AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1995
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------
AMENDMENT
NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------
SYSCO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-1648137
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
1390 ENCLAVE PARKWAY
HOUSTON, TEXAS 77077-2099
(713) 584-1390
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
THOMAS P. KURZ
GENERAL COUNSEL
SYSCO CORPORATION
1390 ENCLAVE PARKWAY
HOUSTON, TEXAS 77077-2099
(713) 584-1390
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
JAMES E. DORSEY CARLOS A. FIERRO
ARNALL GOLDEN & GREGORY BAKER & BOTTS, L.L.P.
2800 ONE ATLANTIC CENTER 2001 ROSS AVENUE
1201 WEST PEACHTREE STREET DALLAS, TEXAS 75201-2980
ATLANTA, GEORGIA 30309-3450 (214) 953-6818
(404) 873-8608
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC. From
time to time after the
effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
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]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
-------------------
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.
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 14, 1995
PROSPECTUS
$500,000,000
SYSCO CORPORATION
DEBT SECURITIES
------------
Sysco Corporation ("SYSCO" or the "Company") may offer and issue from time
to time in one or more series debt securities (the "Debt Securities") with an
aggregate initial offering price not to exceed $500,000,000 (or the equivalent
in foreign currency or units based on or relating to currencies, including
European Currency Units). The Company will offer Debt Securities to the public
on terms determined by market conditions. Debt Securities may be issuable in
registered form without coupons or in bearer form with or without coupons
attached. Debt Securities may be sold for, and principal of and any premium or
interest on Debt Securities may be payable in, U.S. dollars, foreign currency
or currency units -- in each case, as the Company specifically designates.
The applicable Prospectus Supplement will set forth with respect to the
Debt Securities being offered thereby the ranking as senior or subordinated
Debt Securities, the specific designation, aggregate principal amount,
purchase price, maturity, interest rate (or manner of calculation thereof) and
time of payment of interest (if any), redemption provisions (if any), listing
(if any) on a securities exchange and any other specific terms of such Debt
Securities and the name of and compensation to each dealer, underwriter or
agent (if any) involved in the sale of such Debt Securities. The managing
underwriters with respect to each series sold to or through underwriters will
be named in the applicable Prospectus Supplement.
-------------------
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.
-------------------
Debt Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the applicable Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the case
of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an
agent -- in each case, less other expenses attributable to issuance and
distribution. The Company may also sell Debt Securities directly to investors
on its own behalf. In the case of sales made directly by the Company, no
commission will be payable. See "Plan of Distribution" for possible
indemnification arrangements for dealers, underwriters and agents.
-------------------
The date of this Prospectus is June , 1995
- -------------------------------------------------------------------------------
| 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 SUCH |
| STATE. |
- -------------------------------------------------------------------------------
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY DEBT
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
-------------------
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 and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company with the Commission 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 or at its Regional Offices located
at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 13th Floor, 7 World Trade Center, New York, New York 10048,
and copies of such material can be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such material can also be inspected at the office of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, on which
exchange certain of the Company's securities are listed.
The Prospectus constitutes a part of a Registration Statement on Form S-3
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
omits certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission. Reference is
hereby made to the Registration Statement and related exhibits for further
information with respect to the Company and the Debt Securities. Statements
contained herein concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
-------------------
INCORPORATION OF DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended July 2, 1994
(including only those portions of the Company's proxy statement required to be
incorporated by reference therein), its Quarterly Report on Form 10-Q for the
quarter ended October 1, 1994, its Quarterly Report on Form 10-Q for the
quarter ended December 31, 1994 and its Quarterly Report on Form 10-Q for the
quarter ended April 1, 1995 have been filed by the Company with the Commission
and are incorporated herein by reference.
All 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 any series of Debt Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such
2
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits unless specifically
incorporated by reference into the documents that this Prospectus
incorporates) may be obtained by persons to whom this Prospectus is delivered
without charge upon written request to La Dee G. Riker, Vice President and
Secretary, Sysco Corporation, 1390 Enclave Parkway, Houston, Texas, 77077-2099
(telephone number (713) 584-1390).
-------------------
IN CONNECTION WITH AN OFFERING OF DEBT SECURITIES, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICES OF THE DEBT SECURITIES OFFERED HEREBY OR OTHER SECURITIES OF THE
COMPANY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR IN
THE OVER-THE-COUNTER MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
3
SYSCO CORPORATION
GENERAL
Sysco Corporation (together with its subsidiaries and divisions
hereinafter referred to as "SYSCO" or the "Company") is the largest U.S.
distributor of food and related products to the foodservice or
"away-from-home-eating" industry. The Company provides its products and
services to approximately 245,000 restaurants, hotels, schools, hospitals,
retirement homes and other institutions throughout the continental United
States, including the 150 largest metropolitan areas, as well as the Pacific
coast region of Canada. Since the Company's formation in 1969, annual sales
have grown from approximately $115 million to nearly $11 billion in fiscal
1994. Taking advantage of innovations in food technology, improved packaging
and advanced distribution techniques, SYSCO is committed to providing its
customers with timely delivery of quality products at reasonable prices.
The Company, a Delaware corporation, has its principal executive offices
at 1390 Enclave Parkway, Houston, Texas 77077-2099 (telephone number (713)
584-1390).
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for the 1990, 1991, 1992,
1993 and 1994 fiscal years and for the 39-week period ended April 1, 1995 were
4.6x, 5.7x, 7.2x, 9.2x, 10.8x and 10.5x, respectively. For the purpose of
calculating this ratio, earnings consist of earnings before income taxes and
fixed charges. Fixed charges consist of interest expense and capitalized
interest.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used for general
corporate purposes, which may include additions to working capital, capital
expenditures, acquisitions, stock repurchases and repayment of indebtedness.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or subordinated debt of
the Company and will be issued, in the case of senior debt, under a Senior
Debt Indenture (the "Senior Debt Indenture"), as it may be amended and
supplemented from time to time, between the Company and First Union National
Bank of North Carolina, as Trustee, and, in the case of subordinated debt,
under a Subordinated Debt Indenture (the "Subordinated Debt Indenture"), as it
may be amended and supplemented from time to time, between the Company and the
trustee to be named in the Prospectus Supplements relating to subordinated
debt. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." First Union National Bank of North Carolina
and the trustee to be named in the Prospectus Supplements relating to
subordinated debt are hereinafter referred to individually as a "Trustee" and
collectively as the "Trustees." The Indentures are included as exhibits to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Indentures and the Debt Securities do
not purport to be complete and such summaries are subject to the detailed
provisions of the applicable Indenture to which reference is hereby made for a
full description of such provisions, including the definition of certain terms
used herein, and for other information regarding the Debt Securities.
Numerical references in parentheses below are to sections in the applicable
Indenture. Wherever particular sections or defined terms of the applicable
Indenture are referred to, such sections or defined terms are incorporated
herein by reference as part of the statement made, and the statement is
qualified in its entirety by such reference. The Indentures are substantially
identical, except for the provisions relating to subordination and certain
covenants. See "Senior Debt" and "Subordinated Debt."
4
GENERAL
The Indentures do not limit the amount of additional indebtedness the
Company or any of its subsidiaries may incur. The Debt Securities will be
unsecured senior or subordinated obligations of the Company.
The Indentures provide that Debt Securities may be issued from time to
time in one or more series.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities of any series (to the extent
such terms are applicable): (i) the classification as senior or subordinated
Debt Securities, the specific designation, aggregate principal amount and
purchase price; (ii) the currency or units based on or relating to currencies
in which such Debt Securities are denominated and/or in which principal,
premium, if any, and/or interest, if any, will or may be payable; (iii) the
date or dates of maturity; (iv) any redemption, repayment or sinking fund
provisions; (v) the interest rate or rates, if any, and the dates on which any
such interest will be payable (or the method by which such rate or rates or
dates will be determined); (vi) the method by which amounts payable in respect
of principal, premium, if any, or interest, if any, on such Debt Securities
may be calculated, and any currencies, commodities or indices, or value, rate
or price, relevant to such calculation; (vii) the place or places where the
principal of, premium, if any, and interest, if any, on such Debt Securities
will be payable; (viii) whether such Debt Securities will be issuable in
registered form, without coupons, or bearer form, with or without coupons
("Bearer Securities") or both and, if Bearer Securities are issuable, any
restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of Bearer Securities; (ix) whether such Debt
Securities are to be issued in whole or in part in the form of one or more
temporary or permanent global Debt Securities and if so, the identity of the
depositary, if any, for such global Debt Securities; (x) any applicable United
States federal income tax consequences, including whether and under what
circumstances the Company will pay additional amounts on such Debt Securities
held by a person who is not a U.S. person (as defined in the Prospectus
Supplement) in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Company will have the option to redeem
such Debt Securities rather than pay such additional amounts; (xi) the terms
and conditions upon which and the manner in which such Debt Securities may be
defeased or discharged if different from the defeasance provisions described
below; and (xii) any other specific terms of such Debt Securities, including
any additional or different events of default or covenants provided for with
respect to such Debt Securities, and any terms which may be required by or
advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the
applicable Indenture. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the applicable Indenture. Bearer
Securities and the coupons, if any, appertaining thereto will be transferable
by delivery.
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes are described in the
relevant Prospectus Supplement.
Debt Securities may be issued from time to time with payment terms which
are calculated by reference to the value, rate or price of one or more
currencies, commodities, indices or other factors. Holders of such Debt
Securities may receive a principal amount (including premium, if any) on any
principal payment date, or a payment of interest on any interest payment date,
that is greater than or less than the amount of principal (including premium,
if any) or interest otherwise payable on such
5
dates, depending upon the value, rate or price on such dates of the applicable
currency, commodity, index or other factor. Information as to the methods for
determining the amount of principal, premium, if any, or interest payable on
any date, the currencies, commodities, indices or other factors to which the
amount payable on such date is linked and certain additional tax
considerations will be set forth in the applicable Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement, the Debt
Securities will not contain any provisions which may afford holders of the
Debt Securities protection in the event of a change in control of the Company
or in the event of a highly leveraged transaction (whether or not such
transaction results in a change in control of the Company).
