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EXHIBIT 1
MERCK & CO., INC.
$3,817,795,000
MEDIUM-TERM NOTES, SERIES F
DISTRIBUTION AGREEMENT
January 12, 2005
Goldman, Sachs & Co.,
85 Broad
Street,
New York, New York 10004.
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated,
4 World Financial Center,
250 Vesey Street,
New York, New York 10080.
J.P. Morgan Securities Inc.,
270 Park
Avenue,
New York, New York 10017-2014.
Morgan Stanley & Co. Incorporated,
1585
Broadway,
New York, New York 10036.
Citigroup Global Markets Inc.,
388 Greenwich Street,
New York, New York 10013.
Ladies and Gentlemen:
Merck & Co., Inc., a New Jersey corporation (the
"Company"),
proposes, subject to the terms and
conditions stated herein, to issue and sell
from time to time its Medium-Term Notes,
Series F (the "Securities"), at an
aggregate initial offering price of up to
$3,817,795,000 (or the equivalent
thereof in one or more foreign currencies
or currency units), subject to
reduction as the result of the concurrent
sale of other Debt Securities (as
defined in the Prospectus) by the Company,
and agrees with each of you
(individually, an "Agent", and
collectively, the "Agents") as set forth in this
Agreement.
Subject to the terms and conditions stated herein, the Company
hereby (i) appoints each Agent as an agent
of the Company for the purpose of
soliciting and receiving offers to purchase
Securities from the Company pursuant
to Section 2(a) hereof
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and (ii) agrees that whenever it determines
to sell Securities directly to any
Agent as principal, for resale to others,
it will, unless otherwise agreed by
the Company and the agents, enter into a
separate agreement, substantially in
the form of Annex II hereto, relating to
such sale or another agreement (which
may be oral and confirmed in writing)
relating to the purchase by such Agent as
principal (each a "Terms Agreement"), in
each case in accordance with Section
2(b) hereof. The Company reserves the right
to sell Securities directly on its
own behalf and to enter into agreements
substantially identical hereto with
other broker-dealers as Agents. This
Distribution Agreement shall not be
construed to create either an obligation on
the part of the Company to sell any
Securities or an obligation of any of the
Agents to purchase Securities as
principal.
The Securities will be issued under the Indenture, dated as of
April
1, 1991, as amended (the "Indenture"),
between the Company and U.S. Bank Trust
National Association, as Trustee (the
"Trustee"), and the terms and rights of
the Securities shall be as specified in or
established pursuant to the
Indenture. The Securities shall have the
maturity ranges, interest rates, if
any, redemption provisions and other terms
set forth in the Prospectus referred
to below as it may be amended or
supplemented from time to time. The Securities
will be issued, and the terms thereof
established, from time to time by the
Company in accordance with the Indenture
and the Administrative Procedures
attached hereto as Annex II (the
"Administrative Procedures") and, if
applicable, will be specified in a related
Terms Agreement.
1. The Company represents and warrants to, and agrees with,
each
Agent that:
(a) Two registration statements on Form S-3 (File Nos.
333-118186
and
333-72456) in respect of debt securities of the Company, including
the
Securities, have been filed with the Securities and Exchange
Commission
(the
"Commission"); such registration statements and any
post-effective
amendment
thereto, each in the form heretofore delivered or to be
delivered
to such Agent, excluding exhibits to such registration
statement,
but including all documents incorporated by reference in the
prospectus
included in the latest registration statement, have been
declared
effective by the Commission in such form; no other document
with
respect to
such registration statements or documents incorporated by
reference
therein has been filed or transmitted for filing with the
Commission
(other than the prospectuses filed pursuant to Rule 424(b)
under the
Securities Act of 1933, as amended (the "Act"), each in the
form
heretofore
delivered to the Agents) on or prior to the date hereof; and no
stop order
suspending the effectiveness of any such registration statement
has been
issued and no proceeding for that purpose has been instituted
or
threatened
by the Commission (any preliminary prospectus included in such
registration statements or filed with the Commission pursuant to
Rule
424(a)
under the Act is hereinafter called a "Preliminary Prospectus";
the
various
parts of such registration statements, including all exhibits
thereto
and the documents incorporated by reference in the prospectus
contained
in such registration statements at the time such part of the
registration statements became effective but excluding Form T-1,
each as
amended at
the time such part of the
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registration statements became effective, are hereinafter
collectively
called the
"Registration Statement"; the prospectus (including any
prospectus
supplement) relating to the Securities, in the form in which it
has most
recently been filed, or transmitted for filing, with the
Commission
on or prior to the date of this Agreement, is hereinafter
called the
"Prospectus"; any reference herein to any Preliminary
Prospectus
or the Prospectus shall be deemed to refer to and include the
documents
incorporated by reference therein pursuant to the applicable
form under
the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment
or
supplement
to any Preliminary Prospectus or the Prospectus, including any
supplement
to the Prospectus that sets forth only the terms of a
particular
issue of the Securities (a "Pricing Supplement"), shall be
deemed to
refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under
the
Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment
to the
Registration Statement shall be deemed to refer to and include any
annual
report of
the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange
Act after the effective date of the Registration Statement that
is
incorporated by reference in the Registration Statement; and
any
reference
to the Prospectus as amended or supplemented shall be deemed to
refer to
