite's common stock for $14.75 per share in cash.
The tender offer is scheduled to close at 12:00 Midnight, New York City time, on
Thursday, July 8, 1999, unless extended, and is subject to certain conditions
including a minimum of a majority of Stimsonite's outstanding shares (on a fully
diluted basis) being properly tendered prior to the expiration of the offer and
not withdrawn.
-more-
<PAGE>
2-2-2
The acquisition of Stimsonite will strategically expand and strengthen
Avery Dennison's reflective films business and will provide significant
additions to the Company's proprietary technology base.
Avery Dennison develops, manufactures and markets innovative self-adhesive
solutions for consumer products and label systems. Based in Pasadena, Calif.,
the Company had 1998 sales of $3.5 billion and makes a wide range of products
for consumer and industrial markets, including Avery-brand office products,
Fasson-brand self-adhesive materials, peel-and-stick postage stamps, battery
labels, automated retail tag and labeling systems, and specialty tapes and
chemicals.
Stimsonite Corporation, based in Niles, Ill., is a leading worldwide
manufacturer and marketer of reflective safety products for the transportation
industry and a pioneer in microreplication technology for a diverse range of
industries. Stimsonite products include raised reflective pavement markers,
work zone markers, highway delineators and state-of-the-art high performance
optical films for use in the construction of highway signs. In 1998, the
company generated sales of $87.4 million, net income of $4.9 million, and cash
flow from operations of $6.3 million.
# # #
Forward-Looking Statements
- --------------------------
Certain information presented in this news release may constitute "forward-
looking" statements. These statements are subject to certain risks and
uncertainties. Actual results and trends may differ materially from historical
or expected results depending on a variety of factors, including but not limited
to availability of raw materials, foreign exchange rates, worldwide and local
economic conditions, fluctuations in consumer demand affecting sales to, and
production and inventory levels at, customer companies and other matters
referred to in the Company's SEC filings.
For more information visit the Avery Dennison Web site at
www.averydennison.com
---------------------
<PAGE>
EXHIBIT (b)(1)
COMMERCIAL PAPER DEALER AGREEMENT
[4(2) PROGRAM]
between
Avery Dennison Corporation, as Issuer
and
Goldman, Sachs & Co., as Dealer
Concerning Notes to be issued pursuant to an
Issuing and Paying Agency Agreement
dated as of June 23, 1999
between the Issuer and
Citibank, N.A., as Issuing and Paying Agent
Dated as of
June 23, 1999
<PAGE>
COMMERCIAL PAPER DEALER AGREEMENT
[4(2) Program]
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer, each named on the cover page hereof, in connection with
the issuance and sale by the Issuer of its short-term promissory notes (the
"Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in
this Agreement or such Addendum, are hereby incorporated into this Agreement and
made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
-----------------------------------
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition to
the limitations contained in Section 1.7 hereof, the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to purchase, or sell,
any Notes except in transactions with one or more dealers which may from time to
time after the date hereof become dealers with respect to the Notes by executing
with the Issuer one or more agreements which contain provisions substantially
identical to those contained in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or integral
multiples of $1,000 in excess thereof, will bear such interest rates and will be
sold at such discount from their face amounts, as shall be agreed upon by the
Dealer and the Issuer, shall have a maturity not exceeding 366 days from the
date of issuance (exclusive of days of grace). The Notes shall not contain any
provision for extension, renewal or automatic "rollover".
1.4 The authentication and issuance of, and payment for, the Notes shall
be effected in accordance with the Issuing and Paying Agency Agreement, and the
Notes shall be either individual physical certificates or book-entry notes
evidenced by a Master Note registered in the name of DTC or its nominee, in the
form or forms annexed to the Issuing and Paying Agency Agreement.
2
<PAGE>
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase
of any Note by the Dealer or the sale of any Note arranged by the Dealer
(including, but not limited to, agreement with respect to the date of issue,
purchase price, principal amount, maturity and interest rate and discount
thereof and appropriate compensation for the Dealer's services hereunder)
pursuant to this Agreement, the Issuer shall cause such Note to be issued and
delivered in accordance with the terms of the Issuing and Paying Agency
Agreement and payment for such Note shall be made by the purchaser thereof,
either directly or through the Dealer, to the Issuing and Paying Agent, for the
account of the Issuer. Except as otherwise agreed, in the event that the Dealer
is acting as an agent and a purchaser shall either fail to accept delivery of or
make payment for a Note on the date fixed for settlement, the Dealer shall
promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer
for the Note, the Issuer will promptly return such funds to the Dealer against
its return of the Note to the Issuer, in the case of a certificated Note, and
upon notice of such failure in the case of a book-entry Note. If such failure
occurred for any reason other than default by the Dealer, the Issuer shall
reimburse the Dealer on an equitable basis for the Dealer's loss of the use of
such funds for the period such funds were credited to the Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer shall be
made only to: (i) investors reasonably believed by the Dealer to be
Qualified Institutional Buyers or Institutional Accredited Investors and
(ii) non-bank fiduciaries or agents that will be purchasing Notes for one
or more accounts, each of which is reasonably believed by the Dealer to be
an Institutional Accredited Investor.
