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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
March 27, 1996
COLGATE-PALMOLIVE COMPANY
(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-644-2 13-1815595
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(Commission File Number) (IRS Employer Identification No.)
300 Park Avenue New York, NY 10022
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(Address of principal executive (Zip code)
offices)
Registrant's telephone number, including area code (212) 310-2000
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Total number of sequentially numbered pages in this filing, including
exhibits thereto:
ITEM 5. OTHER EVENTS
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On March 27, 1996, Registrant executed a Distribution Agreement with Chemical
Securities Inc., Citicorp Securities, Inc., Goldman, Sachs & Co., Lazard Freres
& Co. LLC, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and J.P. Morgan Securities Inc. as Agents (the "Distribution
Agreement"), relating to up to $700,000,000 initial offering price of
Medium-Term Notes, Series C, to be sold from time to time pursuant to the
Distribution Agreement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
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(c) Exhibits
The following Exhibits are filed as part of this Report as Exhibits to
the Registration Statement on Form S-3 (No. 33-58887)
Exhibit 1 Distribution Agreement
Exhibit 4.2 Forms of Debt Securities
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
COLGATE-PALMOLIVE COMPANY
Date: March 29, 1996 By: /s/ Andrew D. Hendry
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Andrew D. Hendry
Senior Vice President, General Counsel
and Secretary
EXHIBIT INDEX
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(c) Exhibits
The following Exhibits are filed as part of this Report as Exhibits to
the Registration Statement on Form S-3 (No. 33-58887)
Exhibit 1 Distribution Agreement
Exhibit 4.2 Forms of Debt Securities
Exhibit 1
COLGATE-PALMOLIVE COMPANY
Medium-Term Notes Due More Than One Year
from Date of Issue
DISTRIBUTION AGREEMENT
March 27, 1996
CHEMICAL SECURITIES INC.
270 Park Avenue
New York, NY 10017
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. LLC
30 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 Chemical Securities Inc.
("Chemical"), Citicorp Securities, Inc. ("Citicorp"), Goldman,
Sachs & Co. ("Goldman Sachs"), Lazard Freres & Co. LLC
("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 Chemical,
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").
Notes may be sold 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. 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 principal amount of the Notes (but not below the aggregate principal
amount of Notes previously issued under the Indenture) or authorize the issuance
of additional Notes and 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.
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") one or more registration statements on Form S-3 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 statements have
been declared effective by the Commission and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). As used
herein, the term "Registration Statement" shall mean the registration statement
or registration statements applicable to a particular offering of Notes (and any
further registration statements which may be filed by the Company for the
purpose of registering additional Notes included in such offering and in
connection with which this Agreement is included or incorporated by reference as
an exhibit) and the term "Prospectus" shall mean the respective prospectuses
constituting a part of any such applicable registration statement or
registration statements, and any prospectus supplements relating to such Notes,
including all documents incorporated therein by reference, as from time to time
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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,
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
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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. Upon
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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 principal amount
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. In soliciting
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purchases of the Notes on behalf of the Company, 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
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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
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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.
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(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; and no stop order suspending
the 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
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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 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.
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(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) (other than changes arising from funding activities
which have not resulted in any material change in the Company's
ownership of such Significant Subsidiaries or in the long term debt of
the Company and its subsidiaries taken as a whole) 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 Indenture; and the Indenture has been duly authorized
by the Company and is duly qualified under the 1939 Act and
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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 the best of the Company's knowledge, no such
proceedings are
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threatened or contemplated by governmental authorities or
threatened by others.
(k) Arthur Andersen LLP, 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.
(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.
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(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.
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.
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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 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),
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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
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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
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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.
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The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will promptly notify (i) the
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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.
(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
10
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
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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
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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
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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
11
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 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. Except as
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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
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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
12
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 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
13
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 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,
14
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).
(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.
15
(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 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 materil 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
16
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 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
17
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 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
18
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 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, chief accounting officer or treasurer 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
19
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 LLP, dated as of 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.
20
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:
(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
21
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 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
22
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 LLP, 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.
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
23
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).
(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
24
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 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.
25
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
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.
26
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.;
(k) Any advertising and other out-of-pocket expenses
of the Agents incurred with the approval of such expense by
the Company;
27
(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 (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
28
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 delivered by hand, by mail or
by telex, by telecopier or by
29
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 Chemical:
Chemical Securities Inc.
270 Park Avenue, 6th Floor
New York, NY 10017
Attention: Medium-Term Note Desk
Telecopy: (212) 834-6526
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. LLC
30 Rockefeller Plaza
New York, New York 10020
Attention: Syndicate Department
Telecopy: (212) 632-6060
30
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
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.
------------
31
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.
SECTION 18. Additional Agents.
-----------------
Notwithstanding anything contrary contained in this Agreement, the
Company may from time to time appoint one or more additional agents (each, an
"Additional Agent" and collectively, the "Additional Agents") in accordance with
the following provisions:
(a) Appointment of Agent. The Company may appoint an
--------------------
Additional Agent or Agents, to act as an agent pursuant to the terms and
conditions set forth in this Agreement, provided that (i) such Additional Agent
shall deliver to the Company a letter substantially in the form of Exhibit B-1
hereto, and (ii) the Company shall have delivered to such Additional Agent a
letter substantially in the form of Exhibit C-1 hereto.
(b) Notice of Appointment of Additional Agents. The Company
------------------------------------------
shall promptly notify the Agents of any such appointment pursuant to subsection
(a) of this Section 18 by supplying to such parties a copy of the applicable
letter or letters.
(c) Effect of Appointment. Upon satisfaction by the Company
---------------------
and any Additional Agent of the provisions of subsections 18(a) and (b) of this
Section 18, such Additional Agent shall be deemed to be an Agent hereunder and
all references to "Agent" in this Agreement shall be deemed to include such
additional Agent from and after the date such provisions are satisfied and such
appointment is effective.
32
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: /s/ Brian J. Heidtke
--------------------------------
Name: Brian J. Heidtke
Title: Vice President, Finance
Corporate Treasurer
Accepted:
CHEMICAL SECURITIES INC.
By: /s/ Robert L. Taylor
----------------------------
Name: Robert L. Taylor
Title: Managing Director
CITICORP SECURITIES, INC.
By: /s/ Kerry Kearny
----------------------------
Authorized Signatory
Goldman, Sachs & Co.
- -----------------------------
(Goldman, Sachs & Co.)
LAZARD FRERES & CO. LLC
By: /s/ David G. McMillan
----------------------------
Name: David G. McMillan
Title: Senior Vice President
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
----------------------------
Name: Scott G. Primrose
Title: Authorized Signatory
33
J.P. MORGAN SECURITIES INC.
By: /s/ Maria Sramek
----------------------------
Name: Maria Sramek
Title: Vice President
34
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
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
- --------------- ----------------
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 B-1
FORM OF LETTER APPOINTING ADDITIONAL AGENT- PROGRAM
---------------------------------------------------
[ ], 199[ ]
To: Colgate-Palmolive Company
300 Park Avenue
New York, New York 10022
Attention: Treasurer
Re: Medium-Term Notes of Colgate-Palmolive
Company (the "Company")
--------------------------------------
Dear Sirs:
We refer to Section 18(a) of the Distribution Agreement dated March 27,
1996 entered into with respect to the distribution of the Company's Medium-Term
Notes (the "Notes"), and made between the Company and the Agents party thereto
(which agreement, as amended from time to time, is herein referred to as the
"Distribution Agreement").
Conditions Precedent
- --------------------
We confirm that we are in receipt of the documents referenced below:
(i) a copy of the Distribution Agreement;
(ii) copies of such documents referenced in the
Distribution Agreement as we have reasonably
requested; and
(iii) side letters in a form approved by us from
the legal counsel referred to in Section
5(a)(1) and 5(a)(2), if required, of the
Distribution Agreement addressed to us and
giving us the full benefit of the existing
legal opinions.
For the purposes of Section 13 of the Distribution Agreement, our name,
address, telephone and telecopy number for the service of notices are as
follows:
[insert name, address, telecopy number and attention]
In consideration of the Company appointing us as an Agent under the
Distribution Agreement, we hereby undertake, for the benefit of the Company and
each of the other Agents, that we will perform and comply with all the duties
and obligations expressed to be assumed by an Agent under the Distribution
Agreement.
B-1
This letter is governed by, and shall be construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed wholly within such jurisdiction.
Very truly yours,
[NAME OF NEW AGENT]
By:
--------------------
Name:
Title:
B-2
EXHIBIT C-1
FORM OF COMPANY LETTER
----------------------
[ ], 199[ ]
To: [NAME AND ADDRESS OF NEW AGENT]
Re: Medium-Term Notes of Colgate-Palmolive
Company (the "Company")
--------------------------------------
Dear Sirs:
We refer to the Distribution Agreement dated March 27, 1996 (such
agreement, as amended from time to time, the "Distribution Agreement") entered
into in respect to the distribution of the Company's Medium Term Notes (the
"Notes") and hereby acknowledge receipt of your letter to us dated [ ].
In accordance with Section 18(a) of the Distribution Agreement, we
hereby confirm that, with effect from the date hereof, you shall become a party
to the Distribution Agreement, vested with all the authority, rights, powers,
duties and obligations of an Agent as if originally named as an Agent under the
Distribution Agreement.
Very truly yours,
COLGATE-PALMOLIVE COMPANY
By:
----------------------------
Name:
Title:
cc: [Other Agents party to the
Distribution Agreement]
C-1
Exhibit 4.2
[FORM OF FIXED RATE GLOBAL MEDIUM-TERM NOTE]
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the Depositary, this
Security is a Global Note and the following legends apply:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
NOMINEE OF THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" and "INITIAL
--------------------- -------------------
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
REGISTERED PRINCIPAL AMOUNT
No. FX CUSIP No. $
COLGATE-PALMOLIVE COMPANY
MEDIUM-TERM NOTE, SERIES C
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
2
COLGATE-PALMOLIVE COMPANY, a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of
DOLLARS on the Stated Maturity Date specified above (except to the extent
redeemed or repaid prior to the Stated Maturity Date), and to pay interest
thereon at the Interest Rate per annum specified above, until the principal
hereof is paid or duly made available for payment. Reference herein to "this
Note", "hereof", "herein" and comparable terms shall include an Addendum hereto
if an Addendum is specified above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (as defined below) (the date of each
such Stated Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
provided, however, that if the Original Issue Date is between a Regular Record
Date (as defined below) and the next succeeding Interest Payment Date or on an
Interest Payment Date, interest payments will commence on the second Interest
Payment Date succeeding the Original Issue Date. Except as provided above,
interest payments will be made on the Interest Payment Dates shown above. Unless
otherwise specified above, the "Regular Record Date" shall be the date 15
calendar days (whether or not a Business Day) prior to the applicable Interest
Payment Date. Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid, from and including the Original Issue Date
specified above, to, but excluding the related Interest Payment Date or
Maturity, as the case may be. If the Maturity or an Interest Payment Date falls
on a day which is not a Business Day as defined below, the payment due on such
Maturity or Interest Payment Date will be paid on the next succeeding Business
Day with the same force and effect as if made on such Maturity or Interest
Payment Date, as the case may be, and no interest shall accrue with respect to
such payment for the period from and after such Maturity or Interest Payment
Date. The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will as provided in the Indenture be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such Interest Payment Date.