Under a Note Agreement, dated as of June 1, 1989 relating to $91,500,000
principal amount of the Company's 9.95% Senior Notes Due June 15, 1989 (the
"1989 Notes"), the Company has agreed to offer to repurchase the 1989 Notes
from the holders thereof upon a change in control of the Company (as defined)
and the occurrence of the condition described below. The repurchase is to
occur 90 days after the Company notifies the holders of the 1989 Notes that,
at any time within 12 months after a change in control occurs, the ratio of
(x) consolidated short term debt plus consolidated funded debt to (y)
consolidated capitalization plus short term debt exceeds 80%. The Note
Agreement has been filed as an Exhibit to the Company's Annual Report on Form
10-K for the year ended July 2, 1994.
GLOBAL SECURITIES
REGISTERED GLOBAL SECURITIES. The registered Debt Securities of a series
may be issued in the form of one or more fully registered global Securities (a
"Registered Global Security") that will be deposited with (and registered in
the name of) a depositary (a "Depositary") identified in the Prospectus
Supplement relating to such series or a nominee of the Depositary. Unless and
until it is exchanged in whole for Debt Securities in definitive registered
form, a Registered Global Security may not be transferred except as a whole by
the Depositary for such Registered Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by or through such participants.
The accounts to be credited initially shall be designated by any dealers,
underwriters or agents participating in the distribution of such Debt
Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in such Registered
Global Security will be shown on, and the transfer of such ownership interests
will be effected only through, records maintained by the Depositary for such
Registered Global Security (with respect to interests of participants) and on
the records of participants (with respect to interests of persons holding
through participants). The laws of some states and countries other than the
United States may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in
Registered Global Securities.
6
So long as the Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the applicable Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global Security will not
be entitled to have the Debt Securities represented by such Registered Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under such Indenture. Accordingly,
each person owning a beneficial interest in a Registered Global Security must
rely on the procedures of the Depositary for such Registered Global Security
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a
holder under such Indenture. The Company understands that under existing
industry practices, if the Company requests any action of holders or if an
owner of a beneficial interest in a Registered Global Security desires to give
or take any action which a holder is entitled to give or take under the
Indenture, the Depositary for such Registered Global Security generally either
(i) authorizes the participants holding the relevant beneficial interests to
give or take such action, and such participants would authorize beneficial
owners owning through such participants to give or take such action, or (ii)
otherwise acts upon the instructions of beneficial owners holding through
them.
Payments of principal, premium, if any, and interest, if any, on Debt
Securities represented by a Registered Global Security registered in the name
of a Depositary or its nominee will be made to such Depositary or its nominee,
as the case may be, as the registered owner of such Registered Global
Security. None of the Company, the Trustee or any other agent of the Company
or of the Trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest in respect of such Registered Global Security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Registered
Global Security as shown on the records of such Depositary. The Company also
expects that payments by participants to owners of beneficial interests in
such Registered Global Security held through such participants will be the
responsibility of such participants and will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers or registered in "street name."
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary
(because it is no longer a clearing agency registered under the Exchange Act),
and a successor Depositary registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
such Debt Securities in definitive form in exchange for such Registered Global
Security. In addition, the Company may at any time and in its sole discretion
determine not to have any of the Debt Securities of a series represented by
one or more Registered Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for all of the
Registered Global Security or Securities representing such Debt Securities.
Any Debt Securities issued in definitive form in exchange for a Registered
Global Security will be registered in such name or names as the Depositary
shall instruct the applicable Trustee. It is expected that such instructions
will be based upon directions received by the Depositary from participants
with respect to ownership of beneficial interests in such Registered Global
Security.
BEARER GLOBAL SECURITIES. The Debt Securities of a series may also be
issued in the form of one or more bearer global Debt Securities (a "Bearer
Global Security") that will be deposited with a common depositary for Morgan
Guaranty Trust Company of New York, Brussels office, as operator
7
of the Euro-clear System and Centrale de Livraison de Valeurs Mobilieres S.A.,
or with a nominee for such depositary identified in the Prospectus Supplement
relating to such series. The specific terms and procedures, including the
specific terms of the depositary arrangement, with respect to any portion of a
series of Debt Securities to be represented by a Bearer Global Security will
be described in the Prospectus Supplement relating to such series.
SENIOR DEBT
The Debt Securities (and, in the case of Bearer Securities, any coupons
appertaining thereto) issued under the Senior Debt Indenture (the "Senior Debt
Securities") will rank PARI PASSU with all other unsecured and unsubordinated
debt of the Company and senior to the Subordinated Debt Securities (as
hereinafter defined).
LIMITATIONS ON LIENS. The Company covenants in the Senior Debt Indenture
that it will not, and will not permit any Subsidiary to, issue, incur, create,
assume or guarantee any debt for borrowed money (including all obligations
evidenced by bonds, debentures, notes or similar instruments) secured by a
mortgage, security interest, pledge, lien, charge or other encumbrance
("mortgage") upon any Principal Property or upon any shares of stock or
indebtedness of any Subsidiary that owns or leases a Principal Property
(whether such Principal Property, shares or indebtedness are now existing or
owed or hereafter created or acquired) without in any such case effectively
providing concurrently with the issuance, incurrence, creation, assumption or
guaranty of any such secured debt, or the grant of such mortgage, that the
Senior Debt Securities (together with, if the Company shall so determine, any
other indebtedness of or guarantee by the Company or such Subsidiary ranking
equally with the Senior Debt Securities) shall be secured equally and ratably
with (or, at the option of the Company, prior to) such secured debt. The
foregoing restriction, however, will not apply to each of the following: (a)
mortgages on property, shares of stock or indebtedness or other assets of any
corporation existing at the time such corporation becomes a Subsidiary,
PROVIDED that such mortgages or liens are not incurred in anticipation of such
corporation's becoming a Subsidiary; (b) mortgages on property, shares of
stock or indebtedness or other assets existing at the time of acquisition
thereof by the Company or a Subsidiary or mortgages thereon to secure the
payment of all or any part of the purchase price thereof, or mortgages on
property, shares of stock or indebtedness or other assets to secure any debt
incurred prior to, at the time of, or within 180 days after, the latest of the
acquisition thereof or, in the case of property, the completion of
construction, the completion of improvements or the commencement of
substantial commercial operation of such property for the purpose of financing
all or any part of the purchase price thereof, such construction or the making
of such improvements; (c) mortgages to secure indebtedness owing to the
Company or to a Subsidiary; (d) mortgages existing at the date of the initial
issuance of any Senior Debt Securities then outstanding; (e) mortgages on
property of a person existing at the time such person is merged into or
consolidated with the Company or a Subsidiary or at the time of a sale, lease
or other disposition of the properties of a person as an entirety or
substantially as an entirety to the Company or a Subsidiary, PROVIDED that
such mortgage was not incurred in anticipation of such merger or consolidation
or sale, lease or other disposition; (f) mortgages in favor of the United
States of America or any state, territory or possession thereof (or the
District of Columbia), or any department, agency, instrumentality or political
subdivision of the United States of America or any state, territory or
possession thereof (or the District of Columbia), to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of constructing or improving the property subject
to such mortgages; or (g) extensions, renewals or replacements of any mortgage
referred to in the foregoing clauses (a), (b), (d), (e) or (f); PROVIDED,
HOWEVER, that the principal amount of indebtedness secured thereby shall not
exceed the principal amount of indebtedness so secured at the time of such
extension, renewal or replacement. Any mortgages permitted by any of the
foregoing clauses (a) through (g) shall not extend to or cover any other
Principal Property of the Company or any Subsidiary or any shares of stock or
indebtedness of any such Subsidiary, subject to the foregoing limitations,
other than the property,
8
including improvements thereto, stock or indebtedness specified in such
clauses. (Senior Debt Indenture Section 3.7)
Notwithstanding the restrictions in the preceding paragraph, the Company
or any Subsidiary may issue, incur, create, assume or guarantee debt secured
by a mortgage which would otherwise be subject to such restrictions, without
equally and ratably securing the Senior Debt Securities, PROVIDED that after
giving effect thereto, the aggregate amount of all debt so secured by
mortgages (not including mortgages permitted under clauses (a) through (g)
above) does not exceed 20% of the Consolidated Net Tangible Assets of the
Company. (Senior Debt Indenture Section 3.7)
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. The Company covenants in
the Senior Debt Indenture that it will not, nor will it permit any Subsidiary
to, enter into any Sale and Lease-Back Transaction with respect to any
Principal Property, other than any such transaction involving a lease for a
term of not more than three years or any such transaction between the Company
and a Subsidiary or between Subsidiaries, unless: (a) the Company or such
Subsidiary would be entitled to incur indebtedness secured by a mortgage on
the Principal Property involved in such transaction at least equal in amount
to the Attributable Debt with respect to such Sale and Lease-Back Transaction,
without equally and ratably securing the Senior Debt Securities, pursuant to
the limitation on liens described above; or (b) the proceeds of such
transaction are at least equal to the fair market value of the affected
Principal Property (as determined in good faith by the Board of Directors of
the Company) and the Company applies an amount equal to the greater of the net
proceeds of such sale or the Attributable Debt with respect to such Sale and
Lease-Back Transaction within 180 days of such sale to either (or a
combination of) (i) the retirement (other than any mandatory retirement,
mandatory prepayment or sinking fund payment or by payment at maturity) of
debt for borrowed money of the Company or a Subsidiary (other than debt that
is subordinated to the Senior Debt Securities or debt to the Company or a
Subsidiary) that matures more than 12 months after its creation or (ii) the
purchase, construction or development of other comparable property. (Senior
Debt Indenture Section 3.8)
"Attributable Debt" with regard to a Sale and Lease-Back Transaction with
respect to any property is defined in the Senior Debt Indenture to mean, at
the time of determination, the lesser of: (a) the fair market value of such
property (as determined in good faith by the Board of Directors of the
Company); or (b) the present value of the total net amount of rent required to
be paid under such lease during the remaining term thereof (including any
period for which such lease has been extended), discounted at the rate of
interest set forth or implicit in the terms of such lease (or, if not
practicable to determine such rate, the Composite Rate) compounded
semi-annually. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall be the lesser of the net
amount determined assuming termination upon the first date such lease may be
terminated (in which case the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated) or the
net amount determined assuming no such termination.
