EXHIBIT 1.1
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The Procter & ▇▇▇▇▇▇ Company
Debt Securities
Underwriting Agreement
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[DATE]
To the Underwriter named in the
respective Pricing Agreement(s)
hereinafter described
Dear Sirs/Mesdames:
From time to time The Procter & ▇▇▇▇▇▇ Company (the "Company") proposes to
enter into one or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firm named in Schedule I to the applicable
Pricing Agreement (such firm constituting the "Underwriter" with respect to such
Pricing Agreement and the securities specified therein) certain of its debt
securities (the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities"), less the
principal amount of Designated Securities covered by Delayed Delivery Contracts,
if any, as provided in Section 3 hereof and as may be specified in Schedule II
to such Pricing Agreement (with respect to such Pricing Agreement, any
Designated Securities to be covered by Delayed Delivery Contracts being herein
sometimes referred to as "Contract Securities" and the Designated Securities to
be purchased by the Underwriter (after giving effect to the deduction, if any,
for Contract Securities) being herein sometimes referred to as "Underwriter's
Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriter of such Securities. THIS UNDERWRITING AGREEMENT SHALL NOT BE
CONSTRUED AS AN OBLIGATION OF THE COMPANY TO SELL ANY OF THE SECURITIES OR AS AN
OBLIGATION OF THE UNDERWRITER TO PURCHASE ANY OF THE SECURITIES. The obligation
of the Company to issue and sell any of the Securities and the obligation of the
Underwriter to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriter of such Designated Securities,
the name of the Underwriter of such Designated Securities, the principal amount
of such Designated Securities to be purchased by the Underwriter and whether any
of such Designated Securities shall be covered by Delayed Delivery Contracts (as
defined in Section 3 hereof) and the commission payable to the Underwriter with
respect thereto and shall set forth the date, time and manner of delivery of
such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. The Pricing Agreement also may specify such additional terms and
conditions as the parties thereto may agree. The Pricing Agreement shall include
a Schedule III specifying (a) materials other than the Pricing Prospectus (as
defined below) that comprise the Pricing Disclosure Package (as defined below)
and (b) Issuer Free Writing Prospectuses (as defined below) not included in the
Pricing Disclosure Package. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
2. The Company represents and warrants to, and agrees with, the Underwriter
that:
(a) A registration statement (File No. 333-113515) in respect of the
Securities has been filed with the Securities and Exchange Commission
(the "Commission") in the form heretofore delivered or to be delivered
to the Underwriter and such registration statement in such form has been
declared effective by the Commission (the base prospectus filed as part
of such registration statement, in the form in which it has most
recently been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the "Basic Prospectus"; any preliminary
prospectus (including any preliminary prospectus supplement) relating to
the Designated Securities, which has heretofore been or is required to
be filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act") is hereinafter called a
"Preliminary Prospectus"; the various parts of such registration
statement, including all documents incorporated by reference therein and
exhibits thereto but excluding Form T-1 and including any prospectus
supplement relating to the Designated Securities that is or shall be
filed with the Commission pursuant to Rule 424(b) under the Act and
deemed by virtue of Rule 430B under the Act to be part of such
registration statement, each such part as amended at the time such
registration statement became effective (or at the time deemed to be a
new effective date of such registration statement pursuant to Rule 430B
under the Act), being hereinafter collectively called the "Registration
Statement"; PROVIDED that if the Company files a registration statement
to register a portion of the Securities and relies on Rule 462(b) under
the Act for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement") then any
reference to "Registration Statement" herein shall be deemed to be both
the Registration Statement referred to above and the Rule 462
Registration Statement, as each such Registration Statement may be
amended; the Basic Prospectus, as amended and supplemented by any
Preliminary Prospectus immediately prior to the Applicable Time (as
defined in Section 2(c) hereof), is hereinafter called the "Pricing
Prospectus"; the final prospectus relating to the Designated Securities
in the form in which it shall be filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the "Prospectus"; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date of this Agreement, or
the issue date of such Basic Prospectus, Pricing Prospectus, Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement with respect to the Basic Prospectus, the
Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after the date of
this Agreement, or the issue date of the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or Prospectus, as the case may
be, and prior to the completion of the offering, under the Exchange Act,
and deemed to be incorporated by reference therein; and any "issuer free
writing prospectus" as defined in Rule 433 under the Act relating to the
Designated Securities is hereinafter called an "Issuer Free Writing
Prospectus");
(b) For the purposes of this Agreement and the Pricing Agreement, the
"Applicable Time" shall be such time as specified in the Pricing
Agreement; as of the Applicable Time, neither (x) the Pricing Prospectus
as supplemented by those Issuer Free Writing Prospectuses and other
documents and information listed in Schedule III(a) to the Pricing
Agreement (including any final term sheet), taken together