(b) Resales and other transfers of the Notes by the holders thereof
shall be made only in accordance with the restrictions in the legend
described in clause (e) below.
(c) No general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without limiting the generality
of the foregoing, without the prior written approval of the Dealer, the
Issuer shall not issue any press release or place or publish any
"tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less than
$250,000 principal or face amount, and no Note shall be issued in a smaller
principal or face amount. If the purchaser is a non-bank fiduciary acting
on behalf of others, each person for whom such purchaser is acting must
purchase at least $250,000 principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the Dealer
acting as agent for the Issuer shall be made in accordance with Section
4(2) of the Securities Act, and shall be subject to the restrictions
described in the legend appearing on Exhibit A hereto. A legend
substantially to the effect of such Exhibit A shall appear as part of the
Private Placement Memorandum used in connection with offers and sales of
Notes
3
<PAGE>
hereunder, as well as on each individual certificate representing a Note
and each Master Note representing book-entry Notes offered and sold
pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to each purchaser
of Notes for which it has acted as the Dealer a copy of the then-current
Private Placement Memorandum unless such purchaser has previously received
a copy of the Private Placement Memorandum as then in effect. The Private
Placement Memorandum shall expressly state that any person to whom Notes
are offered shall have an opportunity to ask questions of, and receive
information from, the Issuer and the Dealer and shall provide the names,
addresses and telephone numbers of the persons from whom information
regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each of the
holders and prospective purchasers from time to time of the Notes that, if
at any time the Issuer shall not be subject to Section 13 or 15(d) of the
Exchange Act, the Issuer will furnish, upon request and at its expense, to
the Dealer and to holders and prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the Dealer
would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of such
fact and shall promptly prepare and deliver to the Dealer an amendment or
supplement to the Private Placement Memorandum describing the Notes that
are ineligible, the reason for such ineligibility and any other relevant
information relating thereto.
1.7 The Issuer hereby represents and warrants to the Dealer, in connection
with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that within the preceding six
months neither the Issuer nor any person other than the Dealer or the other
dealers referred to in Section 1.2 hereof acting on behalf of the Issuer
has offered or sold any Notes, or any substantially similar security of the
Issuer (including, without limitation, medium-term notes issued by the
Issuer), to, or solicited offers to buy any such security from, any person
other than the Dealer or the other dealers referred to in Section 1.2
hereof. The Issuer also agrees that as long as the Notes are being offered
for sale by the Dealer and the other dealers referred to in Section 1.2
hereof as contemplated hereby and until at least six months after the offer
of Notes hereunder has been terminated, neither the Issuer nor any person
other than the Dealer or the other dealers referred to in Section 1.2
hereof (except as contemplated by Section 1.2 hereof) will offer the Notes
or any substantially similar security of the Issuer for sale to, or solicit
offers to buy any such security from, any person other than the Dealer or
the other dealers referred to in Section 1.2 hereof, it being understood
that such agreement is made with a view to bringing the offer and sale of
the Notes within the exemption provided by Section 4(2) of the Securities
Act and shall survive any termination of this Agreement. The Issuer hereby
represents and warrants that it has not taken or omitted to take, and will
not take or omit to take, any action that would cause the offering and sale
of Notes hereunder to be integrated with any
4
<PAGE>
other offering of securities, whether such offering is made by the Issuer
or some other party or parties.
(b) In the event that the Dealer purchases Notes as principal and does
not resell such Notes on the day of such purchase, to the extent necessary
to comply with Regulation T and the interpretations thereunder, the Dealer
will sell such Notes either (i) only to offerees it reasonably believes to
be QIBs or to QIBs it reasonably believes are acting for other QIBs, in
each case in accordance with Rule 144A or (ii) in a manner which would not
cause a violation of Regulation T and the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
-----------------------------------------
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite corporate power and authority to execute, deliver and perform
its obligations under the Notes, this Agreement and the Issuing and Paying
Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been
duly authorized, executed and delivered by the Issuer and constitute legally
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and except as rights
under this Agreement to indemnity and contribution may be limited by federal or
state laws.
2.3 The Notes have been duly authorized, and when issued as provided in
the Issuing and Paying Agency Agreement upon payment of the purchase price
therefor as determined in accordance with this Agreement, will be duly and
validly issued and will constitute legally valid and binding obligations of the
Issuer enforceable against the Issuer in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
2.4 The offer and sale of Notes in the manner contemplated hereby do not
require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof, and no indenture
in respect of the Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended.