and include the Prospectus as amended or supplemented
(including
by the
applicable Pricing Supplement filed in accordance with Section
4(a)
hereof) in
relation to Securities sold pursuant to this Agreement, in the
form filed
or transmitted for filing with the Commission pursuant to Rule
424(b)
under the Act and in accordance with Section 4(a) hereof,
including
any
documents incorporated by reference therein as of the date of
such
filing);
(b) The documents incorporated by reference in the Prospectus,
when
they
became effective or were filed with the Commission, as the case
may
be,
conformed in all material respects to the requirements of the Act
or
the Exchange
Act, as applicable, and the rules and regulations of the
Commission
thereunder, and none of such documents contained an untrue
statement
of a material fact or omitted to state a material fact required
to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated
by
reference
in the Prospectus, or any further amendment or supplement
thereto,
when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to
the
requirements of the Act or the Exchange Act, as applicable, and
the
rules and
regulations of the Commission thereunder and will not contain
an
untrue statement of a
material fact or omit to state a material fact
required
to be stated therein or necessary to make the statements
therein
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
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writing to
the Company by any Agent expressly for use in the Prospectus as
amended or
supplemented to relate to a particular issuance of Securities;
(c) The Registration Statement and the Prospectus conform, and
any
amendments
or supplements thereto will conform, 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 rules and regulations of
the
Commission
thereunder and do not and will not, as of the applicable
effective
date as to the Registration Statement and any amendment thereto
and as of
the applicable filing date as to the Prospectus and any
amendment
or supplement thereto, contain an untrue statement of a
material
fact or
omit to state a material fact required to be stated therein or
necessary
to make the statements therein not misleading; provided,
however,
that this representation and warranty shall not apply to any
statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent
expressly for
use in the
Prospectus as amended or supplemented to relate to a particular
issuance
of Securities;
(d) 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 Prospectus any material 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 Prospectus; and, since the respective dates
as of
which information is given in the Registration Statement and
the
Prospectus,
there has not been any material change in the consolidated
capital
stock or any material increase in the consolidated long-term
debt
of the
Company and its subsidiaries or any material adverse change, or
any
development involving a prospective material adverse change, in
or
affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and
its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated
in the
Prospectus;
(e) The Company has been duly incorporated and is validly
existing
as a
corporation in good standing under the laws of New Jersey, with
power
and
authority (corporate and other) to own its properties and conduct
its
business
as described in the Prospectus;
(f) Each of the subsidiaries of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under
the laws
of the jurisdiction of its incorporation and is duly qualified
to
transact
business and is in good standing in each jurisdiction in which
the
conduct of its business or the ownership or leasing of its
property
requires
such qualification, except where failure to qualify would not
have a
material adverse effect upon the Company and its consolidated
subsidiaries taken as a whole;
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(g) The series constituting the Securities has been duly
authorized
and
established in conformity with the Indenture and, when the terms of
a
particular
Security and of the issue and sale thereof have been duly
authorized
and established by all necessary corporate action in conformity
with the
Indenture and such Security has been duly completed, executed,
authenticated and issued in accordance with the Indenture, and
delivered
against
payment therefor as contemplated by this Agreement and any
applicable
Terms Agreement, such Security will have been duly executed,
authenticated, issued and delivered and will constitute a valid
and
legally
binding obligation of the Company entitled to the benefits
provided
by the Indenture; the Indenture has been duly authorized and
qualified
under the Trust Indenture Act and constitutes a valid and
legally
binding obligation of the Company, enforceable in accordance
with
its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability
relating
to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities will
conform to
the
descriptions thereof contained in the Prospectus as amended or
supplemented;
(h) The issue and sale of the Securities, the compliance by the
Company
with all of the provisions of the Securities, the Indenture,
this
Agreement
and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or
result in
a breach or violation of any of the terms or provisions of, or
constitute
a default under, or result in the creation or imposition of any
lien,
charge or encumbrance upon any of the property or assets of the
Company or
any of its subsidiaries pursuant to the terms of any indenture,
mortgage,
deed of trust, loan agreement or other agreement or instrument
to which
the Company or any of its subsidiaries is a party or by which
the
Company or
any of its subsidiaries is bound or to which any of the
property
or assets of the Company or any of its subsidiaries is subject,
nor will
such action result in any violation of the provisions of the
Certificate of Incorporation, as amended, or the By-Laws of the
Company or
any
statute or any order, rule or regulation of any court or
governmental
agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent,
approval,
authorization, order, registration or qualification of or with any
court
or
governmental agency or body is required for the solicitation of
offers
to
