Exhibit 10.20
Commercial Paper
Dealer Agreement
4(2) PROGRAM
between
Oracle Corporation, as Issuer
and
[Dealer], as Dealer
Concerning Notes to be issued
pursuant to an Issuing and Paying Agency Agreement dated as of
March 23, 2005 between the Issuer and JPMorgan Chase Bank,
National Association, as Issuing and Paying Agent
Dated as of
[Date]
COMMERCIAL PAPER
DEALER AGREEMENT
4(2) Program
This agreement
(“Agreement”) sets forth the understandings between the
Issuer and the Dealer in connection with the issuance and sale by
the Issuer of its short-term promissory notes through the Dealer
(the “Notes”).
Certain terms used
in this Agreement are defined in Section 6 hereof.
The
Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into
this Agreement and made fully a part hereof.
Section 1. Offers, Sales
and Resales of Notes
1.1
While (i) the Issuer has and shall have no obligation to sell
the Notes to the Dealer or to permit the Dealer to arrange any sale
of the Notes for the account of the Issuer, and (ii) the
Dealer has and shall have no obligation to purchase the Notes from
the Issuer or to arrange any sale of the Notes for the account of
the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of
Notes by the Issuer, such Notes will be purchased or sold by the
Dealer in reliance on the representations, warranties, covenants
and agreements of the Issuer contained herein or made pursuant
hereto and on the terms and conditions and in the manner provided
herein.
1.2
So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer
shall not, without the consent of the Dealer, offer, solicit or
accept offers to purchase, or sell, any Notes except (a) in
transactions with one or more dealers which may from time to time
after the date hereof become dealers with respect to the Notes by
executing with the Issuer one or more agreements which contain
provisions substantially identical to Section 1 of this
Agreement, of which the Issuer hereby undertakes to provide the
Dealer prompt notice or (b) in transactions with the other
dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially
identical to Section 1 of this Agreement contemporaneously
herewith. In no event shall the Issuer offer, solicit or accept
offers to purchase, or sell, any Notes directly on its own behalf
in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3
The Notes shall be in a minimum denomination or minimum amount,
whichever is applicable, of $250,000 or integral multiples of
$1,000 in excess thereof, will bear such interest rates, if
interest bearing, or will be sold at such discount from their face
amounts, as shall be agreed upon by the Dealer and the Issuer,
shall have a maturity not exceeding 365 days from the date of
issuance (exclusive of days of grace) and may have such terms as
attached as Exhibit C hereto and as specified in the Private
Placement Memorandum and shall not contain any provision for
extension, renewal or automatic “rollover.”
1.4
The authentication, delivery and payment of the Notes shall be
effected in accordance with the Issuing and Paying Agency Agreement
and the Notes shall be either individual physical certificates or
represented by book-entry Notes registered in the name of DTC or
its nominee in the form or forms annexed to the Issuing and Paying
Agency Agreement.
1.5
If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged
by the Dealer (including, but not limited to, agreement with
respect to the date of issue, purchase price, principal amount,
maturity and interest rate (in the case of interest-bearing Notes)
or discount thereof (in the case of Notes issued on a discount
basis), and appropriate compensation for the Dealer’s
services hereunder) pursuant to this Agreement, the Issuer shall
cause such Note to be issued and delivered in accordance with the
terms of the Issuing and Paying Agency Agreement
and payment for such Note shall
be made by the purchaser thereof, either directly or through the
Dealer, to the Issuing and Paying Agent, for the account of the
Issuer. Except as otherwise agreed, in the event that the Dealer is
acting as an agent and a purchaser shall either fail to accept
delivery of or make payment for a Note on the date fixed for
settlement, the Dealer shall promptly notify the Issuer, and if the
Dealer has theretofore paid the Issuer for the Note, the Issuer
will promptly return such funds to the Dealer against its return of
the Note to the Issuer, in the case of a certificated Note, and
upon notice of such failure in the case of a book-entry
Note.
1.6
The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and
subsequent resales or other transfers of the Notes:
(a) Offers and
sales of the Notes by or through the Dealer shall be made only to
the following types of investors: (i) investors reasonably
believed by the Dealer to be Institutional Accredited Investors,
(ii) non-bank fiduciaries or agents that will be purchasing
Notes for one or more accounts, each of which is an Institutional
Accredited Investor, and (iii) Qualified Institutional
Buyers.
(b) Resales and
other transfers of the Notes by the holders thereof shall be made
only in accordance with the restrictions in the legends described
in clause (e) below.
(c) No general
solicitation or general advertising (within the meaning of
Regulation D) shall be used in connection with the offering or sale
of the Notes. Without limiting the generality of the foregoing,
without the prior written approval of Dealer, the Issuer shall not
issue any press release or place or publish any
“tombstone” or other advertisement relating to the
Notes.
