INDEX TO EXHIBITS
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBER PAGE
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1 Form of Purchase or Distribution Agreement.
4.1 Indenture, dated as of November 15, 1992, between the Company and
The Bank of New York as Trustee (incorporated by reference from
Exhibit 4.1 to the Company's Form S-3 Registration Statement and
Post-Effective Amendment No. 1 filed on June 26, 1992, Registration
No. 33-48840).
4.2 Form(s) of Debt Security.*
5 Opinion of Andrew D. Hendry, Esq., Senior Vice President, General
Counsel and Secretary of the Company.
12 Statement re: Computation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Andrew D. Hendry, Esq., Senior Vice President, General
Counsel and Secretary of the Company (included in Exhibit 5).
23(b) Consent of Arthur Andersen & Co., independent public accountants
for the Company.
24 Powers of Attorney.
25 Statement of Eligibility under the Trust Indenture Act of 1939 on
Form T-1 of The Bank of New York, Trustee.
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* To be filed by amendment.
COLGATE-PALMOLIVE COMPANY
Medium-Term Notes Due At Least Nine Months
from Date of Issue
DISTRIBUTION AGREEMENT
May __, 1994
CITICORP SECURITIES, INC.
399 Park Avenue
New York, New York 10043
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
LAZARD FRERES & CO.
One Rockefeller Plaza
New York, New York 10020
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Dear Sirs:
Colgate-Palmolive Company, a Delaware corporation (the
"Company"), confirms its agreement with Citicorp Securities, Inc.
("Citicorp"), Goldman, Sachs & Co. ("Goldman Sachs"), Lazard
Freres & Co. ("Lazard"), Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch & Co.") and
J.P. Morgan Securities Inc. ("J.P. Morgan" and, together with
Citicorp, Goldman Sachs, Lazard and Merrill Lynch & Co., the
"Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes described herein (the "Notes"). The Notes
are to be issued pursuant to an indenture (as the same may be
amended or restated from time to time, the "Indenture") dated as
of November 15, 1992 between the Company and The Bank of New
York. The Bank of New York will act as trustee with respect to
the Notes (the "Trustee").
As of the date hereof, the Company has authorized the
issuance and sale of up to $500,800,000 (or its equivalent based
on the applicable exchange rate at the time of issuance, in such
foreign currencies or units of two or more currencies as the
Company shall designate at the time of issuance) aggregate
initial offering price of Notes by the Company directly or to or
through the Agents pursuant to the terms of this Agreement or to
or through such other agent or agents as may be designated by the
Company from time to time pursuant to the terms of any such other
agreement containing substantially the same terms as this
Agreement. It is understood, however, that the Company may from
time to time, pursuant to an Officer's Certificate delivered to
the Trustee pursuant to Section 301 of the Indenture (with an
original copy thereof delivered to the Agents), reduce the
authorized aggregate initial offering price of the Notes (but not
below the aggregate initial offering price of Notes previously
issued under the Indenture) or authorize the issuance of
additional Notes and that such additional Notes may be
distributed directly by the Company or through or to any agents
designated by the Company, including the Agents pursuant to the
terms of this Agreement, all as though the issuance of such Notes
were authorized as of the date hereof. The Company has previously
authorized and issued $399,200,000 aggregate principal amount of
Medium-Term Notes pursuant to the prospectus of the Company dated
November 17, 1992, the prospectus supplement of the Company dated
November 18, 1992 and certain pricing supplements.
This Agreement provides both for the sale of Notes by the
Company directly to purchasers, in which case the Agents will act
as agents of the Company in soliciting Note purchases, and (as
may from time to time be agreed to by the Company and the related
Agent or Agents) to one or more Agents as principal for resale to
purchasers.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form
S-3 (No. 33-_______) for the registration of debt securities,
including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statement has been declared effective by the
Commission and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (and any further registration statements
which may be filed by the Company for the purpose of registering
additional Notes and in connection with which this Agreement is
included or incorporated by reference as an exhibit) and the
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prospectus constituting a part thereof, and any prospectus
supplements relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended
or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively,
except that if any revised prospectus shall be provided to the
Agents by the Company for use in connection with the offering of
the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Agents for such use.
SECTION 1. Appointment as Agents.
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(a) Appointment of Agents.
---------------------
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly
on its own behalf, the Company hereby appoints each of the Agents as
an agent of the Company for the purpose of soliciting purchases of
the Notes from the Company by others and agrees that, except as otherwise
contemplated herein, whenever the Company determines to sell
Notes directly to one or more Agents as principal for resale to
others, it will enter into a Terms Agreement (as hereafter
defined) relating to each such sale in accordance with the
provisions of Section 3(b) hereof if requested by such Agent.
(b) Reasonable Efforts Solicitations; Right to Reject Offers.
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Upon receipt of instructions from the Company, the
Agents will use their reasonable efforts to solicit purchases of
such principal amount of Notes as the Company and the Agents
shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve
the solicitation of purchases of Notes in excess of the amount
which shall be authorized by the Company from time to time or in
excess of the initial offering price of Notes registered pursuant
to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the
aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale under the
Registration Statement. Each Agent will communicate to the
Company, orally or in writing, each offer to purchase Notes,
other than those offers rejected by such Agent. Each Agent shall
have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, and any
such rejection shall not be deemed a breach of the Agent's
agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agents; Purchases as Principals.
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In soliciting purchases of the Notes on behalf of the Company,
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unless otherwise specified pursuant to the terms hereof, each
Agent shall act solely as agent for the Company and not as
principal. Each Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and
accepted by the Company. No Agent shall have any liability to
the Company in the event any such purchase is not consummated for
any reason. No Agent shall have any obligation to purchase Notes
from the Company as principal, but may agree from time to time to
purchase Notes as principal. Any such purchase of Notes by an
Agent as principal shall be made pursuant to a Terms Agreement in
accordance with Section 3(b) hereof if requested by such Agent.
(d) Reliance.
--------
The Company and the Agents agree that any Notes the placement of
which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on
the representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and in
the manner provided herein.
SECTION 2. Representations and Warranties.
------------------------------
(a) The Company represents and warrants to each Agent as of
the date hereof, as of the date of each acceptance by the Company
of an offer for the purchase of Notes (whether through the Agents
as agents or to one or more Agents as principal), as of the date
of each delivery of Notes (whether through the Agents as agents
or to one or more Agents as principal) (the date of each such
delivery to one or more Agents as principal being hereafter
referred to as a "Settlement Date"), and as of any time that the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for the establishment of or a change in, the interest
rates, maturity or price of Notes or similar changes) or there is
filed with the Commission any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the
Registration Statement other than the Notes) (each of the times
referenced above being referred to herein as a "Representation
Date") as follows:
(a) The Registration Statement in respect of the Notes
has been filed with the Commission; such Registration
Statement and any post-effective amendment thereto, each in
the form heretofore delivered to the Agents (excluding
exhibits thereto but including all documents incorporated by
reference in the Prospectus), have been declared effective
by the Commission in such form; no other document with
respect to the Registration Statement or document
incorporated by reference therein which is deemed to be a
part of the Registration Statement has heretofore been filed
with the Commission; and no stop order suspending the
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effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or
threatened by the Commission.