purchase Securities, the issue and sale of the Securities or
the
consummation by the Company of the other transactions contemplated
by this
Agreement,
any Terms Agreement or the Indenture, except such as have been,
or will
have been prior to the Commencement Date (as defined in Section
3
hereof),
obtained under the Act or the Trust Indenture Act and such
consents,
approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue
Sky laws
in
connection with the solicitation by such Agent of offers to
purchase
Securities
from the Company and with purchases of Securities by such Agent
as
principal, as the case may be, in each case in the manner
contemplated
hereby;
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(i) There are no legal or governmental proceedings pending to
which
the
Company or any of its subsidiaries is a party or to which any
property
of the
Company or any of its subsidiaries is the subject, other than
as
set forth
in the Prospectus which, if determined adversely to the Company
or any of
its subsidiaries, would individually or in the aggregate have a
material
adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and
its
subsidiaries, and, to the best of the Company's knowledge, no
such
proceedings are threatened or contemplated by governmental
authorities or
threatened
by others; and
(j) Immediately after any sale of Securities by the Company
hereunder
or under any Terms Agreement, the aggregate amount of
Securities
which
shall have been issued and sold by the Company hereunder or
under
any Terms
Agreement and of any debt securities of the Company (other than
such
Securities) that shall have been issued and sold pursuant to
the
Registration Statement will not exceed the amount of debt
securities
registered
under the Registration Statement.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions herein
set forth, each of the Agents hereby
severally and not jointly agrees, as agent
of the Company, to use its reasonable
efforts to solicit and receive offers to
purchase the Securities from the
Company upon the terms and conditions set
forth in the Prospectus as amended or
supplemented from time to time. So long as
the provisions of this Agreement
relating to the solicitation of offers to
purchase Securities from the Company
shall not have been terminated pursuant to
Section 10 with respect to any Agent,
the Company shall not, without the consent
of such Agent, solicit or accept
offers to purchase, or sell, Securities
except pursuant to this Agreement or any
Terms Agreement, or except pursuant to a
private placement not constituting a
public offering under the Act or except in
connection with a firm commitment
underwriting pursuant to an underwriting
agreement that does not provide for a
continuous offering of medium-term debt
securities. However, (i) the Company
reserves the right to sell, and may solicit
and accept offers to purchase,
Securities directly on its own behalf with
persons other than broker-dealers,
and, in the case of any such sale not
resulting from a solicitation made by any
Agent, no commission will be payable with
respect to such sale; and (ii) the
Company shall have the right at any time to
accept a specific offer to purchase
Securities solicited by a person other than
one or more of the Agents or to
agree with another person that such person
shall become an Agent hereunder or
that such person may from time to time
solicit and receive offers to purchase
Securities from the Company (each such
other person, an "Other Dealer"), in each
case without obtaining the prior consent of
any of the Agents, provided that (x)
the Company shall give each of the Agents
notice of its acceptance of such an
offer or making such an agreement and (y)
any Other Dealer shall agree to be
bound by and subject to the terms and
conditions of this Agreement binding on
the Agents (including the commission
schedule set forth on Annex I, except for
any commission as agreed between such Other
Dealer and the Company).
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Procedural details relating to the issue and delivery of
Securities,
the solicitation of offers to purchase
Securities and the payment in each case
therefor shall be as set forth in the
Administrative Procedures attached hereto
as Annex III as they may be amended from
time to time by written agreement
between the Agents and the Company (the
"Administrative Procedures"). Each Agent
and the Company agree to perform the
respective duties and obligations
specifically provided to be performed by
each of them in the Administrative
Procedures. The Company will furnish to the
Trustee a copy of the Administrative
Procedures as from time to time in
effect.
The Company reserves the right, in its sole discretion, to
instruct
the Agents to suspend at any time, for any
period of time or permanently, the
solicitation of offers to purchase the
Securities from the Company. As soon as
practicable, but in any event not later
than one Business Day in New York City,
after receipt of notice from the Company,
the Agents will suspend solicitation
of offers to purchase Securities from the
Company until such time as the Company
has advised the Agents that such
solicitation may be resumed. Any time at which
no such suspension of solicitation of
offers is in effect and any time at which
no suspension of solicitation of offers to
purchase Securities pursuant to
Section 4(c) is in effect, and any time
when either any Agent shall own any
Securities with the intention of reselling
them or the Company has accepted an
offer to purchase Securities but the
related settlement has not occurred, is
referred to herein as a "Marketing Time."
During such time as the solicitation
of offers to purchase the Securities shall
be suspended, the Company shall not
be required to comply with the provisions
of Sections 4(h), 4(i) and 4(j),
provided that, at the commencement of the
next Marketing Time, the Company
shall, if requested by any Agent, promptly
deliver to the Agents the opinion,
accountants' letter and certificate
required by Sections 4(h), 4(i) and 4(j),
respectively, except that the Company need
deliver only one such opinion, one
such accountants letter and one such
certificate, each of which shall relate to
the Registration Statement and the
Prospectus as amended or supplemented at the
time such Marketing Time commences.