Any such interest which is payable, but not punctually paid or duly provided for
on any Interest Payment Date (herein called "Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on such Regular Record
Date, and may be paid to
3
the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on this Note
will be made at the Office or Agency of the Company maintained by the Company
for such purpose, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company, payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register; and provided, further, that AT
THE OPTION OF THE COMPANY, the Holder of this Note may be entitled to receive
payments of principal of, premium, if any, and interest on this Note by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Trustee not less than 15 days prior to
the applicable payment date.
Unless the certificate of authentication hereon has been executed by or
on behalf of The Bank of New York, the Trustee for this Note under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes,
Series C (the "Notes"). The Notes are issued and to be issued under an Indenture
dated as of November 15, 1992 (herein called the "Indenture") between the
Company and The Bank of New York, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights thereunder of the Company, the Trustee (as defined below) and the Holders
of the Notes and the terms upon which the Notes are to be authenticated and
delivered. The Bank of New York shall act as Trustee with respect to the Notes
(herein called the "Trustee", which term includes any successor Trustee with
respect to the Notes, under the Indenture). The terms of individual Notes may
vary with respect to interest rates or interest rate formulas, issue dates,
maturity, redemption, repayment, currency of payment and otherwise.
Except as otherwise provided in the Indenture, the Notes will be issued
in global form only, registered in the name of the Depositary or its nominee.
The Notes will not be issued in definitive form, except as otherwise provided in
the Indenture, and ownership of the Notes shall be maintained in book-entry form
by the Depositary for the accounts of participating organizations of the
Depositary.
4
This Note is not subject to any sinking fund and, unless otherwise
provided above in accordance with the provisions of the following paragraphs, is
not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below), together with accrued interest hereon at the applicable rate
payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least
$1,000) at the option of the Holder hereof at a repayment price equal to 100% of
the principal amount to be repaid, together with interest thereon payable to the
relevant Optional Repayment Date. For this Note to be repaid in whole or in part
at the option of the Holder hereof, this Note must be received, with the form
entitled "Option to Elect Repayment" below duly completed, by the Trustee at its
Corporate Trust Office, or such address which the Company shall from time to
time notify the Holders of the Notes, not more than 60 nor less than 30 days
prior to the related Optional Repayment Date. Exercise of such repayment option
by the Holder hereof shall be irrevocable. In the event of repayment of this
Note in part only, a new Note for the unrepaid portion hereof shall be issued in
the name of the Holder hereof upon the surrender hereof.
5
Interest payments for this Note shall be computed and paid on the basis
of a 360-day year of twelve 30-day months if the Day Count Convention specified
above is "30/360" for the period specified thereunder, on the basis of the
actual number of days in the related month and a 360-day year if the Day Count
Convention specified above is "Actual/360" for the period specified thereunder
or on the basis of the actual number of days in the related year and month if
the Day Count Convention specified above is "Actual/Actual" for the period
specified thereunder.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banks in The City of
New York are generally authorized or obligated by law or executive order to
close.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
adversely affected thereby at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series adversely affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
6
registered on the Security Register of the Company, upon surrender of this Note
for registration of transfer at the office or agency of the Company in the
Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or by its attorney duly
authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[FACSIMILE OF SEAL] COLGATE-PALMOLIVE COMPANY
By:
--------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By: Dated:
--------------------------- ----------------------
Authorized Signatory
8
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at
--------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$------------------------------- ------------------------------
NOTICE: The signature on this
Date---------------------------- Option to Elect Repayment must
correspond with the name as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatever.
9
ASSIGNMENT/TRANSFER FORM
------------------------
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.)
-------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip
code of assignee)
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing
-----------------------------------------------------
attorney to transfer said Note
- ----------------------------------
on the books of the Company with full power of substitution in
the premises.
Dated: ----------------------- -------------------------------------------
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
11
[FORM OF FLOATING RATE GLOBAL MEDIUM-TERM NOTE]
If the registered owner of this Note (as indicated below) is The Depository
Trust Company (the "Depositary") or a nominee of the Depositary, this Security
is a Global Note and the following legends apply:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
NOMINEE OF THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" and "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
REGISTERED CUSIP No. PRINCIPAL AMOUNT
No. FLR $
COLGATE-PALMOLIVE COMPANY
MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR:
[ ] LIBOR Reuters
[ ] LIBOR Telerate
INDEX CURRENCY:
IF THE CMT RATE:
Designated CMT Telerate Page:
IF Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD: INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
RATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT:
INTEREST CALCULATION: DAY COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual to the period
Fixed Interest Rate: from to .
2
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
3
COLGATE-PALMOLIVE COMPANY, a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of
DOLLARS on the Stated Maturity Date specified above (except to the extent
redeemed or repaid prior to the Stated Maturity Date), and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate specified above
until the Initial Interest Reset Date specified above and thereafter at a rate
per annum determined in accordance with the provisions hereof and any Addendum
relating hereto depending upon the Interest Rate Basis or Bases, if any, and
such other terms specified above, until the principal hereof is paid or duly
made available for payment. Reference herein to "this Note", "hereof", "herein"
and comparable terms shall include an Addendum hereto if an Addendum is
specified above.
The Company will pay interest monthly, quarterly, semi-annually, annually or
such other period as specified above under "Interest Payment Period", on each
Interest Payment Date specified above, commencing on the first Interest Payment
Date specified above next succeeding the Original Issue Date specified above,
and on the Stated Maturity Date or any Redemption Date or Optional Repayment
Date (as defined below) (the date of each such Stated Maturity Date, Redemption
Date and Optional Repayment Date and the date on which principal or an
installment of principal is due and payable by declaration of acceleration
pursuant to the Indenture being referred to hereinafter as a "Maturity" with
respect to principal payable on such date); provided, however, -------- -------
that if the Original Issue Date is between a Regular Record Date (as defined
below) and the next succeeding Interest Payment Date or on an Interest Payment
Date, interest payments will commence on the second Interest Payment Date
succeeding the Original Issue Date; and provided further, that if an Interest
-------- -------
Payment Date would fall on a day that is not a Business Day (as defined below),
such Interest Payment Date shall be postponed to the following day that is a
Business Day, except that in the case an Interest Rate Basis is LIBOR, as
indicated above, if such next Business Day falls in the next calendar month,
such Interest Payment Date shall be the immediately preceding day that is a
Business Day. Except as provided above, interest payments will be made on the
Interest Payment Dates shown above. Unless otherwise specified above, the
"Regular Record Date" shall be the date 15 calendar days (whether or not a
Business Day) prior to the applicable Interest Payment Date. Interest on this
Note will accrue from and including the Original Issue Date specified above, at
the rates determined from time to time as specified herein, until the principal
hereof has been paid or made available for payment. If the Maturity falls on a
day which is not a Business Day as defined below, the payment due on such
Maturity will be paid on the next succeeding Business Day with the same force
and effect as if made on such Maturity and no interest shall accrue with respect
to such payment for the period
4
from and after such Maturity. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will as provided in the Indenture
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such Interest Payment Date. Any such interest which is payable, but not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Note not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the
Indenture.
Payment of the principal of, premium, if any, and interest on this Note
will be made at the Office or Agency of the Company maintained by the Company
for such purpose, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company, payment of interest may be
- -------- -------
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register; and provided, further, that AT
-------- -------
THE OPTION OF THE COMPANY, the Holder of this Note may be entitled to receive
payments of principal of, premium, if any, and interest on this Note by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Trustee not less than 15 days prior to
the applicable payment date.
Unless the certificate of authentication hereon has been executed by or
on behalf of The Bank of New York, the Trustee with respect to the Notes under
the Indenture, or its successor thereunder, by the manual signature of one of
its authorized signatories, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes,
Series C (the "Notes"). The Notes are issued and to be issued under an Indenture
dated as of November 15, 1992 (herein called the "Indenture") between the
Company and The Bank of New York, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights thereunder of the Company, the Trustee (as defined below) and the Holders
of the Notes and the terms upon which the Notes are to be authenticated and
delivered. The Bank of New York shall act as Trustee with respect to the Notes
(herein called the "Trustee", which term includes any successor Trustee with
respect to the Notes under the Indenture). The terms of individual Notes may
vary with respect to interest
5
rates or interest rate formulas, issue dates, maturity, redemption, repayment,
currency of payment and otherwise.
Except as otherwise provided in the Indenture, the Notes will be issued
in global form only, registered in the name of the Depositary or its nominee.
The Notes will not be issued in definitive form, except as otherwise provided in
the Indenture, and ownership of the Notes shall be maintained in book-entry form
by the Depositary for the accounts of participating organizations of the
Depositary.