"Composite Rate" is defined in the Senior Debt Indenture to mean, at any
time, the rate of interest, per annum, compounded semi-annually, equal to the
sum of the rates of interest borne by each of the Senior Debt Securities
outstanding under the Senior Debt Indenture (as specified on the face of each
of the Senior Debt Securities, PROVIDED, that, in the case of the Senior Debt
Securities with variable rates of interest, the interest rate to be used in
calculating the Composite Rate shall be the interest rate applicable to such
Senior Debt Securities at the beginning of the year in which the Composite
Rate is being determined and, PROVIDED, FURTHER, that, in the case of Senior
Debt Securities which do not bear interest, the interest rate to be used in
calculating the Composite Rate shall be a rate equal to the yield to maturity
on such Senior Debt Securities, calculated at the time of issuance of such
Senior Debt Securities) multiplied, in the case of each of the Senior Debt
Securities, by the percentage of the aggregate principal amount of all of the
Senior Debt Securities then outstanding represented by such Senior Debt
Security. For the purposes of this calculation, the aggregate principal
9
amounts of outstanding Senior Debt Securities that are denominated in a
foreign currency shall be calculated in the manner set forth in Section 11.11
of the Senior Debt Indenture.
"Consolidated Net Tangible Assets" is defined in the Senior Debt Indenture
to mean, as of any particular time, the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom: (a) all current liabilities, except for current maturities of
long-term debt and of obligations under capital leases; and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, to the extent included in said aggregate amount
of assets, all as set forth on the most recent consolidated balance sheet of
the Company and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
"Principal Property" is defined in the Senior Debt Indenture to mean the
land, improvements, buildings and fixtures (including any leasehold interest
therein) constituting the principal corporate office, any manufacturing plant,
any manufacturing, distribution or research facility or any self-serve center
(in each case, whether now owned or hereafter acquired) which is owned or
leased by the Company or any Subsidiary and is located within the United
States of America or Canada unless the Board of Directors of the Company has
determined in good faith that such office, plant facility or center is not of
material importance to the total business conducted by the Company and its
Subsidiaries taken as a whole. With respect to any Sale and Lease-Back
Transaction or series of related Sale and Lease-Back Transactions, the
determination of whether any property is a Principal Property shall be
determined by reference to all properties affected by such transaction or
series of transactions.
"Sale and Lease-Back Transaction" is defined in the Senior Debt Indenture
to mean any arrangement with any person providing for the leasing by the
Company or any Subsidiary of any Principal Property which property has been or
is to be sold or transferred by the Company or such Subsidiary to such person.
"Subsidiary" is defined in the Senior Debt Indenture to mean any
corporation of which outstanding voting stock having the power to elect a
majority of the board of directors of such corporation is at the time owned,
directly or indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency. (Senior
Debt Indenture Sections 1.1, 3.7 and 3.8)
SUBORDINATED DEBT
The Debt Securities (and, in the case of Bearer Securities, any coupons
appertaining thereto) issued under the Subordinated Debt Indenture (the
"Subordinated Debt Securities") will rank junior to "Senior Indebtedness" (as
such term is defined in the Subordinated Debt Indenture). The payment of the
principal, premium, if any, and interest on the Subordinated Debt Securities
is subordinated and junior in right of payment, to the extent set forth in the
Subordinated Debt Indenture, to the prior payment in full of all "Senior
Indebtedness." Until such prior payment in full, no payment (including the
making of any deposit in trust with the Trustee in accordance with Section
10.1 of the Subordinated Debt Indenture) on account of principal, premium, if
any, or interest on any Subordinated Debt Securities or payment to acquire any
of the Subordinated Debt Securities for cash or property may be made if, at
the time of such payment or immediately after giving effect thereto, (i) any
insolvency, bankruptcy proceedings, receivership, liquidation or
reorganization of the Company, or the voluntary liquidation, dissolution or
winding up of the Company or the assignment for the benefit of creditors or
any other marshalling of assets of the Company shall have occurred, (ii) any
Subordinated Debt Security is declared due and payable before its expressed
maturity because of the occurrence of an Event of Default under the
Subordinated Debt Indenture (see "Events of Default" below), (iii) there shall
exist a default in the payment of the principal, premium, if any, or interest
10
with respect to any Senior Indebtedness, or (iv) for a period of 180 days
after delivery of notice referred to below, there shall exist a default (other
than a default in the payment of principal, premium, if any, or interest) with
respect to any Senior Indebtedness permitting the holders thereof to
accelerate the maturity thereof and written notice of such default shall have
been given to the Company and the Trustee pursuant to the Subordinated Debt
Indenture; PROVIDED that only one such 180-day blockage period following such
a notice of default may be commenced within any 365 consecutive days and no
default which existed on the date any blockage period commenced shall be the
basis for the commencement of any subsequent blockage period unless such
default is cured or waived for a period of not less than 90 consecutive days.
The foregoing provision shall not prevent the Trustee from making payments on
any Subordinated Debt Securities from monies or securities deposited with the
Trustee pursuant to the terms of Section 10.1 of the Subordinated Debt
Indenture if at the time such deposit was made or immediately after giving
effect thereto the above conditions did not exist. (Subordinated Debt
Indenture, Sections 13.1, 13.2 and 13.3)
Under the Subordinated Debt Indenture, the term "Senior Indebtedness"
means (a) all indebtedness and obligations of the Company existing on the date
of the Subordinated Debt Indenture or created, incurred or assumed thereafter,
and which (i) are for money borrowed; (ii) are evidenced by any bond, note,
debenture or similar instrument; (iii) represent the unpaid balance on the
purchase price of any assets or services of any kind; (iv) are obligations as
lessee under any lease of property, equipment or other assets required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles; (v) are reimbursement obligations with respect to
letters of credit or other similar instruments; (vi) are obligations under
interest rate, currency or other indexed exchange agreements, agreements for
caps or floors on interest rates, foreign exchange agreements or any other
similar agreements; (vii) are obligations under any guaranty, endorsement or
other contingent obligations in respect of, or to purchase or otherwise
acquire, indebtedness or obligations of other persons of the types referred to
in clauses (i) through (vi) above (other than endorsements for collection or
deposits in the ordinary course of business); or (viii) are obligations of
other persons of the type referred to in clauses (i) through (vii) above
secured by a lien to which any of the properties or assets of Company are
subject, whether or not the obligations secured thereby shall have been issued
by the Company or shall otherwise be the legal liability of the Company; and
(b) any deferrals, renewals, amendments, modifications, refundings or
extensions of any such indebtedness or obligations of the types referred to
above; notwithstanding the foregoing, Senior Indebtedness shall not include
(1) any indebtedness of the Company to any of its subsidiaries, (2) any
indebtedness or obligation of the Company which by its express terms is stated
to be not superior in the right of payment to the Subordinated Debt Securities
or to rank PARI PASSU with, or to be subordinated to, the Subordinated Debt
Securities or (3) any indebtedness or obligation incurred by the Company in
connection with the purchase of any assets or services in the ordinary course
of business and which constitutes a trade payable or account payable.
(Subordinated Debt Indenture, Section 1.1)
By reason of such subordination, in the event of insolvency, creditors of
the Company (including holders of Subordinated Debt Securities) who are not
holders of Senior Indebtedness may recover less, ratably, than holders of
Senior Indebtedness.
If this Prospectus is being delivered in connection with a series of
Subordinated Debt Securities, the applicable Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
MERGER OR CONSOLIDATION
Each of the Indentures provides that the Company may not merge or
consolidate with any other person or persons (whether or not affiliated with
the Company) or sell, convey, transfer or lease all or substantially all of
its Property to any other person or persons (whether or not affiliated with
the Company), unless (a) either the Company shall be the continuing person, or
the successor person or the person which acquires by sale, conveyance,
transfer or lease substantially all the property of the
11
Company (if other than the Company) shall be a corporation organized under the
laws of the United States or any state thereof and shall expressly assume all
the obligations of the Company under such Indenture and the relevant Debt
Securities and coupons and (b) immediately after giving effect to such merger,
consolidation, sale, conveyance, transfer or lease, no Event of Default or
event or condition which, after notice or lapse of time or both, would become
an Event of Default with respect to the Debt Securities of any series under
such Indenture shall have occurred and be continuing. After any such transfer
(except in the case of a lease), the Company shall be discharged from all
obligations and covenants under such Indenture. (Senior and Subordinated Debt
Indentures, Sections 9.1 and 9.2)
EVENTS OF DEFAULT
An Event of Default is defined under each Indenture with respect to Debt
Securities of any series issued under such Indenture as being: (a) default in
payment of any principal of or premium, if any, on the Debt Securities of such
series, either at maturity, upon any redemption, by declaration or otherwise
(including a default in the deposit of any sinking fund payment with respect
to the Debt Securities of such series when and as due); (b) default for 30
days in payment of any interest on any Debt Securities of such series; (c)
default for 90 days after written notice in the observance or performance of
any other covenant or agreement in the Debt Securities of such series or such
Indenture other than a covenant or agreement which is not applicable to the
Debt Securities of such series; (d) certain events of bankruptcy, insolvency
or reorganization; or (e) any other Event of Default provided in the
supplemental indenture under which such series of Debt Securities is issued,
in the form of Debt Security for such series or otherwise established as
contemplated by the Senior and Subordinated Debt Indentures. (Senior and
Subordinated Debt Indentures, Section 5.1)
Each Indenture provides that (a) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on, any series of
Debt Securities issued under such Indenture or due to the default in the
performance of any other covenant or agreement of the Company applicable to
the Debt Securities of such series but not applicable to Debt Securities of
any other series issued under such Indenture shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of the outstanding Debt Securities of such series may declare
the principal (or such portion thereof as may be specified in the terms
thereof) of all Debt Securities of such series and interest accrued thereon to
be due and payable immediately; and (b) if an Event of Default due to a
default in the performance of any covenants or agreements applicable to
outstanding Debt Securities of more than one series issued under such
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of outstanding Debt
Securities of all such affected series (treated as one class) may declare the
principal (or such portion thereof as may be specified in the terms thereof)
of all such Debt Securities and interest accrued thereon to be due and payable
immediately, but upon certain conditions such declarations may be annulled and
past defaults may be waived (except a continuing default in payment of
principal of (or premium, if any) or interest on such Debt Securities) by the
holders of a majority in principal amount of the outstanding Debt Securities
of all such affected series (treated as one class). If an Event of Default due
to certain events of bankruptcy, insolvency or reorganization shall occur, the
principal (or such portion thereof as may be specified in the terms thereof)
of and interest accrued on all Debt Securities then outstanding shall become
due and payable immediately, without action by the Trustees or the holders of
any such Debt Securities. (Senior and Subordinated Debt Indentures, Sections
5.1 and 5.10)
Each Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of
care, to be indemnified by the holders of Debt Securities issued under such
Indenture before proceeding to exercise any right or power under such
Indenture at the request of such holders. (Senior and Subordinated Debt
Indentures, Section 5.6). Subject to such provisions for the indemnification
and certain other limitations, the holders of a majority in principal amount
of the outstanding Debt Securities of each affected series issued under
12
such Indenture (treated as one class) may 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 such
series. (Senior and Subordinated Debt Indentures, Section 5.9)
Each Indenture provides that no holder of Debt Securities of any series or
of any coupon issued under such Indenture may institute any action against the
Company under such Indenture (except actions for payment of overdue principal,
premium, if any, or interest) unless (1) such holder previously shall have
given to the Trustee written notice of default and continuance thereof, (2)
the holders of not less than 25% in aggregate principal amount of the
outstanding Debt Securities of each affected series issued under such
Indenture (treated as one class) shall have requested the Trustee to institute
such action and shall have offered the Trustee reasonable indemnity, (3) the
Trustee shall not have instituted such action within 60 days of such request
and (4) the Trustee shall not have received direction inconsistent with such
written request by the holders of a majority in principal amount of the
outstanding Debt Securities of each affected series issued under such
Indenture (treated as one class). (Senior and Subordinated Debt Indentures,
Sections 5.6 and 5.9)
Each Indenture contains a covenant that the Company will file annually
with the Trustee a certificate to the effect that no default exists under such
Indenture or a certificate specifying any default that exists. (Senior and
Subordinated Debt Indentures, Section 3.5)
DEFEASANCE
Each Indenture provides that the Company may defease and be discharged
from any and all obligations (except as otherwise described in (a) below) with
respect to the Debt Securities of any series which have not already been
delivered to the Trustee for cancellation and which have either become due and
payable or are by their terms due and payable within one year (or scheduled
for redemption within one year) by irrevocably depositing with the Trustee, as
trust funds, money or, in the case of Debt Securities payable only in U.S.