The Company agrees to pay each Agent a commission, at the time
of
settlement of any sale of a Security by the
Company as a result of a
solicitation made by such Agent, in an
amount in accordance with the schedule
set forth in Annex I hereto unless
otherwise agreed.
As Agents, you are authorized to solicit offers to purchase the
Securities only in authorized denominations
as set forth in the Prospectus at a
purchase price equal to 100% of their
principal amount unless otherwise
indicated on the applicable pricing
supplement to the Prospectus. Each Agent
shall communicate to the Company, orally or
in writing, each offer to purchase
Securities other than those rejected by
such Agent. The Company shall have the
sole right to accept offers to purchase
Securities and may reject any proposed
purchase of Securities as a whole or in
part. The Agents shall have the right,
in their discretion reasonably exercised,
to reject any offer to purchase
Securities, as a whole or in part, and any
such rejection by the Agents shall
not be deemed a breach of their agreements
contained herein.
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(b) Unless the Company and the Agents otherwise agree, each sale
of
Securities to any Agent as principal shall
be made in accordance with the terms
of this Agreement and a Terms Agreement,
which will provide for the sale of such
Securities to, and the purchase thereof by,
such Agent. A Terms Agreement may
also specify certain provisions relating to
the reoffering of such Securities by
such Agent. The commitment of any Agent to
purchase Securities as principal
pursuant to any Terms Agreement shall be
deemed to have been made on the basis
of the representations and warranties of
the Company herein contained and shall
be subject to the terms and conditions
herein set forth. Each Terms Agreement
shall specify the principal amount of
Securities to be purchased by any Agent
pursuant thereto, the price to be paid to
the Company for such Securities, any
provisions relating to rights of, and
default by, underwriters acting together
with such Agent in the reoffering of the
Securities and the time (each, a "Time
of Delivery") and date and place of
delivery of and payment for such Securities.
Such Terms Agreement shall also specify any
requirements for officers'
certificates, opinions of counsel and
accountants' letters pursuant to Section 4
hereof.
(c) Each Agent agrees that, with respect to any Security
denominated
in a currency other than U.S. dollars, it
will not (i) as agent, directly, or
indirectly, solicit offers to purchase, or
(ii) as principal under any Terms
Agreement or otherwise, directly or
indirectly, offer, sell or deliver, such
Security in, or to residents of, the
country issuing such currency (or if such
Security is denominated in euros, not to
residents of the 11 member states of
the European Monetary Union; or if such
Security is denominated in a composite
currency, not to residents in any country
issuing a currency comprising a
portion of such composite currency),
except, in each case, as permitted by
applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined
below) shall be delivered to the
Agents at the offices of Sullivan &
Cromwell LLP, 125 Broad Street, New York,
New York, at 11:00 a.m., New York City
time, on the date of this Agreement,
which date and time of such delivery may be
postponed by agreement between the
Agents and the Company but in no event
shall be later than the day prior to the
date on which solicitation of offers to
purchase Securities is commenced or on
which any Terms Agreement is executed (such
time and date being referred to
herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement
or the Prospectus (A) prior to the Commencement Date which
shall
be
disapproved by any Agent promptly after reasonable notice thereof
or
(B) after
the date of any Terms Agreement and prior to the related Time
of
Delivery,
which shall be disapproved by any Agent party to such Terms
Agreement
promptly after reasonable notice thereof; (ii) to prepare, with
respect to
any Securities to be sold through or to such Agent pursuant to
this
Agreement, a Pricing Supplement with respect to such Securities in
a
form
previously approved by such Agent and to file such Pricing
Supplement
pursuant
to and in accordance with Rule 424(b) under
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the Act;
(iii) to make no amendment or supplement to the Registration
Statement
or Prospectus, other than any Pricing Supplement, at any time
prior to
having afforded each Agent a reasonable opportunity to review
and
comment on
it, and if the Company effects any amendment or supplementation
of the
Registration Statement or the Prospectus to which an Agent
objects,
such Agent
shall be relieved of its obligations under Section 2(a) to
solicit
offers to purchase Securities until such time as the Company
shall
have filed
such further amendments or supplements such that such Agent is
reasonably
satisfied with the Registration Statement and the Prospectus,
as then
amended or supplemented; (iv) 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 is
required
in connection with the offering or sale of the Securities, and
during
such same period to advise such Agent, promptly after the
Company
receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or
any
supplement
to the Prospectus or any amended Prospectus (other than any
Pricing
Supplement that relates to Securities not purchased through or
by
such
Agent) has been filed with or mailed for filing to the Commission,
of
the
issuance by the Commission of any stop order or of any order
preventing
or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of the
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
amendment or supplement of the Registration Statement or
Prospectus
or for additional information; and (v) in the event of the
issuance
of any such stop order or of any such order preventing or
suspending
the use of any prospectus relating to the Securities or
suspending
any such qualification, to use promptly its best efforts to
obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as such
Agent
reasonably
may request to qualify the Securities for offering and sale
under the
securities laws of such United States jurisdictions as such
Agent may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary
to
complete the distribution or sale of the Securities; provided,