(b) No order preventing or suspending the use of the
Prospectus has been issued by the Commission, and the
Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the 1933 Act and
the 1933 Act Regulations, and did not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by the Agents expressly for use therein.
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all
material respects to the requirements of the 1933 Act or the
1934 Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference
in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of the 1933 Act or the
1934 Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by the Agents specifically for use therein.
(d) The Registration Statement and the Prospectus
conform, and any amendments or supplements to the
Registration Statement or the Prospectus will conform, in
all material respects to the requirements of the 1933 Act,
the 1939 Act and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable
effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to
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state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished
in writing to the Company by the Agents specifically for use
therein.
(e) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
there has not been any material change in the capital stock
or long-term debt of the Company or any of its Significant
Subsidiaries (as defined in Rule 405 under the 1933 Act) or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, consolidated financial position or
consolidated results of operations of the Company, otherwise
than as set forth or contemplated in the Prospectus.
(f) The Company (A) has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any
business, so as to require such 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, and each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation and is in good standing under the laws of its
jurisdiction of incorporation, (B) has or, in the case of
the Indenture, had the requisite corporate power and
authority to execute and deliver this Agreement, any Terms
Agreement, the Indenture and the Notes and has the requisite
corporate power and authority to perform its obligations
hereunder and thereunder, and (C) has duly authorized,
executed and delivered this Agreement and at the time of the
execution of any Terms Agreement will have duly authorized,
executed and delivered such Terms Agreement and this
Agreement constitutes and any such Terms Agreement will
constitute the valid and binding agreement of the Company.
(g) The Company has an authorized capitalization as
set forth in the Prospectus.
(h) When the Notes are issued and delivered pursuant
to this Agreement, such Notes will have been duly
authorized, executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the
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Indenture; and the Indenture has been duly authorized by the
Company and is duly qualified under the 1939 Act and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Notes and the Indenture will conform in all material
respects to the descriptions thereof in the Prospectus.
(i) The issue and sale of the Notes by the Company and
the compliance by the Company with all of the provisions of
this Agreement, any Terms Agreement and the Indenture and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any
of its subsidiaries is subject, which conflict, breach or
default would have a material adverse effect on the
consolidated financial position or consolidated results of
operations of the Company, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties, which violation in each case would
have a material adverse effect on the consolidated financial
position or consolidated results of operations of the
Company; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
sale of the Notes or the consummation by the Company of the
transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as may be
required under the 1933 Act and the 1939 Act or under state
or foreign securities or Blue Sky laws.
(j) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject, which are probable to result in
an adverse determination and which, if determined adversely
to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse
effect on the consolidated financial position or
consolidated results of operations of the Company; and, to
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the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(k) Arthur Andersen & Co., who have certified certain
financial statements of the Company and its consolidated
subsidiaries, are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(l) The Company and its subsidiaries own or possess,
or can acquire on reasonable terms, the patents, patent
rights, licenses, invention, copyrights (including trade
secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures),
trademarks, service marks and trade names presently employed
by them in connection with the businesses now operated by
them, except where the failure to own or possess or have the
ability to acquire would not have a material adverse effect
on the consolidated financial position or consolidated
results of operations of the Company, and neither the
Company nor any of its subsidiaries has received any notice
of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in any material adverse
effect on the consolidated financial position or
consolidated results of operations of the Company.
(m) The Company has complied with all of the
provisions of Florida H.B. 1771, Section 1, Chapter 92-198
of the Florida Securities and Investors Act, and all
regulations thereunder relating to issuers doing business
with Cuba.
(b) Additional Certifications.
-------------------------
Any certificate signed by any director or officer of the Company
and delivered to the Agents or to counsel to the Agents in connection
with an offering of Notes or the sale of Notes to one or more of the
Agents as principal shall be deemed a representation and warranty by the
Company to the Agents as to the matters covered thereby on the
date of such certificate and, to the extent contemplated by such
certificate, at each Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principals.
------------------------------------------------
(a) Solicitations as Agents.
-----------------------
On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set
forth, the Agents agree, when acting as agents of the Company, to
use their reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus.
8
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the
Agents, as agents, commencing at any time for any period of time
or permanently. Upon receipt of instructions from the Company,
the Agents will forthwith suspend solicitation of purchases from
the Company until such time as the Company has advised the Agents
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the
form of a discount or otherwise as agreed to by the Company and
the Agents, equal to the applicable percentage of the principal
amount of each Note sold by the Company as a result of a
solicitation made by such Agent as set forth in Schedule A
hereto; provided, however, that the Company shall only be
obligated to pay one such fee with respect to any particular Note
so sold.
The purchase price, interest rate, maturity date and other
terms of the Notes shall be agreed upon by the Company and the
Agents and set forth in a pricing supplement to the Prospectus to
be prepared following each acceptance by the Company of an offer
for the purchase of Notes. Except as may be otherwise provided
in such supplement to the Prospectus, the Notes will be issued in
denominations of $1,000 and integral multiples thereof. All
Notes sold through the Agents as agents will be sold at 100% of
their principal amount unless otherwise agreed to by the Company
and the Agents.
(b) Purchases as Principal.
----------------------
Each sale of Notes to one or more Agents as principal shall be
made in accordance with the terms contained herein and, if requested
by such Agent, pursuant to a separate agreement which will provide
for the sale of such Notes to, and the purchase and reoffering thereof by,
such Agent or Agents. Each such separate agreement (which may be an oral
agreement) between one or more Agents and the Company, is herein
referred to as a "Terms Agreement". Unless the context otherwise
requires, each reference contained herein to "this Agreement"
shall be deemed to include any Terms Agreement between the
Company and one or more Agents. Each such Terms Agreement,
whether oral or in writing, shall be with respect to such
information (as applicable) as is specified in Exhibit A hereto.
An Agent's commitment to purchase Notes as principal pursuant to
any Terms Agreement or otherwise shall be deemed to have been
made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify
the principal amount of Notes to be purchased by each Agent
pursuant thereto, the price to be paid to the Company for such
Notes (which, if not so specified in a Terms Agreement, shall be
at a discount equivalent to the applicable commission set forth
in Schedule A hereto), the time and place of delivery of and
payment for such Notes, any provisions relating to rights of, and
default by, purchasers acting together with the Agents in the
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reoffering of the Notes, and such other provisions (including
further terms of the Notes) as may be mutually agreed upon. The
Agents may utilize a selling or dealer group in connection with
the resale of the Notes purchased. Such Terms Agreement shall
also specify whether or not any of the officer's certificate,
opinions of counsel or comfort letter specified in Sections 7(b),
7(c) and 7(d) hereof shall be required to be delivered by the
Company on the related Settlement Date.
(c) Administrative Procedures.
-------------------------
Administrative procedures with respect to the sale of Notes shall
be agreed upon from time to time by the Agents and the Company (the
"Procedures"). Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed
by them in the Procedures.
(d) Delivery of Closing Documents.