dollars, U.S. Government Obligations (as defined) which through the payment of
principal and interest in accordance with their terms will provide money, in
an amount certified to be sufficient to pay at maturity (or upon redemption)
the principal of (and premium, if any) and interest on such Debt Securities.
In addition, each Indenture provides that with respect to each series of
Debt Securities issued under such Indenture, the Company may elect either (a)
to defease and be discharged from any and all obligations with respect to the
Debt Securities of such series (except for the obligations to register the
transfer or exchange of the Debt Securities of such series and of coupons
appertaining thereto, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities of such series and of coupons appertaining thereto, to
maintain an office or agency in respect of the Debt Securities of such series
and to hold moneys for payment in trust) or (b) to be released from the
restrictions described under "Senior Debt," if applicable, and "Merger or
Consolidation" and, to the extent specified in connection with the issuance of
such series of Debt Securities, other covenants applicable to such series of
Debt Securities, upon the deposit with the Trustee (or other qualifying
trustee), in trust for such purpose, of money or, in the case of Debt
Securities payable only in U.S. dollars, U.S. Government Obligations which
through the payment of principal and interest in accordance with their terms
will provide money, in an amount certified to be sufficient to pay at maturity
(or upon redemption) the principal of (and premium, if any) and interest on
the Debt Securities of such series. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an opinion of
counsel (as specified in the Indenture) to the effect that 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 defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred. Such
opinion, in the case of a defeasance under clause (a) above, must refer to and
be based upon a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the date of such Indenture.
13
In the event of any "legal" defeasance of any series of Subordinated Debt
Securities issued thereunder, the Subordinated Debt Indenture provides that
holders of all outstanding Senior Indebtedness will receive written notice of
such defeasance. (Senior and Subordinated Debt Indentures, Section 10.1)
The foregoing provisions relating to defeasance may be modified in
connection with the issuance of any series of Debt Securities, and any such
modification will be described in the applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a successor
corporation of the obligations of the Company, (c) add covenants or Events of
Default for the protection of the holders of any Debt Securities, (d) cure any
ambiguity or correct any inconsistency in such Indenture or add any other
provision which shall not adversely affect the interests of the holders of the
Debt Securities, (e) establish the forms or terms of Debt Securities of any
series or of the coupons appertaining to such Debt Securities, (f) change,
modify or eliminate any provision of the Senior Debt Indenture or the
Subordinated Debt Indenture which shall not be effective with respect to any
Debt Security issued prior to the execution of such supplemental indenture and
(g) evidence the acceptance of appointment by a successor trustee. (Senior and
Subordinated Debt Indentures, Section 8.1)
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Debt Securities of all series issued under such
Indenture then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each series so affected; PROVIDED that the Company and the
Trustee may not, without the consent of the holder of each outstanding Debt
Security affected thereby, (a) extend the final maturity of any Debt Security,
or reduce the principal amount thereof, or reduce the rate (or alter the
method of computation) of interest thereon or reduce (or alter the method of
computation of) any amount payable in respect of or extend the time for
payment of interest thereon, or reduce any amount payable on or extend the
time for the redemption or repayment thereof or change the currency in which
the principal thereof, premium, if any, or interest thereon is payable or
reduce the amount payable upon acceleration or alter certain provisions of the
Indenture relating to the Debt Securities issued thereunder not denominated in
U.S. dollars or impair or affect the right to institute suit for the
enforcement of any payment on any Debt Security when due or, if the Debt
Securities provide therefor, any right of optional repayment at the option of
the holder of such Debt Securities or (b) modify any of the provisions of the
Indenture regarding modification of such Indenture, except to increase the
percentage in principal amount of Debt Securities of any series, the consent
of the holders of which is required for any such modification. (Senior and
Subordinated Debt Indentures, Section 8.2)
In addition, the Subordinated Debt Indenture provides that it may not be
amended to alter the subordination of any outstanding Subordinated Debt
Securities without the consent of each holder of Senior Indebtedness then
outstanding whose rights would be adversely affected thereby. (Subordinated
Debt Indenture, Section 8.6)
GOVERNING LAW
Each of the Indentures provide that it and the Debt Securities issued
thereunder shall be deemed to be a contract under, and for all purposes shall
be construed in accordance with, the laws of the State of New York.
14
CONCERNING THE SENIOR DEBT INDENTURE TRUSTEE
First Union National Bank of North Carolina, the Trustee under the Senior
Debt Indenture, is one of a number of banks with which the Company maintains
ordinary banking relationships.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in four
ways: (i) directly to purchasers, (ii) through agents, (iii) through
underwriters and (iv) through dealers.
Offers to purchase Debt Securities may be solicited by agents designated
by the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of any Debt Securities will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement relating to such Debt Securities. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment. Agents may be entitled under agreements
which may be entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act,
and may be customers of, engage in transactions with or perform services for
the Company in the ordinary course of business.
If any underwriters are utilized in the sale of any Debt Securities, the
Company will enter into an underwriting agreement with such underwriters at
the time of sale to them and the names of the underwriters and the terms of
the transaction will be set forth in the Prospectus Supplement relating to
such Debt Securities, which will be used by the underwriters to make resales
of such Debt Securities. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If a dealer is utilized in the sale of any Debt Securities, the Company
will sell such Debt Securities to the dealer, as principal. The dealer may
then resell such Debt Securities to the public at varying prices to be
determined by such dealer at the time of resale. Dealers may be entitled under
agreements which may be entered into with the Company to indemnification by
the Company against certain liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with or
perform services for the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement relating to such Debt
Securities, the Company will authorize agents, underwriters or dealers to
solicit offers by certain institutions to purchase Debt Securities from the
Company at the public offering price set forth in the Prospectus Supplement
pursuant to delayed delivery contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such Prospectus Supplement. Contracts
may be entered into for a variety of reasons, including without limitation,
the need to assemble a pool of collateral, the need to match a refunding date
or interest coupon date, or to meet the business needs of the purchaser. Each
Contract will be for an amount not less than, and the aggregate principal
amount of Debt Securities sold pursuant to Contracts shall not be less nor
more than, the respective amounts stated in such Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, education and charitable institutions and other institutions, but
will in all cases be subject to the approval of the Company. Contracts will
not be subject to any conditions except that (i) the purchase by a purchaser
of the Debt Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such purchaser is subject and (ii) the Company shall have sold, and
delivery shall have taken place to the underwriters named in the Prospectus
Supplement, such part of the Debt Securities as is to be sold to them. The
Prospectus Supplement will set forth the commission payable to agents,
underwriters or dealers soliciting purchases of Debt Securities pursuant to
Contracts accepted by the Company. The underwriters and such agents or dealers
will not have any responsibility in respect of the validity or performance of
Contracts.
15
Each series of Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are sold
by the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Debt Securities.
LEGAL OPINIONS
The validity of the Debt Securities is being passed upon for the Company
by Arnall Golden & Gregory, Atlanta, Georgia. Such firm will rely, as to
matters of New York law, upon Baker & Botts, L.L.P., Dallas, Texas.
Certain legal matters relating to offerings of Debt Securities will be
passed upon on behalf of the applicable dealers, underwriters or agents by
counsel named in the applicable Prospectus Supplement.
EXPERTS
The consolidated balance sheets as of July 2, 1994 and July 3, 1993, and
the consolidated results of operations, shareholders' equity, cash flows and
schedules for each of the three years in the period ended July 2, 1994, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated herein
by reference in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
With respect to the unaudited interim financial information for the
quarters ended October 1, 1994, December 31, 1994 and April 1, 1995, Arthur
Andersen LLP has applied limited procedures in accordance with professional
standards for a review of that information. However, their separate reports
thereon state that they did not audit and they do not express an opinion on
that interim financial information. Accordingly, the degree of reliance on
their reports on that information should be restricted in light of the limited
nature of the review procedures applied. In addition, the accountants are not
subject to the liability provisions of Section 11 of the Securities Act of
1933 for their reports on the unaudited interim financial information because
those reports are not a "report" or a "part" of the registration statement
prepared or certified by the accountants within the meaning of Sections 7 and
11 of the Securities Act of 1933.
16
<PAGE>
P A R T I I
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission
Filing Fee......................... $ 172,414
Rating Agency Fees................... 155,000
Fees and Expenses of Indenture
Trustees........................... 7,000
Printing Expenses.................... 30,000
Accountants' Fees and Expenses....... 30,000
Legal Fees and Expenses.............. 75,000
Blue Sky Fees and Expenses........... 11,000
Miscellaneous Expenses............... 14,586
---------
Total............................ $ 495,000
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law and the Restated
Certificate of Incorporation and the By-laws of the Company contain provisions
covering indemnification of corporate directors and officers against certain
liabilities and expenses incurred as a result of proceedings involving such
persons in their capacities as directors and officers, including proceedings
under the Securities Act and the Exchange Act.