This Note is not subject to any sinking fund and, unless otherwise
provided above in accordance with the provisions of the following paragraphs, is
not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below) together with accrued interest hereon at the applicable rate
payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of $1,000 (provided that any remaining principal hereof shall be at least
$1,000) at the option of the Holder hereof at a repayment price equal to 100% of
the principal amount to be repaid, together with interest thereon payable to the
relevant Optional Repayment Date. For this Note to be repaid in
6
whole or in part at the option of the Holder hereof, this Note must be received,
with the form entitled "Option to Elect Repayment" below duly completed, by the
Trustee at its Corporate Trust Office, or such address which the Company shall
from time to time notify the Holders of the Notes, not more than 60 nor less
than 30 days prior to the related Optional Repayment Date. Exercise of such
repayment option by the Holder hereof shall be irrevocable. In the event of
repayment of this Note in part only, a new Note for the unrepaid portion hereof
shall be issued in the name of the Holder hereof upon the surrender hereof.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note
above or if no designation is made for Interest Calculation above,
then, except as described below, this Note shall bear interest at the
rate determined by reference to the applicable Interest Rate Basis or
Bases shown above (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified above;
provided, however, that the interest rate in effect for the period from
-------- -------
the Original Issue Date to the Initial Interest Reset Date will be the
Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate
Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable Interest
Rate Basis or Bases shown above (i) plus or minus the applicable
Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described
above. Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note is payable shall be reset as of each Interest
Reset Date specified above; provided, however, that (i) the interest
rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate; and
(ii) the interest rate in effect for the period commencing on, and
including, the Fixed Rate Commencement Date to Maturity shall be the
Fixed Interest Rate, if such rate is specified above, or if no such
Fixed Interest Rate is so specified, the interest rate in effect hereon
on the day immediately preceding the Fixed Rate Commencement Date.
3. If this Note is designated as an Inverse Floating Rate Note
above, then, except as described below, this Note will bear interest
equal to the Fixed Interest Rate indicated above minus the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown above (i) plus or minus the applicable Spread, if any, and/or
(ii) multiplied by the applicable Spread Multiplier, if any,
7
specified and applied in the manner described above; provided, however,
-------- -------
that, unless otherwise specified above, the interest rate hereon will
not be less than zero percent. Commencing on the Initial Interest Reset
Date, the rate at which interest on this Note is payable shall be reset
as of each Interest Rate Reset Date specified above; provided, however,
-------- -------
that the interest rate in effect for the period from the Original Issue
Date to the Initial Interest Reset Date shall be the Initial Interest
Rate.
4. Notwithstanding the foregoing, if this Note is designated
above as having an Addendum attached, the Note shall bear interest in
accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day shall
be (a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the most recent Interest Reset Date; provided, however, that the
-------- -------
interest rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date will be the Initial Interest Rate specified above.
Each Interest Rate Basis shall be the rate determined in accordance with the
applicable provision below. If any Interest Reset Date (which term includes the
term Initial Interest Reset Date unless the context otherwise requires) would
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next succeeding day that is a Business Day, except that if an
Interest Rate Basis specified on the face hereof is LIBOR and such next Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day. In addition, if an Interest Rate
Basis specified on the face hereof is the Treasury Rate and any Interest
Determination Date would otherwise fall on an Interest Reset Date, then such
Interest Reset Date will be postponed to the next succeeding Business Day.
Unless otherwise specified above, interest payable on this Note shall
be the amount of interest accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid (or from and including
the Original Issue Date specified above, if no interest has been paid), to but
excluding the related Interest Payment Date or Maturity, as the case may be.
Unless otherwise specified above, accrued interest hereon shall be an amount
calculated by multiplying the face amount hereof by an accrued interest factor.
Such accrued interest factor shall be computed by adding the interest factor
calculated for each day in the period for which accrued interest is being
calculated. Unless otherwise specified above, the interest factor for each such
day shall be computed and paid on the basis of a 360-day year of twelve 30-day
months if the Day Count Convention specified above is "30/360" for the period
specified thereunder, or by dividing the interest rate applicable
8
to such day by 360 if the Day Count Convention specified above is "Actual/360"
for the period specified thereunder or by the actual number of days in the year
if the Day Count Convention specified above is "Actual/Actual" for the period
specified thereunder. The interest factor for Notes for which the interest rate
is calculated with reference to two or more Interest Rate Bases will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied.
Unless otherwise specified above, the "Interest Determination Date"
with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day preceding
each Interest Reset Date; the "Interest Determination Date" with respect to
LIBOR shall be the second London Business Day (as defined below) preceding each
Interest Reset Date, unless the Index Currency is British pounds sterling, in
which case the Interest Determination Date will be the applicable Interest Reset
Date; the "Interest Determination Date" with respect to the Eleventh District
Cost of Funds Rate shall be the last working day of the month immediately
preceding each Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined below);
the "Interest Determination Date" with respect to the Treasury Rate will be the
day in the week in which the applicable Interest Reset Date falls on which day
Treasury bills (as defined below) normally would be auctioned (Treasury bills
are normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
--------
however, that if, as a result of a legal holiday, an auction is held on the
- -------
Friday of the week preceding the applicable Interest Reset Date, the related
Interest Determination Date shall be such preceding Friday; and provided,
--------
further, that if an auction shall fall on any Interest Reset Date, then the
- -------
Interest Reset Date shall instead be the first Business Day following such
auction. If the interest rate of this Note is determined with reference to two
or more Interest Rate Bases, the Interest Determination Date pertaining to this
Note will be the most recent Business Day which is at least two Business Days
prior to the applicable Interest Reset Date on which each Interest Rate Basis
shall be determinable. Each Interest Rate Basis shall be determined as of such
date, and the applicable interest rate will take effect on the applicable
Interest Reset Date.
Unless otherwise specified above, the "Calculation Date," if
applicable, pertaining to any Interest Determination Date will be the earlier of
(i) the tenth calendar day after such Interest Determination Date or, if such
day is not a Business Day, the next succeeding Business Day or (ii) the Business
Day immediately preceding the applicable Interest Payment Date or Maturity, as
the case may be. All calculations on this Note shall be made by the Calculation
Agent specified above or such successor thereto as is duly appointed by the
Company.
9
All percentages resulting from any calculation on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one- millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and all
dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upwards.)
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banks in The City of
New York are generally authorized or obligated by law or executive order to
close and, if the Interest Rate Basis shown above is LIBOR, is also a London
Business Day.
As used herein, "London Business Day" means any day (i) if the Index
Currency is other than European Currency Units ("ECU"), on which dealings in
such Index Currency are transacted in the London interbank market or (ii) if the
Index Currency is ECU, that does not appear as an ECU non-settlement day on the
display designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day
so designated by the ECU Banking Association) or, if ECU non-settlement days do
not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market.
Determination of CD Rate. If an Interest Rate Basis for this Note is
------------------------
the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date"), as the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified above as published
by the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication ("H.15(519)"),
under the heading "CDs (Secondary Market)," or, if not so published by 3:00
P.M., New York City time, on the related Calculation Date, the rate on such CD
Rate Interest Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity specified above as published by
the Federal Reserve Bank of New York in its daily statistical release "Composite
3:30 P.M. Quotations for U.S. Government Securities" or any successor
publication ("Composite Quotations") under the heading "Certificates of
Deposit." If such rate is not yet published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the related Calculation Date,
then the CD Rate on such CD Rate Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date of three leading non-bank dealers in negotiable United States
dollar certificates of deposit in The City of New York (which may include the
Agents or their respective affiliates) selected by the Calculation Agent for
negotiable certificates of deposit of major United States money center banks in
the market for negotiable certificates of deposit with a remaining maturity
closest to the Index Maturity
10
designated above in an amount that is representative for a single transaction in
that market at that time; provided, however, that if any of the dealers so
-------- -------
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the CD Rate with respect to such CD Rate Interest Determination Date shall be
the CD Rate in effect on such CD Rate Interest Determination Date.
Determination of CMT Rate. If an Interest Rate Basis for this Note is
-------------------------
the CMT Rate, as indicated above, the CMT Rate shall be determined on the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date"), as the rate displayed on the Designated CMT Telerate Page under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the rate on
such CMT Rate Interest Determination Date and (ii) the Designated CMT Telerate
Page is 7052, the weekly or monthly average, as specified above, for the week or
the month, as applicable, ended immediately preceding the week or the month, as
applicable, in which the related CMT Rate Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index as published in
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in H.15(519). If such information is not provided by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
the CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market closing offer side prices as of approximately 3:30 P.M., New
York City time, on the CMT Rate Interest Determination Date reported, according
to their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York (which
may include the Agents or their respective affiliates) selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year.
11
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate for such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on the CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
-------- -------
selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate
with respect to such CMT Rate Interest Determination Date will be the CMT Rate
in effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the Calculation Agent will obtain quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified above (or any
other page as may replace such page on such service) for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified above, the Designated CMT Telerate Page shall be 7052 for the
most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified above with respect to which the CMT Rate will be calculated. If no
such maturity is specified above, the Designated CMT Maturity Index shall be 2
years.
Determination of Commercial Paper Rate. If an Interest Rate Basis for
--------------------------------------
this Note is the Commercial Paper Rate, as indicated above, the Commercial Paper
Rate shall be determined on the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date"), as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity specified above as published in H.15(519) under the heading
"Commercial Paper." In the event that such rate is not published by 3:00 P.M.,
New York City time, on the related Calculation Date, then the Commercial Paper
Rate on such Commercial Paper Rate Interest Determination Date shall be the
Money Market Yield of the rate for commercial paper having the Index Maturity
shown above as published in Composite
12
Quotations under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If by 3:00 P.M., New York City time, on the
related Calculation Date such rate is not yet published in either H.15(519) or
Composite Quotations, then the Commercial Paper Rate for such Commercial Paper
Rate Interest Determination Date shall be as calculated by the Calculation Agent
and shall be the Money Market Yield of the arithmetic mean of the offered rates
at approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York (which may include the Agents or their respective affiliates)
selected by the Calculation Agent for commercial paper having the Index Maturity
specified above placed for an industrial issuer whose bond rating is "AA," or
the equivalent, from a nationally recognized statistical rating organization;
provided, however, that if any of the dealers selected as aforesaid by the
- -------- -------
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined on such Commercial Paper Rate Interest Determination Date
shall be the rate in effect on such Commercial Paper Rate Interest Determination
Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360
----------- x 100
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Eleventh District Cost of Funds Rate. If an Interest
-----------------------------------------------------
Rate Basis for this Note is the Eleventh District Cost of Funds Rate, as
indicated above, the Eleventh District Cost of Funds Rate shall be determined on
the applicable Interest Determination Date (an "Eleventh District Cost of Funds
Rate Interest Determination Date"), and shall be the rate equal to the monthly
weighted average cost of funds for the calendar month preceding the month in
which such Eleventh District Cost of Funds Rate Interest Determination Date
falls, as set forth under the caption "11th District" on Telerate Page 7058 as
of 11:00 A.M., San Francisco time, on such Eleventh District Cost of Funds Rate
Interest Determination Date. If such rate does not appear on Telerate Page 7058
on such Eleventh District Cost of Funds Rate Interest Determination Date, the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such
13
Eleventh District Cost of Funds Rate Interest Determination Date for the
calendar month immediately preceding such Eleventh District Cost of Funds Rate
Interest Determination Date, the Eleventh District Cost of Funds Rate determined
as of such Eleventh District Cost of Funds Rate Interest Determination Date
shall be the Eleventh District Cost of Funds Rate in effect on such Eleventh
District Cost of Funds Rate Interest Determination Date.
