Exhibit 1.7
LEGGETT & PLATT, INCORPORATED
$500,000,000
MEDIUM-TERM NOTES, SERIES
[ ]
DISTRIBUTION AGREEMENT
March ,
2005
Barclays Capital Inc.
200 Park Avenue
New York, NY 10166
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28288-0602
Ladies and Gentlemen:
LEGGETT & PLATT, INCORPORATED, a
Missouri corporation (the “ Company ” proposes
to issue and sell from time to time its Medium-Term Notes, Series
[ ] (the “ Securities ”)
in an aggregate amount up to $500,000,000 (or the equivalent
thereof in one or more foreign currencies or composite currencies)
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 and to the reservation by the Company of the right to
sell Securities directly on its own behalf, 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 and (ii) agrees that,
except as otherwise contemplated herein, whenever it determines to
sell Securities directly to any Agent as principal, it will enter
into a separate agreement (each a “ Terms Agreement
”), which may be an oral agreement and may be substantially
in the form of Annex I hereto, relating to such sale in accordance
with Section 2(b) hereof. This Agreement shall not be construed to
create either an obligation on the part
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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
a senior indenture, dated as of
(the “ Indenture ”), between the Company and
JPMorgan Chase Bank, N.A., as Trustee (the “ Trustee
”). 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 and rights thereof established, from time to time by the
Company in accordance with the Indenture.
1. The Company represents and warrants to, and
agrees with, each Agent that:
(a) (i) One registration statement
on Form S-3 (File No.
333- )
in respect of the Securities has been filed with the Securities and
Exchange Commission (the “ Commission ”); (ii)
such registration statement and any post-effective amendment(s)
thereto, each in the form heretofore delivered or to be delivered
to such Agent, including all documents incorporated by reference in
the prospectus included in the registration statement [and any
post-effective amendment(s) thereto], have been declared effective
by the Commission in such form; (iii) no other document with
respect to such registration statement or documents incorporated by
reference therein [or any post-effective amendments thereto] has
heretofore been filed or transmitted for filing with the Commission
(other than the prospectus filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the
form heretofore delivered to the Agents); and (iv) no stop order
suspending the effectiveness of any such registration statement has
been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act, is hereinafter called a “
Preliminary Prospectus ”; (v) the various parts of
such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in
the registration statement at the time such part of the
registration statement became effective but excluding the Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939,
each as amended at the time such part of each such registration
statement became effective, are hereinafter collectively called the
“ Registration Statement ”; (vi) the prospectus
(including, if applicable, 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 ”; (vii) 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;
(viii) 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
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“ 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; (ix) 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 (x) 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 to be 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;
(c) The Registration Statement and
the Prospectus conform, and any further amendments or supplements
to the Registration Statement or the Prospectus 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, or to that part of the
Registration Statement that constitutes the Form T-1 Statement of
Eligibility under the Trust Indenture Act of 1939 of the
Trustee;
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(d) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Missouri; and has the
requisite corporate power and authority to execute and deliver the
Securities and this Agreement, to perform its obligations hereunder
and thereunder, and to own its properties and conduct its business
as described in the Prospectus.
(e) The issuance and sale of the
Securities in an aggregate principal amount not in excess of an
aggregate principal amount which shall not exceed $500,000,000 (or
the equivalent in a foreign currency or currencies), has been duly
authorized by the Company and, when the Securities have been duly
executed by the Company and authenticated and delivered by the
Trustee, and payment therefor has been received by or on behalf of
the Company, such Securities will constitute legal, valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles.
(f) This Agreement has been duly
authorized, executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of
creditors’ rights generally and by general equitable
principles and except that no representation or warranty is made
with respect to the enforceability of Section 7 hereof.