The Company has entered into indemnity contracts and provides indemnity
insurance pursuant to which officers and directors are indemnified and insured
against liability or loss under certain circumstances which may include
liability or related loss under the Securities Act and the Exchange Act.
Any agents, dealers or underwriters, who execute the agreements filed as
Exhibit 1 to this registration statement, will agree to indemnify the
Company's directors and its officers against certain liabilities which might
arise under the Securities Act or Exchange Act from information furnished to
the Company by or on behalf of any such indemnifying party.
ITEM 16. EXHIBITS
EXHIBIT NO.
-----------
1 -- Form of Underwriting Agreement.
4(a)* -- Form of Senior Debt Indenture between Sysco
Corporation and First Union National Bank of North
Carolina, as trustee.
4(b)* -- Form of Subordinated Debt Indenture between Sysco
Corporation and , as trustee.
5 -- Opinion of Arnall Golden & Gregory, counsel to Sysco
Corporation, and opinion of Baker & Botts, L.L.P. as
to the validity of the Debt Securities to be issued.
12* -- Computation of Ratio of Earnings to Fixed Charges.
24(a) -- Consent of Arthur Andersen LLP.
24(b) -- Consents of Arnall Golden & Gregory, counsel to Sysco
Corporation, and Baker & Botts, L.L.P., are contained
in the opinion filed as Exhibit 5.
26(a)* -- Form T-1 Statement of Eligibility of Trustee under the
Trust Indenture Act of 1939 of First Union National
Bank of North Carolina (bound separately).
28* -- Letter from Arthur Andersen LLP regarding unaudited
interim financial information.
----------------
* Previously filed.
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.
II-1
(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; and
(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) above 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 Exchange Act that are
incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, 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;
(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) that, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) 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 may be permitted to directors, officers and controlling persons of the
registrant, 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
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.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended,
in accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Trust Indenture Act of
1939, as amended.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
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 HOUSTON, AND THE STATE OF TEXAS, ON
THIS 14TH DAY OF JUNE, 1995.
SYSCO CORPORATION
By: /s/ BILL M. LINDIG
BILL M. LINDIG
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- -----
<S> <C> <C>
/s/BILL M. LINDIG President, Chief Executive Officer and June 14, 1995
BILL M. LINDIG Director (principal executive officer)
/s/JOHN K. STUBBLEFIELD, JR. Senior Vice President and Chief June 14, 1995
JOHN K. STUBBLEFIELD, JR. Financial Officer (principal financial
and accounting officer)
/s/JOHN F. WOODHOUSE* Chairman of the Board of Directors June 14, 1995
JOHN F. WOODHOUSE
/s/JOHN W. ANDERSON* Director June 14, 1995
JOHN W. ANDERSON
/s/JOHN F. BAUGH* Director June 14, 1995
JOHN F. BAUGH
/s/COLIN G. CAMPBELL* Director June 14, 1995
COLIN G. CAMPBELL
/s/CHARLES H. COTROS* Director June 14, 1995
CHARLES H. COTROS
II-3
/s/FRANK A. GODCHAUX III* Director June 14, 1995
FRANK A. GODCHAUX III
/s/JONATHAN GOLDEN* Director June 14, 1995
JONATHAN GOLDEN
/s/DONALD J. KELLER* Director June 14, 1995
DONALD J. KELLER
/s/RICHARD G. MERRILL* Director June 14, 1995
RICHARD G. MERRILL
/s/DONALD H. PEGLER, JR.* Director June 14, 1995
DONALD H. PEGLER, JR.
/s/FRANK H. RICHARDSON* Director June 14, 1995
FRANK H. RICHARDSON
/s/PHYLLIS S. SEWELL* Director June 14, 1995
PHYLLIS S. SEWELL
/s/ARTHUR J. SWENKA* Director June 14, 1995
ARTHUR J. SWENKA
/s/THOMAS B. WALKER, JR.* Director June 14, 1995
THOMAS B. WALKER, JR.
*By: /s/BILL M. LINDIG June 14, 1995
BILL M. LINDIG
ATTORNEY-IN-FACT
</TABLE>
II-4
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1995
REGISTRATION NO. 033-60023
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
SYSCO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
EXHIBITS
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
------- -----------
1 -- Form of Underwriting Agreement.
4(a)* -- Form of Senior Debt Indenture between Sysco Corporation and
First Union National Bank of North Carolina, as trustee.
4(b)* -- Form of Subordinated Debt Indenture between Sysco Corporation
and , as trustee.
5 -- Opinion of Arnall Golden & Gregory, counsel to Sysco
Corporation, and opinion of Baker & Botts, L.L.P. as to the
validity of the Debt Securities to be issued.
12* -- Computation of Ratio of Earnings to Fixed Charges.
24(a) -- Consent of Arthur Andersen LLP.
24(b) -- Consents of Arnall Golden & Gregory, counsel to Sysco
Corporation, and Baker & Botts, L.L.P., are contained in the
opinion filed as Exhibit 5.
26(a)* -- Form T-1 Statement of Eligibility of Trustee under the Trust
Indenture Act of 1939 of First Union National Bank of North
Carolina (bound separately).
28* -- Letter from Arthur Andersen LLP regarding unaudited interim
financial information.
- ---------
* Previously filed.
<PAGE>
EXHIBIT 1
FORM OF UNDERWRITING AGREEMENT
__________, 1995
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077-2099
Ladies and Gentlemen:
We ([COLLECTIVELY,] the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below (such underwriter
or underwriters being herein called the "Underwriters"), and we understand that
Sysco Corporation, a Delaware corporation (the "Company"), proposes to issue and
sell [CURRENCY AND PRINCIPAL AMOUNT] aggregate principal amount of [FULL TITLE
OF DEBT SECURITIES] (the "Offered Securities"). (The Offered Securities may also
be referred to herein as the "Debt Securities.") The Offered Securities will be
issued pursuant to the provisions of a [SENIOR OR SUBORDINATED] Debt Indenture
dated as of __________, 1995 (the "Indenture") between the Company and [NAME OF
TRUSTEE], as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Offered Securities set forth below opposite their names at a purchase price of
______% of the principal amount of Offered Securities [, PLUS ACCRUED INTEREST,
IF ANY, FROM [DATE OF OFFERED SECURITIES] TO THE DATE OF PAYMENT AND
DELIVERY]:(1)
Principal Amount of
Name Offered Securities
---- -------------------
Total .................
[THE AGGREGATE PRINCIPAL AMOUNT OF OFFERED SECURITIES TO BE
PURCHASED BY THE SEVERAL UNDERWRITERS SHALL BE REDUCED BY THE AGGREGATE
PRINCIPAL AMOUNT OF OFFERED SECURITIES SOLD PURSUANT TO DELAYED DELIVERY
CONTRACTS.](2)
- -------------------
1 To be added only if the transaction does not close flat.
2 To be added only if delayed delivery contracts are contemplated.
1
The Underwriters will pay for the Offered Securities [(LESS ANY
OFFERED SECURITIES SOLD PURSUANT TO DELAYED DELIVERY CONTRACTS)](2) upon
delivery thereof at the offices of _______________________________, at ____ a.m.
(__________ time) on __________, 199__, or at such other time, not later than
5:00 p.m. (__________ time) on __________, 199__, as shall be designated by the
Manager. The time and date of such payment and delivery are hereinafter referred
to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated __________, 199__, and the Prospectus Supplement dated
__________, 199__, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Interest Payment Dates: __________ and
__________ commencing
__________
[(INTEREST ACCRUES FROM
__________)](3)
Redemption Provisions:
Form and Denomination:
[OTHER TERMS:]
[THE COMMISSION TO BE PAID TO THE UNDERWRITERS IN RESPECT OF THE
OFFERED SECURITIES PURCHASED PURSUANT TO DELAYED DELIVERY CONTRACTS ARRANGED BY
THE UNDERWRITERS SHALL BE ____% OF THE PRINCIPAL AMOUNT OF THE OFFERED
SECURITIES SO PURCHASED.](4)
All provisions contained in the document entitled Sysco Corporation
Underwriting Agreement Standard Provisions (Debt Securities) dated June 1995, a
copy of which is attached hereto, are herein incorporated by reference in their
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, except that (i) if any
term defined in such document is otherwise defined herein, the definition set
forth herein shall control, (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of
- ---------------
3 To be added only if the transaction does not close flat.
4 To be added only if delayed delivery contracts are contemplated.
2
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[NAME OF LEAD MANAGERS]
Acting severally on behalf of
themselves and the several
Underwriters named herein
By:[NAME OF EXECUTING LEAD MANAGER]
By: ___________________________
Name:
Title:
Accepted:
SYSCO CORPORATION
By: ___________________________
Name:
Title:
3
<PAGE>
SYSCO CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
June 1995
From time to time, Sysco Corporation, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating to
the Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term Prospectus Supplement includes any
abbreviated term sheet, confirmation or any other documents required to be filed
in accordance with Rule 434 of the Securities Act which supplement or amend the
Basic Prospectus as hereinafter defined. The term "Registration Statement" means
the registration statement, including the exhibits thereto, as amended to the
date of this Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement in the form included therein or, if
different, in the form first filed pursuant to Rule 424(b) under the Securities
Act in respect of the Offered Securities. The term "Prospectus" means, except
where specifically provided otherwise herein, the Basic Prospectus together with
the Prospectus Supplement. The term "preliminary prospectus" means the Basic
Prospectus together with a preliminary prospectus supplement specifically
relating to the Offered Securities. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of this Agreement by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
The term Contract Securities means the Offered Securities, if any,
to be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company may approve
(the "Delayed Delivery Contracts"). The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
1
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii)
the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the applicable rules and regulations of the Commission
thereunder, (iii) the Registration Statement did not or does not contain,
as of its effective date, as of the date of filing of any subsequent
Annual Report on Form 10-K of the Company or as of the date of this
Agreement, any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iv) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by or on behalf of
such Underwriter expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of each of the Trustees.