-----------------------------
The documents required to be delivered by Section 5 hereof shall be
delivered at the office of Brown & Wood, One World Trade Center, 58th Floor,
New York, New York 10048, on the date hereof, or at such other time
or place as the Agents and the Company may agree.
SECTION 4. Covenants of the Company.
------------------------
The Company covenants with the Agents as follows:
(a) Notice of Certain Events.
------------------------
The Company will promptly notify (i) the Agents of the effectiveness
of any amendment to the Registration Statement, (ii) the related
Agent or Agents of the transmittal to the Commission for filing of
any supplement to the Prospectus (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) or any document to
be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus (other than any Current Report on
Form 8-K relating exclusively to an offering of debt securities
under the Registration Statement other than the Notes), (iii) the
Agents of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus, (iv) the
Agents of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement which relates
exclusively to an offering of debt securities under the
Registration Statement other than the Notes) or for additional
information, and (v) the Agents of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
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(b) Notice of Certain Proposed Filings.
----------------------------------
Except as otherwise provided in subsection (k) of this Section,
the Company will give the Agents notice of its intention to file any
additional registration statement with respect to the
registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing
solely for the establishment of or change in, the interest rates,
maturity or price of Notes or other similar changes or an
amendment or supplement which relates exclusively to an offering
of debt securities under the Registration Statement other than
the Notes and other than an amendment or supplement arising
through incorporation by reference) whether by the filing
of documents pursuant to the 1933 Act or otherwise, and will
furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed a
reasonable time in advance of such proposed filing.
In the case of the filing of any such amendment or supplement
or other document filed pursuant to the 1934 Act, the Company
will furnish the Agents with copies of such amendment or
supplement or other document within one day of the
filing thereof. Following any such filing pursuant to the
1934 Act, each Agent shall have the right to suspend solicitation
of purchases of the Notes until such time as such Agent shall
reasonably determine that solicitation of purchases should be
resumed or such Agent shall subsequently enter into a new
Terms Agreement with the Company, and any such suspension
shall not be deemed a breach of such Agent's agreement contained herein.
(c) Copies of the Registration Statement and the Prospectus.
-------------------------------------------------------
The Company will deliver to the Agents as many signed
and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Company will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) (other than an amendment or supplement which
relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) as the Agents shall
reasonably request so long as the Agent is required to deliver a
Prospectus in connection with sales or solicitations of offers to
purchase the Notes.
(d) Preparation of Pricing Supplements.
----------------------------------
The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the Agents
and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes.
-------------------------------------------
Except as otherwise provided in subsection (k) of this Section, if
at any time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the
reasonable opinion of counsel to the Agents or counsel for the
Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement
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the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to
purchase the Notes in the Agents' capacity as agents and to cease
sales of any Notes the Agents may then own as principal pursuant
to a Terms Agreement, and the Company will promptly prepare and
file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
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Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public interim financial statement information related to
the Company with respect to each of the first three quarters of
any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing.
(g) Earnings Statements.
-------------------
The Company, by applying the provisions of Rule 158 under the
1933 Act, will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 1933 Act) covering each twelve
month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement with
respect to each sale of Notes.
(h) Blue Sky Qualifications.
-----------------------
The Company will endeavor, in cooperation with the Agents, to qualify
the Notes for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the Agents may
designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the
Notes have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(i) 1934 Act Filings.
----------------
The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required
to be filed with the
12
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
1934 Act. Such documents will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act
Regulations and to the extent such documents are incorporated by
reference in the Prospectus, when read together with the other
information in or incorporated by reference into the Prospectus,
will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
(j) Stand-Off Agreement.
-------------------
Between the date of any Terms Agreement and the Settlement Date
with respect to such Terms Agreement, the Company will not, without
the prior written consent of each Agent party to such Terms Agreement,
directly or indirectly, sell, offer to sell, contract to sell or otherwise
dispose of, or announce the offering of, any debt securities
denominated in the same currency as the Notes to be purchased
pursuant to such Terms Agreement, or any security exchangeable
into such debt securities (other than the Notes that are to be
sold pursuant to such Terms Agreement and commercial paper in the
ordinary course of business), except as may otherwise be provided
in any such Terms Agreement.
(k) Suspension of Certain Obligations.
---------------------------------
The Company shall not be required to comply with the provisions of
subsections (a),(b), (c), (e), (f) or (i) of this Section or the provisions of
Section 7 hereof during any period from the time (i) the Agents
shall have received written notification from the Company to
suspend solicitation of purchases of the Notes in their capacity
as agents and (ii) the earlier of the date on which no Agent
shall then hold any Notes as principal purchased pursuant to a
Terms Agreement and the date which is fifteen days (nine months
with respect to subsections (e) and (i) of this Section) from the
date on which the Agents shall have received written notice from
the Company to suspend solicitation of purchases of the Notes, to
the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently
enter into a new Terms Agreement with the Agents.
(l) Use of Proceeds.
---------------
The net proceeds from the sale of Notes will be used by the Company
as described in the Prospectus.
(m) Termination of Sale in Certain Circumstances.
--------------------------------------------
Any person who has agreed to purchase and pay for any Note pursuant
to a solicitation by any of the Agents shall have the right to
refuse to purchase such Note if, subsequent to the agreement to
purchase such Note, any change, condition or development
specified in any of Sections 12(b)(i) through 12(b)(v) shall have
occurred (with the judgment of the Agent which presented the
offer to purchase such Note being substituted for any judgment of
a selling Agent required therein) the effect of which is, in the
judgment of the Agent which presented the offer to purchase such
13
Note, so material and adverse as to make it impractical or
inadvisable to proceed with the sale and delivery of such Note
(it being understood that under no circumstances shall any such
Agent have any duty or obligation to the Company or to any such
person to exercise the judgment to be exercised under this
Section 4(m)).
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of the Agents to solicit offers to purchase
the Notes as agents of the Company, the obligations of any
purchasers of the Notes sold through the Agents as agents, and
any obligation of the Agents to purchase Notes as principals
pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties in all material
respects (to the extent any such representation or warranty is
not otherwise qualified therein) on the part of the Company
herein contained and to the accuracy of the statements of the
Company's officers made in any certificate, to the extent
contemplated by such certificate, furnished pursuant to the
provisions hereof, to the performance and observance by the
Company of all its covenants and agreements herein contained and
to the following additional conditions precedent:
(a) Legal Opinions.
--------------
On the date hereof, the Agents shall have received the following
legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents and their counsel:
(1) Opinion of Company Counsel.
--------------------------
The opinion of Andrew D. Hendry, Esq., Senior Vice President, General
Counsel and Secretary of the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct
its business as described in the Prospectus.
(ii) The Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of each jurisdiction
in which it owns or leases real properties, or conducts
any business, so as to require such 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 (such counsel being
entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the
Company, provided that such counsel shall state that he
believes that both the Agents and he are justified in
relying upon such opinions and certificates).