however,
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;
(c) To furnish such Agent with copies of the Registration
Statement
and each
amendment thereto, with copies of the Prospectus as each time
amended or
supplemented, other than any Pricing Supplement (except as
provided
in the Administrative Procedures), in the form in which it is
filed with
the Commission pursuant to Rule 424 under the Act, and with
copies of
the documents incorporated by reference therein, all in such
quantities
as such Agent may reasonably request from time to time; and,
if, during
any Marketing Time a
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prospectus
relating to the Securities is required to be delivered under
the Act,
any event occurs as a result of which 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 Prospectus is delivered, not misleading, or, if for
any other
reason it shall be necessary during such same period to amend
or
supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the
Act, the
Exchange Act or the Trust Indenture Act, to notify such Agent
promptly
by telephone (with confirmation in writing) and request such
Agent, in
its capacity as agent of the Company, to suspend solicitation
of
offers to
purchase Securities from the Company (and, if so notified, such
Agent
shall cease such solicitations as soon as practicable, but in
any
event not
later than one Business Day in New York City later) and to
cease
making
offers or sales of Securities which an Agent may then own as
principal;
and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or
supplemented,
to so
advise such Agent promptly by telephone (with confirmation in
writing)
and to prepare and cause to be filed promptly with the
Commission
an amendment or
supplement to the Registration Statement or the Prospectus
as then
amended or supplemented that will correct such statement or
omission
or effect such compliance; provided, however, that if during
such
same
period such Agent continues to own Securities purchased from
the
Company by
such Agent as principal or such Agent is otherwise required to
deliver a
prospectus in respect of transactions in the Securities, the
Company
shall promptly prepare and file with the Commission such an
amendment
or supplement;
(d) To make generally available to its securityholders as soon
as
practicable, but in any event not later than 90 days after the
close of
the period
covered thereby, 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);
(e) So long as any Securities are outstanding, to furnish to
such
Agent
copies of all reports or other communications (financial or
other)
furnished
to stockholders, and deliver to such Agent (i) as soon as they
are
available, copies of any reports and financial statements furnished
to
or filed
with the Commission or any national securities exchange on
which
any class
of securities of the Company is listed; and (ii) such
additional
information concerning the business and financial condition of the
Company
as such
Agent may from time to time reasonably request (such financial
statements
to be on a consolidated basis to the extent the accounts of the
Company
and its subsidiaries are consolidated in reports furnished to
its
stockholders generally or to the Commission);
-10-
<PAGE>
(f) That, from the date of any Terms Agreement with such Agent
and
continuing
to and including the earlier of (i) the termination of the
trading
restrictions for the Securities purchased thereunder, as
notified
to the
Company by such Agent, and (ii) the related Time of Delivery,
not
to offer,
sell, contract to sell or otherwise dispose of any debt
securities
of the Company which both mature more than 9 months after such
Time of
Delivery and are substantially similar to the Securities,
without
the prior
written consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities
hereunder, and each execution and delivery by the Company of a
Terms
Agreement with such Agent, shall be deemed to be an affirmation
to
such Agent
that the representations and warranties of the Company
contained
in or made pursuant to this Agreement are true and correct as
of
the date
of such acceptance or of such Terms Agreement, as the case may
be, as
though made at and as of such date, and an undertaking that
such
representations and warranties will be true and correct as of
the
settlement
date for the Securities relating to such acceptance or as of
the Time
of Delivery relating to such sale, as the case may be, as
though
made at
and as of such date (except that such representations and
warranties
shall be deemed to relate to the Registration Statement and the
Prospectus
as amended and supplemented relating to such Securities);
(h) That each time the Registration Statement or the Prospectus
shall be
amended or supplemented (other than by a Pricing Supplement),
each time
a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus and each time, if
so
indicated
in the applicable Terms Agreement, the Company sells Securities
to an
Agent as principal, each such time to be referred to for purposes
of
this
Section 4(h) as a "Representation Date", the Company shall, if
requested
by any Agent, furnish or cause to be furnished forthwith to
such
Agent a
written opinion of Kenneth C. Frazier, Esq., General Counsel of
the
Company (or such other person who shall be General Counsel of
the
Company at
such time of delivery), dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such
sale, as
the case
may be, in form satisfactory to such Agent, of the same tenor
as
the
opinion set forth in Section 6(c) hereof; or, in lieu of such
opinion,
an opinion
that reconfirms matters set forth in a prior opinion delivered
under
Section 6(c) or this Section 4(h), except that, in either case
any
such
opinion furnished under this Section 4(h) shall relate to the
Registration Statement and the Prospectus as amended or
supplemented at
such
Representation Date and shall state that the Securities sold in
the
relevant
Applicable Period (as defined below) or at such Time of
Delivery,
as the
case may be, 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 only to the
exceptions
set forth in clause (v) of Section 6(c) hereof as to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium
and
similar laws of general applicability relating to or affecting
creditors'
rights and general equity
-11-
<PAGE>
principles, and conform to the description thereof contained in