Determination of Federal Funds Rate. If an Interest Rate Basis for this
-----------------------------------
Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate shall
be determined on the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date"), as the rate on that date for United States
dollar federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date, as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, the Federal Funds Rate on such Federal Funds Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of the rates for the last transaction in overnight
United States dollar federal funds arranged by three leading brokers of federal
funds transactions in The City of New York (which may include the Agents or
their respective affiliates) selected by the Calculation Agent as of 9:00 A.M.,
New York City time on such Federal Funds Rate Interest Determination Date;
provided, however, that if any of the brokers selected as aforesaid by the
- -------- -------
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate determined as of such Federal Funds Rate Interest Determination Date
shall be the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Note is
----------------------
LIBOR, as indicated above, LIBOR will be determined on the applicable Interest
Determination Date (a "LIBOR Interest Determination Date") in accordance with
the following provisions under LIBOR Reuters or LIBOR Telerate as specified
above:
(i) (a) if "LIBOR Reuters" is specified above as the method
for determining LIBOR, LIBOR will be determined on the basis of the
arithmetic mean of the offered rates (unless the specified Designated
LIBOR Page by its terms provides only for a single rate, in which case
such single rate shall be used) for deposits in the Index Currency
having the Index Maturity designated above, commencing on the
applicable Interest Reset Date, that appear (or, if only a single rate
is required as aforesaid, appears) on the Designated LIBOR Page as of
11:00 A.M., London time, on such LIBOR Interest Determination Date, or
(b) if "LIBOR Telerate" is specified above or if neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified above as the method for
14
calculating LIBOR, the rate for deposits in the Index Currency having
the Index Maturity designated above, commencing on such Interest Reset
Date, that appears on the Designated LIBOR Page specified above as of
11:00 A.M., London Time, on such LIBOR Interest Determination Date. If
fewer than two such offered rates so appear, or if no such rate so
appears, as applicable, LIBOR on such LIBOR Interest Determination Date
shall be determined in accordance with the provisions described in
clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as the
case may be, on the Designated LIBOR Page as specified in clause (i)
above, the Calculation Agent will request the principal London offices
of each of four major reference banks in the London interbank market,
as selected by the Calculation Agent, to provide the Calculation Agent
with its offered quotation for deposits in the Index Currency for the
period of the Index Maturity specified above, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for
a single transaction in such Index Currency in such market at such
time. If at least two such quotations are provided, then LIBOR on such
LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are provided, then LIBOR
on such LIBOR Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 A.M., in the applicable
Principal Financial Center, on such LIBOR Interest Determination Date
by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European
banks, having the Index Maturity designated above and in a principal
amount that is representative for a single transaction in such Index
Currency in such market at such time; provided, however, that if the
banks so selected by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Index Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no such
currency is specified above, the Index Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified
above, the display on the Reuter Monitor Money Rates Service (or any successor
service) on the page specified above (or any other page as may replace such
service (or any successor service)) for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency, or (b) if
"LIBOR Telerate" is specified above or neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified as the method for calculating
15
LIBOR, the display on the Dow Jones Telerate Service (or any such successor
service) on the page specified above (or any other page as may replace such
service (or any successor service)) for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency.
"Principal Financial Center" means the capital city of the country
issuing the currency (or composite currency) in which payment in respect of the
related Notes is to be made, or, solely with respect to the calculation of
LIBOR, the Index Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs
and ECUs, the Principal Financial Center shall be The City of New York, Sydney,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
Determination of Prime Rate. If an Interest Rate Basis for this Note is
---------------------------
the Prime Rate, as indicated above, the Prime Rate shall be determined on the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as published in H.15(519) under the heading
"Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New York
City time, on the related Calculation Date, the Prime Rate will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 Page (as defined below) as such bank's
prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on such Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, the Prime Rate
will be the arithmetic mean of the prime rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the close of business
on such Prime Rate Interest Determination Date by four major money center banks
in The City of New York selected by the Calculation Agent. If fewer than four
such quotations are so provided, the Prime Rate will be the arithmetic mean of
four prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date as furnished in The City of New York by the major
money center banks, if any, that have provided such quotations and by a
reasonable number of substitute banks or trust companies to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least $500 million and being
subject to supervision of examination by a federal or state authority, selected
by the Calculation Agent to provide such rate or rates; provided, however, that
if the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date. "Reuters Screen USPRIME1 Page" means the
display designated as page "USPRIME1" on the Reuter Monitor Money Rates Service
(or any successor service) (or such other page as may replace the USPRIME1 page
on such service (or
16
any successor service) for the purpose of displaying prime rates or base lending
rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this Note
------------------------------
is the Treasury Rate, as specified above, the Treasury Rate shall be determined
on the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury bills") having the Index Maturity specified above, as such
rate is published in H.15(519) under the heading "Treasury Bills -- auction
average (investment)" or, if not so published by 3:00 P.M., New York City time,
on the related Calculation Date, the auction average rate of such Treasury Bills
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury. In the event that the results of the auction
of Treasury bills having the Index Maturity specified above are not reported as
provided by 3:00 P.M., New York City time, on the related Calculation Date, or
if no such Auction is held, then the Treasury Rate hereon shall be calculated by
the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date of three leading primary United States government securities
dealers (which may include the Agents and their respective affiliates) as
selected by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity specified above; provided,
--------
however, that if the dealers selected as aforesaid by the Calculation Agent are
- -------
not quoting as mentioned in this sentence, the Treasury Rate will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Any provision contained herein with respect to the determination of an
Interest Rate Basis, the specification of Interest Rate Bases, calculation of
the Interest Rate applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher than
the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
17
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
adversely affected thereby at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series adversely affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
18
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
19
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted thereon.
[FACSIMILE OF SEAL] COLGATE-PALMOLIVE COMPANY
By:
----------------------------
Name:
Title:
Attest:
By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of
the series designated therein
referred to in the within-mentioned
Indenture.
The Bank of New York,
as Trustee
By: Dated:
----------------------------
Authorized Signatory
20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at
-------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$
-------------------------- ------------------------------
NOTICE: The signature on this
Date Option to Elect Repayment must
---------------------- correspond with the name as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatever.
21
ASSIGNMENT/TRANSFER FORM
------------------------
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.)
-------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip
code of assignee)
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing
attorney to transfer said Note
- ---------------------------------
on the books of the Company with full power of substitution in
the premises.
Dated:
------------- ------------------------------------------------------
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
22
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
23
MULTI-CURRENCY FLOATING RATE MEDIUM-TERM NOTE
REGISTERED CUSIP No. PRINCIPAL AMOUNT
No. MCFLR $
COLGATE-PALMOLIVE COMPANY
MEDIUM-TERM NOTE
(Multi-Currency Floating Rate)
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
IF LIBOR: IF THE CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD: INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT: SPECIFIED CURRENCY:
INTEREST CALCULATION: DATE COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] 30/360 for the period from
[ ] Floating Rate/Fixed Rate to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest from to .
Rate:
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
CONVERSION INTO U.S. DOLLARS: Yield to Maturity:
[ ] Presumption Yes
[ ] Presumption No Initial Accrual Period:
[ ] No
OTHER PROVISIONS:
2
COLGATE-PALMOLIVE COMPANY, a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________, or registered assigns, the principal sum of ___________________ on
the Stated Maturity Date specified above (except to the extent redeemed or
repaid prior to the Stated Maturity Date), and to pay interest thereon, at a
rate per annum equal to the Initial Interest Rate specified above until the
Initial Interest Reset Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, if any, and such other
terms specified above, until the principal hereof is paid or duly made available
for payment. Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
The Company will pay interest monthly, quarterly, semi-annually,
annually or such other period as specified above under "Interest Payment
Period", on each Interest Payment Date specified above, commencing on the first
Interest Payment Date specified above next succeeding the Original Issue Date
specified above, and on the Stated Maturity Date or any Redemption Date or
Optional Repayment Date (as defined below) (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on which
principal or an installment of principal is due and payable by declaration of
acceleration pursuant to the Indenture being referred to hereinafter as a
"Maturity" with respect to principal payable on such date); provided, however,
-------- -------
that if the Original Issue Date is between a Regular Record Date (as defined
below) and the next succeeding Interest Payment Date, interest payments will
commence on the second Interest Payment Date succeeding the Original Issue Date;
and provided further, that if an Interest Payment Date would fall on a day that
-------- -------
is not a Business Day (as defined below), such Interest Payment Date shall be
the following day that is a Business Day, except that in the case the Interest
Rate Basis is LIBOR, as indicated above, if such next Business Day falls in the
next calendar month, such Interest Payment Date shall be the immediately
preceding day that is a Business Day. Except as provided above, interest
payments will be made on the Interest Payment Dates shown above. Unless
otherwise specified above, the "Regular Record Date" shall be the date 15
calendar days (whether or not a Business Day) prior to the applicable Interest
Payment Date. Interest on this Note will accrue from and including the Original
Issue Date specified above, at the rates determined from time to time as
specified herein, until the principal hereof has been paid or made available for
payment. If the Maturity falls on a day which is not a Business Day as defined
below, the payment due on such Maturity will be paid on the next succeeding
Business Day with the same force and effect as if made on such Maturity and no
interest shall accrue with respect to such payment for the period
3
from and after such Maturity. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will as provided in the Indenture
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such Interest Payment Date. Any such interest which is payable, but not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Note not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the
Indenture.
As more fully provided below, the principal of, and premium, if any,
and interest on this Note are payable by the Company in the Specified Currency,
subject to conversion into U.S. dollars on behalf of the Holder hereof to the
extent provided below. Upon presentation and surrender of this Note at Maturity
at the Office or Agency of the Company maintained by the Company for such
purpose, payment of the principal, premium, if any, and interest due at Maturity
will be made in immediately available funds, or if such payment is to be made in
the Specified Currency as provided below, by wire transfer to an account
maintained by the Holder hereof in the country of the Specified Currency shown
above (the "Holder's Overseas Account"), as designated by the Holder of this
Note by written notice to the Trustee not less than 15 days prior to Maturity.