14
(iii) Each Significant Subsidiary had been duly
incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital
stock of each such Significant Subsidiary have been
duly and validly authorized and issued, are fully paid
and nonassessable, and (except for directors'
qualifying shares and except as otherwise set forth in
the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities or claims.
(iv) The Company has an authorized capitalization
as set forth in the Prospectus.
(v) This Agreement has been duly authorized,
executed and delivered by the Company.
(vi) The issuance and sale of the Notes have been
duly authorized by all necessary corporate action of
the Company. The Notes when duly authenticated by the
Trustee and issued in accordance with the provisions of
this Agreement and the Indenture will be duly executed,
issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Notes and
the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented under the heading "Description of Debt
Securities" and "Description of Notes".
(vii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a
valid and legally binding instrument of the Company,
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified
under the 1939 Act.
(viii) The issue and sale of the Notes by the
Company and the compliance by the Company with all of
the provisions of this Agreement, any Terms Agreement,
the Indenture and the Notes, and the consummation of
the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known
to such counsel as being material to the Company and
its subsidiaries taken as a whole to which the Company
or any of its subsidiaries is a party or by which the
15
Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of
its subsidiaries is subject, which conflict, breach or
default would have a material adverse effect on the
consolidated financial position or consolidated results
of operations of the Company, nor will such action
result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company
or any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, which
violation in each case would have a material adverse
effect on the consolidated financial position or
consolidated results of operations of the Company.
(ix) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the
issue and sale of the Notes or the consummation by the
Company of the transactions contemplated by this
Agreement, any Terms Agreement or the Indenture, except
such consents, approvals, authorizations, registrations
or qualifications as may be required under the 1933 Act
and the 1939 Act and those under state securities, Blue
Sky or foreign laws.
(x) To the best of such counsel's knowledge and
other than as set forth or contemplated in the
Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which
are probable to result in an adverse determination and
which, if determined adversely to the Company or any of
its subsidiaries, would have a material adverse effect
on the consolidated financial position or the annual
pre-tax consolidated results of operations of the
Company; and, to the best of such counsel's knowledge,
without special inquiry, no such proceedings are
threatened or contemplated by governmental authorities
or threatened by others.
(xi) To the best of such counsel's knowledge, all
contracts or other documents of a character required to
be filed as exhibits to the Registration Statement or
required to be incorporated by reference into the
Prospectus or described in the Registration Statement
or the Prospectus have been filed or incorporated by
reference or described as required.
(xii) The Registration Statement has been
declared effective under the 1933 Act and, to their
16
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xiii) The Registration Statement and the
Prospectus, or any further amendments or supplements
thereto made by the Company prior to the date hereof
(other than the financial statements and related
schedules therein and other financial data or the
Statement of Eligibility on Form T-1 of the Trustee
under the Indenture, as to which such counsel need
express no opinion), when the Registration Statement
became effective complied, and as of the date hereof
comply, as to form in all material respects with the
requirements of the 1933 Act and the 1939 Act and the
rules and regulations of the Commission thereunder.
(xiv) The information in the Prospectus under the
caption "Description of Notes", "Description of Debt
Securities", and information, if any, in the Prospectus
under the caption "United States Taxation" (or similar
caption), to the extent that it constitutes matters of
law, summaries of legal matters, documents or
proceedings, or legal conclusions, has been reviewed by
such counsel or by attorneys under the supervision of
such counsel and is correct in all material respects.
(xv) The documents incorporated by reference into
the Registration Statement and the Prospectus or any
further amendments or supplements thereto made by the
Company prior to the date hereof (other than the
financial statements and schedules therein and other
financial data or the Statement of Eligibility on Form
T-1 of the Trustee under the Indenture, as to which
such counsel need express no opinion), at the time they
were filed, complied, and as of the date hereof comply,
as to form in all material respects with the
requirements of the 1933 Act and the 1934 Act and the
rules and regulations of the Commission thereunder.
In giving such opinion such counsel shall also state that in
the course of his duties as General Counsel of the Company
he consults with other officers of the Company as to ongoing
matters, and he or an attorney under his supervision has
reviewed the Registration Statement and the Prospectus and
has participated in the preparation of documents
incorporated by reference therein and, although such counsel
has not made any other specific inquiry for the purpose of
rendering this opinion and is not passing upon and does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and Prospectus, no facts have come to such
17
counsel's attention that lead it to believe that the
Registration Statement at the time it became effective, or
any further amendment thereto (including the filing of an
Annual Report on Form 10-K with the Commission), as of its
effective date, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 7(c)
hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact
or omits or omitted to state a material fact required to be
stated therein or necessary to make the statements therein
not misleading or that the Prospectus, or any further
amendment or supplement thereto, as of its date, or (if such
opinion is being delivered in connection with a Terms
Agreement pursuant to Section 7(c) hereof) at the date of
any Terms Agreement and at the Settlement Date with respect
thereto, as the case may be, contains or contained an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading or that, as of the date hereof, either the
Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to
the date hereof contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading (it being understood
that such counsel has not been required to and does not
express any comment with respect to the financial statements
and schedules and other financial data included in the
Registration Statement or Prospectus or the Statement of
Eligibility on Form T-1 of the Trustee under the Indenture).
In giving the opinion required by this Section 5(a)(1),
such counsel shall be entitled to rely upon opinions of
local counsel and tax counsel and, in respect of matters of
fact, upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he
believes that both the Agents and he are justified in
relying upon such opinions and certificates.
(2) Opinion of Counsel to the Agents.
--------------------------------
The opinion of Brown & Wood, counsel to the Agents,
with respect to the incorporation of the Company, this
Agreement, the Notes and the Indenture, and other related
matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
In giving such opinion Brown & Wood shall additionally state
that they do not believe that the Registration Statement, at
the time it became effective, and if an amendment to the
Registration Statement or an Annual Report on Form 10-K has
18
been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement and prior to
the date of such statement, then at the time such amendment
became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference
in the Registration Statement and Prospectus), and at the
date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 7(c)
hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact
or omits or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus, as amended or
supplemented at the date hereof, or (if such opinion is
being delivered in connection with a Terms Agreement
pursuant to Section 7(c) hereof) at the date of any Terms
Agreement and at the Settlement Date with respect thereto,
as the case may be, contains or contained an untrue
statement of a material fact or omits or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. Such counsel may state that they
express no view as to the financial statements and other
financial data included or incorporated by reference in such
Registration Statement or Prospectus.
(b) Officers' Certificate.
---------------------
At the date hereof the Agents shall have received a certificate
of the President or any Vice President and the chief financial or
chief accounting officer of the Company, dated as of the date hereof,
to the effect that (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus or since the date
of any Terms Agreement, there has not been any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the general affairs,
consolidated financial position or consolidated results of
operations of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of
business, otherwise than as set forth or contemplated in the
Prospectus, (ii) the other representations and warranties of the
Company contained in Section 2 hereof are true and correct with
the same force and effect as though expressly made at and as of
the date of such certificate, (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such
certificate, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and, to their
knowledge, no proceedings for that purpose have been initiated or
threatened by the Commission.
(c) Comfort Letter.