(c) The Company and each subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation. The Company and each subsidiary has the
corporate power and authority, and has obtained all necessary
authorizations, approvals, orders, licenses, franchises, certificates and
permits of and from all governmental regulatory officials and bodies
("Permits"), to own, lease and operate its property and to conduct its
business as described in the Registration Statement and Prospectus, except
where the failure to have obtained such Permits would not have a material
adverse effect on the Company and its subsidiaries taken as a whole. The
Company and each subsidiary has fulfilled and performed all its current
material obligations with respect to such Permits, and no event has
occurred that allows, or after notice or lapse of time, or both, would
allow, revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such Permit, except for such
failures to perform or such revocations, terminations or material
impairments would not have a material adverse effect on the Company and
its subsidiaries taken as a whole, subject in each case to such
qualification as may be set forth in the Registration Statement and the
Prospectus. The Company and each subsidiary is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
2
qualification, except where the failure to be so qualified would not have
a material adverse effect on the Company and its subsidiaries, taken as a
whole. All of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable, and all such capital stock (other than directors'
qualifying shares) is owned by the Company, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance,
claim or equity. The Company and each of its subsidiaries own, or possess
adequate rights to use, all trademarks, service marks and other rights
necessary for the conduct of their business as presently conducted and
described in the Registration Statement and the Prospectus, and neither
the Company nor any of its subsidiaries has received any notice of
conflict with the asserted rights of others in any such respect that would
materially adversely affect the business of the Company and its
subsidiaries taken as a whole and neither the Company nor any of its
subsidiaries knows of any basis therefor. The property and business of the
Company and its subsidiaries, taken as a whole, conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
(e) Each of the Senior Debt Indenture (together with any amendment
or supplement thereto, the "Senior Debt Indenture") and the Subordinated
Debt Indenture (together with any amendment or supplement thereto, the
"Subordinated Debt Indenture"), as applicable, has been duly qualified
under the Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(f) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
relevant Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, in the case of the
Underwriters' Securities, or by institutional investors in accordance with
the terms of the Delayed Delivery Contracts, in the case of the Contract
Securities, will be entitled to the benefits of the relevant Indenture and
will be valid and binding obligations of the Company, in each case
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability; and the Offered
Securities and the applicable Indenture conform to the descriptions
thereof in the Prospectus.
3
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Delayed Delivery Contracts, the Senior Debt Indenture, the Subordinated
Debt Indenture and the Offered Securities (each to the extent applicable)
(A) will not contravene (i) any provision of applicable law or (ii) the
certificate of incorporation or by-laws of the Company or any subsidiary
or (iii) any agreement or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, (B) will not result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of them may be
bound or to which any of the property or assets of any of them is subject
which would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and (C) does not require any consent,
approval, authorization or order of, or qualification with, any
governmental body or agency for the performance by the Company of its
obligations under this Agreement, the Delayed Delivery Contracts, the
Senior Debt Indenture, the Subordinated Debt Indenture or the Offered
Securities, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Offered Securities.
(i) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business,
operations or business prospects of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described and, to the best of the Company's knowledge, no
such proceedings are threatened. There are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement or a document
incorporated or deemed incorporated by reference therein that are not
described, filed or incorporated as required.
(k) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) and all regulations
promulgated thereunder relating to issuers doing business with the
Government of Cuba or with any person or any affiliate located in Cuba.
(l) The consolidated financial statements included in the
Registration Statement and the Prospectus present fairly, in all material
respects, the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
their operations for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
indicated therein; and the financial statement schedules incorporated by
4
reference in the Registration Statement present fairly, in all material
respects, the information required to be stated therein.
(m) Neither the Company nor any of its subsidiaries (i) is in
violation of its or any of their charters or bylaws, or (ii) is in
violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of its subsidiaries or of any
judgment or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries, except for such
violations as would not have a material adverse effect on the Company and
its subsidiaries taken as a whole, or (iii) is in default (and no event
has occurred that with notice or lapse of time, or both, would constitute
a default) in any respect in the due performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it or any of them is a party or by which it or any of them or their
properties may be bound, except for such defaults as would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(n) The Company has not distributed and, prior to the latest to
occur of (i) the Closing Date and (ii) the completion of the Company's
distribution of the Securities, will not distribute any offering material
in connection with the offering and sale of the Securities other than the
Registration Statement, the Prospectus or other materials permitted by the
Act.
(o) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended, and the Rules and Regulations thereunder.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the
Company under the Act.
(q) Neither the Company nor any of its subsidiaries is involved in
any labor dispute nor, to the knowledge of the Company, is any such
dispute threatened that would require disclosure in a Prospectus
(including documents incorporated by reference therein).
(r) Each of the Company and its subsidiaries has filed all federal,
state and local tax returns that are required to be filed or has obtained
extensions thereof, and has paid all taxes shown on such returns and all
assessments received by it to the extent that the same have become due or
is contesting such taxes in good faith by appropriate proceedings.
(s) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event"
5
(as defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company would have any liability; the
Company has not incurred and does not expect to incur any material
liability under (A) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (B) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(t) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of solid wastes,
hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in violation
of any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or would not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a material adverse effect
on the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or
into the environment surrounding such property of any solid wastes,
hazardous wastes or hazardous substances due to or caused by the Company
or any of its subsidiaries or with respect to which the Company has
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company
and its subsidiaries, taken as a whole; and the terms "solid wastes",
"hazardous wastes" and "hazardous substances" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
2. DELAYED DELIVERY CONTRACTS. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities
pursuant to Delayed Delivery Contracts on the terms and subject to the
conditions set forth in the Prospectus. Delayed Delivery Contracts may be
entered into only with institutional investors approved by the Company of the
types set forth in the Prospectus. On the Closing Date, the Company will pay to
the Manager as compensation for the accounts of the Underwriters the commission
set forth in the Underwriting Agreement in respect of the Contract Securities.
The Underwriters will not have any responsibility in respect of the validity or
the performance of any Delayed Delivery Contracts.
The Manager shall submit to the Company, at least two business days prior
to the Closing Date, the names of any institutional investors with which it is
proposed that the Company enter into Delayed Delivery Contracts and the
principal amount of Offered Securities to be
6
purchased by each of them, and the Company will advise the Manager, at least one
business day prior to the Closing Date, of the names of the institutions with
which the making of Delayed Delivery Contracts is approved by the Company and
the principal amount of Offered Securities to be covered by each such Delayed
Delivery Contract.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; PROVIDED, HOWEVER, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. PUBLIC OFFERING. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
4. PURCHASE AND DELIVERY. Except as otherwise provided in this Section or
in the Underwriting Agreement, payment for the Underwriters' Securities shall be
made by wire transfer or by certified or official bank check or checks payable
to the order of the Company in immediately available funds at the time and place
set forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Underwriters' Securities,
registered in such names and in such denominations as the Manager shall request
in writing not less than one full business day prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Underwriters' Securities to the Underwriters duly paid. The obligations of the
Underwriters to purchase the Underwriters' Securities are several and not joint.
Delivery on the Closing Date of any Underwriters' Securities that are Debt
Securities in bearer form shall be effected by delivery of a single temporary
global Debt Security without coupons (the "Global Debt Security") evidencing the
Underwriters' Securities that are Debt Securities in bearer form to a common
depositary for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison
de Valeurs Mobilieres S.A. ("CEDEL") for credit to the respective accounts at
Euro-clear or CEDEL of each Underwriter or to such other accounts as such
Underwriter may direct. Any Global Debt Security shall be delivered to the
common depositary for the account of the several Underwriters not later than the
Closing Date, against payment of funds to the Company in the net amount due to
the Company for such Global Debt Security by the method and in the form set
forth in the Underwriting Agreement. The Company shall cause definitive Debt
Securities in bearer form to be prepared and delivered in exchange for such
Global Debt Security in such manner and at such
7
time as may be provided in or pursuant to the relevant Indenture; PROVIDED,
HOWEVER, that the Global Debt Security shall be exchangeable for definitive Debt
Securities in bearer form only on or after the date specified for such purpose
in the Prospectus.