(collectively, the "Pricing Disclosure Package"), nor (y) any Issuer
Free Writing Prospectus listed on Schedule III(b) to the Pricing
Agreement when considered together with the Pricing Disclosure Package,
included any untrue statement of a material fact or omitted to state any
material fact necessary in order 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 statements or omissions made in the Pricing Disclosure Package or any
Issuer Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter of
Designated Securities expressly for use therein; and each Issuer Free
Writing Prospectus listed on Schedule III(a) or Schedule III(b) to the
Pricing Agreement as of its issue date and at all subsequent times
through the completion of the offer and sale of the Designated
Securities to which such Issuer Free Writing Prospectus relates, did
not, does not and will not conflict with the information contained in
the Registration Statement, the Pricing Prospectus or the Prospectus;
(c) The documents incorporated by reference in the Pricing Prospectus,
the Prospectus and any amendment or supplement thereto, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act 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 Pricing Prospectus, the Prospectus and
any amendment or supplement thereto, when such documents are filed with
the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Underwriter
of Designated Securities expressly for use in the Prospectus as amended
or supplemented related to such Securities;
(d) No order preventing or suspending the use of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus has been issued by the Commission and no proceeding for that
purpose has been initiated or threatened by the Commission; the
Registration Statement, on the effective date (as such effective date is
defined in Rule 158(c) under the Act) conformed in all material respects
to the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the respective rules and
regulations of the Commission thereunder, 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 not
misleading; and, at the time the Prospectus is filed with the Commission
and at the Time of Delivery (as defined in Section 4 hereof), the
Prospectus will conform in all material respects with the Act and the
rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by the Underwriter of the Designated Securities expressly for
use in the Registration Statement or the Prospectus, as the case may be;
(e) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus and the Prospectus
any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree which is
material to the Company and its subsidiaries considered as a whole,
otherwise than as set forth or contemplated in the Pricing Prospectus
and the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement, the Pricing
Prospectus and the Prospectus, there has not been any material change in
the capital stock or long-term debt of the Company or in the
consolidated capitalization of the Company and its consolidated
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its consolidated subsidiaries
considered as a whole, otherwise than as set forth or contemplated in
the Pricing Prospectus and the Prospectus;
(f) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered at the Time of Delivery (as defined
in Section 4 hereof) pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities and, in the case of
any Contract Securities, pursuant to Delayed Delivery Contracts with
respect to such Contract Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles, and entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit
to the Registration Statement;
(g) The Indenture has been duly authorized and at the Time of Delivery
will be duly qualified under the Trust Indenture Act and will constitute
a valid and legally binding instrument of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Securities and the Indenture will conform to the
descriptions thereof in the Pricing Disclosure Package and Prospectus,
as amended or supplemented;
(h) In the event any of the Securities are purchased pursuant to Delayed
Delivery Contracts, each of such Delayed Delivery Contracts has been
duly authorized by the Company and, when executed and delivered by the
Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and any
Delayed Delivery Contracts will conform to the description thereof in
the Pricing Disclosure Package and Prospectus, as amended or
supplemented;
(i) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture,
each of the Delayed Delivery Contracts, if any, this Agreement and any
Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its domestic subsidiaries is a
party or by which the Company or any of its domestic subsidiaries is
bound or to which any of the property or assets of the Company or any of
its domestic subsidiaries is subject, nor will such action result in any
violation of the provisions of the Amended Articles of Incorporation,
Regulations or By Laws of the Company or any applicable statute or any
applicable order, rule or regulation known to the Company of any court
or governmental agency or body having jurisdiction over the Company or
any of its domestic subsidiaries or any of its or their properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the consummation
by the Company of the other transactions contemplated by this Agreement
or any Pricing Agreement or the Indenture or any Delayed Delivery
Contract, except such as have been, or will have been prior to the Time
of Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriter;
and
(j) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is subject other than (i) as
set forth in the Pricing Prospectus and the Prospectus and (ii) legal or
governmental proceedings which, if determined adversely to the Company
or any of its subsidiaries, would not in the aggregate reasonably be
expected to have a material adverse effect on the financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries considered as a whole; and no such proceedings are known by
the Company to be threatened or contemplated by governmental authorities
or threatened by others.
