-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FCS4MEvKM19NcUBpAmEwmUv7XZkMm1VBcOYKURuJPs58ekW7+zFOYyNwevqkrub8 feiBfIg6AhwlWx7Nxpik9A== 0000950146-98-001988.txt : 19981123 0000950146-98-001988.hdr.sgml : 19981123 ACCESSION NUMBER: 0000950146-98-001988 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 REFERENCES 429: 333-00791 FILED AS OF DATE: 19981120 FILER: COMPANY DATA: COMPANY CONFORMED NAME: POLAROID CORP CENTRAL INDEX KEY: 0000079326 STANDARD INDUSTRIAL CLASSIFICATION: PHOTOGRAPHIC EQUIPMENT & SUPPLIES [3861] IRS NUMBER: 041734655 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-67647 FILM NUMBER: 98756194 BUSINESS ADDRESS: STREET 1: 549 TECHNOLOGY SQ CITY: CAMBRIDGE STATE: MA ZIP: 02139 BUSINESS PHONE: 7813862000 S-3 1 POLAROID CORPORATION FORM S-3 As filed with the Securities and Exchange Commission on November 20, 1998 Registration Statement No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- POLAROID CORPORATION (Exact name of Registrant as specified in its charter) -------------- DELAWARE 04-1734655 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 784 Memorial Drive Cambridge, Massachusetts 02139 (781) 386-2000 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) -------------- Thomas M. Lemberg, Esq. Senior Vice President, General Counsel and Secretary Polaroid Corporation 784 Memorial Drive Cambridge, Massachusetts 02139 (781) 386-3228 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------- Copy to: Raymond W. Wagner, Esq. Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017-3954 (212) 455-2000 -------------- Approximate date of commencement of proposed sale to the public: From time to time after the Registration Statement becomes effective as determined by market conditions and other factors. -------------- If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. (Continued on following page) ================================================================================ (Continued from previous page) CALCULATION OF REGISTRATION FEE
================================================================================================================== Title of Each Class of Proposed Maximum Proposed Maximum Securities to be Amount to be Aggregate Price Aggregate Offering Amount of Registered Registered (1) Per Security (2) Price (1) (2) Registration Fee (3) - ------------------------------------------------------------------------------------------------------------------ Debt Securities ......... $300,000,000 100% $300,000,000 $83,400 ==================================================================================================================
(1) The initial public offering price of any Debt Securities denominated in any foreign currencies or currency units shall be the U.S. dollar equivalent thereof based on the prevailing exchange rates at the respective times such Debt Securities are first offered. For Debt Securities issued with an original issue discount, the amount to be registered is calculated as the initial accreted value of such Debt Securities. (2) The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended (the "Securities Act"), and reflects the maximum offering price of Debt Securities that may be issued rather than the principal amount of any Debt Securities that may be issued at a discount. (3) Pursuant to Rule 429 under the Securities Act, the Prospectus included herein is a combined prospectus that also relates to debt securities that were registered by the Registration Statement on Form S-3 (File No. 333-0791) (the "Prior Registration Statement"). A filing fee of $64,664 was paid on November 21, 1996 in connection with the $200,000,000 aggregate principal amount of Debt Securities that remain eligible to be sold under the Prior Registration Statement as of January 14, 1998. This Registration Statement is a new registration statement and constitutes post-effective amendment No. 1 to the Prior Registration Statement. Such post-effective amendment shall hereafter become effective concurrently with the effectiveness of this Registration Statement in accordance with Section 8(a) of the Securities Act. --------------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. PROSPECTUS [Logo] POLAROID CORPORATION 784 Memorial Drive Cambridge, Massachusetts 02139 (781) 386-2000 $500,000,000 Debt Securities ---------------- We will provide specific terms of these securities in supplements to this Prospectus. You should read this Prospectus and any supplement carefully before you invest. ---------------- Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. ---------------- This Prospectus is dated , 1998. The information in this Prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities Exchange Commission is effective. This Prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. TABLE OF CONTENTS About this Prospectus ..................................................... ii Where You Can Find More Information about Polaroid ........................ ii The Company ............................................................... 1 Ratios of Earnings to Fixed Charges ....................................... 1 Use of Proceeds ........................................................... 1 Description of Debt Securities ............................................ 1 Limitations on Issuance of Bearer Debt Securities ......................... 12 Certain U.S. Federal Income Tax Consequences to Non-U.S. Persons .......... 13 Plan of Distribution ...................................................... 14 Experts ................................................................... 15 Legal Opinions ............................................................ 15 ABOUT THIS PROSPECTUS This Prospectus is part of a Registration Statement that we filed with the Securities and Exchange Commission (the "SEC") utilizing a "shelf" registration process. Under this shelf process, we may sell the unsecured Debt Securities described in this Prospectus in one or more offerings up to a total dollar amount of $500,000,000. This Prospectus provides you with a general description of the Debt Securities we may offer. Each time we sell Debt Securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this Prospectus and any prospectus supplement together with additional information described below under "Where You Can Find More Information About Polaroid". WHERE YOU CAN FIND MORE INFORMATION ABOUT POLAROID We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may also read and copy any document we file at the SEC's public reference rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov and at our web site at http://www.polaroid.com. The SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this Prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until we sell all of the Debt Securities: o Annual Report on Form 10-K for the year ended December 31, 1997; o Quarterly Reports on Form 10-Q for the quarters ended March 29, 1998, June 28, 1998 and September 27, 1998; and o Current Report on Form 8-K filed on June 12, 1998. You may request a copy of these filings at no cost, by writing or telephoning our agent at the following address: Boston EquiServe, L.P. 150 Royal Street Canton, Massachusetts 02021 Telephone: 800-730-4001 Because we list our common stock on the New York Stock Exchange, you may also inspect the filings described above, as well other information, at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. You should rely only on the information incorporated by reference or provided in this Prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this Prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents. ii THE COMPANY Polaroid designs, manufactures and markets worldwide a variety of products that are used primarily in the imaging fields and related industries. These products include instant photographic cameras and films, electronic imaging recording devices, conventional films and light polarizing filters and lenses and are used in consumer and commercial markets around the world, including in professional photography, graphic arts, scientific, medical, governmental, educational, insurance, real estate, sunglasses, identification systems and in other business applications. Our principal executive offices are located at 784 Memorial Drive, Cambridge, Massachusetts 02139. Our telephone number is (718) 386-2000. When we refer to "Polaroid", "we" or "our" in this Prospectus, we mean Polaroid Corporation and its subsidiaries on a consolidated basis, unless the context requires otherwise. RATIOS OF EARNINGS TO FIXED CHARGES We have set forth below the ratio of earnings to fixed charges for Polaroid for the periods indicated. We have computed the ratio of earnings to fixed charges by dividing earnings available for fixed charges (earnings/(loss) before income taxes and cumulative effect of changes in accounting principles plus fixed charges (excluding capitalized interest) by fixed charges. Fixed charges consist of interest expense (including amortization of deferred financing costs), the portion of rental expense that is representative of the interest factor (deemed by us to be one-third) and capitalized interest.