As more fully provided below, if payment of interest on this Note is to be made
in U.S. dollars, payment of interest on any Interest Payment Date other than at
Maturity will be made at the Office or Agency of the Company maintained by the
Company for such purpose; provided, however, that at the option of the Company,
-------- -------
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or, if
such payment is to be made in the Specified Currency as provided below, by wire
transfer to the Holder's Overseas Account. Notwithstanding the above, AT THE
OPTION OF THE COMPANY, a Holder of the equivalent of $5,000,000 or more
(determined on the basis of the Market Exchange Rate, as defined below, on the
Business Day immediately preceding the Original Issue Date) in aggregate
principal amount of Notes having the same Interest Payment Dates may be entitled
to receive payments of principal of, premium, if any, and interest on such Note
or Notes by wire transfer of immediately available funds to such account of such
bank as the registered Holder hereof shall have designated if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 days prior to
4
the applicable payment date; and provided, further, that such bank has
-------- -------
appropriate facilities therefor. Notwithstanding the above, in any case where
wire transfer facilities for the making of any payment shall not be reasonably
available to the Trustee, such payment shall be made by check and mailed to the
Holder hereof at such address as shall appear on the Security Register
maintained by the Trustee.
All payments on this Note on any Interest Payment Date or Maturity will
be made in the Specified Currency set forth above, except as otherwise
hereinafter provided.
Unless the certificate of authentication hereon has been executed by or
on behalf of The Bank of New York, the Trustee with respect to the Notes under
the Indenture, or its successor thereunder, by the manual signature of one of
its authorized signatories, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes (the
"Notes"). The Notes are issued and to be issued under an Indenture dated as of
November 15, 1992 (herein called the "Indenture") between the Company and The
Bank of New York, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder of
the Company, the Trustee (as defined below) and the Holders of the Notes and the
terms upon which the Notes are to be authenticated and delivered. The Bank of
New York shall act as Trustee with respect to Notes (herein called the
"Trustee", which term includes any successor Trustee with respect to the Notes
under the Indenture). The terms of individual Notes may vary with respect to
interest rates or interest rate formulas, issue dates, maturity, redemption,
repayment, currency of payment and otherwise.
This Note is not subject to any sinking fund and, unless otherwise
provided above in accordance with the provisions of the following paragraphs, is
not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of 1,000 units of the Specified Currency (provided that any remaining
principal hereof shall be at least 100,000 units of the Specified Currency) at
the option of the Company at the applicable Redemption Price (as defined below)
together with accrued interest hereon at the applicable rate
5
payable to the date of redemption (each such date, a "Redemption Date"), on
written notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of 1,000 units of the Specified Currency (provided that any remaining principal
hereof shall be at least 100,000 units of the Specified Currency) at the option
of the Holder hereof at a repayment price equal to 100% of the principal amount
to be repaid, together with interest thereon payable to the date of repayment.
For this Note to be repaid in whole or in part at the option of the Holder
hereof, this Note must be received, with the form entitled "Option to Elect
Repayment" below duly completed, by the Trustee at its Corporate Trust Office,
or such address which the Company shall from time to time notify the Holders of
the Notes, not more than 60 nor less than 30 days prior to the date of
repayment. Exercise of such repayment option by the Holder hereof shall be
irrevocable.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note
above or if no designation is made for Interest Calculation above,
then, except as described below, this Note shall bear interest at the
rate determined by reference to the applicable Interest Rate Basis or
Bases shown above (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified above;
provided, however, that the interest rate in effect for the period from
-------- -------
the
6
Original Issue Date to the Initial Interest Reset Date will be the
Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate
Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable Interest
Rate Basis or Bases shown above (i) plus or minus the applicable
Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described
above. Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note is payable shall be reset as of each Interest
Reset Date specified above; provided, however, that (i) the interest
-------- -------
rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate; (ii)
the interest rate in effect for the period commencing on, and
including, the Fixed Rate Commencement Date to the Maturity shall be
the Fixed Interest Rate, if such a rate is specified above, or if no
such Fixed Interest Rate is so specified, the interest rate in effect
hereon on the day immediately preceding the Fixed Rate Commencement
Date.
3. If this Note is designated as an Inverse Floating Rate Note
above, then, except as described below, this Note will bear interest
equal to the Fixed Interest Rate indicated above minus the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown above (i) plus or minus the applicable Spread, if any, and/or
(ii) multiplied by the applicable Spread Multiplier, if any, specified
and applied in the manner described above; provided, however, that the
-------- -------
interest rate hereon will not be less than zero percent. Commencing on
the Initial Interest Reset Date, the rate at which interest on this
Note is payable shall be reset as of each Interest Rate Reset Date
specified above; provided, however, that the interest rate in effect
-------- -------
for the period from the Original Issue Date to the Initial Interest
Reset Date shall be the Initial Interest Rate.
4. Notwithstanding the foregoing, if this Note is designated
above as having an Addendum attached, the Note shall bear interest in
accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on
each day shall be (a) if such day is an Interest Reset Date, the
interest rate determined on the Interest Determination Date (as
defined below) immediately preceding such Interest Reset Date or
(b) if such day is not an Interest Reset Date, the interest rate
determined on the Interest Determination Date immediately
preceding the most recent Interest Reset Date. Each Interest
7
Rate Basis shall be the rate determined in accordance with the applicable
provision below. If any Interest Reset Date (which term includes the term
Initial Interest Reset Date unless the context otherwise requires) would
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next succeeding day that is a Business Day, except that if an
Interest Rate Basis specified on the face hereof is LIBOR and such next Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day. In addition, if an Interest Rate
Basis specified on the face hereof is the Treasury Rate and any Interest
Determination Date would otherwise fall on an Interest Reset Date, then such
Interest Reset Date will be postponed to the next succeeding Business Day.
Unless otherwise specified above, interest payable on this Note shall
be the amount of interest accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid (or from and including
the Original Issue Date specified above, if no interest has been paid), to but
excluding the related Interest Payment Date or Maturity, as the case may be.
Unless otherwise specified above, accrued interest hereon shall be an amount
calculated by multiplying the face amount hereof by an accrued interest factor.
Such accrued interest factor shall be computed by adding the interest factor
calculated for each day from the date of issue or from the last date to which
interest shall have been paid or duly provided for, to the date for which
accrued interest is being calculated. Unless otherwise specified above, the
interest factor for each such day shall be computed and paid on the basis of a
360-day year of twelve 30-day months if the Day Count Convention specified above
is "30/360" for the period specified thereunder, or by dividing the interest
rate applicable to such day by 360 if the Day Count Convention specified above
is "Actual/360" for the period specified thereunder or by the actual number of
days in the year if the Day Count Convention specified above is "Actual/Actual"
for the period specified thereunder. The interest factor for Notes for which the
interest rate is calculated with reference to two or more Interest Rate Bases
will be calculated in each period in the same manner as if only one of the
applicable Interest Rate Bases applied.
Unless otherwise specified above, the "Interest Determination Date"
with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day preceding
each Interest Reset Date; the "Interest Determination Date" with respect to
LIBOR shall be the second London Business Day (as defined below) preceding each
Interest Reset Date unless the Index Currency in British pounds sterling, in
which case the Interest Determination Date will be the applicable Interest Reset
Date; the "Interest Determination Date" with respect to the Eleventh District
Cost of
8
Funds Rate shall be the last working day of the month immediately preceding each
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); the "Interest
Determination Date" with respect to the Treasury Rate will be the day in the
week in which the applicable Interest Reset Date falls on which day Treasury
bills (as defined below) normally would be auctioned (Treasury bills are
normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
--------
however, that if, as a result of a legal holiday, an auction is held on the
- -------
Friday of the week preceding the applicable Interest Reset Date, the related
Interest Determination Date shall be such preceding Friday; and provided,
--------
further, that if an auction shall fall on any Interest Reset Date, then the
- -------
Interest Reset Date shall instead be the first Business Day following such
auction. If the interest rate of this Note is determined with reference to two
or more Interest Rate Bases, the Interest Determination Date pertaining to this
Note will be the most recent Business Day which is at least two Business Days
prior to the applicable Interest Reset Date on which each Interest Rate Basis
shall be determinable. Each Interest Rate Basis shall be determined as of such
date, and the applicable interest rate will take effect on the applicable
Interest Reset Date.
Unless otherwise specified above, the "Calculation Date" pertaining to
any Interest Determination Date will be the earlier of (i) the tenth calendar
day after such Interest Determination Date or, if such day is not a Business
Day, the next succeeding Business Day or (ii) the Business Day immediately
preceding the applicable Interest Payment Date or Maturity, as the case may be.
All calculations on this Note shall be made by the Calculation Agent specified
above or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on this Note will be
rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point (e.g., 9.876541% (or .09876541) would be rounded to 9.87655%
(or .0987655)), and all dollar amounts used in or resulting from such
calculation will be rounded to the nearest cent (with one-half cent being
rounded upwards).
Determination of CD Rate. If an Interest Rate Basis for this Note is
------------------------
the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date"), as the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified above as published
by the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor
9
publication ("H.15(519)"), under the heading "CDs (Secondary Market)", or, if
not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on which such CD Rate Interest Determination Date for negotiable
United States dollar certificates of deposit of the Index Maturity specified
above as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit". If such rate is not yet published in either
H.15(519) or the Composite Quotations by 3:00 P.M., New York City time, on the
Calculation Date, then the CD Rate on such CD Rate Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the secondary market offered rates as of 10:00 A.M., New York City time, on such
CD Rate Interest Determination Date of three leading non-bank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York (which
may include the Agents or their respective affiliates) selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money center banks in the market for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity designated above in an amount
that is representative for a single transaction in that market at that time;
provided, however, that if any of the dealers selected as aforesaid by the
- -------- -------
Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
determined on such CD Rate Interest Determination Date shall be the CD Rate in
effect on such CD Rate Interest Determination Date.