the
Prospectus
as amended or supplemented at the relevant settlement date or
dates for
the sale of such Securities. For the purpose of this Section
4(h),
"Applicable Period" shall mean with respect to any opinion
delivered
on a
Representation Date the period commencing on the date as of which
the
most
recent prior opinion delivered under Section 6(c) or this
Section
4(h)
speaks and ending on such Representation Date;
(i) That at each Representation Date on which the Registration
Statement
or the Prospectus shall be amended or supplemented (other than
by a
Pricing Supplement) or on which a document filed under the Act or
the
Exchange
Act is incorporated by reference into the Prospectus (other
than
the filing
of an 8-K with an earnings release), in either case to set
forth
financial information included in or derived from the Company's
consolidated financial statements or accounting records, and each
time, if
so
indicated in the applicable Terms Agreement, the Company sells
Securities
to an Agent as principal, the Company shall, if requested by
any Agent,
cause the independent certified public accountants who have
certified
the financial statements of the Company and its subsidiaries
included
or incorporated by reference in the Registration Statement
forthwith
to furnish such Agent a letter, dated the date of such
amendment,
supplement, incorporation by reference or the Time of Delivery
relating
to such sale, as the case may be, in form satisfactory to such
Agent, of
the same tenor as the letter referred to in Section 6(d) hereof
but
modified to relate to the Registration Statement and the Prospectus
as
amended or
supplemented to the date of such letter, with such changes as
may be
necessary to reflect changes in the financial statements and
other
information derived from the accounting records of the Company, to
the
extent
such financial statements and other information are available as
of
a date not
more than five business days prior to the date of such letter;
provided,
however, that, with respect to any financial information or
other matter, such letter
may reconfirm as true and correct at such date
as though
made at and as of such date, rather than repeat, statements
with
respect to
such financial information or other matter made in the letter
referred
to in Section 6(d) hereof which was last furnished to such
Agent;
(j) That at each Representation Date and each time, if so
indicated
in the
applicable Terms Agreement, the Company sells Securities to an
Agent as
principal the Company shall, if requested by any Agent, furnish
or cause
to be furnished forthwith to such Agent a certificate, dated
the
date of
such supplement, amendment, incorporation by reference or the
Time
of
Delivery relating to such sale, as the case may be, in such form
and
executed
by such officers of the Company as shall be satisfactory to
such
Agent, to
the effect that the statements contained in the certificate
referred
to in Section 6(g) hereof which was last furnished to such
Agent
are true
and correct at such date as though made at and as of such date
(except
that such statements shall be deemed to relate to the
Registration
Statement
and the Prospectus as amended and supplemented to such
-12-
<PAGE>
date) or,
in lieu of such certificate, certificates of the same tenor as
the
certificates referred to in Section 6(g) but modified to relate to
the
Registration Statement and the Prospectus as amended and
supplemented to
such date;
and
(k) To offer to any person who has agreed to purchase Securities
as
the result
of an offer to purchase solicited by such Agent, acting as
agent, the
right to refuse to purchase and pay for such Securities if, on
the
related settlement date fixed pursuant to the Administrative
Procedures, any condition set forth in Section 6(a), 6(e) or 6(f)
hereof
shall not
have been satisfied (it being understood that the judgment of
such
person with respect to the impracticability or inadvisability of
such
purchase
of Securities shall be substituted, for purposes of this
Section
4(k), for
the respective judgments of an Agent with respect to certain
matters
referred to in such Sections 6(a), 6(e) and 6(f), and that such
Agent
shall have no duty or obligation whatsoever to exercise the
judgment
permitted
under such Sections 6(a), 6(e) and 6(f) on behalf of any such
person).
5. The Company covenants and agrees with each Agent 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, any Preliminary Prospectus, the
Prospectus and any Pricing
Supplements and all other amendments and
supplements thereto and the mailing and
delivering of copies thereof to such Agent;
(ii) the fees, disbursements and
expenses of counsel for the Agents in
connection with the program contemplated
hereby, any opinions to be rendered by such
counsel hereunder and the
transactions contemplated hereunder; (iii)
the cost of printing, producing or
reproducing this Agreement, any Terms
Agreement, any indenture, any Blue Sky and
Legal Investment Memoranda and any other
documents in connection with the
offering, purchase, sale and delivery of
the Securities; (iv) all expenses in
connection with the qualification of the
Securities for the offering and sale
under state securities laws as provided in
Section 4(b) hereof, including the
fees and disbursements of counsel for the
Agents in connection with such
qualification and in connection with the
Blue Sky and legal investment surveys;
(v) any fees charged by securities rating
services for rating the Securities;
(vi) 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; (vii)
the cost of preparing, and providing any
CUSIP or other identification numbers
for, the Securities; (viii) the fees and
expenses of the Trustee and any agent
of the Trustee and any transfer or paying
agent of the Company and the fees and
disbursements of counsel for the Trustee or
such agent in connection with any
Indenture and the Securities; (ix) the fees
and expenses of any Depository (as
defined in the Indenture) and any nominees
thereof in connection with the
Securities; (x) any advertising expenses
connected with the solicitation of
offers to purchase and the sale of
Securities so long as such advertising
expenses have been approved by the Company;
and (xi) all other costs and
expenses incident to the performance of its
obligations hereunder which are not
otherwise
-13-
<PAGE>
specifically provided for in this Section.