(g) The Company and its subsidiaries
have not sustained since the date of the latest audited financial
statements included or incorporated by reference in 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 taken
as a whole 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 decrease in the capital stock of the
Company or material increase in consolidated long-term debt (as
such terms are defined in accordance with generally accepted
accounting principles) of the Company and its subsidiaries or any
material adverse change, or any development that the Company
believes would be reasonably likely to result in a 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;
(h) (i) 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 (A) result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement
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or other agreement or instrument to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject or
(B) result in any violation of (1) the provisions of the Articles
of Incorporation, as amended, or the By-laws of the Company or (2)
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 properties; and (ii) no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required on the part of the
Company 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, 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;
(i) Other than as set forth in the
Prospectus, 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
subject, which would individually or in the aggregate reasonably be
expected to have a material adverse effect on the current or future
consolidated financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries taken as
a whole, and, to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(j) Immediately after any sale of
Securities by the Company hereunder or under any Terms Agreement,
the aggregate amount of Securities that will 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 will have been issued and sold pursuant to the Registration
Statement will not exceed the amount of debt securities registered
under the Registration Statement; and
(k) The Company is not an
“investment company” or a company
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
2. (a) On the basis of the representations and
warranties herein contained, 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. The
Company reserves the right to offer, solicit offers and sell
Securities directly on its own behalf to any person, to sell
Securities through others (provided that any other agent
or
5
broker dealer will execute an agreement with the
Company that includes terms and conditions that are substantially
identical to the terms and conditions included in this Agreement),
and after not less than 5 business days prior written notice to the
Agents, to designate and select additional agents to become party
to this Agreement. In the case of any sale not resulting from a
solicitation made by any Agent, no commission will be payable to
the Agents with respect to such sale. In no event shall any offers,
solicitation of offers or sales of debt securities by the Company
result in (i) any violation of applicable federal or state
securities laws (and, if requested by any such Agent, the Company
shall deliver an opinion of counsel in a form reasonably
satisfactory to such Agent, to such effect, provided , that
such counsel need not express any opinion as to accuracy or
completeness of disclosure in any other such sale by the Company)
or (ii) any Agent’s inability to re-sell any Securities that
it has purchased as a principal pursuant to this Agreement or any
Terms Agreement.
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 II as it may be amended from time to time by written
agreement between the Agents and the Company (the “
Administrative Procedures ”). The provisions of the
Administrative Procedures shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms
Agreement. 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 orally (with
confirmation in writing) or in writing to suspend at any time, for
any period of time or permanently, the solicitation of offers to
purchase the Securities. Upon receipt of such instructions from the
Company, the Agents will forthwith 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. During such period, the Company shall not be required to
comply with the provisions of Sections 4(h), 4(i), 4(j) and 4(k).
Upon advising the Agents that such solicitation may be resumed,
however, the Company shall be required to comply with the
provisions of Sections 4(h), 4(i), 4(j) and 4(k) prior to
resumption of such solicitations. In addition, any failure by the
Company to comply with its obligations hereunder, including without
limitation its obligations to deliver the documents required by
Sections 4(h), 4(i), 4(j) and 4(k), shall automatically terminate
the Agents’ obligations hereunder, including without
limitation its obligations to solicit offers to purchase the
Securities hereunder as agent or to purchase Securities hereunder
as principal.
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 equal to the applicable percentage of the principal
amount of such Security sold as set forth in Schedule A
hereto.
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(b) Each sale of Securities to any
Agent as principal shall be made in accordance with the terms of
this Agreement and (unless the Company and such Agent otherwise
agree) 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
re-offering of such Securities by such Agent; the commitment of any
Agent to purchase Securities as principal, whether pursuant to any
Terms Agreement or otherwise, shall be deemed to have been made on
the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions
herein set forth; each Terms Agreement shall specify the principal
amount of 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 re-offering of the
Securities and the time and date and place of delivery of and
payment for such Securities; and such Terms Agreement shall also
specify any requirements for opinions of counsel,
accountants’ letters and officers’ certificates
pursuant to Section 4 hereof. Each Agent proposes to offer
Securities purchased by it as principal for sale at prevailing
market prices or prices related thereto at the time of sale, which
may be equal to, greater than or less than the price at which such
Securities are purchased by such Agent from the Company.
For each sale of Securities to an
Agent as principal that is not made pursuant to a Terms Agreement,
the procedural details relating to the issue and delivery of such
Securities and payment therefor shall be as set forth in the
Administrative Procedures. For each such sale of Securities to an
Agent as principal that is not made pursuant to a Terms Agreement,
the Company agrees to pay such Agent a commission (or grant an
equivalent discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein.