(d) No sale of
Notes to any one purchaser shall be for less than $250,000
principal or face amount, and no Note shall be issued in a smaller
principal or face amount. If the purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom such purchaser is
acting must purchase at least $250,000 principal or face amount of
Notes.
(e) Offers and
sales of the Notes by the Issuer through the Dealer acting as agent
for the Issuer shall be made in accordance with Rule 506 under
the Securities Act, and shall be subject to the restrictions
described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall
appear as part of the Private Placement Memorandum used in
connection with offers and sales of Notes hereunder, as well as on
each Note offered and sold pursuant to this Agreement.
(f) The Dealer
shall furnish or shall have furnished to each purchaser of Notes
for which it has acted as the dealer a copy of the then-current
Private Placement Memorandum unless such purchaser has previously
received a copy of the Private Placement Memorandum as then in
effect. The Private Placement Memorandum shall expressly state that
any person to whom Notes are offered shall have an opportunity to
ask questions of, and receive information from, the Issuer and the
Dealer and shall provide the names, addresses and telephone numbers
of the persons from whom information regarding the Issuer may be
obtained.
(g) The Issuer
agrees, for the benefit of the Dealer and each of the holders and
prospective purchasers from time to time of the Notes that, if at
any time the Issuer shall not be subject to Section 13 or
15(d) of the Exchange Act, the Issuer will furnish, upon request
and at its expense, to the Dealer and to holders and prospective
purchasers of Notes information required by Rule 144A(d)(4)(i)
in compliance with Rule 144A(d).
(h) In the event
that any Note offered or to be offered by Dealer would be
ineligible for resale under Rule 144A, the Issuer shall
immediately notify Dealer (by telephone, confirmed in writing) of
such fact and shall promptly prepare and deliver to Dealer an
amendment or
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supplement to the Private Placement Memorandum
describing the Notes that are ineligible, the reason for such
ineligibility and any other relevant information relating
thereto.
(i) The Issuer
represents that it is not currently issuing commercial paper in the
United States market in reliance upon the exemption provided by
Section 3(a)(3) of the Securities Act. The Issuer agrees that,
if the Issuer shall issue commercial paper after the date hereof in
reliance upon such exemption, (a) the proceeds from the sale
of the Notes will be segregated from the proceeds of the sale of
any such commercial paper by being placed in a separate account;
(b) the Issuer will institute appropriate corporate procedures
to ensure that the offers and sales of notes issued by the Issuer
pursuant to the Section 3(a)(3) exemption are not integrated
with offerings and sales of Notes hereunder; and (c) the
Issuer will comply with each of the requirements of
Section 3(a)(3) of the Securities Act in selling commercial
paper or other short-term debt securities other than the Notes in
the United States.
1.7
The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as
follows:
(a) Issuer hereby
confirms to the Dealer that (except as permitted by
Section 1.6(i)) within the preceding six months neither the
Issuer nor any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof acting on behalf of the
Issuer has offered or sold any Notes, or any substantially similar
security of the Issuer (including, without limitation, medium-term
notes issued by the Issuer), to, or solicited offers to buy any
such security from, any person other than the Dealer or the other
dealers referred to in Section 1.2 hereof. The Issuer also
agrees that, as long as the Notes are being offered for sale by the
Dealer and the other dealers referred to in Section 1.2 hereof
as contemplated hereby and until at least six months after the
offer of Notes hereunder has been terminated, neither the Issuer
nor any person other than the Dealer or the other dealers referred
to in Section 1.2 hereof (except as contemplated by
Section 1.2 hereof) will offer the Notes or any substantially
similar security (excluding any medium-term notes issued by the
Issuer) of the Issuer for sale to, or solicit offers to buy any
such security from, any person other than the Dealer and the other
dealers referred to in Section 1.2 hereof, it being understood
that such agreement is made with a view to bringing the offer and
sale of the Notes within the exemption provided by
Section 4(2) of the Securities Act and Rule 506
thereunder and shall survive any termination of this Agreement. The
Issuer hereby represents and warrants that it has not taken or
omitted to take, and will not take or omit to take, any action that
would cause the offering and sale of Notes hereunder to be
integrated with any other offering of securities, whether such
offering is made by the Issuer or some other party or
parties.
(b) The Issuer
represents and agrees that the proceeds of the sale of the Notes
are not currently contemplated to be used for the purpose of
buying, carrying or trading securities within the meaning of
Regulation T and the interpretations thereunder by the Board
of Governors of the Federal Reserve System. The Issuer shall give
the Dealer at least five business days’ prior written notice
before issuing any Notes the proceeds of which will or may be used
for the purpose of buying, carrying or trading securities within
the meaning of Regulation T and the interpretations thereunder
by the Board of Governors of the Federal Reserve System, whether in
connection with an acquisition of another company or otherwise. The
Issuer shall also give the Dealer prompt notice of the actual date
that it commences to purchase securities with the proceeds of the
Notes. Thereafter, in the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such
purchase, to the extent necessary to comply with Regulation T
and the interpretations thereunder, the Dealer will sell such Notes
only to offerees it reasonably believes to be QIBs or to QIBs it
reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A.