Except as provided in this Section,
Section 7 and Section 8 hereof, each Agent
shall pay all other expenses it
incurs.
6. The obligation of any Agent, as agent of the Company, to
solicit
offers to purchase the Securities and the
obligation of any Agent to purchase
Securities as principal, pursuant to any
Terms Agreement, shall be subject, in
such Agent's discretion, to the condition
that all representations and
warranties and other statements of the
Company herein (and, in the case of an
obligation of an Agent under a Terms
Agreement, in or incorporated in such Terms
Agreement by reference) are true and
correct at and as of the Commencement Date,
the date of each such solicitation, any
settlement date related to the
acceptance of such an offer, and each Time
of Delivery, 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; and all requests for
additional
information on the part of the Commission shall have been
complied
with to the reasonable satisfaction of such Agent; and, in the
case of
any settlement date or Time of Delivery, the Prospectus as
amended
or
supplemented (including the Pricing Supplement) with respect to
such
Securities
shall have been filed with the Commission pursuant to Rule
424(b)
under the Act within the applicable time period prescribed for
such
filing by
the rules and regulations under the Act and in accordance with
Section
4(a) hereof;
(b) Sullivan & Cromwell LLP, counsel to the Agents, shall
have
furnished
to such Agent such opinion or opinions, dated the Commencement
Date, as
such Agent 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;
(c) Kenneth C. Frazier, Esq., Senior Vice President and General
Counsel of
the Company (or such other person who shall be General Counsel
of the
Company at such time), shall have furnished to such Agent such
counsel's
written opinions, dated the Commencement Date and any
applicable
date
referred to in Section 4(h), in form and substance satisfactory
to
such
Agent, to the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the
State of New Jersey and is duly qualified to transact business
and
is in good standing in each jurisdiction in which the conduct of
its
business or the ownership or leasing of its property requires
such
qualification, except where failure to qualify would not have a
material adverse effect upon the Company and its consolidated
subsidiaries taken as a whole;
-14-
<PAGE>
(ii) Each of the subsidiaries of the Company has been duly
incorporated, is validly existing as a corporation in good
standing
under the laws of the jurisdiction of its incorporation and is
duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the
ownership
or leasing of its property requires such qualification, except
where
failure to qualify would not have a material adverse effect upon
the
Company and its consolidated subsidiaries taken as a whole;
(iii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company
or
any of its subsidiaries is a party or of which any property of
the
Company or any of its subsidiaries is the subject, other than as
set
forth in the Prospectus as amended or supplemented and other
than
litigation or proceedings which individually and in the
aggregate
are not material to the Company and its subsidiaries taken as a
whole; to the best of such counsel's knowledge, no such
proceedings
are threatened by governmental authorities or others; and such
counsel has not received notice that any such proceedings are
contemplated by governmental authorities;
(iv) This Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(v) Any series of Securities established on or prior to the
date of such opinion has been duly authorized and established
in
conformity with the Indenture, and, when the terms of a
particular
Security and of its issuance and sale have been duly authorized
and
established by all necessary corporate action in conformity with
the
Indenture, and such Security has been duly completed, executed,
authenticated and issued in accordance with the Indenture and
delivered against payment as contemplated by this Agreement,
such
Security will constitute a valid and legally binding obligation
of
the Company enforceable in accordance with its terms, subject
to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or
affecting creditors' rights and to general equity principles,
it
being understood that such counsel may (a) assume that at the
time
of the issuance, sale and delivery of each Security the
authorization of such series will not have been modified or
rescinded and there will not have occurred any change in law
affecting the validity, legally binding character or
enforceability
of such Security, (b) assume that neither the issuance, sale
and
delivery of any Security, nor any of the terms of such Security,
nor
compliance by the Company with such terms, will violate any
applicable law, any agreement or instrument then binding upon
the
Company or any restriction imposed by any court or governmental
body
having jurisdiction over the Company, and (c) state that as of
the
date of
-15-
<PAGE>
such opinion a judgment for money in an action based on
Securities
denominated in foreign currencies, currency units or composite
currencies in a Federal or State court in the United States
ordinarily would be enforced in the United States only in
United
States dollars, and that the date used to determine the rate of
conversion of the foreign currency, currency unit or composite
currency in which a particular Security is denominated into
United
States dollars will depend upon various factors, including
which
court renders the judgment;
(vi) 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
to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar 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;
(vii) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities,
the
Indenture, this Agreement and any applicable Terms Agreement
with
respect to the Securities will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default
under, or result in the creation or imposition of any lien,
charge
or encumbrance upon any of the property or assets of the Company
or
any of its subsidiaries pursuant to the terms of, 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
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets
of
the Company or any of its subsidiaries is subject, nor will