2.5 The Notes will rank at least pari passu in right of payment with all
other unsecured and unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Notes or the
5
<PAGE>
Issuing and Paying Agency Agreement, except as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of
the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance of the Notes in accordance with
the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance
with the terms and provisions hereof or thereof by the Issuer, will (i) result
in the creation or imposition of any mortgage, lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Issuer, or
(ii) violate or result in a breach or a default under any of the terms of the
Issuer's charter documents or by-laws, any contract or instrument to which the
Issuer is a party or by which it or its property is bound, or any law or
regulation, or any order, writ, injunction or decree of any court or government
instrumentality, to which the Issuer is subject or by which it or its property
is bound, which breach or default might have a material adverse effect on the
condition (financial or otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the Issuer or any of
its subsidiaries that the Issuer would have been required to disclose in its
1934 Act reports and has not so disclosed.
2.9 The Issuer is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
2.10 Neither the Private Placement Memorandum nor the Company Information
contains any 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,
in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment
or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legally valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the condition (financial or otherwise), operations or business
prospects of the Issuer which has not been disclosed to the Dealer in writing.
Section 3. Covenants and Agreements of Issuer.
-----------------------------------
6
<PAGE>
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event prior
to any subsequent issuance of Notes hereunder) of any amendment to, modification
of or waiver with respect to, the Notes or the Issuing and Paying Agency
Agreement, including a complete copy of any such amendment, modification or
waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's condition (financial or otherwise), operations or business prospects or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, however, that the Issuer shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will comply with its obligations hereunder, under the Notes
and under the Issuing and Paying Agency Agreement, at any time that any of the
Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder unless, prior to the first
issuance of Notes hereunder, the Dealer shall have received (a) an opinion of
counsel to the Issuer, addressed to the Dealer, satisfactory in form and
substance to the Dealer, (b) a copy of the executed Issuing and Paying Agency
Agreement as then in effect, (c) a copy of resolutions adopted by the Board of
Directors of the Issuer, satisfactory in form and substance to the Dealer and
certified by the Secretary or similar officer of the Issuer, authorizing
execution and delivery by the Issuer of this Agreement, the Issuing and Paying
Agency Agreement and the Notes and consummation by the Issuer of the
transactions contemplated hereby and thereby, (d) prior to the issuance of any
Notes represented by a book-entry note registered in the name of DTC or its
nominee, a copy of the executed Letter of Representations among the Issuer, the
Issuing and Paying Agent and DTC and (e) such other certificates, opinions,
letters and documents as the Dealer shall have reasonably requested.
7
<PAGE>
3.7 The Issuer shall reimburse the Dealer for all of the Dealer's
reasonable out-of-pocket expenses related to this Agreement, including expenses
incurred in connection with its preparation and negotiation, and the
transactions contemplated hereby (including, but not limited to, the printing
and distribution of the Private Placement Memorandum), and, if applicable, for
the reasonable fees and out-of-pocket expenses of the Dealer's counsel.
Section 4. Disclosure.
-----------
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon the
occurrence of any event relating to or affecting the Issuer that would cause the
Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that the Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer.
(c) In the event that (i) the Issuer gives the Dealer notice pursuant
to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it is then
holding Notes in inventory and (iii) the Issuer chooses not to promptly amend or
supplement the Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be suspended until
such time as the Issuer has so amended or supplemented the Private Placement
Memorandum, and made such amendment or supplement available to the Dealer.
Section 5. Indemnification and Contribution.
---------------------------------
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages,
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claims, costs and expenses (including, without limitation, reasonable fees and
disbursements of counsel) or judgments of whatever kind or nature (each a
"Claim"), imposed upon, incurred by or asserted against the Indemnitees arising
out of or based upon (i) any allegation that the Private Placement Memorandum,
the Company Information or any information provided by the Issuer to the Dealer
included (as of any relevant time) or includes an untrue statement of a material
fact or omitted (as of any relevant time) or omits to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or (ii) arising out of or based upon the
breach by the Issuer of any agreement, covenant or representation made in or
pursuant to this Agreement. This indemnification shall not apply to the extent
that the Claim arises out of or is based upon Dealer Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
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Section 6. Definitions.
------------
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such on
the cover page of this Agreement, as issuing and paying agent under the Issuing
and Paying Agency Agreement, or any successor thereto in accordance with the
Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent other
than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a
savings and loan association, as defined in Section 3(a)(5)(A) of the Securities
Act.
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6.11 "Private Placement Memorandum" shall mean offering materials prepared
in accordance with Section 4 (including materials referred to therein or
incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
6.13 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.14 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.15 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
Section 7. General
-------
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by the
Issuer against the Dealer in connection with or arising out of this Agreement or
the Notes or the offer and sale of the Notes shall be brought solely in the
United States federal courts located in the Borough of Manhattan or the courts
of the State of New York located in the Borough of Manhattan. EACH OF THE DEALER
AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon one
business day's prior notice to such effect to the Dealer, or by the Dealer upon
one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate of the
Dealer.