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Section 2.
Representations and Warranties of Issuer
The Issuer represents and
warrants that:
2.1
The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
the requisite power and authority to execute, deliver and perform
its obligations under the Notes, this Agreement and the Issuing and
Paying Agency Agreement.
2.2
This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and
constitute legal, valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with their terms
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law).
2.3
The Notes have been duly authorized, and when issued and delivered
as provided in the Issuing and Paying Agency Agreement, will be
duly and validly issued and delivered and will constitute legal,
valid and binding obligations of the Issuer enforceable against the
Issuer in accordance with their terms subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’
rights generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
2.4
The offer and sale of Notes in the manner contemplated hereby do
not require registration of the Notes under the Securities Act,
pursuant to the exemption from registration contained in
Section 4(2) thereof and Regulation D thereunder, and no
indenture in respect of the Notes is required to be qualified under
the Trust Indenture Act of 1939, as amended.
2.5
The Notes will rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the Issuer.
2.6
No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the
SEC, is required to authorize, or is otherwise required in
connection with the execution, delivery or performance of, this
Agreement, the Notes or the Issuing and Paying Agency Agreement,
except as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Notes.
2.7
Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance and delivery
of the Notes in accordance with the Issuing and Paying Agency
Agreement, nor the fulfillment of or compliance with the terms and
provisions hereof or thereof by the Issuer, will (i) result in
the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or
assets of the Issuer, or (ii) violate or result in a breach or an
event of default under any of the terms of the Issuer’s
charter documents or by-laws, any contract or instrument to which
the Issuer is a party or by which it or its property is bound, or
any law or regulation, or any order, writ, injunction or decree of
any court or government instrumentality, to which the Issuer is
subject or by which it or its property is bound, which breach or
event of default is reasonably likely to have a material adverse
effect on the ability of the Issuer to perform its obligations
under this Agreement, the Notes or the Issuing and Paying Agency
Agreement.
2.8
Except as disclosed by the Issuer in the Company Information, there
is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the Issuer
or any of its subsidiaries which is reasonably likely to result in
a material adverse effect on the ability of the Issuer to perform
its obligations under this Agreement, the Notes or the Issuing and
Paying Agency Agreement.
2.9
The Issuer is not an “investment company” within the
meaning of the Investment Company Act of 1940, as
amended.
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2.10 Neither the
Private Placement Memorandum nor the Company Information contains
any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
2.11 Each
(a) issuance of Notes by the Issuer hereunder and
(b) amendment or supplement of the Private Placement
Memorandum shall be deemed a representation and warranty by the
Issuer to the Dealer, as of the date thereof, that, both before and
after giving effect to such issuance and after giving effect to
such amendment or supplement, (i) the representations and
warranties given by the Issuer set forth above in this
Section 2 remain true and correct on and as of such date as if
made on and as of such date, (ii) in the case of an issuance
of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations
of the Issuer, enforceable against the Issuer in accordance with
their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law) and (iii) in the case of an issuance of
Notes, since the date of the most recent Private Placement
Memorandum, there has been no material adverse change in the
condition (financial or otherwise) or operations of the Issuer and
its subsidiaries, taken as a whole, which has not been disclosed in
the Company Information or to the Dealer in writing.
Section 3. Covenants and
Agreements of Issuer
The Issuer covenants and agrees
that:
3.1
The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any
amendment to, modification of, or waiver with respect to, the Notes
or the Issuing and Paying Agency Agreement, including a complete
copy of any such amendment, modification or waiver.
3.2
During the term of this Agreement, the Issuer shall, whenever there
shall occur any change in the condition (financial or otherwise) or
operations of the Issuer and its subsidiaries, taken as a whole, or
any development or occurrence in relation to the Issuer that would
be material to holders of the Notes or potential holder of the
Notes (including any downgrading or receipt of any notice of
intended or potential downgrading or any review for potential
change in the rating accorded any of the Issuer’s securities
by any nationally recognized statistical rating organization which
has published a rating of the Notes), upon actual knowledge
thereof, and in any event prior to any subsequent issuance of Notes
hereunder, notify the Dealer (by telephone, confirmed in writing)
of such change, development, or occurrence; provided that, for the
avoidance of doubt, the parties hereto acknowledge and agree that
the Issuer shall not be required to give such notice if such
disclosure to the Dealer would require public disclosure of such
information under Regulation FD.