(k) At (i) the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a BONA
FIDE offer (within the meaning of Rule 164(h)(2) of the Act) with
respect to the Designated Securities and (ii) the time of execution of
this Agreement, the Company was not and is not an "ineligible issuer" as
defined in Rule 405 under the Act.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Underwriter of the release of its
Securities, the Underwriter proposes to offer its Securities for sale upon the
terms and conditions set forth in the Pricing Prospectus as amended or
supplemented.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriter is authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex II attached hereto but with such changes therein as the
Underwriter and the Company may authorize or approve. If so specified, the
Underwriter will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Underwriter, at the Time of Delivery, such
commission, if any, as may be set forth in such Pricing Agreement. Delayed
Delivery Contracts, if any, are to be with investors of the types described in
the Prospectus and subject to other conditions therein set forth. The
Underwriter will not have any responsibility in respect of the validity or
performance of any Delayed Delivery Contracts.
The total principal amount of Underwriter's Securities to be purchased by
the Underwriter pursuant to such Pricing Agreement shall be the total principal
amount of Designated Securities set forth in Schedule I to such Pricing
Agreement less the principal amount of the Contract Securities. The Company will
deliver to the Underwriter not later than 3:30 p.m., New York City time, on the
third business day preceding the Time of Delivery specified in the applicable
Pricing Agreement (or such other time and date as the Underwriter and the
Company may agree upon in writing) a written notice setting forth the principal
amount of Contract Securities.
4. Underwriter's Securities to be purchased by the Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Underwriter may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Underwriter, against payment by the Underwriter or on its behalf of the purchase
price therefor in the funds and in the manner specified in such Pricing
Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Underwriter and the
Company may agree upon in writing, such time and date being herein called the
"Time of Delivery" for such Securities.
Concurrently with the delivery of and payment for the Underwriter's
Securities, the Company will deliver to the Underwriter a check payable to the
order of the party designated in the Pricing Agreement relating to such
Securities in the amount of any compensation payable by the Company to the
Underwriter in respect of any Delayed Delivery Contracts as provided in Section
3 hereof and in the Pricing Agreement relating to such Securities.