5. CONDITIONS TO CLOSING. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing,
(i) there shall not have occurred any downgrading in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act, nor any
public announcement that any such organization has under
surveillance or review its rating of any of the Company's securities
with implications of a downgrading in such rating;
(ii) there shall not have occurred any change in the
condition, financial or otherwise, or in the earnings, business,
operations or business prospects, of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus (which for purposes of this Section 5 (a)(ii) is
comprised of the Basic Prospectus, as amended and supplemented as of
the date of this Agreement), that, in the reasonable judgment of the
Manager, is material and adverse; and
(iii) there shall not have been issued any stop order
suspending the effectiveness of the Registration Statement or of any
part thereof and no proceedings for that purpose shall have been
instituted or pending or, to the knowledge of the Company, shall be
contemplated by the Commission.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (a) above and to the effect
that (A) the representations and warranties of the Company contained in
this Agreement are true and correct in all material respects as of the
Closing Date; PROVIDED, that for purposes of such certificate, the term
"Prospectus" in the representation and warranty contained in Section
1(b)(i) hereof shall mean the Basic Prospectus, as amended and
supplemented as of the date of this Agreement, and (B) that the Company
has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before the
Closing Date. The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an opinion
of Thomas P. Kurz, Esquire, General Counsel for the Company, dated the
Closing Date, to the effect that:
8
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and
authority to own, lease and operate its property and to conduct its
business as described in the Registration Statement and Prospectus
and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of
its properties or the conduct of its business requires such
registration or qualification, except where the failure to be so
registered and qualified would not have a material adverse effect on
the Company and its subsidiaries taken as a whole;
(ii) each of the subsidiaries of the Company is a corporation
duly organized and validly existing in good standing under the laws
of the jurisdiction of its organization, with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and
the Prospectus and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure to be
so registered and qualified would not have a material adverse effect
on the Company and its subsidiaries taken as a whole, and all of the
outstanding shares of capital stock of, or other equity securities
in, each of the subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned by the
Company directly, or indirectly through one of the other
subsidiaries, free and clear of any perfected security interest, or,
to the best knowledge of such counsel, any other security interest,
lien, adverse claim, equity or other encumbrance;
(iii) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and nonassessable;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Senior Debt Indenture or the Subordinated Debt
Indenture, as applicable, has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vi) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) the availability of equitable
remedies may be limited by equitable principles of general
applicability;
9
(vii) the Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the relevant Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, in the
case of Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of
the relevant Indenture and will be valid and binding obligations of
the Company, in each case enforceable in accordance with their terms
except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and, to the best knowledge of such counsel, there are
no preemptive or similar rights that entitle any person to acquire
any Securities upon the issuance thereof by the Company;
(viii) the Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending before or contemplated by
the Commission;
(ix) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Delayed Delivery Contracts, the relevant Indenture and the
Offered Securities will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company
or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole,
or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Delayed Delivery Contracts,
the relevant Indenture or the Offered Securities, except such as may
be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities;
(x) to the best knowledge of such counsel, neither the Company
nor any of its subsidiaries (A) is in violation of its certificate
or articles of incorporation or bylaws, or other organizational
documents, (B) is in breach of, or in default (nor has an event
occurred that with notice, lapse of time or both would constitute
such a default) under, any indenture, mortgage, deed of trust, note,
bond, debenture, bank loan or credit agreement, or any other
evidence of indebtedness, agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of
them or any of their property is or may be bound or affected, (C) is
in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to the Company or any of its
subsidiaries or of any decree of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries
or (D) has received any notice of conflict with the asserted rights
of others in respect of trademarks, service marks or other rights
necessary for the conduct of their
10
business, in each case in which such breach, default, violation or
conflict would have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and its subsidiaries, taken as a whole;
(xi) no consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
is required on the part of the Company for the valid issuance and
sale of the Offered Securities to you pursuant to this Agreement
other than (A) the registration of the Offered Securities under the
Act, (B) qualification of the Indenture under the Trust Indenture
Act and (C) compliance with the securities or Blue Sky laws of
various jurisdictions;
(xii) the statements (1) in the Prospectus under the captions
"Description of Debt Securities" and "Plan of Distribution", (2) in
"Item 3 - Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the Prospectus and
(3) in "Item 1 - Legal Proceedings" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein;
(xiii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement
or a document incorporated or deemed incorporated by reference
therein that are not described, filed or incorporated as required;
(xiv) except as described in the Prospectus, such counsel does
not know of any holder of any securities of the Company or any other
person who has the right, contractual or otherwise, to cause the
Company to issue to such holder or such person, or permit such
holder or such person to underwrite the sale of, any shares of
capital stock or other securities of the Company upon and as the
result of the issuance and sale of the Offered Securities to you
hereunder or the right to require registration under the Act of an
offering of shares of capital stock or other securities of the
Company as a result of the filing of the Registration Statement;
(xv) (A) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial
statements and schedules included therein as to which such counsel
need not express any opinion) complied when so filed as to form in
all material respects with the
11
Exchange Act and the applicable rules and regulations of the
Commission thereunder and (2) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules included therein as to which such counsel
need not express any opinion), comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (B) nothing has come to
the attention of such counsel that causes such counsel to believe
that (except for financial statements and schedules as to which such
counsel need not express any belief and except for that part of the
Registration Statement that constitutes a Form T-1) (1) the
Registration Statement, as of the date of filing of any subsequent
Annual Report on Form 10-K of the Company or as of the date of this
Agreement, contained or contains any 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 (2) the Prospectus as of the date thereof and the date such
opinion is delivered 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 the light of the
circumstances under which they were made, not misleading;
(xvi) to the best knowledge of such counsel, each of the
Company and its subsidiaries holds all necessary governmental
authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all governmental regulatory
officials and bodies for the conduct of the material businesses in
which it is engaged and owns, or possesses adequate rights to use,
all material rights necessary for the conduct of such businesses,
and to such counsel's knowledge, none of the Company or its
subsidiaries has received any notice of conflict with the asserted
rights of others in respect thereto, except where the failure to
hold, or the conflict with the asserted rights of others with
respect to, such authorizations, approvals, orders, licenses,
certificates, franchises or permits, would not have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and
its subsidiaries, taken as a whole.
In rendering the opinions described in this Section 5(c) as to the
enforceability of the Senior Debt Indenture, the Subordinated Debt Indenture,
the Delayed Delivery Contracts and the Offered Securities, such counsel may
assume that the laws of the State of Texas are the same as the laws of the State
of New York and that such enforcement is sought in an action brought in any
Federal or state court in the borough of Manhattan, city of New York, having
jurisdiction of the subject matter and applying the laws of the State of New
York.
(d) The Manager shall have received on the Closing Date an opinion of
Arnall, Golden & Gregory, special counsel for the Company, dated the Closing
Date, covering the matters referred to in subparagraphs (iv), (v), (vi), (vii)
(other than the final clause thereof), (xii) (but only as to the statements in
the Prospectus under "Description of Debt Securities" and "Plan of
Distribution") and (xv)(A)(2) and (B) of paragraph (c) above and to the effect
that the Registration Statement has become effective under the Securities Act,
the Prospectus was filed with the Commission pursuant to Rule 424(b) on the date
specified in such opinion, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
12
or of any part thereof has been issued and no proceedings for that purpose have
been instituted or pending under the Securities Act and to the effect that such
counsel is of any opinion ascribed to it in the Prospectus with respect to tax
matters; PROVIDED, HOWEVER, that in rendering opinions as to the enforceability
of the Senior Debt Indenture, the Subordinated Debt Indenture, the Delayed
Delivery Contracts and the Offered Securities, such counsel may assume that the
laws of the State of Georgia are the same as the laws of the State of New York
and that such enforcement is sought in an action brought in any Federal or state
court in the borough of Manhattan, city of New York, having jurisdiction of the
subject matter and applying the laws of the State of New York.
(e) The Manager shall have received on the Closing Date an opinion of
Baker & Botts, L.L.P., special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (iv), (v), (vi), (vii)
(other than the final clause thereof), (xii) (but only as to the statements in
the Prospectus under "Description of Debt Securities" and "Plan of
Distribution") and (xv)(A)(2) and (B) (but only as of the date of this
Agreement) of paragraph (c) above and to the effect that the Registration
Statement has become effective under the Securities Act, the Prospectus was
filed with the Commission pursuant to Rule 424(b) on the date specified in such
opinion, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or are pending under the Securities Act.
With respect to the subparagraph (xv) of paragraph (c) above, the General
Counsel for the Company, the special counsel for the Company and special counsel
for the underwriters may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification,
except as specified.
(f) The Manager shall have received on the day that pricing of the Offered
Securities is determined, a letter, dated such date, in form and substance
satisfactory to the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(g) The Manager shall have received on Closing Date a letter, dated the
Closing Date, in form and substance satisfactory to the Manager, from the
Company's independent public accountants, containing statements and information
of the type ordinarily included in accountants' "bring down comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
(h) The Prospectus Supplement shall have been filed or transmitted for
filing with the Commission pursuant to Rule 424(b) under the Securities Act
within the applicable time period described therefor by the rules and
regulations under the Securities Act.
13
6. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants as follows:
(a) To furnish the manager and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement and three conformed copies
(including exhibits thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and,
during the period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto or to the Registration Statement as the Manager may
reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Manager a
copy of each such proposed amendment or supplement, to afford the Manager a
reasonable opportunity to comment thereon and not to file any such proposed
amendment or supplement to which the Manager reasonably objects. The Company
shall give notice to the Manager of the filing of any such amendment or
supplement.
(c) To advise the Manager promptly of the institution by the Commission of
any stop order proceedings with respect to the Registration Statement or of any
part thereof and to use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(d) During the period of five years hereafter, the Company will furnish to
the Manager and, upon request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the Manager (i) as
soon as available, a copy of each report or definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information concerning the
Company as you may reasonably request.
(e) If, during such period after the first date of the public offering of
the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and furnish to
the Underwriters, and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which Offered Securities may have been sold by the
Manager on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus, as amended or supplemented, will comply with law.
Neither the Manager's consent
14
to, nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(f) To endeavor to qualify the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to maintain such qualification for as long as the Manager
shall reasonably request.
(g) To make generally available to its security holders and to the Manager
as soon as practicable an earning statement covering a twelve-month period
beginning on the first day of the first full fiscal quarter after the date of
this Agreement, which earning statement shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder. If the date of this Agreement is within the last fiscal quarter of
the Company's fiscal year, such earning statement shall be made available not
later than 90 days after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days after the close of
the period covered thereby.
(h) During the period beginning on the date of the Underwriting Agreement
and continuing to and including the date 14 days after the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company similar to the
Offered Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the prior written
consent of the Manager.
(i) To apply the net proceeds from the sale of the Securities as set forth
in the Prospectus.
(j) To not take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or manipulation
of the price of its capital stock or debt securities to facilitate the sale or
resale of the Offered Securities.
(k) Whether or not any sale of Offered Securities is consummated, to pay
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Offered Securities, (iii) the
reasonable fees and disbursements of the Company's counsel and accountants and
of the Trustee and its counsel, (iv) the qualification of the Offered Securities
under securities or Blue Sky laws in accordance with the provisions of Section
6(f), including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Memoranda, (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any Blue Sky Memoranda, (vii) any fees charged by rating agencies for
the rating of the Offered Securities and (viii) the fees and expenses, if any,
in connection with the listing of the Offered Securities on any securities
exchange.
15
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with investigating, preparing or defending any such action or
claim, which shall be reimbursed as incurred) caused by or arising out of any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by or arising out of any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Company by or on behalf of such
Underwriter expressly for use therein; PROVIDED, HOWEVER, that the foregoing
indemnity with respect to the preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Offered Securities, or any person
controlling such Underwriter, if a copy of the Prospectus as then amended or
supplemented, if the Company shall have furnished any amendments or supplements
thereto (exclusive of material incorporated by reference), was not sent or given
by or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless the Company shall not have provided copies of
such Prospectus (as so amended or supplemented) in compliance with Section 6(d).
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information furnished in writing to the Company by or
on behalf of such Underwriter expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have
16
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Manager, in the case of parties indemnified pursuant to paragraph
(a) above, and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
or claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement
bear to the aggregate pubic offering price of the Offered Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
17
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 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 that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
8. TERMINATION. This Agreement shall be subject to termination, by notice
given by the Manager to the Company, if after the execution and delivery of the
Underwriting Agreement and prior to the Closing (a) trading generally shall have
been suspended or materially limited on or by the New York Stock Exchange, (b)
trading of any securities of the Company shall have been suspended on the
principal exchange or market on which any such securities are traded, (c) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (d) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets that, in the reasonable judgment of the Manager, is material and adverse
and makes it, in the reasonable judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Underwriters' Securities that
it has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Underwriters' Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the amount of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such nondefaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such amount of
Underwriters' Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Underwriters' Securities and the
18
aggregate amount of Underwriters' Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any nondefaulting Underwriter or the Company.