3.3
During the term of this Agreement, the Issuer shall from time to
time furnish to the Dealer such information as the Dealer may
reasonably request, including, without limitation, any publicly
available press releases or publicly available material provided by
the Issuer to any national securities exchange or rating agency,
regarding (i) the Issuer’s operations and financial
condition, (ii) the due authorization and execution of the
Notes, and (iii) the Issuer’s ability to pay the Notes
as they mature.
3.4
The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will
comply with any applicable state Blue Sky laws; provided ,
that the Issuer shall not be obligated to file any general consent
to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or subject itself to
taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject.
3.5
The Issuer will not be in default of any of its obligations
hereunder, under the Notes or under the Issuing and Paying Agency
Agreement, at any time that any of the Notes are
outstanding.
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3.6
The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion or opinions of counsel to the
Issuer, addressed to the Dealer, satisfactory in form and substance
to the Dealer, (b) a copy of the executed Issuing and Paying
Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in
form and substance to the Dealer and certified by the Secretary or
similar officer of the Issuer, authorizing execution and delivery
by the Issuer of this Agreement, the Issuing and Paying Agency
Agreement and the Notes and consummation by the Issuer of the
transactions contemplated hereby and thereby, (d) prior to the
issuance of any Notes represented by a book-entry note registered
in the name of DTC or its nominee, a copy of the executed Letter of
Representations among the Issuer, the Issuing and Paying Agent and
DTC and (e) such other certificates, opinions, letters and
documents as the Dealer shall have reasonably requested.
3.7
The Issuer shall reimburse the Dealer for all of the Dealer’s
out-of-pocket expenses related to this Agreement, including
expenses incurred in connection with its preparation and
negotiation, and the transactions contemplated hereby (including,
but not limited to, the printing and distribution of the Private
Placement Memorandum), and, if applicable, for the reasonable fees
and out-of-pocket expenses of the Dealer’s
counsel.
Section 4.
Disclosure
4.1
The Private Placement Memorandum which shall be provided to
purchasers and prospective purchasers of the Notes shall be
prepared for use in connection with the transactions contemplated
by this Agreement. The Private Placement Memorandum and its
contents (other than the Dealer Information) shall be the sole
responsibility of the Issuer. The Private Placement Memorandum
shall contain a statement expressly offering an opportunity for
each prospective purchaser to ask questions of, and receive answers
from, the Issuer concerning the offering of Notes and to obtain
relevant additional information which the Issuer possesses or can
acquire without unreasonable effort or expense.
4.2
The Issuer agrees promptly to furnish by way of filing with the SEC
or otherwise the Dealer the Company Information as it becomes
available.
4.3
(a) The Issuer further agrees to notify the Dealer promptly
upon the occurrence of any event relating to or affecting the
Issuer that would cause the Private Placement Memorandum then in
existence to include an untrue statement of material fact or to
omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under
which they are made, not misleading.
(b) In
the event that the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then
has Notes it is holding in inventory, the Issuer agrees promptly to
supplement or amend the Private Placement Memorandum so that such
Private Placement Memorandum, as amended or supplemented, shall not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment
available to the Dealer.
(c) In
the event that (i) the Issuer gives the Dealer notice pursuant
to Section 4.3(a) and (ii) the Dealer does not notify the
Issuer that it is then holding Notes in inventory and
(iii) the Issuer chooses not to promptly amend or supplement
the Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be
suspended until such time as the Issuer has so amended or
supplemented the Private Placement Memorandum, and made such
amendment or supplement available to the Dealer.
Section 5.
Indemnification and Contribution
5.1
The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other
entity controlling the Dealer, any affiliate of the Dealer or any
such controlling entity and their respective directors, officers,
employees, partners, incorporators, shareholders,
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servants, trustees and agents
(hereinafter the “Indemnitees”) against any and all
liabilities, penalties, suits, causes of action, losses, damages,
claims, costs and expenses (including, without limitation, fees and
disbursements of counsel) or judgments of whatever kind or nature
(each a “Claim”), imposed upon, incurred by or asserted
against the Indemnitees arising out of or based upon (i) any
allegation that the Private Placement Memorandum, the Company
Information or any information provided by the Issuer to the Dealer
included (as of any relevant time) or includes an untrue statement
of a material fact or omitted (as of any relevant time) or omits to
state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach by
the Issuer of any agreement, covenant or representation made in or
pursuant to this Agreement. This indemnification shall not apply to
the extent that the Claim arises out of or is based upon Dealer
Information.
5.2
Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this
Agreement.
5.3
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this
Section 5 is held to be unavailable or insufficient to hold
harmless the Indemnitees, although applicable in accordance with
the terms of this Section 5, the Issuer shall contribute to
the aggregate costs incurred by the Dealer in