Determination of CMT Rate. If an Interest Rate Basis for this Note is
-------------------------
the CMT Rate, as indicated above, the CMT Rate shall be determined on the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date"), as the rate displayed on the Designated CMT Telerate Page under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the rate on
such CMT Rate Interest Determination Date and (ii) the Designated CMT Telerate
Page is 7052, the weekly or monthly average, as specified above, for the week or
the month, as applicable, ended immediately preceding the week or the month, as
applicable, in which the related CMT Rate Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index as published in
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other
10
United States Treasury rate for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve System
or the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in H.15(519). If such information is not provided by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30 P.M.,
New York City time, on the CMT Rate Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in The City of New
York (which may include the Agents or their respective affiliates) selected by
the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate for such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on the CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
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selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate
with respect to such CMT Rate Interest Determination Date will be the CMT Rate
in effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the
11
Calculation Agent will obtain quotations for the Treasury Note with the shorter
remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified above (or any
other page as may replace such page on such service) for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no such
page is specified above, the Designated CMT Telerate Page shall be 7052 for the
most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified above with respect to which the CMT Rate will be calculated. If no
such maturity is specified above, the Designated CMT Maturity Index shall be 2
years.
Determination of Commercial Paper Rate. If an Interest Rate Basis for
--------------------------------------
this Note is the Commercial Paper Rate, as indicated above, the Commercial Paper
Rate shall be determined on the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date"), as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity specified above as published in H.15(519), under the heading
"Commercial Paper". In the event that such rate is not published by 3:00 P.M.,
New York City time, on the related Calculation Date, then the Commercial Paper
Rate on such Commercial Paper Rate Interest Determination Date shall be the
Money Market Yield of the rate for commercial paper having the Index Maturity
shown above as published in Composite Quotations under the heading "Commercial
Paper" (with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If by 3:00
P.M., New York City time, on the related Calculation Date such rate is not yet
published in either H.15(519) or Composite Quotations, then the Commercial Paper
Rate for such Commercial Paper Rate Interest Determination Date shall be as
calculated by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered rates at approximately 11:00 A.M., New York City
time, on such Commercial Paper Rate Interest Determination Date of three leading
dealers of commercial paper in The City of New York (which may include the
Agents or their respective affiliates) selected by the Calculation Agent for
commercial paper having the Index Maturity specified above placed for an
industrial issuer whose bond rating is "AA," or the equivalent, from a
nationally recognized statistical rating organization; provided, however, that
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if any of the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Commercial Paper Rate determined on
such Commercial Paper Rate Interest Determination Date shall be the rate in
effect on such Commercial Paper Rate Interest Determination Date.
12
"Money Market Yield" shall be a yield (expressed as a percentage
rounded upwards to the nearest one hundred-thousandth of a percentage point)
calculated in accordance with the following formula:
Money Market Yield = D x 360
----------- x 100
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Eleventh District Cost of Funds Rate. If an Interest
-----------------------------------------------------
Rate Basis for this Note is the Eleventh District Cost of Funds Rate, as
indicated above, the Eleventh District Cost of Funds Rate shall be determined on
the applicable Interest Determination Date (an "Eleventh District Cost of Funds
Rate Interest Determination Date"), and shall be the rate equal to the monthly
weighted average cost of funds for the calendar month preceding the month in
which such Eleventh District Cost of Funds Rate Interest Determination Date
falls, as set forth under the caption "11th District" on Telerate Page 7058 as
of 11:00 A.M., San Francisco time, on such Eleventh District Cost of Funds Rate
Interest Determination Date. If such rate does not appear on Telerate Page 7058
on such Eleventh District Cost of Funds Rate Interest Determination Date, the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce such rate for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date shall be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
Determination of Federal Funds Rate. If an Interest Rate Basis for this
-----------------------------------
Note is the Federal Fund Rate, as indicated above, the Federal Funds Rate shall
be determined on the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date"), as the rate on that date for United States
dollar federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date, as published
13
in Composite Quotations under the heading "Federal Funds/Effective Rate." If
such rate is not yet published in either H.15(519) or Composite Quotations by
3:00 P.M., New York City time, on the related Calculation Date, the Federal
Funds Rate on such Federal Funds Rate Interest Determination Date shall be
calculated by the Calculation Agent and shall be the arithmetic mean of the
rates for the last transaction in overnight United States dollar Federal funds
arranged by three leading brokers of Federal funds transactions in The City of
New York (which may include the Agents or their respective affiliates) selected
by the Calculation Agent prior to 9:00 A.M., New York City time on such Federal
Funds Rate Interest Determination Date; provided, however, that if any of the
-------- -------
brokers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate determined as of such Federal
Funds Rate Interest Determination Date shall be the Federal Funds Rate in effect
on such Federal Funds Rate Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Note is
----------------------
LIBOR, as indicated above, LIBOR will be determined on the applicable Interest
Determination Date (a "LIBOR Interest Determination Date") in accordance with
the following provisions under LIBOR Reuters or LIBOR Telerate as specified
above:
(i) (a) if "LIBOR Reuters" is specified above as the method
for determining LIBOR, LIBOR will be determined on the basis of the
arithmetic mean of the offered rates (unless the specified Designated
LIBOR Page by its terms provides only for a single rate, in which case
such single rate shall be used) for deposits in the Index Currency
having the Index Maturity designated above, commencing on the
applicable Interest Reset Date, that appear (or, if only a single rate
is required as aforesaid, appears) on the Designated LIBOR Page
specified above as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date, or (b) if "LIBOR Telerate" is specified above or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified above as the
method for calculating LIBOR, the rate for deposits in the Index
Currency having the Index Maturity designated above, commencing on such
Interest Reset Date, that appears on the Designated LIBOR Page
specified above as of 11:00 A.M., London Time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates so appear, or
if no such rate so appears, as applicable, LIBOR on such LIBOR Interest
Determination Date shall be determined in accordance with the
provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as the
case may be, on the Designated LIBOR
14
Page as specified in clause (i) above, the Calculation Agent will
request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation
Agent, to provide the Calculation Agent with its offered quotation for
deposits in the Index Currency for the period of the Index Maturity
specified above, commencing on the applicable Interest Reset Date, to
prime banks in the London interbank market at approximately 11:00 A.M.,
London time, on such LIBOR Interest Determination Date and in a
principal amount that is representative for a single transaction in
such Index Currency in such market at such time. If at least two such
quotations are provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two such quotations are provided, then LIBOR on such LIBOR
Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three
major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European
banks, having the Index Maturity designated above and in a principal
amount that is representative for a single transaction in such Index
Currency in such market at such time; provided, however, that if the
-------- -------
banks so selected by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR Interest
Determination Date.
"Index Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no such
currency is specified above, the Index Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified
above, the display on the Reuter Monitor Money Rates Service (or any successor
service) on the page specified above (or any other page as may replace such
service (or any successor service)) for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency, or (b) if
"LIBOR Telerate" is specified above or neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified as the method for calculating LIBOR, the display on the
Dow Jones Telerate Service (or any such successor service) on the page specified
above (or any other page as may replace such service (or any successor service))
for the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency.
"Principal Financial Center" means the capital city of the country
issuing the currency (or composite currency) in which payment in respect of the
related Notes is to be made, or, solely
15
with respect to the calculation of LIBOR, the Index Currency, except that with
respect to United States dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECUs, the Principal Financial Center
shall be The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
Determination of Prime Rate. If an Interest Rate Basis for this Note is
---------------------------
the Prime Rate, as indicated above, the Prime Rate shall be determined on the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on that day set forth in H.15(519) opposite the caption "Bank
Prime Loan." If such rate is not published prior to 3:00 P.M., New York City
time, on the Calculation Date, the Prime Rate will be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the Reuters
Screen USPRIME1 Page (as defined below) as such bank's prime rate or base
lending rate as in effect for such Prime Rate Interest Determination Date. If
fewer than four such rates appear on such Reuters Screen USPRIME1 Page for such
Prime Rate Interest Determination Date, the Prime Rate will be the arithmetic
mean of the prime rates quoted on the basis of the actual number of days in the
year divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of New
York selected by the Calculation Agent. If fewer than four such quotations are
so provided, the Prime Rate will be the arithmetic mean of four prime rates
quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date as furnished in The City of New York by the major money
center banks, if any, that have provided such quotations and by a reasonable
number of substitute banks or trust companies to obtain four such prime rate
quotations, provided such substitute banks or trust companies are organized and
doing business under the laws of the United States, or any State thereof, each
having total equity capital of at least $500 million and being subject to
supervision of examination by a federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
banks or trust companies so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined as of such Prime Rate
Interest Determination Date will be the Prime Rate in effect on such Prime Rate
Interest Determination Date. "Reuters Screen USPRIME1 Page" means the display
designated as page "USPRIME1" on the Reuter Monitor Money Rates Service (or any
successor service) (or such other page as may replace the USPRIME1 page on such
service (or any successor service) for the purpose of displaying prime rates or
base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this
------------------------------
Note is the Treasury Rate, as specified above, the
16
Treasury Rate shall be determined on the applicable Interest Determination Date
(a "Treasury Rate Interest Determination Date") as the rate applicable to the
most recent auction of direct obligations of the United States ("Treasury
bills") having the Index Maturity specified above, as such rate is published in
H.15(519) under the heading "Treasury Bills -- auction average (investment)" or,
if not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the auction of Treasury bills having
the Index Maturity specified above are not reported as provided by 3:00 P.M.,
New York City time, on the related Calculation Date, or if no such auction is
held in a particular week, then the Treasury Rate hereon shall be calculated by
the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date of three leading primary United States government securities
dealers (which may include one or more of the Agents or their respective
affiliates) as selected by the Calculation Agent for the issue of Treasury bills
with a remaining Maturity closest to the Index maturity specified above;
provided, however, that if any of the dealers selected as aforesaid by the
- -------- -------
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate will be the Treasury Rate in effect on such Treasury Rate Interest
Determination Date.
Any provision contained herein with respect to the determination of an
Interest Rate Basis, the specification of Interest Rate Basis, calculation of
the Interest Rate applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher than
the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
17
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
adversely affected thereby at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series adversely affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
If the box marked "Presumption Yes" following the term "Conversion into
U.S. Dollars" set forth above has been checked, the Company or its agent will
convert all payments of the principal of, premium, if any, and interest on this
Note to U.S. dollars unless the Holder hereof elects to receive such payments in
the Specified Currency as described below. If the box marked "Presumption No"
following the term "Conversion into U.S. Dollars" set forth above has been
checked, the Holder of this Note will receive all payments of the principal of,
premium, if any, and interest on this Note in the Specified Currency unless the
Holder of this Note elects to receive such payments in U.S.
dollars as described below.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Company for making
payments thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Company will be entitled to satisfy its obligations to the Holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate on the date of such payment or, if the Market Exchange Rate is not
available on such date, as of the most recent practicable date. Any payment made
under such circumstances in U.S. dollars
18
where the required payment is in a Specified Currency other than
U.S. dollars will not constitute an Event of Default.