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7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto, and
their respective permitted successors and assigns hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other person
whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
Avery Dennison Corporation, as Issuer
By: /s/ Robert M. Calderoni
----------------------------------
Name: Robert M. Calderoni
Title: Senior Vice President, Finance
and Chief Financial Officer
Goldman, Sachs & Co., as Dealer
By: /s/ W.R. Harrison
----------------------------------
Authorized Signatory
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EXHIBIT (b)(2)
EXTENDIBLE COMMERCIAL NOTES DEALER AGREEMENT
[4(2) PROGRAM]
between
Avery Dennison Corporation, as Issuer
and
Goldman, Sachs & Co., as Dealer
Concerning Notes to be issued pursuant to an
Issuing and Paying Agency Agreement
dated as of June 23, 1999
between the Issuer and
Citibank, N.A., as Issuing and Paying Agent
Dated as of
June 23, 1999
<PAGE>
EXTENDIBLE COMMERCIAL NOTES DEALER AGREEMENT
[4(2) Program]
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer, each named on the cover page hereof, in connection with
the issuance and sale by the Issuer of its short-term extendible commercial
notes (the "Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in
this Agreement or such Addendum, are hereby incorporated into this Agreement and
made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
-----------------------------------
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition to
the limitations contained in Section 1.7 hereof, the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to purchase, or sell,
any Notes except in transactions with one or more dealers which may from time to
time after the date hereof become dealers with respect to the Notes by executing
with the Issuer one or more agreements which contain provisions substantially
identical to those contained in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or integral
multiples of $1,000 in excess thereof, will bear such interest rates and will be
sold at such discount from their face amounts, as shall be agreed upon by the
Dealer and the Issuer, shall have a maturity not exceeding 390 days from the
date of issuance (exclusive of days of grace) and shall have such terms as
attached as Exhibit C hereto and as specified in the Private Placement
Memorandum. The Notes shall not contain any provision for extension, renewal or
automatic "rollover".
1.4 The authentication and issuance of, and payment for, the Notes shall
be effected in accordance with the Issuing and Paying Agency Agreement, and the
Notes shall be either individual physical certificates or book-entry notes
evidenced by a Master Note registered in the
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name of DTC or its nominee, in the form or forms annexed to the Issuing and
Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase
of any Note by the Dealer or the sale of any Note arranged by the Dealer
(including, but not limited to, agreement with respect to the date of issue,
purchase price, principal amount, maturity and interest rate and discount
thereof and appropriate compensation for the Dealer's services hereunder)
pursuant to this Agreement, the Issuer shall cause such Note to be issued and
delivered in accordance with the terms of the Issuing and Paying Agency
Agreement and payment for such Note shall be made by the purchaser thereof,
either directly or through the Dealer, to the Issuing and Paying Agent, for the
account of the Issuer. Except as otherwise agreed, in the event that the Dealer
is acting as an agent and a purchaser shall either fail to accept delivery of or
make payment for a Note on the date fixed for settlement, the Dealer shall
promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer
for the Note, the Issuer will promptly return such funds to the Dealer against
its return of the Note to the Issuer, in the case of a certificated Note, and
upon notice of such failure in the case of a book-entry Note. If such failure
occurred for any reason other than default by the Dealer, the Issuer shall
reimburse the Dealer on an equitable basis for the Dealer's loss of the use of
such funds for the period such funds were credited to the Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer shall be
made only to: (i) investors reasonably believed by the Dealer to be
Qualified Institutional Buyers or Institutional Accredited Investors and
(ii) non-bank fiduciaries or agents that will be purchasing Notes for one
or more accounts, each of which is reasonably believed by the Dealer to be
an Institutional Accredited Investor.
(b) Resales and other transfers of the Notes by the holders thereof
shall be made only in accordance with the restrictions in the legend
described in clause (e) below.
(c) No general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without limiting the generality
of the foregoing, without the prior written approval of the Dealer, the
Issuer shall not issue any press release or place or publish any
"tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less than
$250,000 principal or face amount, and no Note shall be issued in a smaller
principal or face amount. If the purchaser is a non-bank fiduciary acting
on behalf of others, each person for whom such purchaser is acting must
purchase at least $250,000 principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the Dealer
acting as agent for the Issuer shall be made in accordance with Section
4(2) of the Securities Act, and shall be subject to the restrictions
described in the legend appearing on Exhibit A
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hereto. A legend substantially to the effect of such Exhibit A shall appear
as part of the Private Placement Memorandum used in connection with offers
and sales of Notes hereunder, as well as on each individual certificate
representing a Note and each Master Note representing book-entry Notes
offered and sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to each purchaser
of Notes for which it has acted as the Dealer a copy of the then-current
Private Placement Memorandum unless such purchaser has previously received
a copy of the Private Placement Memorandum as then in effect. The Private
Placement Memorandum shall expressly state that any person to whom Notes
are offered shall have an opportunity to ask questions of, and receive
information from, the Issuer and the Dealer and shall provide the names,
addresses and telephone numbers of the persons from whom information
regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each of the
holders and prospective purchasers from time to time of the Notes that, if
at any time the Issuer shall not be subject to Section 13 or 15(d) of the
Exchange Act, the Issuer will furnish, upon request and at its expense, to
the Dealer and to holders and prospective purchasers of Notes information
required by Rule 144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the Dealer
would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of such
fact and shall promptly prepare and deliver to the Dealer an amendment or
supplement to the Private Placement Memorandum describing the Notes that
are ineligible, the reason for such ineligibility and any other relevant
information relating thereto.