5. The Company agrees with the Underwriter of any Designated Securities:
(a) To make no further amendment or any supplement to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities to
which the Underwriter for such Securities, promptly after reasonable
notice thereof, shall have reasonably disapproved; to advise the
Underwriter promptly of any such amendment or supplement after such Time
of Delivery and furnish the Underwriter with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus (or, in lieu thereof, the notice referred to in
Rule 173(a) under the Act) is required in connection with the offering
or sale of such Securities, and during such same period to advise the
Underwriter, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or has become
effective or any amendment or supplement to any Issuer Free Writing
Prospectus or the Prospectus has been filed or mailed for filing, of the
issuance by the Commission of any stop order or of any order preventing
or suspending the use of any preliminary prospectus or other prospectus
relating to the Securities, of the suspension of the qualification of
such Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any preliminary prospectus or other
prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) If required by Rule 430B(h) under the Act, to prepare a form of
prospectus and to file such form of prospectus pursuant to Rule 424(b)
under the Act not later than may be required by Rule 424(b) under the
Act; and to make no further amendment or supplement to such form of
prospectus to which the Underwriter for such Securities, promptly after
reasonable notice thereof, shall have reasonably disapproved;
(c) Promptly from time to time to take such action as the Underwriter
may reasonably request to qualify such Securities for offering and sale
under the securities laws of such jurisdictions as the Underwriter may
request and to comply with such laws so as to permit the continuance of
sales and dealings in such jurisdictions for as long as may be necessary
to complete the distribution of such Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(d) To furnish the Underwriter with written or electronic copies of the
Pricing Prospectus and the Prospectus as amended or supplemented in such
quantities as the Underwriter may from time to time reasonably request,
and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time in
connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Pricing
Disclosure Package or the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Pricing Disclosure Package or Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Pricing Disclosure Package or the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Pricing Disclosure Package or the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture
Act or the respective rules thereunder, to notify the Underwriter of
such event and upon the Underwriter's request to file such document and
to prepare and furnish without charge to the Underwriter and to any
dealer in securities as many written or electronic copies as the
Underwriter may from time to time reasonably request of an amended
Pricing Disclosure Package or Prospectus or a supplement to the Pricing
Disclosure Package or the Prospectus which will correct such statement
or omission or effect such compliance;
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as such effective date is
defined in Rule 158(c) under the Act), an earning statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158); and
(f) During the period beginning on the date of the Pricing Agreement for
such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Underwriter and (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without
the prior written consent of the Underwriter.
6. (a) Except as provided in Section 6(b) below with respect to the Final
Term Sheet (as defined below), (i) the Company represents and agrees
that, without the prior consent of the Underwriter, it has not made and
will not make any offer relating to the Designated Securities that would
constitute a "free writing prospectus" as defined in Rule 405 under the
Act required to be filed by the Company with the Commission under Rule
433 under the Act, and (ii) the Underwriter represents and agrees that,
without the prior consent of the Company, it has not made and will not
make any offer relating to the Designated Securities that would
constitute a free writing prospectus required to be filed by the Company
with the Commission under Rule 433 under the Act;
(b) The Company and the Underwriter each has complied and will comply
with the requirements of Rule 433 under the Act to the extent applicable
to any Issuer Free Writing Prospectus. The Company has complied and will
comply with the requirements of Rule 433 with regard to timely filing
with the Commission or retention where required and legending of any
Issuer Free Writing Prospectus. If the Underwriter prepares and timely
provides to the Company a writing containing solely a description of the
terms of the Designated Securities and of the offering, the Company will
(i) review and (subject to such changes deemed appropriate by the
Company and the Underwriter) approve, if requested by the Underwriter in
connection with the offer and sale of the Designated Securities, such
writing (as so approved, the "Final Term Sheet") and (ii) file such
Final Term Sheet pursuant to Rule 433(d) under the Act.
7. The Company covenants and agrees with the Underwriter that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments
and supplements thereto and the mailing and delivering of copies thereof to the
Underwriter and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriter in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with the
Indenture and the Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 9 and
Section 12 hereof, the Underwriter will pay all of its own costs and expenses,
including the fees of its counsel, transfer taxes on resale of any of the
Securities by it, and any advertising expenses and expenses of any "free writing
prospectus" (as defined in Rule 405 under the Act), other than an Issuer Free
Writing Prospectus, that is used or referred to by the Underwriter connected
with any offers it may make.
To the extent permitted by applicable law, the Company will indemnify and
hold harmless the Underwriter from any documentary, stamp, stamp duty reserve or
similar issue tax or duty and any related interest or penalties on, and value
added tax (if any) payable in respect of the execution of this Agreement or the
issue, sale and delivery of the Securities to the subscribers which are or may
be payable in any jurisdiction.
