COMMERCIAL PAPER DEALER AGREEMENT [4(2) Program] among Procter & Gamble International Funding S.C.A., as Issuer The Procter & Gamble Company, as Guarantor and _______________, as Dealer

 

 

 

 

 

 

 

 

This agreement (the “Agreement”) sets forth the understandings among the Issuer, the Guarantor, and the Dealer, each named on the cover page hereof, in connection with the issuance and sale by the Issuer of its short-term promissory notes (the “Notes”).

 

 

The Guarantor has agreed unconditionally and irrevocably to guarantee payment in full of the principal of and interest (if any) on all such Notes of the Issuer, pursuant to a guarantee dated the date hereof, in the form of Exhibit D hereto (the “Guarantee”).

 

 

Certain terms used in this Agreement are defined in Section 6 hereof.

 

 

The Addendum to this Agreement, and any Annexes or Exhibits described in this Agreement or such Addendum, are hereby incorporated into this Agreement and made fully a part hereof.

 

 

1.1

While (i) the Issuer has and shall have no obligation to sell the Notes to the Dealer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuer, the parties hereto agree that in any case where the Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in reliance on the representations, warranties, covenants and agreements of the Issuer and the Guarantor contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein.

 

1.2  So long as this Agreement shall remain in effect, and in addition to the limitations contained in Section 1.7 hereof, neither the Issuer nor the Guarantor shall, without the consent of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes except (a) in transactions with one or more dealers which may from time to time after the date hereof become dealers with respect to the Notes by executing with the Issuer and the Guarantor one or more agreements which contain provisions substantially identical to those contained in Section 1 of this Agreement, of which the Issuer and the Guarantor hereby undertakes to provide the Dealer prompt notice or (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer and the Guarantor which contain provisions substantially identical to Section 1 of this Agreement contemporaneously herewith. In no event shall the Issuer or the Guarantor offer, solicit or accept offers to purchase, or sell, any Notes directly on its own behalf in transactions with persons other than broker-dealers as specifically permitted in this Section 1.2.

 

1.3  The Notes shall be in a minimum denomination of U.S.$250,000 or integral multiples of U.S.$1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not exceeding 397 days from the date of issuance and may have such terms as are specified in Exhibit C hereto or the Private Placement Memorandum. The Notes shall not contain any provision for extension, renewal, or automatic “rollover.”

 

1.4  The authentication and issuance of, and payment for, the Notes shall be effected in accordance with the Issuing and Paying Agent Agreement, and the Notes shall be either individual physical certificates or book-entry notes evidenced by one or more master notes (each, a “Master Note”) registered in the name of The Depository Trust Company (“DTC”) or its nominee, in the form or forms annexed to the Issuing and Paying Agent Agreement.

 

1.5  If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate or interest rate index and margin (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer’s services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agent Agreement and payment for such Note shall be made by the purchaser thereof to the Issuing and Paying Agent, for the account of the Issuer.

 

1.6  The Dealer, the Issuer and the Guarantor hereby establish and agree to observe the following procedures in connection with offers, sales and subsequent resales or other transfers of the Notes. In addition to the following, assuming compliance by the Issuer and the Guarantor with their respective representations and covenants hereunder, the Issuer and the Guarantor shall not be responsible for securities laws compliance of sales or solicitations made by the Dealer or any of the dealers with respect to the Notes.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(j)

The Dealer acknowledges that no action has been or will be taken by the Issuer, the Guarantor or the Dealer that would permit a public offering of the Notes or possession or distribution of the Private Placement Memorandum or other offering material relating to the Notes in any jurisdiction where action for that purpose is required.

 

 

(k)

The Dealer acknowledges and agrees that it has read, reviewed and understands the Blue Sky Memorandum, dated _____________, with respect to the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes, which memorandum has been prepared by Fried, Frank, Harris, Shriver & Jacobson LLP, special counsel to the Issuer and the Guarantor.

 

 

(l)

To the extent that any Notes are offered or sold outside the United States, the Dealer represents that it will (i) observe all applicable securities laws and regulations in each jurisdiction outside the United States in or from which it may offer or sell Notes, except to the extent that a failure to do so relates to or results from the violation or breach of a representation or covenant made by the Issuer or the Guarantor hereunder and (ii) obtain any consent, approval or permission required by it for the offer or sale by the Dealer of the Notes under the securities laws and regulations in force in any jurisdiction outside the United States to which it is subject or in or from which it makes any offer or sale, except to the extent that a failure to do so relates to or results from the violation or breach of a representation or covenant made by the Issuer or the Guarantor hereunder.