1.7 The Issuer hereby represents and warrants to the Dealer, in connection
with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that within the preceding six
months neither the Issuer nor any person other than the Dealer or the other
dealers referred to in Section 1.2 hereof acting on behalf of the Issuer
has offered or sold any Notes, or any substantially similar security of the
Issuer (including, without limitation, medium-term notes issued by the
Issuer), to, or solicited offers to buy any such security from, any person
other than the Dealer or the other dealers referred to in Section 1.2
hereof. The Issuer also agrees that as long as the Notes are being offered
for sale by the Dealer and the other dealers referred to in Section 1.2
hereof as contemplated hereby and until at least six months after the offer
of Notes hereunder has been terminated, neither the Issuer nor any person
other than the Dealer or the other dealers referred to in Section 1.2
hereof (except as contemplated by Section 1.2 hereof) will offer the Notes
or any substantially similar security of the Issuer for sale to, or solicit
offers to buy any such security from, any person other than the Dealer or
the other dealers referred to in Section 1.2 hereof, it being understood
that such agreement is made with a view to bringing the offer and sale of
the Notes within the exemption provided by Section 4(2) of the Securities
Act and shall survive any termination of this Agreement. The Issuer hereby
represents and
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warrants that it has not taken or omitted to take, and will not take or
omit to take, any action that would cause the offering and sale of Notes
hereunder to be integrated with any other offering of securities, whether
such offering is made by the Issuer or some other party or parties.
(b) In the event that the Dealer purchases Notes as principal and does
not resell such Notes on the day of such purchase, to the extent necessary
to comply with Regulation T and the interpretations thereunder, the Dealer
will sell such Notes either (i) only to offerees it reasonably believes to
be QIBs or to QIBs it reasonably believes are acting for other QIBs, in
each case in accordance with Rule 144A or (ii) in a manner which would not
cause a violation of Regulation T and the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
-----------------------------------------
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite corporate power and authority to execute, deliver and perform
its obligations under the Notes, this Agreement and the Issuing and Paying
Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been
duly authorized, executed and delivered by the Issuer and constitute legally
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and except as rights
under this Agreement to indemnity and contribution may be limited by federal or
state laws.
2.3 The Notes have been duly authorized, and when issued as provided in
the Issuing and Paying Agency Agreement upon payment of the purchase price
therefor as determined in accordance with this Agreement, will be duly and
validly issued and will constitute legally valid and binding obligations of the
Issuer enforceable against the Issuer in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
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<PAGE>
2.4 The offer and sale of Notes in the manner contemplated hereby do not
require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof, and no indenture
in respect of the Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended.
2.5 The Notes will rank at least pari passu in right of payment with all
other unsecured and unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Notes or the Issuing
and Paying Agency Agreement, except as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance of the Notes in accordance with
the Issuing and Paying Agency Agreement, nor the fulfillment of or compliance
with the terms and provisions hereof or thereof by the Issuer, will (i) result
in the creation or imposition of any mortgage, lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Issuer, or
(ii) violate or result in a breach or a default under any of the terms of the
Issuer's charter documents or by-laws, any contract or instrument to which the
Issuer is a party or by which it or its property is bound, or any law or
regulation, or any order, writ, injunction or decree of any court or government
instrumentality, to which the Issuer is subject or by which it or its property
is bound, which breach or default might have a material adverse effect on the
condition (financial or otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the Issuer or any of
its subsidiaries that the Issuer would have been required to disclose in its
1934 Act reports and has not so disclosed.
2.9 The Issuer is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
2.10 Neither the Private Placement Memorandum nor the Company Information
contains any 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,
in light of the circumstances under which they were made, not misleading.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment
or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
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issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legally valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the condition (financial or otherwise), operations or business
prospects of the Issuer which has not been disclosed to the Dealer in writing.
Section 3. Covenants and Agreements of Issuer.
-----------------------------------
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer (i) prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of any such amendment, modification
or waiver, (ii) in the event it elects not to redeem any Notes on the applicable
Initial Redemption Date (as defined in the Private Placement Memorandum),
written notice of such election by 11:00 a.m. on such Initial Redemption Date,
and (iii) not less than five nor more than 25 days' notice of any proposed
redemption of the Notes.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's condition (financial or otherwise), operations or business prospects or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, however, that the Issuer shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will comply with its obligations hereunder, under the Notes
and under the Issuing and Paying Agency Agreement, at any time that any of the
Notes are outstanding.
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3.6 The Issuer shall not issue Notes hereunder unless, prior to the first
issuance of Notes hereunder, the Dealer shall have received (a) an opinion of
counsel to the Issuer, addressed to the Dealer, satisfactory in form and
substance to the Dealer, (b) a copy of the executed Issuing and Paying Agency
Agreement as then in effect, (c) a copy of resolutions adopted by the Board of
Directors of the Issuer, satisfactory in form and substance to the Dealer and
certified by the Secretary or similar officer of the Issuer, authorizing
execution and delivery by the Issuer of this Agreement, the Issuing and Paying
Agency Agreement and the Notes and consummation by the Issuer of the
transactions contemplated hereby and thereby, (d) prior to the issuance of any
Notes represented by a book-entry note registered in the name of DTC or its
nominee, a copy of the executed Letter of Representations among the Issuer, the
Issuing and Paying Agent and DTC and (e) such other certificates, opinions,
letters and documents as the Dealer shall have reasonably requested.