8. The obligations of the Underwriter of any Designated Securities under the
Pricing Agreement relating to such Designated Securities shall be subject, in
the discretion of the Underwriter, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in such Pricing Agreement are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free
Writing Prospectus shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Underwriter's
reasonable satisfaction;
(b) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriter, shall have furnished to the Underwriter such opinion or
opinions, dated the Time of Delivery for such Designated Securities,
with respect to the incorporation of the Company, the validity of the
Indenture, the Designated Securities, the Delayed Delivery Contracts, if
any, the Registration Statement, the Pricing Disclosure Package, the
Prospectus as amended or supplemented and other related matters as the
Underwriter may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable
them to pass upon such matters. In rendering such opinion or opinions,
such counsel may rely as to all matters governed by Ohio law upon the
opinion referred to in subjection (c) of this Section;
(c) [NAME], Counsel for the Company, shall have furnished to the
Underwriter his or her written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Underwriter, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Ohio, with corporate power and authority to own its properties and
conduct its business as described in the Pricing Disclosure
Package and the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Pricing Disclosure Package and the Prospectus as amended or
supplemented and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(iii) Each domestic subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such subsidiary
have been duly and validly authorized and issued and are fully
paid and non-assessable (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company or its domestic subsidiaries);
(iv) The Company and each of its domestic subsidiaries are duly
authorized and are in good standing to do business in each
jurisdiction in the United States, other than their respective
jurisdictions of incorporation, in which they own or lease
properties, or conduct any business, so as to require such
qualification (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
Company or its domestic subsidiaries);
(v) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of
its domestic subsidiaries is a party or of which any property of
the Company or any of its domestic subsidiaries is the subject,
other than as set forth in the Pricing Disclosure Package and the
Prospectus and other than legal or governmental proceedings which,
if determined adversely to the Company and its domestic
subsidiaries, would not in the aggregate reasonably be expected to
have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries considered as a whole; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(vii) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized, executed and
delivered by the Company and, assuming such Contract has been duly
executed and delivered by the purchaser named therein, constitutes
a valid and legally binding agreement of the Company enforceable
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and any Delayed Delivery Contracts
conform to the description thereof in the Pricing Disclosure
Package and the Prospectus as amended or supplemented;
(viii) The Designated Securities have been duly authorized; the
Underwriter's Securities have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company enforceable in accordance with their
terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles,
and entitled to the benefits provided by the Indenture; the
Contract Securities, if any, when executed, authenticated, issued
and delivered pursuant to the Indenture and Delayed Delivery
Contracts, if any, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by
the Indenture; and the Designated Securities and the Indenture
conform to the descriptions thereof in the Pricing Disclosure
Package and the Prospectus as amended or supplemented;
(ix) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(x) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, each of the Delayed Delivery
Contracts, if any, this Agreement and the Pricing Agreement with
respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its domestic
subsidiaries is a party or by which the Company or any of its
domestic subsidiaries is bound or to which any of the property or
assets of the Company or any of its domestic subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Amended Articles of Incorporation, Regulations
or By Laws of the Company or any applicable statute or any
applicable order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its domestic subsidiaries or any of its or their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Designated Securities or the consummation by the Company of
the other transactions contemplated by this Agreement or such
Pricing Agreement or the Indenture or any of such Delayed Delivery
Contracts, except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriter;
(xi) The documents incorporated by reference in the Pricing
Prospectus or the Prospectus, as amended or supplemented (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion), when they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when they were so
filed, 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 under which they were
made when such documents were so filed, not misleading; and
(xii) The Registration Statement as of the effective date (as such
term is defined in Rule 158(c) under the Act) and the Prospectus
as of its issue date, as amended or supplemented, (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; such
counsel has no reason to believe (x) that the Registration
Statement, at the time it was deemed effective, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; or (y) that the Pricing
Disclosure Package, as of the Applicable Time, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein,
in the light of circumstances under which they were made, not
misleading; or (z) that, as of its date and as of the Time of
Delivery, the Prospectus or any such further amendment or
supplement thereto made by the Company prior to the Time of
Delivery contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of circumstances under which they were made, not misleading;
such counsel does not know of any contracts or other documents of
a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described
in the Registration Statement, the Basic Prospectus or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required; and the
statements in the Pricing Disclosure Package and the Prospectus as
amended or supplemented describing the Designated Securities are
accurate and fairly present the information required or purported
to be shown.