--------------
On the date hereof, the Agents shall have received a letter from
Arthur Andersen & Co., dated as of
19
the date hereof and in form and substance previously agreed to by
the Company and the Agents.
(d) Other Documents.
---------------
On the date hereof and on each Settlement Date with respect to
any Terms Agreement, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as therein contemplated and related
proceedings, or in order to evidence the accuracy and completeness
of any of the representations and warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as
herein contemplated shall be reasonably satisfactory in form and
substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this
Agreement (or, at the option of the Agents, any Terms Agreement)
may be terminated by the Agents by notice to the Company at any
time and any such termination shall be without liability of any
party to any other party, except that the covenant regarding
provision of an earnings statement set forth in Section 4(g)
hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, the provisions concerning the
representations, warranties and agreements to survive delivery
set forth in Section 11 hereof and the provisions set forth under
"Parties" of Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the
--------------------------------------------------
Agents.
------
Delivery of Notes sold through an Agent as agent shall be
made by the Company to such Agent for the account of any
purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept
delivery of or to make payment for a Note on the date fixed for
settlement, the Agent shall promptly notify the Company and
deliver the Note to the Company, and, if the Agent has
theretofore paid the Company for such Note, the Company will
promptly return such funds to the Agent. If such failure
occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its reasonable
loss of the use of the funds for the period such funds were
credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agents that:
20
(a) Reaffirmation of Representations and Warranties.
-----------------------------------------------
Each acceptance by it of an offer for the purchase of Notes, and each
delivery of Notes to one or more Agents pursuant to a Terms
Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to the
Agents pursuant hereto, to the extent contemplated by such
certificate, are true and correct at the time of such acceptance
or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the
time of delivery to the purchaser or its agent, or to the Agent
or Agents, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and
warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates.
-----------------------------------
Subject to the provisions of Section 4(k) hereof, each time
that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a supplement providing solely for the
establishment of the interest rates, maturity or price of Notes
or similar terms, and other than by an amendment or supplement
which relates exclusively to an offering of debt securities under
the Registration Statement other than the Notes) or there is
filed with the Commission any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the
Registration Statement other than the Notes) or (if required
pursuant to the terms of a Terms Agreement) the Company sells
Notes to one or more Agents pursuant to a Terms Agreement, if
requested by the Agents or counsel to the Agents, the
Company shall furnish or cause to be furnished to the Agents
forthwith a certificate dated the date of filing with the
Commission of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the
case may be, in form reasonably satisfactory to the Agents to the
effect that the statements contained in the certificate referred
to in Section 5(b) hereof which were last furnished to the Agents
are true and correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in
said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate;
provided, however, that if the Company shall determine that it
does not intend to be in the market for up to three months after
the date of filing of any such amendment or supplement, the
Company may deliver to the Agents a notice to such effect, in
which event the request of the Agents received by the Company
with respect to such amendment or supplement shall be deemed
withdrawn until such time as the Company notifies the Agents that
it wishes to re-enter the market.
(c) Subsequent Delivery of Legal Opinions.
-------------------------------------
Subject to the provisions of Section 4(k) hereof, each time
that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a supplement providing solely for the
establishment of the interest rates, maturity or price of the
21
Notes or similar terms or solely for the inclusion of additional
financial information, and other than by an amendment or
supplement which relates exclusively to an offering of debt
securities under the Registration Statement other than the Notes)
or there is filed with the Commission any document incorporated
by reference into the Prospectus (other than any Current Report
on Form 8-K) or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to one or more Agents pursuant
to a Terms Agreement, if requested by the Agents or counsel to
the Agents, the Company shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents a
written opinion of the General Counsel of the Company or other
counsel selected by the Company and reasonably satisfactory to
the Agents dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form
reasonably satisfactory to the Agents, of substantially the same
tenor as the opinion referred to in Section 5(a)(1) hereof, but
modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of
delivery of such opinion; or, in lieu of such opinion, counsel
last furnishing such opinion to the Agents shall furnish the
Agents with a letter substantially to the effect that the Agents
may rely on such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing
reliance); provided, however, that if the Company shall determine that
it does not intend to be in the market for up to three months after
the date of filing of any such amendment or supplement, the
Company may deliver to the Agents a notice to such effect, in
which event the request of the Agents received by the Company
with respect to such amendment or supplement shall be deemed
withdrawn until such time as the Company notifies the Agents that
it wishes to re-enter the market.
(d) Subsequent Delivery of Comfort Letters.
--------------------------------------
Subject to the provisions of Section 4(k) hereof, each time
that the Registration Statement or the Prospectus shall be amended
by the filing of a post-effective amendment with the Commission under
the 1933 Act (and not by incorporation by reference) to include
additional financial information or there is filed with the
Commission the Company's Annual Report on Form 10-K or (if
required pursuant to the terms of a Terms Agreement) the Company
sells Notes to one or more Agents pursuant to a Terms Agreement,
the Company shall cause Arthur Andersen & Co., or other
independent certified public accountants reasonably satisfactory
to the Agents, forthwith to furnish the Agents with a letter,
dated the date of effectiveness of such amendment, the date of
filing with the Commission of such Form 10-K, or the date of such
sale, as the case may be, in form reasonably satisfactory to the
Agents, of substantially the same tenor as the letter referred to
in Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date
of such letter, and with such changes as may be necessary to
reflect changes in the financial statements and other information
derived from the accounting records of the Company.
22
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents.
-----------------------------
The Company agrees to indemnify severally and hold harmless each
Agent and each person, if any, who controls each Agent within the meaning
of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred (to the extent the party
seeking such indemnity is currently required to make a
payment in respect of which such indemnity is sought),
arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such
settlement is effected with the written consent of the
Company; and
(iii) against any and all reasonable expense whatsoever,
as incurred (including the reasonable fees and disbursements
of counsel chosen by an Agent), reasonably incurred in
investigating, preparing or defending against any
litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Agents
expressly for use in the Registration Statement (or any amendment
thereto).
23
(b) Indemnification of Company.
--------------------------
Each Agent severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred (to the
extent the party seeking such indemnity is currently required to
make a payment in respect of which such indemnity is sought), but
only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by
such Agent expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(c) General.
-------
Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying party of
such commencement shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the
indemnified party by retaining 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 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. In no event shall
the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) for all
indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances.
(d) Foreign Currency Judgments.
--------------------------
The Company agrees to indemnify the Agents against any loss
incurred by the Agents as a result of any judgment or order being given
or made for the amount due under this Agreement and such judgment or
order being paid in a currency (a "Judgment Currency") other than U.S.
dollars as a result of any variation between (i) the rate of
exchange at which U.S. dollars are converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the
24
rate of exchange at which the applicable Agent is able to
purchase U.S. dollars with the amount of the Judgment Currency
actually received by such Agent. The foregoing indemnity shall
constitute a separate and independent obligation of the Company
and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange"
shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant
currency.