In any such case, either the Manager or the Company shall have the right to
postpone the Closing Date but in no event for long than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
pursuant to Section 8(b) or if the purchase of the Underwriters' Securities by
the Underwriters is not consummated because of any failure or refusal on the
part of the Company to comply with the terms or because any of the conditions of
this Agreement are not fulfilled, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering of the
Offered Securities.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective indemnity
and contribution agreements and the representations, warranties and other
statements of the Company and the Underwriters set forth in this Agreement will
remain in full force and effect, regardless of any termination of this
Agreement, any investigation (or any statement as to the results thereof) made
by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 and delivery of and
payment for the Offered Securities.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder. No purchaser of Offered Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. COUNTERPARTS. 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.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
19
15. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or faxed and confirmed to the
Manager at the address set forth in any related underwriting agreement, or, if
sent to the Company, will be mailed, delivered or faxed and confirmed to it at
Sysco Corporation, 1390 Enclave Parkway, Houston, Texas 77077-2099, Attention:
General Counsel; PROVIDED, HOWEVER, that any notice to an Underwriter pursuant
to Section will be mailed, delivered or faxed and confirmed to such Underwriter.
20
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
__________, 199__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Sysco Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated __________, 19___ and
Prospectus Supplement dated __________, 19___, receipt of copies of which are
hereby acknowledged, at a purchase price stated in Schedule A and on the further
terms and conditions set forth in this Agreement.
The undersigned will purchase from the Company Securities in the
amounts and on the delivery dates set forth in Schedule A. Each such date on
which Securities are to be purchased hereunder is hereinafter referred to as a
"Delivery Date."
Payment for the Securities, which the undersigned has agreed to
purchase on each Delivery Date, shall be made to the Company or its order by
wire transfer or by certified or official bank check or checks in immediately
available funds at the office of ____________________,
_________________________________________________, at _____ A.M. (__________
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
facsimile communication addressed to the Company not less than five full
business days prior to such Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on each Delivery Date shall be subject only to the
conditions that (i) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (ii) the Company shall have
sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. The undersigned represents that
its purchase of Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject. Promptly after
completion of sale and delivery 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 opinions of counsel for the Company referred to in
Sections 5 (c) and (d) of the Underwriting Agreement and delivered to the
Underwriters in connection therewith.
1
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this Agreement.
This Agreement 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.
It is understood that the acceptance of this Agreement and any
similar Delayed Delivery Contract is in the Company's sole discretion, and,
without limiting the foregoing, need not be on a first-come , first-served
basis. If this Agreement 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 agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Yours very truly,
________________________________
(Purchaser)
By: ____________________________
Name:
Title:
________________________________
________________________________
________________________________
(Address)
ACCEPTED:
SYSCO CORPORATION
By: ______________________________
Name:
Title:
2
<PAGE>
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please Print)
Telephone No.
Name (Including Area Code) Department
3
<PAGE>
SCHEDULE A
PRINCIPAL AMOUNTS
SECURITIES TO BE PURCHASED PURCHASE PRICE DELIVERY
4
EXHIBIT 5
ARNALL GOLDEN & GREGORY
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
2800 ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET * ATLANTA, GEORGIA 30309-3400
TELEPHONE (404) 873-8500 * FACSIMILE (404) 873-8501
FIRST LIBERTY BANK TOWER WRITER'S DIRECT DIAL NUMBER
SUITE 1000 (404) 873-8608
201 SECOND STREET
MACON, GEORGIA 31201 WRITER'S DIRECT DIAL FACSIMILE
(912) 745-3344 (404) 873-8609
June 14, 1995
Sysco Corporation
1319 Enclave Parkway
Houston, Texas 77077-2099
Re: Form S-3 Registration Statement No. 33-60023
Gentlemen:
This opinion is rendered in connection with the proposed issue and sale by
Sysco Corporation, a Delaware corporation (the "Company"), of up to $500 million
aggregate principal amount promissory notes (the "Notes"), upon the terms and
conditions set forth in Registration Statement No. 33-60023 on Form S-3 (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended. We have acted as
counsel for the Company in connection with the preparation of the Registration
Statement and the offering of the Notes by the Company.
In rendering the opinions contained herein, we have relied in part upon
examination of the Company's corporate records, documents, certificates and
other instruments and the examination of such questions of law as we have
considered necessary or appropriate for the purpose of this opinion. In
connection with expressing these opinions, we have relied, as to matters of New
York law upon the opinion of Baker & Botts, a copy of which opinion is attached
as "Exhibit A" hereto. In our opinion, both we as counsel and the Company are
justified in relying upon such opinions.
Based upon the foregoing, we are of the opinion that the Notes have been
duly and validly authorized and when sold in the manner contemplated by the
underwriting agreement (the "Underwriting Agreement") filed as an exhibit to the
Registration Statement and duly executed by the Company and authenticated by the
Trustee under one of the Indentures (the "Indentures") filed as an exhibit to
the Registration Statement, and upon receipt by the Company of payment therefor
as provided in the Underwriting Agreement, (1) the Notes will be legally issued,
fully paid and nonassessable; and (2) the Notes will constitute valid and
binding obligations of the Company in accordance with their respective terms and
will be entitled to the benefits of the Indenture
-1-
<PAGE>
to which they relate in accordance with their respective terms and the terms of
such Indenture.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and the reference to this firm under the caption "Legal Matters" in
the Prospectus contained therein. This consent is not to be construed as an
admission that we are a party whose consent is required to be filed with the
Registration Statement under the provisions of the Securities Act of 1933, as
amended.
Very truly yours,
ARNALL GOLDEN & GREGORY
-2-
<PAGE>
EXHIBIT A
AUSTIN BAKER & BOTTS
DALLAS L.L.P.
MOSCOW ONE SHELL PLAZA TELEPHONE: (713) 229-1234
NEW YORK 910 LOUISIANA FACSIMILE: (713) 229-1522
WASHINGTON, D.C. HOUSTON, TEXAS 77002-4995 TELEX: 76-2778
June 14, 1995
Sysco Corporation
1390 Enclave Parkway
Houston, Texas 77077-2099
Gentlemen:
As set forth in the Registration Statement on Form S-3 (Registration
No. 033-60023) filed with the Securities and Exchange Commission on June 6,
1995 (the "Registration Statement") by Sysco Corporation, a Delaware corporation
(the "Company"), under the Securities Act of 1933, as amended (the "Act"),
relating to $500,000,000 aggregate principal amount of debt securities of the
Company (the "Debt Securities") for issuance from time to time pursuant to Rule
415 under the Act, certain legal matters under New York law in connection with
the Debt Securities and the Common Stock are being passed upon for you by us.
In connection with this opinion we have examined (i) the charter and
bylaws of the Company, each as amended to date, (ii) the form of Senior Debt
Indenture to be executed by the Company and First Union Bank of North Carolina,
as trustee, pursuant to which the Debt Securities may be issued (together with
any amendments and supplements thereto, the "Senior Debt Indenture"), (iii) the
form of Subordinated Indenture to be executed by the Company and the trustee to
be named therein, pursuant to which the Debt Securities may be issued (together
with any amendments and supplements thereto, the "Subordinated Debt Indenture")
and (iv) the originals, or copies certified or otherwise identified, of
corporate records of the Company, certificates of public officials and of
representatives of the Company, statutes and other instruments and documents, as
a basis for the opinions hereinafter expressed.
In connection with this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective, (ii) a prospectus supplement relating
to the Registration Statement (the "Prospectus Supplement") will have been
prepared and filed with the Securities and Exchange Commission describing the
Debt Securities offered thereby, (iii) all Debt Securities will be issued and
sold in compliance with applicable federal and state securities laws and in the
manner stated in the Registration Statement and the applicable Prospectus
Supplement and (iv) a definitive purchase,
-1-
<PAGE>
underwriting or similar agreement with respect to any Debt Securities offered
will have been duly authorized and validly executed and delivered by the Company
and the other parties thereto.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware.
2. With respect to Debt Securities to be issued under the Senior Debt
Indenture, when (i) the Senior Debt Indenture has been duly authorized, validly
executed and delivered by the Company and the trustee thereunder, (ii) the
Senior Debt Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, (iii) the board of directors of the Company or, to the extent
permitted by Section 141(c) of the General Corporation Law of the State of
Delaware, a duly constituted and acting committee thereof (such board of
directors or committee being hereinafter referenced as the "Company Board"), has
taken all necessary corporate action to approve the issuance and terms of such
Debt Securities, the terms of the offering thereof and related matters, (iv)
such Debt Securities have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Senior Debt Indenture and the
applicable definitive purchase, underwriting or similar agreement approved by
the Company Board and (v) payment of the consideration for such Debt Securities
provided for in such agreement has been made, such Debt Securities will be
legally issued and will constitute binding obligations of the Company.
3. With respect to Debt Securities to be issued under the Subordinated
Debt Indenture, when (i) the Subordinated Debt Indenture has been duly
authorized, validly executed and delivered by the Company and the trustee
thereunder, (ii) the Subordinated Debt Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended, (iii) the Company Board has taken
all necessary corporate action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters, (iv) such
Debt Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the Subordinated Debt Indenture and the
applicable definitive purchase, underwriting or similar agreement approved by
the Company Board and (v) payment of the consideration for such Debt Securities
provided for in such agreement has been made, such Debt Securities will be
legally issued and will constitute binding obligations of the Company.
-2-
<PAGE>
We hereby consent to the filing of this opinion of counsel as
Exhibit A to Exhibit 5 to the Registration Statement. We also consent to the
reference to our Firm under the heading "Legal Opinions" in the Prospectus
forming a part of the Registration Statement. In giving this consent, we do not
hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act.
The law covered by the opinions expressed herein is limited in all
respects to matters of the Delaware General Corporation Law and the Contract Law
of the State of New York. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person, other than the
law firm of Arnall, Golden & Gregory, Atlanta, Georgia as to matters of New York
law.
Very truly yours,
/s/ BAKER & BOTTS, L.L.P.
cc: Arnall, Golden & Gregory
-3-
EXHIBIT 24(A)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated August 3, 1994
included in SYSCO Corporation's Form 10-K for the year ended July 2, 1994 and
to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
June 14, 1995