Each time and date of delivery of
and payment for Securities to be purchased by an Agent as
principal, whether set forth in a Terms Agreement or in accordance
with the Administrative Procedures, is referred to herein as a
“ Time of Delivery ”.
(c) Each Agent agrees, with respect
to any Security denominated in a currency other than U.S. dollars,
as agent, directly or indirectly, not to solicit offers to
purchase, and as principal under any Terms Agreement or otherwise,
directly or indirectly, not to offer, sell or deliver, such
Security in, or to residents of, the country issuing such currency,
except 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 Cravath,
Swaine & Moore LLP, 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
7
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 without affording each Agent a
reasonable opportunity to review and comment thereon or (B) after
the date of any Terms Agreement or other agreement by an Agent to
purchase Securities as principal and prior to the related Time of
Delivery that is disapproved by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable
notice thereof; provided , however , that (1) the
foregoing requirement shall not apply to any of the Company’s
filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of
which filings the Company will cause to be delivered to the Agents
promptly after being transmitted for filing with the Commission and
(2) any Prospectus supplement or Pricing Supplement that merely
sets forth the terms or a description of particular Securities
shall only be reviewed and approved by the Agent or Agents offering
such Securities; (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 Rule 424(b)(3) under the Act not later than
the close of business of the Commission on the fifth business day
after the date on which such Pricing Supplement is first used (or
the business day immediately preceding the Time of Delivery if
earlier); (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 thereon
provided , however , that (1) the foregoing
requirement shall not apply to any of the Company’s filings
with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, and (2) any Prospectus
supplement or Pricing Supplement that merely sets forth the terms
or a description of particular Securities shall only be reviewed
and approved by the Agent or Agents offering such Securities; (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 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
8
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 such prospectus or suspending any such qualification, to
promptly use its reasonable best efforts to obtain its
withdrawal;
(b) Promptly from time to time to
take such action as such Agent may reasonably request to qualify
the Securities for offering and sale under the securities laws of
such jurisdictions in the United States as such Agent may request
(and in such foreign jurisdictions as the Company and the Agents
may mutually agree) 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 as a dealer in securities or to file a general consent to
service of process or subject itself to taxation 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 the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities (including
Securities purchased from the Company by such Agent as principal)
and if at such time any event has occurred 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 is
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 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 forthwith
cease such solicitations and keep such notification in strictest
confidence); and if the Company decides 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, subject to the second proviso below,
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; provided, further , however,
that
9
notwithstanding any other provision
of this Agreement, that if to do so would result in the Company
disclosing information that the Company is required by law,
contract or otherwise to hold in confidence or which the Company
believes is in the best interests of its shareholders to hold in
confidence, the Company shall not be required to prepare and file
such amendment or supplement, provided, further that in any
such event such Agent shall have the right to require the Company
to repurchase such Securities from such Agent at the price such
Securities were sold to such Agent by the Company, plus accrued
interest, less the Agent’s commission to the extent the Agent
actually received a commission as an alternative to purchasing such
Securities at a discount from the Company pursuant to this
Agreement;
(d) 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 defined in Rule 158(c) under the Act),
an earnings 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 each Agent such information concerning
the business and financial condition of the Company as such Agent
may from time to time reasonably request;
(f) That, from the date of any Terms
Agreement with such Agent or other agreement by such Agent to
purchase Securities as principal and continuing to and including
the termination of the trading restrictions for the Securities
purchased thereunder, as notified to the Company by such Agent, not
to offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company that 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;
provided , that in no event shall borrowings under the
Company’s revolving credit agreements and lines of credit or
issuances of commercial paper be deemed to be substantially similar
to the Securities;
(g) That each acceptance by the
Company of an offer to purchase Securities hereunder (including any
purchase by such Agent as principal not pursuant to a Terms
Agreement), 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 relating to the Registration Statement
10
and the Prospectus shall be deemed
to relate to the Registration Statement and the Prospectus as
amended and supplemented relating to such Securities);
(h) That reasonably in advance of
each time the Registration Statement or the Prospectus is amended
or supplemented, including each time a document filed under the Act
or the Exchange Act is incorporated by reference into the
Prospectus (other than by (i) an amendment relating solely to
securities other than the Securities, (ii) a Current Report on Form
8-K, (iii) the Company’s quarterly reports filed on Form 10-Q