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 is
unavailable or insufficient to hold harmless an indemnified party
thereunder, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities referred to in Section
8 in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and each Agent
on the other from the offering of the Notes and also to reflect
the relative fault of the Company on the one hand and each Agent
on the other in connection with the statements or omissions which
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 each Agent
on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of Notes by such Agent
(before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by such
Agent. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or an Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 9 shall be
deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this
Section 9. Notwithstanding the provisions of this Section 9, an
Agent shall not be required to contribute any amount in excess of
the amount by which the total price at which the Notes sold by
such Agent and distributed to the public exceeds the amount of
any damages which such Agent has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act shall have
25
the same rights to contribution as an Agent, and each director of
the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and
any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery
of the Notes, including any fees and expenses relating to
the use of book-entry notes;
(d) The reasonable fees and disbursements of the
Company's accountants and counsel, of the Trustee and its
counsel and of any Calculation Agent;
(e) The reasonable fees and disbursements of one
counsel to the Agents incurred from time to time in
connection with the transactions contemplated hereby;
(f) The qualification of the Notes under state
securities laws in accordance with the provisions of Section
4(i) hereof, including filing fees, and the reasonable fees
and disbursements of counsel to the Agents in connection
therewith and in connection with the preparation of any Blue
Sky Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in
quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and of
the Prospectus and any amendments or supplements thereto;
(h) The preparation, printing, reproducing and
delivery to the Agents of copies, as reasonably requested,
of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating
of the Notes;
(j) The filing fees, if any, incurred with respect to
any filing with the National Association of Securities
Dealers, Inc.;
26
(k) Any advertising and other out-of-pocket expenses
of the Agents incurred with the approval of such expense by
the Company;
(l) The cost of preparing, and providing any CUSIP or
other identification numbers for, the Notes; and
(m) The fees and expenses of any Depository (as
defined in the Indenture) and any nominees thereof in
connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to
---------------------------------------------
Survive Delivery.
----------------
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company
submitted pursuant hereto or thereto, shall remain operative and
in full force and effect, regardless of any investigation made by
or on behalf of the Agents or any controlling person of the
Agents, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement.
-----------------------------
This Agreement (excluding any Terms Agreement) may be terminated
for any reason, at any time by either the Company or the Agents on the
giving of 15 days' written notice of such termination to the other party
hereto; provided, however, that the termination of this Agreement
by an Agent shall terminate this Agreement only between such
Agent and the Company and the Company's notice of termination as
to any one Agent shall terminate this Agreement only between
itself and such Agent.
(b) Termination of a Terms Agreement.
--------------------------------
The Agent or Agents party to a Terms Agreement may terminate any
Terms Agreement, immediately upon notice to the Company, at any time prior
to the Settlement Date relating thereto (i) if there has been, since the
date of such Terms Agreement or since the respective dates as of
which information is given in the Registration Statement, any
material change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the general affairs, consolidated
financial position or consolidated results of operations of the
Company, whether or not arising in the ordinary course of
business, or (ii) if there shall have occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as
to make it, in the reasonable judgment of the Agent or Agents
party to such Terms Agreement (after consultation with the
Company), impracticable to market the Notes subject to such Terms
Agreement or enforce contracts for the sale of such Notes, or
27
(iii) if trading in any securities of the Company has been
suspended by the Commission or a national securities exchange, or
if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended other than a
temporary suspension in trading (not to exceed two hours) to
provide for an orderly market, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or
if a banking moratorium shall have been declared by federal or
New York authorities or if a banking moratorium shall have been
declared by the relevant authorities in the country or countries
of origin of any foreign currency or currencies in which the
Notes subject to such Terms Agreement are denominated or payable,
or (iv) if the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as
of the date of any Terms Agreement shall have been lowered since
that date or if any such rating agency shall have publicly
announced since that date that it has placed any debt securities
of the Company on what is commonly termed a "watch list" for
possible downgrading, or (v) if the Prospectus, at the time it
was required to be delivered to a purchaser of Notes subject to
such Terms Agreement, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
existing at the time of such delivery, not misleading.
(c) General.
-------
In the event of any such termination, no party will have
any liability to any other party hereto, except that (i) each Agent
shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time of
termination (a) the Agents shall own any Notes purchased pursuant
to a Terms Agreement with the intention of reselling them or
(b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the
purchaser or its agent of the Note or Notes relating thereto has
not occurred, the obligations set forth in Section 5 hereof and
the covenants set forth in Sections 4 and 7 hereof shall remain
in effect until such Notes are so resold or delivered, as the
case may be (provided, however, that, except as provided in
clause (iii) below, the Company's obligations pursuant to
Sections 4 and 7 hereof shall in any event terminate no later
than the date that is fifteen days (nine months with respect to
subsections (e) and (i) of Section 4 hereof) after the time of
such termination), and (iii) the covenant set forth in Section
4(g) hereof, the indemnity and contribution agreements set forth
in Sections 8 and 9 hereof, and the provisions of Sections 10, 11
and 15 hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either
28
delivered by hand, by mail or by telex, by telecopier or by
telegram, and any such notice shall be effective when received at
the address specified below.
If to the Company:
Colgate-Palmolive Company
300 Park Avenue
New York, New York 10022
Attention: Treasurer
Telecopy: (212) 310-2873
If to Citicorp:
Citicorp Securities, Inc.
399 Park Avenue
New York, New York 10043
Attention: Capital Markets Execution
Telecopy: (212) 291-3910
If to Goldman Sachs:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Telecopy: (212) 363-7609
If to Lazard:
Lazard Freres & Co.
One Rockefeller Plaza
New York, New York 10020
Attention: Syndicate Department
Telecopy: (212) 632-6060
If to Merrill Lynch & Co.:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (212) 449-2234
29
If to J.P. Morgan:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Medium-Term Note Desk, 3rd Floor
Telecopy: (212) 648-5909
or at such other address as such party may designate from time to
time by notice duly given in accordance with the terms of this
Section 13.
SECTION 14. Governing Law.
-------------
This Agreement and all the rights and obligations of the
parties shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and
to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the
controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto and
respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
SECTION 16. Counterparts.
------------
This Agreement may be executed in several counterparts, each
of which shall be deemed an original hereof.
SECTION 17. Captions.
--------
The captions in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or
the provisions hereof.
30
If the foregoing is in accordance with the Agents'
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument along
with all counterparts will become a binding agreement between the
Agents and the Company in accordance with its terms.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:
------------------------------
Name:
Title:
Accepted:
CITICORP SECURITIES, INC.
By:
---------------------------------
Authorized Signatory
_____________________________
(Goldman, Sachs & Co.)
_____________________________
(Lazard Freres & Co.)
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------
Name:
Title:
J.P. MORGAN SECURITIES INC.
By:
---------------------------------
Name:
Title:
31
Exhibit A
The following terms, if applicable, shall be agreed to by
the Agents and the Company pursuant to each Terms Agreement:
Principal Amount: $
-------
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: %
---
Agent's Discount or Commission:
Settlement Date and Time:
Additional Terms:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[ ] 30/360 for the period
from to .
------- --------
[ ] Actual/360 for the period from
------
to .
--------
[ ] Actual/Actual for the period from
---
to .