In rendering such opinion or opinions, such counsel may rely as to all
matters governed by New York law upon the opinions referred to in
subsection (b) of this Section;
(d) On the date of the Pricing Agreement and at the Time of Delivery for
such Designated Securities, Deloitte & Touche LLP, which has rendered
its opinion on the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement, shall have furnished to the Underwriter a comfort letter, in
form and substance satisfactory to the Underwriter;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Pricing Prospectus or the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Pricing
Prospectus or the Prospectus, and (ii) since the respective dates as of
which information is given in the Registration Statement and the Pricing
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or in the
consolidated capitalization of the Company and its consolidated
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries considered as a whole, otherwise than as set forth
or contemplated in the Pricing Prospectus or the Prospectus, the effect
of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Underwriter so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Pricing Prospectus or the Prospectus;
(f) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act and no public
announcement shall have been made by any such organization that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(g) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the
over-the-counter market; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange or
the over-the-counter market; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv)
the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war; or
(v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or
(v) in the judgment of the Underwriter makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriter's Securities on the terms and in the manner contemplated in
the Pricing Prospectus or the Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Underwriter at the Time of Delivery for the Designated Securities
certificates of officers of the Company satisfactory to the Underwriter
as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior
to such Time of Delivery, as to the matters set forth in subsections (a)
and (e) of this Section, and as to such other matters as the Underwriter
may reasonably request.
9. (a) The Company will indemnify and hold harmless the Underwriter against
any losses, claims, damages or liabilities, joint or several, in which
the Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus, the Pricing Disclosure Package or any
"issuer information" filed or required to be filed pursuant to Rule
433(d) under the Act or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse the Underwriter for any legal or other expenses
reasonably incurred by the Underwriter in connection with investigating
or defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus,
the Prospectus, or any amendment or supplement thereto, any Issuer Free
Writing Prospectus or the Pricing Disclosure Package, in reliance upon
and in conformity with written information furnished to the Company by
the Underwriter of Designated Securities expressly for use therein.
(b) The Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus, or any amendment or supplement thereto, any Issuer Free
Writing Prospectus or the Pricing Disclosure Package, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus,
the Prospectus, or any amendment or supplement thereto, any Issuer Free
Writing Prospectus or the Pricing Disclosure Package, in reliance upon
and in conformity with written information furnished to the Company by
the Underwriter expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel of any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 9 is unavailable
to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriter of the Designated Securities on the
other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriter of the Designated Securities
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and such Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriter. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriter
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director
of the Underwriter and to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 9 shall be in addition to any liability
which the Underwriter may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the
Act.
10. (a) If the Underwriter shall default in its obligation to purchase the
Underwriter's Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Underwriter may in
its discretion arrange for itself or another party or other parties to
purchase the Underwriter's Securities on the terms contained herein. If
within thirty-six hours after such default by the Underwriter, the
Underwriter does not arrange for the purchase of such Underwriter's
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Underwriter to purchase such Underwriter's
Securities on such terms. In the event that, within the respective
prescribed period, the Underwriter notifies the Company that it has so
arranged for the purchase of such Underwriter's Securities, or the
Company notifies the Underwriter that it has so arranged for the
purchase of such Underwriter's Securities, the Underwriter or the
Company shall have the right to postpone the Time of Delivery for such
Underwriter's Securities for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or
in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Underwriter may thereby be
made necessary. The term "Underwriter" as used in this Agreement and the
Pricing Agreement with respect to such Securities shall include any
person substituted under this Section with like effect as if such person
had originally been a party to such Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriter's Securities, if the Underwriter defaults, by the
Underwriter and the Company as provided in subsection (a) above, any of
the Underwriter's Securities remains unpurchased, then the Pricing
Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of the Company, except for the
expenses to be borne by the Company as provided in Section 7 hereof and
the indemnity and contribution agreements in Section 9 hereof; but
nothing herein shall relieve the defaulting Underwriter from liability
for its default.
11. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Underwriter, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriter or any controlling person of the Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 10
hereof, the Company shall not then be under any liability to the Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 7 and Section 9 hereof; but, if for any other
reason Underwriter's Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriter for all
out-of-pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriter in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to the Underwriter with respect to such Designated Securities
except as provided in Section 7 and Section 9 hereof.