and (iv) a Pricing Supplement; unless in each case, in the
reasonable judgment of the Agents, the Agents request such
documents to be delivered), and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of an opinion or
opinions by Cravath, Swaine & Moore LLP, counsel to the Agents,
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish to such counsel such papers
and information as they may reasonably request to enable them to
furnish to such Agent the opinion or opinions referred to in
Section 6(b) hereof;
(i) That each time the Registration
Statement or the Prospectus is amended or supplemented, including
each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus (other than by (i) an
amendment relating solely to securities other than the Securities,
(ii) a Current Report on Form 8-K, (iii) the Company’s
quarterly reports filed on Form 10-Q and (iv) a Pricing Supplement;
unless in each case, in the reasonable judgment of the Agents, the
Agents request such documents to be delivered) and each time the
Company sells Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of
an opinion under this Section 4(i) as a condition to the purchase
of Securities pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a written
opinion of the Company’s General Counsel, or other counsel
for the Company reasonably satisfactory to such Agent, dated the
date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form
reasonably satisfactory to such Agent, to the effect that such
Agent may rely on the opinion of such counsel referred to in
Section 6(c) hereof that was last furnished to such Agent to the
same extent as though it were dated the date of such letter
authorizing reliance (except that the opinion or opinions in such
last opinion relating to the Registration Statement and the
Prospectus shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in
lieu of such opinion, an opinion of the same tenor as the opinion
of such counsel referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended
and supplemented to such date;
(j) That each time the Registration
Statement or the Prospectus is amended or supplemented, including
each time that a document filed under the Act or the Exchange Act
is incorporated by reference into the Prospectus, in either case to
set forth financial information included in or derived from the
Company’s consolidated financial
11
statements or accounting records
(other than by (i) an amendment relating solely to securities other
than the Securities, (ii) a Current Report on Form 8-K and (iii) a
Pricing Supplement; unless in each case, in the reasonable judgment
of the Agents, the Agents request such documents to be delivered),
and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 4(j) as a
condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall 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 to furnish forthwith such Agent a
letter, dated the date of such amendment, supplement, incorporation
or Time of Delivery relating to such sale, as the case may be, in
form reasonably 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;
(k) That each time the Registration
Statement or the Prospectus is amended or supplemented, including
each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus (other than by (i) an
amendment relating solely to securities other than the Securities,
(ii) a Current Report on Form 8-K, (iii) the Company’s
quarterly reports filed on Form 10-Q and (iv) a Pricing Supplement;
unless in each case, in the reasonable judgment of the Agents, the
Agents request such documents to be delivered) and each time the
Company sells Securities to such Agent as principal and the
applicable Terms Agreement specifies the delivery of a certificate
under this Section 4(k) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a
certificate, dated the date of such supplement, amendment,
incorporation or 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 reasonably satisfactory to such Agent, to the
effect that the statements contained in the certificates referred
to in Section 6(i) hereof that 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 relating to the Registration Statement
and the Prospectus shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date) or, in lieu of such certificate, certificates of the same
tenor as the certificates referred to in said Section 6(i) but
modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date; and
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(l) To offer to any person who has
agreed to purchase Securities from the Company as the result of an
offer to purchase solicited by such 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), 6(f) or 6(g) hereof has not 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(l), for the respective judgments of an Agent with respect
to certain matters referred to in such Sections 6(e) and 6(g), and
that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(e) and 6(g)
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 reasonable fees, disbursements and expenses of counsel for the
Agents in connection with the establishment of the program
contemplated hereby, any opinions to be rendered by such counsel
hereunder and under any Terms Agreement and the transactions
contemplated hereunder and under any Terms Agreement; (iii) the
cost of printing, producing or reproducing this Agreement, any
Terms Agreement, any Indenture, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof)
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 offering
and sale under state securities laws as provided in Section 4(b)
hereof, including the reasonable 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, and the reasonable
fees and disbursements of counsel for the Agents in connection
with, 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 the Securities; (viii) the fees and expenses of
any Trustee and any agent of any Trustee and any transfer or paying
agent of the Company and the reasonable fees and disbursements of
counsel for any Trustee or such agent in connection with any
Indenture and the Securities; (ix) 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 in advance in writing by the Company; and (x) all other
costs and expenses incident to the performance of its obligations
hereunder that are not otherwise specifically provided for in this
Section. Except as provided in Sections 7 and 8 hereof, each Agent
shall pay all other expenses it incurs.