--- --------
If Floating Rate Note:
Interest Calculation:
[ ] Regular Floating Rate Note
[ ] Floating Rate/Fixed Rate Note
Fixed Rate Commencement Date:
Fixed Interest Rate:
[ ] Inverse Floating Rate Note
Fixed Interest Rate:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
A-1
Day Count Convention:
[ ] 30/360 for the period from
------
to .
------
[ ] Actual/360 for the period from
------
to .
--------
[ ] Actual/Actual for the period from
---
to .
--- --------
If Redeemable:
Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Currency:
Specified Currency (if other than U.S.
dollars)
Minimum Denominations:
Also, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the
Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
Stand-off Agreement pursuant to Section 4(j) of the
Distribution Agreement.
Legal Opinion of counsel to the Agents.
A-2
SCHEDULE A
As compensation for the services of the Agents hereunder,
the Company shall pay the related Agent, on a discount basis, a
commission for the sale of each Note by such Agent equal to the
principal amount of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
More than 9 months to less than 1 year . [.125]%
1 year to less than 18 months . . . . . . [.150]
18 months to less than 2 years . . . . . [.200]
2 years to less than 3 years . . . . . . [.250]
3 years to less than 4 years . . . . . . [.350]
4 years to less than 5 years . . . . . . [.450]
5 years to less than 6 years . . . . . . [.500]
6 years to less than 7 years. . . . . . . [.550]
7 years to less than 8 years . . . . . . [.600]
8 years to less than 9 years . . . . . . [.600]
9 years to less than 10 years . . . . . . [.600]
10 years to less than 15 years . . . . . [.625]
15 years to less than 20 years . . . . . [.700]
20 years to 30 years . . . . . . . . . . [.750]
More than 30 years . . . . . . . . . . . To be negotiated
between the Agent
and the Company at
the time of such
sale.
Sch. A
EXHIBIT 5
May 2, 1994
Colgate-Palmolive Company
300 Park Avenue
New York, New York 10022
Re: Colgate-Palmolive Company
Registration Statement on Form S-3
----------------------------------
Gentlemen:
This opinion is rendered to you in connection with the above
mentioned Registration Statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), for the
registration by Colgate-Palmolive Company, a Delaware corporation
(the "Company"), of $500,000,000 principal amount of its debt
securities (the "Debt Securities"). The Debt Securities will be
issued pursuant to the provisions of an Indenture (the
"Indenture"), dated as of November 15, 1992, between the Company
and The Bank of New York, as trustee (the "Trustee").
I am Senior Vice President, General Counsel and Secretary of
the Company. I hold 1,057 shares of Common Stock, par value
$1.00 per share, of the Company (the "Common Stock"), 10,932
restricted shares of Common Stock and options to purchase
55,970 shares of Common Stock. For purposes of this opinion, I
have examined originals, or copies the authenticity of which has
been established to my satisfaction, of such documents and
instruments as I have deemed necessary to express the opinion
hereinafter set forth.
Based upon the foregoing, it is my opinion that when the
Debt Securities have been duly authorized and executed by the
Company and authenticated as provided in the Indenture, and when
duly paid for and delivered pursuant to a sale in the manner
described in the Registration Statement, including the prospectus
forming a part thereof and any prospectus supplement relating to
the Debt Securities, the Debt Securities will be valid and
binding obligations of the Company.
I consent to the use of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Andrew D. Hendry
------------------------------------
ANDREW D. HENDRY
EXHIBIT 12
COLGATE-PALMOLIVE COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
DOLLARS IN MILLIONS (UNAUDITED)
YEAR ENDED
DECEMBER 31, 1993
-------------------
Income before income taxes and cumulative effect on prior years of accounting changes......... $ 836.2
ADD:
Interest on indebtedness and amortization of debt expense and discount or premium............. 69.5
Portion of rents representative of interest factor............................................ 30.5
Interest on ESOP debt, net of dividends....................................................... 1.8
LESS:
Income of less than fifty-percent-owned subsidiaries.......................................... (2.2)
--------
Income as adjusted............................................................................ $ 935.8
--------
--------
FIXED CHARGES:
Interest on indebtedness and amortization of debt expense and discount or premium............. 69.5
Portion of rents representative of interest factor............................................ 30.5
Interest on ESOP debt, net of dividends....................................................... 1.8
Capitalized interest.......................................................................... 11.8
--------
Total fixed charges........................................................................... $ 113.6
--------
--------
Ratio of earnings to fixed charges............................................................ 8.2
--------
--------
In June 1989, the Company's leveraged employee stock ownership plan (ESOP)
issued $410.0 long-term notes due through 2009 bearing an average interest rate
of 8.6%. These notes are guaranteed by the Company. Interest incurred on the
ESOP's notes was $34.5 in 1993. This interest is funded through preferred and
common stock dividends. The fixed charges presented above include interest on
ESOP indebtedness to the extent it is not funded through preferred and common
stock dividends.
EXHIBIT 23 (b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accounts, we hereby
consent to the incorporation by reference
in this registration statement of our
report dated February 2, 1994 included in
Colgate-Palmolive Company's Form 10-K for
the year ended December 31, 1993 and to all
references to our Firm included in this
registration statement.
/s/ Arthur Anderson & Company
-------------------------------------
Arthur Anderson & Company
New York, New York
April 26, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, Vernon R. Alden, do hereby make, constitute and
appoint Reuben Mark, Robert M. Agate and Andrew D. Hendry,
and each of them, as my attorneys-in-fact and agents with
full power of substitution for me and in my name, place and
stead, in any and all capacities, to execute for me and on
my behalf a Registration Statement of Colgate-Palmolive
Company (the "Company") on Form S-3, or other appropriate
forms relating to the $500,000,000 principal amount of the
Company's debt securities all or part of which may be
offered by the Company from time to time under Rule 415
promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ VERNON R. ALDEN
----------------------------
Name: Vernon R. Alden
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, Jill Ker Conway, do hereby make, constitute and
appoint Reuben Mark, Robert M. Agate and Andrew D. Hendry,
and each of them, as my attorneys-in-fact and agents with
full power of substitution for me and in my name, place and
stead, in any and all capacities, to execute for me and on
my behalf a Registration Statement of Colgate-Palmolive
Company (the "Company") on Form S-3, or other appropriate
forms relating to the $500,000,000 principal amount of the
Company's debt securities all or part of which may be
offered by the Company from time to time under Rule 415
promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ JILL KER CONWAY
----------------------------
Name: Jill Ker Conway
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, Ronald E. Ferguson, do hereby make, constitute
and appoint Reuben Mark, Robert M. Agate and Andrew D.
Hendry, and each of them, as my attorneys-in-fact and agents
with full power of substitution for me and in my name, place
and stead, in any and all capacities, to execute for me and
on my behalf a Registration Statement of Colgate-Palmolive
Company (the "Company") on Form S-3, or other appropriate
forms relating to the $500,000,000 principal amount of the
Company's debt securities all or part of which may be
offered by the Company from time to time under Rule 415
promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ RONALD E. FERGUSON
----------------------------
Name: Ronald E. Ferguson
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, Ellen M. Hancock, do hereby make, constitute
and appoint Reuben Mark, Robert M. Agate and Andrew D.