13. All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriter shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Underwriter as set forth in the Pricing
Agreement; and if to the Company shall be sufficient in all respects if
delivered, or sent by registered mail to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to the Underwriter pursuant to Section 9(c) hereof shall be delivered or
sent by registered mail to the Underwriter at its address set forth in its
Underwriter's Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Underwriter upon request.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriter, the Company and, to the extent
provided in Section 9 and Section 11 hereof, the officers and directors of the
Company and each person who controls the Company or the Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from the Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
15. Time shall be of the essence of each Pricing Agreement.
16. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
17. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
THE PROCTER & ▇▇▇▇▇▇ COMPANY
By:__________________________________
[NAME]
Accepted as of the date hereof:
[NAME]
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
Annex I:
Pricing
Agreement
[DATE]
[Name of Representatives,]
[Name of any Co-Representative(s),]
As representatives of the several Underwriters
_________ named in Schedule I hereto,
[c/o Representatives,]
[Address of Representatives]
Dear Sirs/Mesdames:
The Procter & ▇▇▇▇▇▇ Company (the "Company") proposes, subject to the terms
and conditions stated herein and in the Underwriting Agreement, dated [DATE]
(the "Underwriting Agreement"), to issue and sell to the Underwriter named in
Schedule I hereto (the "Underwriter") the Securities specified in Schedule II
hereto (the "Designated Securities").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty in Section 2 of the Underwriting Agreement which
makes reference to the Pricing Prospectus and the Prospectus shall be deemed to
be a representation and warranty as of the date of the Underwriting Agreement in
relation to the Pricing Prospectus and the Prospectus (as therein defined), and
also a representation and warranty as of the date of this Pricing Agreement in
relation to the Pricing Prospectus and the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement, each representation and warranty in Section 2 of the Underwriting
Agreement which makes reference to the Pricing Disclosure Package shall be
deemed to be a representation and warranty as of the Applicable Time (as set
forth in Schedule II hereto) in relation to the Pricing Disclosure Package (as
therein defined). Each reference to the Underwriter herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The address of the Underwriter
referred to in such Section 13 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at the time and place and at the purchase price to the Underwriter
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth in Schedule I hereto, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified in
such Schedule II.
If the foregoing is in accordance with your understanding, please sign and
return to us three counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between the Underwriter and the Company.
Very truly yours,
The Procter & ▇▇▇▇▇▇ Company
By:_________________________
[NAME]
Accepted as of the date hereof:
[NAME]
By:___________________________
Name:
Title:
SCHEDULE I
Underwriter(s) Principal Amount of Designated Securities to be Purchased
------------- ---------------------------------------------------------
[Name(s)] $
Total $
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
[Warrants]
Aggregate Principal Amount:
$[ ]
Price to Public:
_____% of the principal amount of the Designated Securities, plus accrued
interest from _____ to _____ [and accrued amortization, if any, from _____ to
_____]
Purchase Price by Underwriters:
_____% of the principal amount of the Designated Securities, plus accrued
interest from _____ to _____ [and accrued amortization, if any, from _____ to
_____]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the
Company in [New York Clearing House] [same day] funds]
[By wire transfer to a bank account specified by the Company in same day funds]
[Other specified method]
Indenture:
Indenture, dated as of September 28, 1992, between the Company and ▇.▇. ▇▇▇▇▇▇
Trust Company, National Association, successor in interest to Bank One Trust
Company, National Association, as Trustee
Time of Delivery:
[Time and date], 200___.
Closing Location:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Securities Exchange:
[Securities to be listed on the [New York] Stock Exchange]
Delayed Delivery:
[None] [Underwriters' commission shall be _____% of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been entered
into. Such commission shall be payable to the order of ____________________].
Maturity:
Interest Rate:
[_____%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount of $_____
or an integral multiple thereof, _____]
[on or after _____ , _____ at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before _____ , _____%, and
if] redeemed during the 12-month period beginning _____ ,
YEAR REDEMPTION PRICE
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling on or after_____ ,_____ , at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire $_____ principal amount of Designated Securities on__________ in each
of the years _____ through _____ at 100% of their principal amount plus accrued
interest] [_____ , together with [cumulative] [non-cumulative] redemptions at
the option of the Company to retire an additional $_____ principal amount of
Designated Securities in the years _____ through _____ at 100% of their
principal amount plus accrued interest.]