 

 

1.7

Each of the Issuer and the Guarantor hereby represents and warrants to the Dealer, in connection with offers, sales and resales of Notes, as follows:

 

 

(a)

The Issuer and the Guarantor hereby confirm to the Dealer that (except for any offer or sale in connection with the Guarantor’s existing commercial paper programs and/or as permitted by Section 1.6(i)) within the preceding six months neither the Issuer nor the Guarantor nor any person other than the Dealer or the other dealers referred to in Section 1.2 hereof acting on behalf of the Issuer or the Guarantor has offered or sold any Notes, or any substantially similar security of the Issuer or the Guarantor (including, without limitation, medium-term notes issued by the Issuer or the Guarantor), to, or solicited offers to buy any such security from, any person other than the Dealer or the other dealers referred to in Section 1.2 hereof. The Issuer and the Guarantor also agree that (except for any offer or sale in connection with the Guarantor’s existing commercial paper programs and/or as permitted by Section 1.6(i)), as long as the Notes are being offered for sale by the Dealer and the other dealers referred to in Section 1.2 hereof as contemplated hereby and until at least six months after the offer of Notes hereunder has been terminated (it being understood that for purposes of this Section 1.7(a) the date of termination shall be the date an offering of Notes is completed, not the date this Agreement is terminated), neither the Issuer nor the Guarantor nor any person other than the Dealer or the other dealers referred to in Section 1.2 hereof (except as contemplated by Section 1.2 hereof) will offer the Notes or any substantially similar security of the Issuer for sale to, or solicit offers to buy any such security from, any person other than the Dealer or the other dealers referred to in Section 1.2 hereof, it being understood that such agreement is made with a view to bringing the offer and sale of the Notes within the exemption provided by Section 4(2) of the Securities Act and shall survive any termination of this Agreement. Each of the Issuer and the Guarantor hereby represents and warrants that it has not taken or omitted to take, and will not take or omit to take, any action that would cause the offering and sale of Notes hereunder to be integrated with any other offering of securities, whether such offering is made by the Issuer or the Guarantor or some other party or parties.

 

 

(b)

The Dealer acknowledges and agrees that the proceeds of the sale of the Notes are currently contemplated to be used for the purpose of buying, carrying or trading securities within the meaning of Regulation T and the interpretations thereunder by the Board of Governors of the Federal Reserve System. In the event that the Dealer purchases Notes and does not resell such Notes on the day of such purchase, to the extent necessary to comply with Regulation T and the interpretations thereunder, the Dealer will sell such Notes either (i) only to offerees it reasonably believes to be QIBs or to QIBs it reasonably believes are acting for other QIBs, in each case in accordance with Rule 144A or (ii) in a manner which would not cause a violation of Regulation T and the interpretations thereunder.

 

 

1.8

Neither the Issuer nor any of its affiliates will be required hereunder to repurchase (or otherwise reacquire) any Notes from the Dealer.

 

 

 

Each of the Issuer and the Guarantor represents and warrants as to itself that:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.14    Under the laws of Luxembourg, neither the Issuer nor any of its revenues, assets or properties have any right of immunity from service of process or from the jurisdiction of competent courts of Luxembourg or the United States or the State of New York in connection with any suit, action or proceeding, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment or from any other legal process with respect to its obligations under this Agreement, the Issuing and Paying Agent Agreement or the Notes.

 

 

2.15    The Issuer is permitted to make all payments under this Agreement, the Issuing and Paying Agent Agreement and the Notes to holders of the Notes that are non-residents of Luxembourg, free and clear of and without deduction or withholding for or on account of any taxes or other governmental charges imposed by Luxembourg. There is no stamp or documentary tax or other charge imposed by any governmental agency having jurisdiction over the Issuer in connection with the execution, delivery, issuance, payment, performance, enforcement, or introduction into evidence in a court of Luxembourg of this Agreement, the Issuing and Paying Agent Agreement or any Note.