Fiscal Year Ended December 31 - ------------------------------------------------------------------ Nine Months Ended 1993 1994 1995 1996 1997 September 27, 1998 - ------------ -------- ----------- ------------ ----------- ------------------- 2.3(a) 3.3 --(b) 1.4(c) --(d) 1.7
- -------------------------- (a) In 1993, we recorded a pre-tax expense for restructuring and other charges of $44.0 million. Excluding the pre-tax restructuring and other charges, the ratio to fixed charges was 2.9. (b) Earnings were insufficient to cover fixed charges by $206.2 million after giving effect to the pre-tax expense for restructuring and other charges of $247.0 million. Excluding the pre-tax restructuring and other charges, the ratio of earnings to fixed charges was 1.6. (c) In 1996, we recorded a pre-tax expense for restructuring and other special charges of $150.0 million ($7.0 million of which was recorded in cost of goods sold). Excluding the pre-tax restructuring and other special charges, the ratio of earnings to fixed charges was 3.8. (d) Earnings were insufficient to cover fixed charges by $194.5 million after giving effect to the pre-tax expense for restructuring and other charges of $340.0 million ($16.5 million of which was recorded in cost of goods sold). Excluding the pre-tax restructuring and other charges, the ratio of earnings to fixed charges was 3.4. USE OF PROCEEDS We will use the net proceeds that we receive from the sale of the Debt Securities offered by this Prospectus and the accompanying prospectus supplement for general corporate purposes. General corporate purposes may include repayment of other debt, capital expenditures, possible acquisitions, repurchase of Polaroid's stock and any other purposes that may be stated in any prospectus supplement. The net proceeds may be invested temporarily or applied to repay short-term debt until they are used for their stated purpose. DESCRIPTION OF DEBT SECURITIES The following description of the terms of the Debt Securities summarizes certain general terms that will apply to the Debt Securities. The description is not complete, and we refer you to the Indenture, a copy of which is an exhibit to the Registration Statement of which this Prospectus is a part. For your reference, in several cases below we have noted the section in the Indenture that the paragraph summarizes. Capitalized terms have the meanings assigned to them in the Indenture. The referenced sections of the Indenture and the definitions of capitalized terms are incorporated by reference in the following summary. The Debt Securities will be issued under an Indenture, dated as of January 9, 1997 (the "Indenture"), between Polaroid and State Street Bank and Trust Company, as trustee (the "Trustee"). The Indenture provides for the issuance from time to time of Debt Securities in an unlimited dollar amount and an unlimited number of series. Specific Terms Of Each Series Each time that we issue a new series of Debt Securities, the prospectus supplement relating to 1 that new series will specify the particular amount, price and other terms of these Debt Securities. These terms may include: o the title of the Debt Securities; o any limit on the total principal amount of the Debt Securities; o the date or dates on which the principal of and premium on the Debt Securities will be payable or their method of determination; o the interest rate or rates of the Debt Securities or their method of determination; the date from which interest will accrue; the interest payment dates for the Debt Securities; and the regular record dates; o the place or places where the principal of and premium and interest on the Debt Securities will be paid; o the period or periods within which, the price or prices at which and the terms on which any of the Debt Securities may be redeemed, in whole or in part at our option; o the terms on which Polaroid would be required to redeem Debt Securities pursuant to any sinking fund or analogous provisions, on the occurrence of certain events or at the option of a holder of Debt Securities; and the period or periods within which, the price or prices at which and the terms and conditions on which the Debt Securities will be so redeemed, repaid or purchased in whole or in part; o the terms on which Polaroid would be required to permit the conversion of Debt Securities into stock or other securities of Polaroid or of any other corporation; o the terms for the attachment to Debt Securities of warrants, options or other rights to purchase or sell stock or other securities of Polaroid; o the portion of the principal amount of the Debt Securities that is payable on the declaration of acceleration of the maturity other than their principal amount (these Debt Securities are referred to as "OID Debt Securities" and are described below); o whether and to what extent any other means of satisfaction and discharge (sometimes referred to as "defeasance") will be applicable to the Debt Securities other than as described below under "Satisfaction and Discharge; Defeasance"; o any modifications to the Events of Default (as are described below under "Events of Default, Notice and Waiver"); o any modification to the covenants (as are described below under "Certain Covenants"); o the currency or currencies or currency unit or currency units in which the Debt Securities will be denominated or in which payment of the principal of and premium and interest on any of the Debt Securities will be issued, if other than U.S. dollars; o if the principal of and premium or interest on any of the Debt Securities is to be payable at our election or at the election of a holder of the Debt Securities or in a currency or currencies or currency unit or currency units other than that in which the Debt Securities are denominated, the period or periods within which and the terms and conditions on which these elections may be made, or the other circumstances under which the Debt Securities are to be payable; these provisions may also require the holder of the Debt Securities to bear currency exchange costs by deduction from these payments; o if the amount of principal of and premium or interest on any of the Debt Securities may be determined by reference to an index based on either a currency or currencies or a currency unit or currency units other than that in which the Debt Securities are payable or any other method specifying the manner in which these amounts will be determined; o if the Debt Securities and coupons are to be issued on the exercise of warrants, the time, manner and place for these Debt Securities and coupons to be authenticated and delivered; o whether and under what circumstances we will pay additional amounts on any of the Debt Securities and coupons to any holder of Debt Securities who is not a U.S. person (including a definition of this term) for any tax, assessment or governmental charge withheld or deducted and whether we will have the option to redeem these Debt Securities rather than pay additional amounts; o the person to whom interest on Debt Securities in registered form will be payable, if other than the person in whose name those Debt Securities are registered at the close of business on the regular record dates; the manner in which, or 2 the person to whom, any interest on any Bearer Security of the series will be payable, if other than on presentation and surrender of the coupons attached to that security as they mature; and the extent to which, or the manner in which, any interest payable on a temporary global Debt Security on an interest payment date will be paid; and o any other specific terms of the Debt Securities that are not inconsistent with the Indenture. (Section 2.2) We may issue Debt Securities as OID Debt Securities. OID Debt Securities bear no interest or bear interest at below-market rates and are sold at a discount below their stated principal amount. The prospectus supplement will contain any special tax, accounting or other information relating to OID Debt Securities or to certain other kinds of Debt Securities that may be offered, including Debt Securities linked to an index or payable in a currency or currencies other than U.S. dollars. Ranking The Debt Securities will be the unsecured obligations of Polaroid and will rank equally with all of Polaroid's other unsecured and unsubordinated debt. Form and Denomination We may issue Debt Securities of a series in fully registered form without coupons ("Registered Debt Securities"), in bearer form either with or without coupons ("Bearer Debt Securities") or any combination of those forms. (Section 2.2) The prospectus supplement will state whether the Bearer Debt Securities may be exchanged for Registered Debt Securities. The prospectus supplement will also state whether the Debt Securities will initially be issued in temporary form ("Temporary Global Securities") or in definitive form ("Definitive Securities"). (Sections 4.3, 4.4, 4.11 and 4.12) We will issue Debt Securities in the form of Registered Debt Securities in denominations of $1,000 or multiples thereof and Debt Securities in the form of Bearer Debt Securities in denominations of $5,000, unless the prospectus supplement states otherwise. (Section 4.1) Certain Covenants The Indenture includes the following covenants. These covenants use certain terms that are defined below following the summary of these covenants. Restrictions on Secured Debt If Polaroid or any Restricted Subsidiary incurs or guarantees any debt for money borrowed ("Debt") that is secured by a mortgage, pledge or lien ("Mortgage") on any Principal Property or on any shares of stock or Debt of any Restricted Subsidiary, then Polaroid will secure (or cause that Restricted Subsidiary to secure) the Debt Securities to the same extent and in the same proportion with (or, at Polaroid's option, prior to) that secured Debt. This restriction does not apply, however, if the total amount of this secured Debt, together with all Attributable Debt of Polaroid and its Restricted Subsidiaries that is incurred by sale/leaseback transactions involving Principal Properties (with the exception of the transactions which are excluded as described below under "Restrictions on Sale/Leaseback Transactions") is less than or equal to 10% of Consolidated Net Tangible Assets. (Section 11.4) The above restrictions do not apply to (and the calculation of secured Debt under these