Except as otherwise provided herein, if either the box marked
"Presumption Yes" or the box marked "Presumption No" is marked above, the Holder
hereof may subsequent to the issuance hereof request that future payments of
principal hereof, and premium, if any, and interest hereon, be converted, or not
be converted, as the case may be, to U.S. dollars by transmitting a written
request for such payments to the Trustee at its Corporate Trust Office in The
City of New York on or prior to the Regular Record Date or not less than 15 days
prior to Maturity. Such request shall include appropriate payment instructions
and shall be in writing (mailed or hand delivered) or by facsimile transmission.
The Holder of this Note may elect to receive all future payments of principal,
premium, if any, and interest in either the Specified Currency set forth above
or in U.S. dollars, as specified in the written request, and need not file a
separate election for such payment. Such election will remain in effect until
revoked by written notice to the Trustee, but written notice of any such
revocation must be received by the Trustee on or prior to the Regular Record
Date or not less than 15 days prior to Maturity. If the Holder hereof has not
made the election described above, payment in respect of this Note shall be made
in U.S. dollars based upon the Market Exchange Rate as described above.
If the box marked "No" following the term "Conversion into U.S.
Dollars" set forth above has been checked, the Holder hereof will receive all
payments of the principal of, and premium, if any, and interest on this Note
only in the Specified Currency subject to the provisions set forth below, and
the Holder hereof may not subsequent to the issuance hereof request that future
payments of principal hereof, and premium, if any, and interest hereon, be
converted to U.S. dollars.
If payment in respect of this Note is required to be made in European
Currency Units ("ECU") and ECUs are not available to the Company for making
payments thereof on this Note due to the imposition of exchange controls or
other circumstances beyond the Company's control or are no longer used in the
European Monetary System, then all payments in respect of this Note shall be
made in U.S. dollars until ECUs are again available or so used. The amount of
each payment in U.S. dollars shall be computed on the basis of the equivalent of
the ECU in U.S. dollars, determined as described below, as of the second
Business Day prior to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Company or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components
19
of the ECU as of the last date on which the ECU was used in the
European Monetary System. The equivalent of the ECU in U.S.
dollars shall be calculated by aggregating the U.S. dollar
equivalents of the Components. The U.S. dollar equivalent of
each of the Components shall be determined by the Company or such
agent on the basis of the most recently available Market Exchange
Rates for such Components.
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the amounts of the consolidated component currencies expressed in such
single currency. If any Component is divided into two or more currencies, the
amount of the original component currency shall be replaced by the amounts of
such two or more currencies, each of which shall be equal to the amount of the
original component currency separated into the number of currencies into which
such original currency was divided.
All determinations referred to above made by the Company or its agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on Holders of Notes.
In order for the Holder of this Note (who, either by the terms of this
Note or pursuant to an election of the Holder hereof, shall have the right to
receive wire transfer payments) to receive payments of interest, premium, if
any, and principal in the Specified Currency by wire transfer, the Holder of
this Note must designate an appropriate account with a bank located in the
country of the Specified Currency shown above that has appropriate facilities
therefor. Such designation shall be made by filing the appropriate information
with the Trustee at its Corporate Trust Office in The City of New York on or
prior to the Regular Record Date or not less than 15 days prior to Maturity. The
Trustee will, subject to applicable laws and regulations and until it receives
notice to the contrary, make such payment and all succeeding payments to the
Holder of this Note by wire transfer to the designated account, provided that
the bank has the appropriate facilities therefor. If a payment cannot be made by
wire transfer because the required information has not been received by the
Trustee on or before the requisite date, payment will be made by check in U.S.
dollars mailed to the Holder of this Note at such address as shall appear in the
Security Register.
The Holder of this Note shall pay any administrative costs imposed by
banks in connection with making payments by wire
20
transfer, as well as any tax, assessment or governmental charge imposed upon
payments hereon.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of 100,000 units of the Specified Currency and integral multiples
of 1,000 units of the Specified Currency in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
As used herein:
21
the term "Business Day" means any day, other than a Saturday
or Sunday, that is neither a legal holiday or a day on which banking
institutions are generally authorized or obligated by law or executive
order to close in The City of New York or the city which is the
Principal Financial Center of the country of the Specified Currency
and, if the Specified Currency is ECU, that does not appear as an ECU
non-settlement day on the display designated as "ISDE" on the Reuter
Monitor Money Rates Service (or a day so designated by the ECU Banking
Association) or, if ECU non- settlement days do not appear on that page
(and are not so designated), is not a day on which payments in ECU
cannot be settled in the international interbank market;
the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers as certified
for customs purposes by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, the Market Exchange Rate shall be the
rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official
Journal of the European Communities, or any successor publication; and
the term "Principal Financial Center" shall be the city
indicated as follows:
Principal Financial
Specified Currency Center
------------------ -------------------
U.S. dollars New York City
Australian dollars Sydney
Canadian dollars Toronto
European Currency Units Brussels
French francs Paris
Deutsche marks Frankfurt
Italian lire Milan
Dutch guilders Amsterdam
New Zealand dollars Wellington
Swiss francs Geneva
British Pound Sterling London
Japanese Yen Tokyo
With respect to all other foreign currencies, the "Principal Financial
Center" shall be the capital city of the country of such Specified
Currency.
22
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[FACSIMILE OF SEAL] COLGATE-PALMOLIVE COMPANY
By:
----------------------------
Name:
Title:
Attest:
By: ----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated
therein referred to in the
within-mentioned Indenture.
The Bank of New York,
as Trustee
By: Dated:
---------------------------- --------------------
Authorized Signatory
23
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at
--------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$ -------------------------------
-------------------------- NOTICE: The signature on this
Date Option to Elect Repayment must
---------------------- correspond with the name as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatever.
24
ASSIGNMENT/TRANSFER FORM
------------------------
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.)
-------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip
code of assignee)
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing
- --------------------------------- attorney to transfer said Note
on the books of the Company with full power of substitution in
the premises.
Dated:
----------------------- -------------------------------------------
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
25
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
26
MULTI-CURRENCY FIXED RATE MEDIUM-TERM NOTE
REGISTERED CUSIP NO. PRINCIPAL AMOUNT
No. MCFX___
COLGATE-PALMOLIVE COMPANY
MEDIUM-TERM NOTE
(Multi-Currency Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATE:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
SPECIFIED CURRENCY:
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
CONVERSION INTO U.S. DOLLARS:
[ ] PRESUMPTION YES
[ ] PRESUMPTION NO
[ ] NO
OTHER PROVISIONS:
COLGATE-PALMOLIVE COMPANY, a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
on the Stated Maturity Date specified above (except to the extent redeemed or
repaid prior to the Stated Maturity Date), and to pay interest thereon at the
Interest Rate per annum specified above, until the principal hereof is paid or
duly made available for payment. Reference herein to "this Note", "hereof",
"herein" and comparable terms shall include an Addendum hereto if an Addendum is
specified above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (as defined below) (the date of each
such Stated Maturity Date, Redemption Date and Optional Repayment Date and the
date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
provided, however, that if the Original Issue Date is between a Regular Record
- -------- -------
Date (as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Original Issue Date. Except as provided above, interest payments will be made on
the Interest Payment Dates shown above. Unless otherwise specified above, the
"Regular Record Date" shall be the date 15 calendar days (whether or not a
Business Day) prior to the applicable Interest Payment Date. Interest on this
Note will accrue from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for or, if no interest has been
paid, from the Original Issue Date specified above, to, but excluding such
Interest Payment Date or Maturity, as the case may be. If the Maturity or an
Interest Payment Date falls on a day which is not
2
a Business Day as defined below, the payment due on such Maturity or Interest
Payment Date will be paid on the next succeeding Business Day with the same
force and effect as if made on such Maturity or Interest Payment Date, as the
case may be, and no interest shall accrue with respect to such payment for the
period from and after such Maturity or Interest Payment Date. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date
will as provided in the Indenture be paid to the Person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such Interest Payment Date. Any such interest
which is payable, but not punctually paid or duly provided for on any Interest
Payment Date (herein called "Defaulted Interest"), shall forthwith cease to be
payable to the registered Holder on such Regular Record Date, and may be paid to
the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Indenture.
As more fully provided below, the principal of, and premium, if any,
and interest on this Note are payable by the Company in the Specified Currency,
subject to conversion into U.S. dollars on behalf of the Holder hereof to the
extent provided below. Upon presentation and surrender of this Note at Maturity
at the Office or Agency of the Company maintained by the Company for such
purpose, payment of the principal, premium, if any, and interest due at Maturity
will be made in immediately available funds, or if such payment is to be made in
the Specified Currency as provided below, by wire transfer to an account
maintained by the Holder hereof in the country of the Specified Currency shown
above (the "Holder's Overseas Account"), as designated by the Holder of this
Note by written notice to the Trustee not less than 15 days prior to Maturity.
As more fully provided below, if payment of interest on this Note is to be made
in U.S. dollars, payment of interest on any Interest Payment Date other than at
Maturity will be made at the Office or Agency of the Company maintained by the
Company for such purpose; provided, however, that at the option of the Company,
-------- -------
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or, if
such payment is to be made in the Specified Currency as provided below, by wire
transfer to the Holder's Overseas Account. Notwithstanding the above, AT THE
OPTION OF THE COMPANY, a Holder of the equivalent of $5,000,000 or more
(determined on the basis of the Market Exchange Rate, as defined below, on the
Business Day immediately preceding the Original Issue Date) in aggregate
principal amount of Notes having the same Interest Payment Dates may be entitled
to receive payments of principal of, premium, if any, and interest on such Note
or Notes by wire transfer of immediately available funds to such
3
account of such bank as the registered Holder hereof shall have designated if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 days prior to the applicable payment date; and
provided, further, that such bank has appropriate facilities therefor.
- -------- -------
Notwithstanding the above, in any case where wire transfer facilities for the
making of any payment shall not be reasonably available to the Trustee, such
payment shall be made by check and mailed to the Holder hereof at such address
as shall appear on the Security Register maintained by the Trustee.
All payments on this Note on any Interest Payment Date or Maturity will
be made in the Specified Currency set forth above, except as otherwise
hereinafter provided.