 

 

2.16    The choice of New York law to govern this Agreement, the Guarantee, the Issuing and Paying Agent Agreement and the Notes is, under the laws of Luxembourg, a valid, effective, and irrevocable choice of law, and the submission by the Issuer to the jurisdiction of the courts of the State of New York with regard to this Agreement is valid and binding under the laws of Luxembourg.

 

 

2.17    Any final judgment rendered by any court referred to in Section 7.3(a) in an action to enforce the obligations of the Issuer under this Agreement, the Issuing and Paying Agent Agreement or the Notes is capable of being enforced in the courts of Luxembourg.

 

 

2.18

As a condition to the admissibility in evidence of this Agreement, the Guarantee, the Issuing and Paying Agent Agreement or the Notes in the courts of Luxembourg, it is not necessary that this Agreement, the Guarantee, the Issuing and Paying Agent Agreement or the Notes be filed or recorded with any court or other authority. If this Agreement, the Guarantee, the Issuing and Paying Agent Agreement or the Notes were produced in proceedings before a Luxembourg court, such court may require that all or part of this Agreement, the Guarantee, the Issuing and Paying Agent Agreement or the Notes, or any of the documents or agreements referred to therein, be translated into French or German and registration of any such documents exhibited in any court proceedings or before any official authority (autorité constituée) in Luxembourg might be ordered, the registration tax being a fixed rate of 12,- EUR or an ad valorem rate depending on the nature of the registered document.

 

 

 

Each of the Issuer and the Guarantor covenants and agrees as to itself that:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5. Indemnification and Contribution.

 

 

 

 

 

6. Definitions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

7. General

 

 

 

 

(b)

The Issuer hereby irrevocably accepts and submits to the non-exclusive jurisdiction of each of the aforesaid courts in personam, generally and unconditionally, for itself and in respect of its properties, assets and revenues, with respect to any suit, action or proceeding in connection with or arising out of this Agreement.

 

(c)

The Issuer hereby irrevocably designates, appoints and empowers CT Corporation System, with offices at 111 Eighth Avenue, New York, New York 10011, as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and its properties, assets and revenues, service for any and all legal process, summons, notices and documents which may be served in any such action, suit or proceeding brought in the courts listed in Section 7.3(a) which may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts, with respect to any suit, action or proceeding in connection with or arising out of this Agreement or the Notes or the offer and sale of the Notes. If for any reason such designee, appointee and agent hereunder shall cease to be available to act as such, the Issuer agrees to designate a new designee, appointee and agent in The City of New York on the terms and for the purposes of this Section 7.3 satisfactory to the Dealer. The Issuer further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by serving a copy thereof upon the agent for service of process referred to in this Section 7.3 (whether or not the appointment of such agent shall for any reason prove to be ineffective or such agent shall accept or acknowledge such service) or by mailing copies thereof by registered or certified airmail, postage prepaid, to it at its address specified in or designated pursuant to this Agreement. The Issuer agrees that the failure of any such designee, appointee and agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall in any way be deemed to limit the ability of the holders of any Notes or the Dealer to serve any such legal process, summons, notices and documents in any other manner permitted by applicable law or to obtain jurisdiction over the undersigned or bring actions, suits or proceedings against the undersigned in such other jurisdictions, and in such other manner, as may be permitted by applicable law. The Issuer hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Agreement brought in the courts listed in Section 7.3(a) and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

 

(d)

To the extent that the Issuer or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding in connection with or arising out of this Agreement or the Notes or the offer and sale of the Notes, from the giving of any relief in any thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceeding may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement, the Issuing and Paying Agent Agreement or the Notes, the Issuer hereby irrevocably and unconditionally waives, and agrees for the benefit of the Dealer and any holder from time to time of the Notes not to plead or claim, any such immunity, and consent to such relief and enforcement.