Hendry, and each of them, as my attorneys-in-fact and agents
with full power of substitution for me and in my name, place
and stead, in any and all capacities, to execute for me and
on my behalf a Registration Statement of Colgate-Palmolive
Company (the "Company") on Form S-3, or other appropriate
forms relating to the $500,000,000 principal amount of the
Company's debt securities all or part of which may be
offered by the Company from time to time under Rule 415
promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ ELLEN M. HANCOCK
----------------------------
Name: Ellen M. Hancock
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, David W. Johnson, do hereby make, constitute
and appoint Reuben Mark, Robert M. Agate and Andrew D.
Hendry, and each of them, as my attorneys-in-fact and agents
with full power of substitution for me and in my name, place
and stead, in any and all capacities, to execute for me and
on my behalf a Registration Statement of Colgate-Palmolive
Company (the "Company") on Form S-3, or other appropriate
forms relating to the $500,000,000 principal amount of the
Company's debt securities all or part of which may be
offered by the Company from time to time under Rule 415
promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ DAVID W. JOHNSON
----------------------------
Name: David W. Johnson
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, John P. Kendall, do hereby make, constitute and
appoint Reuben Mark, Robert M. Agate and Andrew D. Hendry,
and each of them, as my attorneys-in-fact and agents with
full power of substitution for me and in my name, place and
stead, in any and all capacities, to execute for me and on
my behalf a Registration Statement of Colgate-Palmolive
Company (the "Company") on Form S-3, or other appropriate
forms relating to the $500,000,000 principal amount of the
Company's debt securities all or part of which may be
offered by the Company from time to time under Rule 415
promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ JOHN P. KENDALL
----------------------------
Name: John P. Kendall
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, Delano Lewis, do hereby make, constitute and
appoint Reuben Mark, Robert M. Agate and Andrew D. Hendry,
and each of them, as my attorneys-in-fact and agents with
full power of substitution for me and in my name, place and
stead, in any and all capacities, to execute for me and on
my behalf a Registration Statement of Colgate-Palmolive
Company (the "Company") on Form S-3, or other appropriate
forms relating to the $500,000,000 principal amount of the
Company's debt securities all or part of which may be
offered by the Company from time to time under Rule 415
promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ DELANO LEWIS
----------------------------
Name: Delano Lewis
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, Howard B. Wentz, Jr., do hereby make,
constitute and appoint Reuben Mark, Robert M. Agate and
Andrew D. Hendry, and each of them, as my attorneys-in-fact
and agents with full power of substitution for me and in my
name, place and stead, in any and all capacities, to execute
for me and on my behalf a Registration Statement of Colgate-
Palmolive Company (the "Company") on Form S-3, or other
appropriate forms relating to the $500,000,000 principal
amount of the Company's debt securities all or part of which
may be offered by the Company from time to time under Rule
415 promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ HOWARD B. WENTZ, JR.
----------------------------
Name: Howard B. Wentz, Jr.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, Reuben Mark, do hereby make, constitute and
appoint Reuben Mark, Robert M. Agate and Andrew D. Hendry,
and each of them, as my attorneys-in-fact and agents with
full power of substitution for me and in my name, place and
stead, in any and all capacities, to execute for me and on
my behalf a Registration Statement of Colgate-Palmolive
Company (the "Company") on Form S-3, or other appropriate
forms relating to the $500,000,000 principal amount of the
Company's debt securities all or part of which may be
offered by the Company from time to time under Rule 415
promulgated pursuant to the Securities Act of 1933, as
amended, and any and all amendments (including post-
effective amendments) to the foregoing Registration
Statement and any other documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them,
or his or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of
Attorney this 21st day of April, 1994.
/s/ REUBEN MARK
----------------------------
Name: Reuben Mark
CONFORMED COPY
- -----------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----
------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
------------------------
COLGATE-PALMOLIVE COMPANY
(Exact name of obligor as specified in its charter)
Delaware 13-1815595
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Park Avenue
New York, N.Y. 10022
(Address of principal executive offices) (Zip code)
------------------------
Debt Securities
(Title of the indenture securities)
- -----------------------------------------------------------------
1. General information. Furnish the following information
as to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- -----------------------------------------------------------------
Name Address
- -----------------------------------------------------------------
Superintendent of Banks
of the State of New York 2 Rector Street, New York,
N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank
of New York 33 Liberty Plaza, New
York, N.Y. 10045
Federal Deposit Insurance
Corporation Washington, D.C. 20549
New York Clearing House
Association New York, New York
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act") and Rule 24 of he
Commission's Rules of Practice.
1. A copy of the organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in
effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form T-
1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 20th day of April, 1994.
THE BANK OF NEW YORK
By: WALTER N. GITLIN
-------------------------
Name: Walter N. Gitlin
Title: Vice President
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System at the
close of business December 31, 1993, published in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin $ 4,393,393
Interest-bearing balances 652,315
Securities 3,809,834
Federal funds sold in domestic
offices of the bank 331,075
Loans and lease financing
receivables:
Loans and leases net of unearned
income 23,708,678
LESS: allowance for loan and
lease losses 773,597
LESS: Allocated transfer risk
reserve 28,427
Loans and leases net of unearned
income, allowance and reserve 22,906,654
Assets held in trading accounts 851,615
Premises and fixed assets (including
capitalized leases) 657,247
Other real estate owned 60,806
Investments in unconsolidated sub-
sidiaries and associated
companies 170,378
Customers liability to this bank on
acceptances outstanding 885,751
Intangible assets 42,689
Other assets 1,326,362
------------
Total assets $36,088,119
============
LIABILITIES
Deposits:
In domestic offices $19,486,153
Noninterest-bearing 7,388,636
Interest-bearing 12,097,517
In foreign offices Edge and
Agreement subsidiaries and
IBF's 8,230,444
Noninterest-bearing 53,571
Interest-bearing 8,176,873
Federal funds purchased and
securities sold under agreements
to repurchase in domestic offices
of the bank and its Edge and
Agreement subsidiaries and in IBFs:
Federal funds purchased 1,207,881
Securities sold under agreements
to repurchase 350,492
Demand notes issued to the U.S. Treasury 300,000
Other borrowed money 530,559
Bank's liability on acceptances executed
and outstanding 897,899
Subordinated notes and debentures 1,064,780
Other liabilities 1,139,025
-----------
Total liabilities 33,207,233
===========
EQUITY CAPITAL
Perpetual preferred stock and
related surplus 75,000
Common Stock 942,284
Surplus 525,666
Undivided profits and capital reserves 1,342,860
Cumulative foreign currency
translation adjustments ( 4924)
-----------
Total equity capital 2,880,886
-----------
Total liabilities limited-life
preferred stock, and equity capital $36,088,119
===========
I, Robert E. Kerman, Senior Vice President and Comptroller
of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Kerman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
J. Carter Bacot
Alan R. Griffith Directors
Samuel F. Chevalier
------------------------