[If Securities are Extendible Debt Securities, insert-
Extendible Provisions:
Securities are repayable on __________,_____[insert date and years], at the
option of the holder, at their principal amount with accrued interest. Initial
annual interest rate will be _____%, and thereafter annual interest rate will be
adjusted on __________, _____ and __________ to a rate not less than _____% of
the effective annual interest rate on U.S. Treasury obligations with _____-year
maturities as of the [insert date 15 days prior to maturity date] prior to such
[insert maturity date].].
[If Securities are Floating Rate Debt Securities, insert-
Floating Rate Provisions:
Initial annual interest rate will be _____% through _____ [and thereafter will
be adjusted [monthly] [on each _____, _____, _____ and _____] [to an annual rate
of _____% above the average rate for _____-year [month] [securities]
[certificates of deposit] by _____ and _____ [insert names of banks].] [and the
annual interest rate [thereafter] [from _____ through _____] will be the
interest yield equivalent of the weekly average per annum market discount rate
for _____-month Treasury bills plus _____% of Interest Differential (the excess,
if any, of (i) then current weekly average per annum secondary market yield for
_____-month certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate of _____-month
Treasury bills); [from _____ and thereafter the rate will be the then current
yield equivalent plus _____% of Interest Differential].]
Defeasance:
[The provisions of Sections 403 and 1006 of the Indenture relating to defeasance
shall apply to the Designated Securities.]
[Other Terms]: [A description of particular tax, accounting or other unusual
features of the Securities may be set forth, or referenced to an attached
and accompanying description, if necessary, to the issuer's understanding of
the transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus Supplement for
the offering.]
SCHEDULE III(a)
[List of materials other than the Pricing Prospectus that comprise the Pricing
Disclosure Package]
SCHEDULE III(b)
[Free Writing Prospectuses, if any, not included in the Pricing Disclosure
Package]
ANNEX II
Delayed Delivery Contract
__________, 200__
THE PROCTER & ▇▇▇▇▇▇ COMPANY,
c/o [Name and address of appropriate Representatives].
Attention:
Dear Sirs/Mesdames:
The undersigned hereby agrees to purchase from The Procter & ▇▇▇▇▇▇ Company
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
[$] ..
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated
__________, 200 , as amended or supplemented, receipt of a copy of which is
hereby acknowledged, at a purchase price of % of the principal amount thereof [
, plus accrued interest from the date from which interest accrues as set forth
below,] [and accrued amortization, if any, from [__________] [the date from
which interest accrues as set forth below]] and on the further terms and
conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the Company on
____________________ , 200 . (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from _______________, 200 . [The
undersigned will purchase the Designated Securities from the Company on the
delivery date or dates and in the principal amount or amounts set forth below:
Delivery Date Principal Amount Date From Which Interest Accrues
------------- ---------------- --------------------------------
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to [the Company or its
order by certified or official bank check in [New York Clearing House]
[same day] funds at the office of ______________________________ , or by wire
transfer of same day funds to a bank account specified by the Company] [or
specify other means], on [the] [such] Delivery Date upon delivery to the
undersigned of the Designated Securities then to be purchased by the undersigned
in definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communications addressed to the Company not less than five full business days
prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [the] [each] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[The undersigned understands that underwriters (the "Underwriters") are also
purchasing Designated Securities from the Company, but that the obligations of
the undersigned hereunder are not contingent on such purchases. Promptly after
completion of the sale to the Underwriters the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.]
The undersigned represents and warrants that, as of the date of this contract,
the undersigned is not prohibited from purchasing the Designated Securities
hereby agreed to be purchased by it under the laws of the jurisdiction to which
the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
(Name of Purchaser)
By:_________________________
[NAME]
Accepted, ____________________, 200___.
THE PROCTER & ▇▇▇▇▇▇ COMPANY
By:_________________________
[NAME]