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6. The obligation of any Agent, as agent of the
Company, at any time (“ Solicitation Time ”) to
solicit offers to purchase the Securities and the obligation of any
Agent to purchase Securities as principal, pursuant to any Terms
Agreement or otherwise, shall in each case 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 by reference in such Terms Agreement) are true and
correct at and as of the Commencement Date and any applicable date
referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at
and as of such Solicitation Time or Time of Delivery, as the case
may be (except that such representations and warranties relating to
the Registration Statement and the Prospectus shall be deemed to
relate to the Registration Statement and the Prospectus as amended
and supplemented to such date), the condition that prior to such
Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) (i) With respect to any
Securities sold at or prior to such Solicitation Time or Time of
Delivery, as the case may be, 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; (ii) 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 (iii) all requests
for additional information on the part of the Commission shall have
been complied with to the reasonable satisfaction of such
Agent;
(b) Cravath, Swaine & Moore LLP,
counsel to the Agents, shall have furnished to such Agent (i) such
opinion or opinions, dated the Commencement Date, in form
reasonably acceptable to such Agent, and (ii) if and to the extent
requested by such Agent, with respect to each applicable date
referred to in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, an
opinion or opinions, dated such applicable date, to the effect that
such Agent may rely on the opinion or opinions that were last
furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter
authorizing reliance (except that any such later opinion or
opinions relating to the Registration Statement or the Prospectus
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any
case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to
in clause (i) but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date; and in
each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters;
14
(c) The Company’s General
Counsel, or other counsel for the Company reasonably satisfactory
to such Agent, shall have furnished to such Agent their written
opinions, dated the Commencement Date and each applicable date
referred to in Section 4(i) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be (except
that any such later opinion or opinions relating to the
Registration Statement or the Prospectus shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such date), in form and substance reasonably
satisfactory to such Agent, substantially to the effect
that
(i) the Company is a corporation
validly existing as a corporation in good standing under the laws
of the jurisdiction in which it is chartered or organized, with
full corporate power and authority to own its properties and
conduct its business in all material respects as described in the
Prospectus;
(ii) each subsidiary constituting
10% or more of the consolidated total assets of the Company as of
such date (each such subsidiary being hereinafter referred to as a
“ Significant Subsidiary ”) is a corporation
validly existing and 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, are fully paid and non-assessable and
(except as otherwise set forth in the Prospectus) are owned
directly or indirectly by the Company, to such counsel’s
knowledge free and clear of all liens, encumbrances, equities or
claims (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 subsidiaries, provided that such counsel shall state
that they believe that you and they are justified in relying upon
such opinions and certificates);
(iii) the Company’s authorized
equity capitalization is as set forth in the Prospectus as of the
date or dates indicated herein; the Securities conform in all
material respects to the description thereof contained in the
Prospectus; and, if the Securities are to be listed on any
securities exchange, authorization therefor has been given, subject
to official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect to
the Securities with such securities exchange and such counsel has
no reason to believe that the Securities will not be authorized for
listing, subject to official notice of issuance and evidence of
satisfactory distribution;
(iv) the Indenture has been duly
authorized, executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act and constitutes a valid and
binding obligation of the Company enforceable against the Company
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;
15
(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 legal, valid and binding obligation of the Company
entitled to the benefits of the Indenture and 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 has
not been modified or rescinded and there has not occurred any
change in law affecting the validity, legally binding character or
enforceability of such Security and (b) state that as of the date
of such opinion a judgment for money in an action based on
Securities denominated in foreign currencies or currency units 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 or currency unit in which a particular Security is
denominated into United States dollars will depend upon various
factors, including which court renders the judgment;
(vi) to the best knowledge of such
counsel, there is no action, suit or proceeding pending or overtly
threatened before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the
Registration Statement that is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document
of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, that is not
described or filed as required; and the statements included or
incorporated in the Prospectus describing any legal proceedings or
material contracts or agreements relating to the Company fairly
summarize such matters to the extent required by law;