3.7 The Issuer shall reimburse the Dealer for all of the Dealer's
reasonable out-of-pocket expenses related to this Agreement, including expenses
incurred in connection with its preparation and negotiation, and the
transactions contemplated hereby (including, but not limited to, the printing
and distribution of the Private Placement Memorandum), and, if applicable, for
the reasonable fees and out-of-pocket expenses of the Dealer's counsel.
Section 4. Disclosure.
-----------
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon the
occurrence of any event relating to or affecting the Issuer that would cause the
Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that the Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer.
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(c) In the event that (i) the Issuer gives the Dealer notice pursuant to
Section 4.3(a), (ii) the Dealer does not notify the Issuer that it is then
holding Notes in inventory and (iii) the Issuer chooses not to promptly amend or
supplement the Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be suspended until
such time as the Issuer has so amended or supplemented the Private Placement
Memorandum, and made such amendment or supplement available to the Dealer.
Section 5. Indemnification and Contribution.
---------------------------------
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, reasonable fees and disbursements of counsel) or judgments of
whatever kind or nature (each a "Claim"), imposed upon, incurred by or asserted
against the Indemnitees arising out of or based upon (i) any allegation that the
Private Placement Memorandum, the Company Information or any information
provided by the Issuer to the Dealer included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of any relevant
time) or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this Agreement.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon Dealer Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
9
<PAGE>
Section 6. Definitions.
------------
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such on
the cover page of this Agreement, as issuing and paying agent under the Issuing
and Paying Agency Agreement, or any successor thereto in accordance with the
Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent other
than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a
savings and loan association, as defined in Section 3(a)(5)(A) of the Securities
Act.
10
<PAGE>
6.11 "Private Placement Memorandum" shall mean offering materials prepared
in accordance with Section 4 (including materials referred to therein or
incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
6.13 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.14 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.15 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
Section 7. General
-------
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by the
Issuer against the Dealer in connection with or arising out of this Agreement or
the Notes or the offer and sale of the Notes shall be brought solely in the
United States federal courts located in the Borough of Manhattan or the courts
of the State of New York located in the Borough of Manhattan. EACH OF THE DEALER
AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon one
business day's prior notice to such effect to the Dealer, or by the Dealer upon
one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
11
<PAGE>
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate of the
Dealer.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto, and
their respective permitted successors and assigns hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other person
whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
Avery Dennison Corporation, as Issuer
By: /s/ Robert M. Calderoni
---------------------------
Name: Robert M. Calderoni
Title: Senior Vice President,
Finance and Chief
Financial Officer
Goldman, Sachs & Co., as Dealer
By: /s/ W.R. Harrison
---------------------------
Authorized Signatory
12
<PAGE>
EXHIBIT (b)(3)
COMMERCIAL PAPER ISSUING AND PAYING AGENT
AGREEMENT
Agreement, dated as of June __, 1999, between Citibank, N.A., a national
banking association, having an office at 111 Wall Street, 5/th/ Floor, New York,
New York 10005 Attention: Global Agency & Trust Services ("Citibank") and Avery
Dennison Corporation, a corporation organized under the laws of the State of
Delaware, having an office at 150 North Orange Grove Boulevard, Pasadena,
California 91103 (the "Company").
WITNESSETH:
THAT WHEREAS, the Company wishes to appoint Citibank as its agent in connection
with the issuance and payment of its short-term promissory notes described below
and Citibank wishes to accept such appointment, each on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and of the agreements
hereinafter set forth, the parties hereby agree as follows:
Section 1. Appointment and Acceptance
--------------------------
The Company hereby appoints Citibank as its agent for the Company in
connection with the issuance and payment of Notes (as defined below), and
Citibank agrees to act as such upon the terms and conditions set forth in this
Agreement.
Section 2. Form of Notes
-------------
The Company's short-term promissory notes to be issued by the Company
hereunder shall mean promissory notes of the Company, offered for sale in a
transaction which is exempt from registration under Section 4(2) of the
Securities Act of 1933, as amended (the "1933 Act" ), and having maturities of
390 days (or the following business day) or less, and will be book-entry notes
only represented by a master note issued by the Company in connection with the
book-entry commercial paper program of The Depository Trust Company ("DTC") or
other depository (book-entry notes herein called the "Notes" and individually a
"Note").
Section 3. Issuance of Notes; Authorized Agents
------------------------------------
(A) Pursuant to the Citi Treasury Manager ("CTM") Agreement with Citibank,
Citibank will accept issuance and payment instructions for the Notes
through CTM from certain officers, employees, dealers or others authorized
to access
<PAGE>
CTM (the "Authorized Agents"). Upon receipt of such instructions, the
following will occur:
If an Authorized Agent specifies that a Note shall be issued in book-entry form
represented by a Master Note, the Authorized Agent shall transmit its
instructions through CTM in accordance with the standard prevailing book-entry
Note program procedures of the DTC. The release by the Authorized Agent of its
issuance instructions to the DTC shall constitute the issuance of a book-entry
Note.