such
action result in any violation of the provisions of the
Restated
Certificate of Incorporation, as amended, or the By-Laws of the
Company or any statute, order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of
their properties; and no consent, approval, authorization,
order,
registration or qualification of or with any court or any such
regulatory authority or other governmental body is required for
the
issue and sale by the Company of the Securities or the execution
and
delivery and performance by the Company of this Agreement, any
applicable Terms Agreement or the Indenture, 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 Securities
by
the
Agents;
-16-
<PAGE>
(viii) The documents incorporated by reference in 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 became effective or were
filed
with the Commission, as the case may be, complied as to form in
all
material respects with the requirements of the Act or the
Exchange
Act, as applicable, and the rules and regulations of the
Commission
thereunder; such counsel has no reason to believe that any of
such
documents, when they became effective or were so filed, as the
case
may be, contained, in the case of a registration statement
which
became effective under the Act, 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, in the case of other documents which were filed under the Act
or
the Exchange Act with the Commission, 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
(ix) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements
thereto
made by the Company prior to the date of such opinion (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 of the Commission
thereunder; such counsel has no reason to believe that, as of
its
effective date, the Registration Statement or any further
amendment
or supplement thereto made by the Company prior to the date of
such
opinion (other than the financial statements and related
schedules
therein, as to which such counsel need express no opinion)
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 that, as of its date, the
Prospectus as amended or supplemented or any further amendment
or
supplement thereto made by the Company prior to the date of
such
opinion (other than the financial statements and related
schedules
therein, as to which such counsel need express no opinion)
contained
an untrue statement of a material fact or omitted to state a
material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading,
or
that, as of the date of such opinion, either the Registration
Statement or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior
to
the date of such opinion (other than the financial statements
and
related schedules therein, as to which such counsel need express
no
opinion) contains an untrue statement of a material fact or omits
to
state a material fact necessary to make the statements therein,
in
-17-
<PAGE>
light of the circumstances in which they were made, not
misleading;
and such counsel does not know of any amendment to the
Registration
Statement required to be filed or 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 or the Prospectus as
amended
or supplemented which are not filed or incorporated by reference
or
described as required;
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and any applicable date referred to in Section
4(i), the
independent certified public accountants who have certified the
financial
statements
of the Company and its subsidiaries included or incorporated by
reference
in the Registration Statement shall have furnished to such
Agent
a letter,
dated such date in form and substance satisfactory to such
Agent, to
the effect set forth in Annex IV hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall
have
sustained
since the date of the latest financial statements included or
incorporated by reference in the Prospectus as amended or
supplemented 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 Prospectus as amended or
supplemented
and (ii)
since the respective dates as of which information is given in
the
Prospectus as amended or supplemented there shall not have been
any
change in
the consolidated capital stock (except for the issuance of
shares of
common stock pursuant to the Company's savings, incentive stock
and
executive incentive plans and for purchases of shares of common
stock
pursuant
to the Company's treasury stock buyback program) or any
increase
in the
consolidated long-term debt of the Company and its subsidiaries
or
any
change, or any development involving a prospective change, in
or
affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and
its
subsidiaries, otherwise than as set forth or contemplated in
the
Prospectus as amended or
supplemented, the effect of which, in any such
case
described in clause (i) or (ii), is in the judgment of such Agent
so
material
and adverse as to make it impracticable or inadvisable to
proceed
with the
solicitation by such Agent of offers to purchase Securities
from
the
Company or the purchase by such Agent of Securities from the
Company
as
principal, as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) Between the date of this Agreement and the Commencement Date,
if
different,
between the date of acceptance by the Company of an offer to
purchase
Securities and the related settlement and between the execution
of a Terms
Agreement and the related Time of Delivery, there shall not
have
occurred
-18-
<PAGE>
any of the
following: (i) a suspension of trading of the Company's Common
Stock by
the Commission or the New York Stock Exchange precipitated by
the
announcement by the Company of a material adverse event with
respect to
the
Company's business or financial position; (ii) a suspension or
material
limitation in trading in securities generally on the New York
Stock
Exchange; (iii) a general moratorium on commercial banking
activities
in New York declared by either Federal or New York State
authorities; (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,
any
material change in financial, political or economic conditions in
the
United
States or elsewhere or a material disruption in commercial
banking
or
securities settlement or clearance services in the United States if
the
effect of
any such event specified in clause (iv) or (v) in the judgment
of such
Agent makes it impract