(vii) such counsel has been advised
by the Commission’s staff that the Registration Statement has
become effective under the Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened,
and the Registration Statement and the Prospectus (other than the
financial statements, related financial statement schedules and
other financial and statistical information and written information
relating to and furnished by the Agents contained therein or
omitted therefrom, and except for the part of the Registration
Statement that constitutes the Form T-1 Statement of Eligibility
under the Trust Indenture Act of 1939 of the Trustee, as to which
such counsel need express no opinion) comply as to form in all
material respects
16
with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder;
(viii) this Agreement and any
applicable Terms Agreement have been duly authorized, executed and
delivered by the Company;
(ix) no consent, approval,
authorization or order of any federal or Missouri court or
governmental agency or body is required to be obtained by the
Company for the consummation of the transactions contemplated
herein or in any applicable Terms Agreement, except such as have
been obtained under the Act and the Trust Indenture Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the solicitation by the Agents to purchase the
Securities and such other approvals (specified in such opinion) as
have been obtained;
(x) neither the execution and
delivery by the Company of the Indenture, the issue and sale of the
Securities, nor the consummation by the Company of any other of the
transactions herein contemplated nor the fulfillment by the Company
of the terms hereof or of any applicable Terms Agreement will
result in a breach or violation of, or constitute a default under
(A) the articles of incorporation or by-laws of the Company, (B)
the terms of any indenture or other material agreement or
instrument known to such counsel and to which the Company or any of
its Significant Subsidiaries is a party or bound, (C) any judgment,
order or decree known to such counsel to be specifically applicable
to the Company or any of its Significant Subsidiaries of any
federal or Missouri court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or any of its Significant Subsidiaries or (D) any provision
of federal or Missouri statute or governmental regulation
applicable to the Company;
(xi) no holders of securities of the
Company have rights to the registration of such securities under
the Registration Statement; and
(xi) the Company is not an
“investment company” or a company
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
Such opinion shall also state that,
although such counsel does not assume responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or Prospectus, nothing has come to such
counsel’s attention that causes such counsel to believe that
at the Effective Date the Registration Statement (other than the
financial statements, related financial statement schedules and
other financial and statistical information and written information
relating to and furnished by the Agents contained therein or
omitted therefrom, and except for the part of the Registration
Statement that constitutes the Form T-1 Statement of Eligibility
under the Trust Indenture Act of the Trustee, as to which such
counsel need express no opinion)
17
contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
or that the Final Prospectus (other than the financial statements,
related schedules and other financial and statistical information
and written information furnished by the Agents contained therein
or omitted therefrom as to which such counsel need express no
opinion) includes any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such
counsel may rely (A) as to matters involving the application of
laws of any jurisdiction other than the State of Missouri or the
United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are reasonably satisfactory to
counsel for the Agents and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the
Company and public officials.
(d) Not later than 11:00 a.m., New
York City time, on the Commencement Date and on each applicable
date referred to in Section 4(j) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included
or incorporated by reference in the Prospectus as amended and
supplemented to such date shall have furnished to such Agent a
letter, dated the Commencement Date or such applicable date, as the
case may be, in form and substance reasonably satisfactory to such
Agent, to the effect set forth in Annex III hereto;
(e) (i) The Company and its
subsidiaries shall not have sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Prospectus as amended or supplemented prior to the date of
the Pricing Supplement relating to the Securities to be delivered
at the relevant Time of Delivery 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 taken as a whole otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery and
(ii) since the respective dates as of which information is given in
the Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery there shall not have been any
material decrease in the capital stock of the Company or material
increase in consolidated long-term debt (as such terms are defined
in accordance with generally accepted accounting principles) of the
Company and its subsidiaries or any change, or any development that
the Company believes would be reasonably likely to result in a
material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or
results of operations of the
18
Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery, 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 prior to the date of the
Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery;
(f) On or after the date hereof (i)
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 (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company’s
debt securities;
(g) On or after the date hereof
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; (ii) a suspension or
material limitation in trading in the Company’s se