(B) The Company shall not instruct Citibank to issue any Note with a maturity
date which is to the Company's best knowledge a day on which Citibank's or, the
appropriate depository's offices in New York, New York will not be open for
business, However, Extendible Commercial Notes ("ECNs") shall have maturities of
390 days (or the following business day) or less.
(C) The Company, or in the case of its Dealers, the Dealer, will supply
Citibank with an incumbency certificate listing the names of the Authorized
Agents together with specimens of their signatures. Until Citibank receives a
subsequent incumbency certificate from the Company or the dealer, as the case
may be, Citibank shall be entitled to rely on the last such certificate
delivered to it for purposes of determining the Authorized Agents.
Section 4. Delivery of Notes and Payment for Note
--------------------------------------
(A) All Notes shall be delivered in accordance with DTC rules.
(B) All funds received in payment for Notes are to be credited to the Company's
Account No. 0008-1584 at Citibank.
(C) All funds received in payment for Extendible Commercial Notes are to be
credited to the Company's account No. 4079-9371 at Citibank.
Section 5. Payment of Notes at Maturity
----------------------------
Citibank agrees to effect payment on the Company's behalf by debiting the
Company's Account maintained with Citibank in the amount of the face value
amount of such Note, plus interest, if applicable, and to enter appropriate
notations of payment. The Company agrees to maintain a sufficient credit balance
in said account to pay each Note at maturity.
The Company acknowledges that nothing in this Agreement shall obligate Citibank
to extend credit, grant financial accommodation or otherwise advance funds to
the Company for the purpose of making any such payments or part thereof
otherwise effecting such transactions.
Section 6. Instructions
------------
<PAGE>
(A) The Company understands that all instructions, whether by telephone or in
writing, are to be directed to Citibank's Global Agency & Trust Services
Department. Instructions transmitted through computer terminals (including CTM)
or facsimile shall be considered written instructions for the purpose of this
Agreement.
(B) All instructions with respect to the issuance of Notes must be given via
computer terminal (including CTM) by 1:00 p.m. New York time, unless such
computer terminal is not operable in which event Company may give facsimile
instructions.
(C) Facsimile or telephone prepayment instructions and cancellation of a
previous issuance instruction will be accepted for bookentry issuances from an
Authorized Agent if received by Citibank by 2:00 p.m. and, in the case of
facsimile instructions, only after a confirming telephone call back to another
Authorized Agent of the entity who gave the instruction. Telephone instructions
may be subject to recording.
(D) If Citibank acts on any instruction sent by telephone or facsimile,
Citibank shall not, provided it complies with this Section 6, and reasonably
believes such instruction to have come from an Authorized Agent, be responsible
if that instruction is not an authorized instruction of the Company or is not in
the form the Company sent or intended to send (whether due to fraud, distortion
or otherwise), and the Company shall indemnify Citibank against any loss,
liability claim or expense (including reasonable legal fees) it may incur in
connection with its acting in accordance with that instruction.
Section 7. Citibank Authorized Representatives
-----------------------------------
Citibank shall supply the Company with an incumbency certificate listing the
names of the officers and employees ("Authorized Representatives") together with
specimens of their signatures.
Section 8. Representations and Warranties of the Company
---------------------------------------------
(A) The Company represents and warrants as follows:
(i) The Company is a duly organized and validly existing corporation
in good standing under the laws of the state of its incorporation and has the
corporate power and authority to own its property, to carry on its business as
presently being conducted, to execute and deliver this Agreement, and the Notes,
and to perform and observe the conditions hereof and thereof.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legally valid and binding agreement
of the Company, The issuance and sale of Notes by the Company hereunder have
been duly and validly authorized by the Company and when authenticated and
delivered by Citibank as provided in this Agreement, each Note will be the
legal, valid and binding obligation of the Company.
<PAGE>
(iii) The offer and sale by the Company of such Notes will
constitute exempt transactions under Section 4(2) of the 1933 Act and,
accordingly, registration of the Notes under the 1933 Act will not be required.
Qualification of an indenture with respect to the Notes under the Trust
Indenture Act of 1939, as amended, will not be required in connection with the
offer, issuance, sale or delivery of the Notes.
(iv) No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority in the United States is
required to authorize, or is otherwise required in connection with, the
execution, delivery or performance of this Agreement or the Notes, except for
any filings under state securities laws.
(B) Each issuance of Notes by the Company shall be deemed a representation and
warranty by the Company to Citibank, as of the date thereof that, both before
and after giving effect to such issuance the representations and warranties of
the Company set forth in Section 8(A) hereof remain true and correct on and as
of such date as if made on and as of such date (except to the extent such
representations and warranties expressly relate solely to an earlier date).
Section 9. Governing Law and Jurisdiction
------------------------------
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York without regard to its conflict of law provisions. Any
claims made under this Agreement shall be heard and determined in the Federal or
state courts located in the State of New York. The Company and Citibank hereby
agree to submit to the jurisdiction of the Federal and state courts located in
the State of New York for the resolution of any proceedings brought therein
relating to claims arising from or in connection with this Agreement.