Unless the certificate of authentication hereon has been executed by or
on behalf of The Bank of New York, the Trustee for this Note under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes (the
"Notes"). The Notes are issued and to be issued under an Indenture dated as of
November 15, 1992 (herein called the "Indenture") between the Company and The
Bank of New York, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder of
the Company, the Trustee (as defined below) and the Holders of the Notes and the
terms upon which the Notes are to be authenticated and delivered. The Bank of
New York shall act as Trustee with respect to the Notes (herein called the
"Trustee", which term includes any successor Trustee with respect to the Notes,
under the Indenture). The terms of individual Notes may vary with respect to
interest rates or interest rate formulas, issue dates, maturity, redemption,
repayment, currency of payment and otherwise.
This Note is not subject to any sinking fund and, unless otherwise
provided above in accordance with the provisions of the following paragraphs, is
not redeemable or repayable prior to the Stated Maturity Date.
If so provided above,this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of 1,000 units of the Specified Currency (provided that any remaining
principal hereof shall be at least 100,000 units of the Specified Currency,
unless the Specified Currency is U.S. dollars, in which case any remaining
principal
4
hereof shall be at least $1,000) at the option of the Company at the applicable
Redemption Price (as defined below), together with accrued interest hereon at
the applicable rate payable to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
days prior to the Redemption Date. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above hereof, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
This Note may be subject to repayment at the option of the Holder on
any Optional Repayment Date(s), if any, indicated above. If no Optional
Repayment Date(s) are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in increments
of 1,000 units of the Specified Currency (provided that any remaining principal
hereof shall be at least 100,000 units of the Specified Currency, unless the
Specified Currency is U.S. dollars, in which case any remaining principal hereof
shall be at least $1,000) at the option of the Holder hereof at a repayment
price equal to 100% of the principal amount to be repaid, together with interest
thereon payable to the date of repayment. For this Note to be repaid in whole or
in part at the option of the Holder hereof, this Note must be received, with the
form entitled "Option to Elect Repayment" below duly completed, by the Trustee
at its Corporate Trust Office, or such address which the Company shall from time
to time notify the Holders of the Notes, not more than 60 nor less than 30 days
prior to the related Optional Repayment Date. Exercise of such repayment option
by the Holder hereof shall be irrevocable.
Interest payments for this Note shall be computed and paid on the basis
of a 360-day year of twelve 30-day months if the Day Count Convention specified
above is "30/360" for the period specified thereunder, on the basis of the
actual number of days in the related month and a 360-day year if the Day Count
Convention specified above is "Actual/360" for the period specified thereunder
or on the basis of the actual number of days in the related year and month if
the Day Count Convention specified above is "Actual/Actual" for the period
specified thereunder.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its
5
payment dates or any other matter relating hereto may be modified as specified
in an Addendum relating hereto if so specified above.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
adversely affected thereby at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series adversely affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
If the box marked "Presumption Yes" following the term "Conversion into
U.S. Dollars" set forth above has been checked, the Company or its agent will
convert all payments of the principal of, premium, if any, and interest on this
Note to U.S. dollars unless the Holder hereof elects to receive such payments in
the Specified Currency as described below. If the box marked "Presumption No"
following the term "Conversion into U.S. Dollars" set forth above has been
checked, the Holder of this Note will receive all payments of the principal of,
premium, if any, and interest on this Note in the Specified Currency unless the
Holder of this Note elects to receive such payments in U.S.
dollars as described below.
Except as set forth below, if the principal of, or interest on, this
Note is payable in a Specified Currency other than U.S. dollars and such
Specified Currency is not available to the Company for making payments thereof
due to the imposition of exchange controls or other circumstances beyond the
control of the Company or is no longer used by the government of the country
issuing such currency or for the settlement of transactions by public
institutions within the international banking community, then the Company will
be entitled to satisfy its obligations to the Holder of this Note by making such
payments in U.S. dollars on the basis of the Market Exchange Rate on the date of
such payment or, if the Market Exchange Rate is not available on such
6
date, as of the most recent practicable date. Any payment made
under such circumstances in U.S. dollars where the required
payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
Except as otherwise provided herein, if either the box marked
"Presumption Yes" or the box marked "Presumption No" is marked above, the Holder
hereof may subsequent to the issuance hereof request that future payments of
principal hereof, and premium, if any, and interest hereon, be converted, or not
be converted, as the case may be, to U.S. dollars by transmitting a written
request for such payments to the Trustee at its Corporate Trust Office in The
City of New York on or prior to the Regular Record Date or not less than 15 days
prior to Maturity. Such request shall include appropriate payment instructions
and shall be in writing (mailed or hand delivered) or by facsimile transmission.
The Holder of this Note may elect to receive all future payments of principal,
premium, if any, and interest in either the Specified Currency set forth above
or in U.S. dollars, as specified in the written request, and need not file a
separate election for such payment. Such election will remain in effect until
revoked by written notice to the Trustee, but written notice of any such
revocation must be received by the Trustee on or prior to the Regular Record
Date or not less than 15 days prior to Maturity. If the Holder hereof has not
made the election described above, payment in respect of this Note shall be made
in U.S. dollars based upon the Market Exchange Rate as described above.
If the box marked "No" following the term "Conversion into U.S.
Dollars" set forth above has been checked, the Holder hereof will receive all
payments of the principal of, and premium, if any, and interest on this Note
only in the Specified Currency subject to the provisions set forth below, and
the Holder hereof may not subsequent to the issuance hereof request that future
payments of principal hereof, and premium, if any, and interest hereon, be
converted to U.S. dollars.
If payment in respect of this Note is required to be made in European
Currency Units ("ECU") and ECUs are not available to the Company for making
payments thereof on this Note due to the imposition of exchange controls or
other circumstances beyond the Company's control or are no longer used in the
European Monetary System, then all payments in respect of this Note shall be
made in U.S. dollars until ECUs are again available or so used. The amount of
each payment in U.S. dollars shall be computed on the basis of the equivalent of
the ECU in U.S. dollars, determined as described below, as of the second
Business Day prior to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Company or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components
7
of the ECU as of the last date on which the ECU was used in the
European Monetary System. The equivalent of the ECU in U.S.
dollars shall be calculated by aggregating the U.S. dollar
equivalents of the Components. The U.S. dollar equivalent of
each of the Components shall be determined by the Company or such
agent on the basis of the most recently available Market Exchange
Rates for such Components.
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the amounts of the consolidated component currencies expressed in such
single currency. If any Component is divided into two or more currencies, the
amount of the original component currency shall be replaced by the amounts of
such two or more currencies, each of which shall be equal to the amount of the
original component currency separated into the number of currencies into which
such original currency was divided.
All determinations referred to above made by the Company or its agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on Holders of Notes.
In order for the Holder of this Note (who, either by the terms of this
Note or pursuant to an election of the Holder hereof, shall have the right to
receive wire transfer payments) to receive payments of interest, premium, if
any, and principal in the Specified Currency by wire transfer, the Holder of
this Note must designate an appropriate account with a bank located in the
country of the Specified Currency shown above that has appropriate facilities
therefor. Such designation shall be made by filing the appropriate information
with the Trustee at its Corporate Trust Office in The City of New York on or
prior to the Regular Record Date or not less than 15 days prior to Maturity. The
Trustee will, subject to applicable laws and regulations and until it receives
notice to the contrary, make such payment and all succeeding payments to the
Holder of this Note by wire transfer to the designated account, provided that
the bank has the appropriate facilities therefor. If a payment cannot be made by
wire transfer because the required information has not been received by the
Trustee on or before the requisite date, payment will be made by check in U.S.
dollars mailed to the Holder of this Note at such address as shall appear in the
Security Register.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
8
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of 100,000 units of the Specified Currency and integral multiples
of 1,000 units of the Specified Currency in excess thereof, unless the Specified
Currency is U.S. dollars, in which case the Notes will be issuable in registered
form without coupons in denominations of $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the Notes are exchangeable for a like aggregate principal amount of Notes
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
As used herein:
the term "Business Day" means any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which banking
institutions are generally authorized or obligated by law or executive
order to close in The City of New York or the city which is the
Principal Financial Center of the country of the Specified Currency
and, if the Specified Currency is ECU, that does not appear as an ECU
non-settlement day on the display designated as "ISDE" on the Reuter
Monitor Money Rates Service (or a day so
9
designated by the ECU Banking Association) or, if ECU non- settlement
days do not appear on that page (and are not so designated), is not a
day on whch payments in ECU cannot be settled in the international
interbank market;
the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers as certified
for customs purposes by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, the Market Exchange Rate shall be the
rate of exchange determined by the Commission of the European
Communities (or any successor thereto) as published in the Official
Journal of the European Communities, or any successor publication; and
the term "Principal Financial Center" shall be the city
indicated as follows:
Principal Financial
Specified Currency Center
----------------- -------------------
U.S. dollars New York City
Australian dollars Sydney
Canadian dollars Toronto
European Currency Units Brussels
French francs Paris
Deutsche marks Frankfurt
Italian lire Milan
Dutch guilders Amsterdam
New Zealand dollars Wellington
Swiss francs Geneva
British Pound Sterling London
Japanese Yen Tokyo
With respect to all other foreign currencies, the "Principal Financial
Center" shall be the capital city of the country of such Specified
Currency.
10
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
COLGATE-PALMOLIVE COMPANY
[FACSIMILE OF SEAL]
By:
-----------------------
Name:
Title:
Attest:
By:-----------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
The Bank of New York,
as Trustee
By: Dated:
----------------------- ----------------
Authorized Signatory
11
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at
--------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of 1,000 units of the
Specified Currency which the Holder elects to have repaid and specify the
denomination or denominations (which shall be 100,000 units of the Specified
Currency or an integral multiple of the Specified Currency in excess thereof,
unless the Specified Currency is U.S. dollars, in which case the denomination or
denominations shall be $1,000 or an integral multiple thereof) of the Notes to
be issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
- ----------------------------- ------------------------------
NOTICE: The signature on this
Date: Option to Elect Repayment must
---------------------- correspond with the name as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatever.
12
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.)
-------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip
code of assignee)
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing
-----------------------------------------------------
attorney to transfer said Note
- ----------------------------------
on the books of the Company with full power of substitution in
the premises.
Dated:--------------------------- --------------------------------------------
NOTICE: The signature of the registered Holder to this assignment must
correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
13
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
14