 

 

 

 

 

7.8           (a) Any payments to the Dealer hereunder or to any holder from time to time of Notes shall be in United States dollars and shall be free of, and without withholding for or on account of, any taxes or other governmental charges of any nature whatsoever imposed by Luxembourg (“Taxes”), unless the Issuer or the Guarantor, as the case may be, is required to withhold any such Taxes by Luxembourg law (or the interpretation or administration thereof). In the event that the Issuer or the Guarantor is so required to withhold any such Taxes from any payments to the Dealer hereunder or to any holder from time to time of Notes, the Issuer or the Guarantor, as the case may be, will (x) withhold and pay such Taxes and (y) pay such additional amounts to the Dealer or such holder, as the case may be, which, after such withholding of such Taxes (including any withholding of such Taxes in respect of additional amounts) shall equal the amount the Dealer or such holder would have received if such Taxes had not been withheld; provided, however, that the Issuer and the Guarantor shall not be required to pay any such additional amounts with respect to any payment to the Dealer or to any holder of a Note on account of (i) any Taxes that would not have been so imposed or withheld but for the existence of any present or former personal or business connection between the Dealer or such holder or the beneficial owner of such Note, as the case may be, and Luxembourg other than the mere receipt of such payment or the ownership or holding of such Note; (ii) any estate, inheritance, gift, sales, value added, transfer, stamp, excise or personal property Tax or any similar Tax; (iii) any Taxes that are payable otherwise than by withholding from a payment to the Dealer or to such holder or the beneficial owner of such Note; (iv) any Taxes imposed or withheld as a result of the failure of the Dealer or such holder or the beneficial owner of such Note, as the case may be, to duly and timely comply with any applicable certification, information, identification, documentation or other reporting requirements concerning the nationality, residence, identity or connection with Luxembourg of the Dealer or such holder or the beneficial owner of such Note, as the case may be, or to make any valid or timely declaration or similar claim, if such compliance or such declaration or similar claim is required by a statute, treaty, regulation or administrative practice of Luxembourg as a precondition to relief or exemption from all or part of such Taxes; (v) any Taxes which would not have been so imposed or withheld but for the presentation of such Note for payment on a date more than 10 days after the date on which such payment became due and payable or the date on which payment is duly provided for, whichever occurs later; (vi) any Taxes required to be withheld pursuant to a law in effect as of the date hereof, including any withholding under the European Council Directive 2003/48/EC or any other Directive on the taxation of savings implementing the conclusions of the ECOFIN council meeting of 26th-27th November, 2000, or any law implementing or complying with, or introduced in order to conform to, such Directive; (vii) any Taxes required to be withheld by any paying agent from any payment in respect of such Note if such payment could be made without such withholding by at least one other paying agent; or (viii) any Taxes imposed on or withheld from a payment to such holder if such holder is not the beneficial owner of such Note or is a fiduciary, partnership, limited liability company or other similar entity, but only to the extent that a beneficial owner of such Note, a beneficiary or settlor with respect to such fiduciary or member of such partnership, limited liability company or similar entity would not have been entitled to the payment of additional amounts had such beneficial owner, settlor, beneficiary or member received directly its beneficial or distributive share of such payment. The Issuer and the Guarantor will promptly pay any documentary tax or other similar governmental charges imposed by Luxembourg in connection with the execution, delivery, payment or performance of this Agreement, the Guarantee, the Issuing and Paying Agent Agreement or the Notes and shall indemnify and hold harmless the Dealer and each holder of Notes from all liabilities arising from any failure to pay, or delay in paying, such taxes or charges.

 

 

(b)

Each of the Issuer and the Guarantor agrees to indemnify and hold harmless the Dealer and each holder from time to time of Notes against any loss incurred by the Dealer or such holder as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which the Dealer or such holder is able to purchase United States dollars with the amount of Judgment Currency actually received by the Dealer or such holder. The foregoing indemnity shall constitute separate and independent obligations of the Issuer and the Guarantors and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.

 

 

7.9      Each of the Issuer, the Guarantor and the Dealer acknowledges and agrees that (i) the purchase and sale of the Notes pursuant to this Agreement is an arm’s-length commercial transaction between the Issuer, on the one hand, and the Dealer, on the other, and (ii) in connection therewith and with the process leading to such transaction the Dealer is acting (and shall at all times continue to act) solely as a principal and not the agent of the Issuer or the Guarantor.

 

This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuer, the Guarantor and the Dealer, or any of them, with respect to the subject matter hereof.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written.

 

The Procter & Gamble Company, as Guarantor	____________________, as Dealer
By:_____________________________	By: ____________________________
Name: __________________________	Name: __________________________
Title: ___________________________	Title: Authorized Signatory
Procter & Gamble International Funding S.C.A., as Issuer
By: _____________________________
Name: __________________________
Title: ____________________________