Section 10. Fees
----
The Company agrees to pay the fees and expenses for the services rendered under
this Agreement as set forth on Schedule A hereto. Citibank reserves the right
to increase such fees at any time and from time to time in its sole discretion.
The Company will be provided thirty (30) days' advance notice of any prospective
increase in fees.
Section 11. Indemnification
---------------
(A) Citibank shall indemnify and defend the Company and hold it
harmless against any claim or action arising which alleges that the use of CTM,
or any module of CTM, infringes a United States patent, copyright, trademark,
trade secret or other proprietary right of a third person unless such alleged
infringement shall have resulted from (i) a use of CTM or any module thereof not
authorized by this Agreement, or (ii) a modification or alteration of CTM or any
module thereof made by the Company without the express written authorization of
Citibank. The Company agrees that it will notify
<PAGE>
Citibank promptly in writing of any such claim and grants Citibank sole right to
control the defense and disposition of such claim. If as a result of any such
claim, Citibank or the Company is permanently enjoined from using CTM by a
final, non-appealable decree, Citibank at its sole option and expense may
procure for the Company the right to continue to use CTM or, at its sole option
and expense, may replace or modify CTM so as to settle such claim. If
modification of CTM is not reasonably practical in the sole opinion of Citibank,
after giving due consideration to all factors including financial expense,
Citibank may discontinue and terminate this Agreement upon 30 days written
notice to the Company and shall refund to the Company all fees paid to Citibank
under this Agreement plus any fees and expenses incurred as a result. Any other
documents referencing CTM or the use thereof will thereafter be amended
accordingly. The foregoing states the entire liability of Citibank with respect
to infringement of any proprietary right by CTM.
(B) The Company will indemnify Citibank and hold Citibank harmless
from any and all liabilities, losses, damages, costs, taxes, penalties, fees and
expenses of any nature (including reasonable attorney fees) arising out of or in
connection with Citibank's performance under this Agreement, except for costs,
expenses, fees and liabilities arising out of Citibank's negligence or
misconduct. This indemnity includes, but is not limited to, any action taken or
omitted in good faith within the scope of this Agreement upon telephone
instructions, if authorized herein, believed by Citibank in good faith to have
been received from or given by any of the Authorized Agents.
(C) The Company agrees that neither Citibank nor any of its officers,
employees, and agents shall be liable for any action, or omission to act, taken
or made pursuant to this Agreement, except for negligence or misconduct.
Citibank shall be liable to the Company for any loss or damage sustained by the
Company as a result of the delivery of Notes by Citibank or its officers,
employees, or agents in a manner other than as authorized herein.
(D) The indemnities provided by this Section 11 shall survive the
termination of the Agreement.
Section 12. Assignment
----------
This Agreement shall not be assignable by either party without the written
consent of the other and any purported assignment made in contravention of this
Section 12, shall be null and void and of no effect whatsoever. However,
Citibank shall have the right to assign, transfer, or subcontract either in
whole or in part, any of its rights or obligations under this Agreement to any
affiliate of Citibank, upon at least 30 days' prior written notice to the
Company.
Section 13. Force Majeure
-------------
Either party is excused from performance and shall not be liable for any delay
in delivery or for nondelivery, in whole or in part, caused by the occurrence of
any
<PAGE>
contingency beyond the control of the party including, but not limited to,
fires, civil disobedience, riots, rebellions, accident, explosion, flood, storm,
Acts of God and similar occurrences.
Section 14. Termination
-----------
This Agreement may be terminated by either party upon 30 days' prior written
notice to the other. Termination of this Agreement shall not affect the
Company's liabilities to Citibank hereunder in connection with any Notes issued
prior to such termination. Citibank shall have a continuing obligation to act on
behalf of the Company in accordance with the terms and conditions of this
Agreement with respect to Notes outstanding, as of the termination date, until
such Notes have matured and been paid by the Company.
Section 15. Complete Agreement Counterparts
-------------------------------
This Agreement, together with the Schedules attached hereto, constitutes the
entire Agreement between the parties with respect to the subject matter hereof
and superseded in all respects all prior proposals, negotiations, conversations,
discussions and agreements between the parties concerning the subject matter
hereof. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
Section 16. Amendment
---------
This Agreement may be amended only in writing signed by the parties
hereto.
Section 17. Notices
-------
Notices and other communications hereunder by telephone or
documents, shall be addressed as follows:
To Citibank:
Citibank, N.A.
111 Wall Street
5th Floor
New York, New York 10005
Telephone Number: 212/657-7805
Facsimile Number: 212/657-3862
To Company:
Avery Dennison Corporation
150 North Orange Grove Boulevard
Pasadena, California 91103
Attention: J.K. Gain
<PAGE>
Director, Treasury Operations
Telephone Number: 626-304-2004
Facsimile Number: 626-304-2319
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Agreement as of the day and year set forth above.
COMPANY CITIBANK, N.A.
By: By:
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Name: Name:
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