restrictions does not include) Debt secured by any of the following: o Mortgages on property of, or on any shares of stock of or Debt of, any corporation existing at the time that that corporation becomes a Restricted Subsidiary; o Mortgages in favor of Polaroid or a Restricted Subsidiary; o Mortgages in favor of governmental bodies to secure progress or advance payments; o Mortgages on property, shares of stock or Debt existing at the time of the acquisition of these items (including acquisition through merger or consolidation) and purchase money and construction Mortgages which are entered into prior to, at the time of or within 180 days after the later of acquisition or completion of construction; o any extension, renewal or refunding of any Mortgage referred to in the preceding six exceptions, provided that any extended, renewed or replaced Mortgage shall be limited to the same property, stock or Debt that secured the original Mortgage; and o Mortgages securing industrial revenue or pollution control bonds. (Section 11.4) Restrictions on Sale/Leaseback Transactions Neither Polaroid nor any Restricted Subsidiary may enter into any sale/leaseback transaction 3 involving any Principal Property, unless the total amount of all Attributable Debt from these transactions plus all Debt secured by Mortgages on Principal Properties (with the exception of secured Debt which is excluded from Debt as described above under "Restrictions on Secured Debt") is less than or equal to 10% of Consolidated Net Tangible Assets. (Section 11.5) The above restrictions do not apply to (and the calculation of Attributable Debt under these restrictions does not include) any sale/leaseback transaction if: o the lease is for a period, including renewal rights, of not more than three years; o the sale or transfer of the Principal Property is made prior to, at the time of or within 180 days after its acquisition or construction thereon; o the lease secures or relates to industrial revenue or pollution control bonds; o the transaction is between Polaroid and a Restricted Subsidiary or between Restricted Subsidiaries; or o within 180 days after the sale or transfer is completed, Polaroid or the Restricted Subsidiary applies an amount at least equal to the greater of (a) the net proceeds of the sale of the Principal Property leased back in the sale/leaseback transaction and (b) the fair market value of the Principal Property leased back in the sale/ leaseback transaction to any of (1) the retirement of Debt Securities or other Funded Debt of Polaroid ranking equally with or senior to all the Debt Securities, (2) the retirement of Funded Debt of a Restricted Subsidiary or (3) the purchase of other property that constitutes a Principal Property having a fair market value at least equal to the value of the Principal Property leased back. The amount to be applied to the retirement of Funded Debt of Polaroid or a Restricted Subsidiary is to be reduced by (i) the principal amount of any Debt Securities and other debt constituting Funded Debt of Polaroid or a Restricted Subsidiary delivered to the applicable trustee for retirement and cancellation within this 180-day period and (ii) the principal amount of Funded Debt voluntarily retired within this 180-day period (other than those items listed in clause (i) of this sentence). This exception does not apply to debt that is paid at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision. (Section 11.5) Certain Definitions The covenants which we have summarized above use the following terms: "Restricted Subsidiary" means a Subsidiary, substantially all of whose property is located or substantially all of whose business is carried on within the United States and which owns a "Principal Property" but does not include a Subsidiary which is primarily engaged in (a) the development and sale or financing of real property or (b) financing, or assisting in financing, the acquisition or disposition of products of Polaroid or a Subsidiary by dealers, distributors or customers. (Section 1.1) "Subsidiary" means a corporation, at least a majority of whose outstanding voting stock is, at the time, owned, directly or indirectly, by Polaroid and/or one or more Subsidiaries. (Section 1.1) "Principal Property" means any real estate or any manufacturing or processing plant or warehouse owned or leased by Polaroid or by any Restricted Subsidiary that is located within the United States and the gross book value of which (without deduction of any depreciation reserves) on the date on which the determination is being made exceeds 2% of Consolidated Net Tangible Assets. It does not include either (a) properties which in the opinion of our Board of Directors are not of material importance to our business as an entirety or (b) any portion of any particular property which our Board of Directors determines is not of material importance to the use or operation of this property. (Section 1.1) "Attributable Debt" means the total net amount of rent required to be paid during the remaining term of certain leases, discounted at the rate per annum borne by the relevant Debt Securities. (Section 1.1) "Consolidated Net Tangible Assets" means the total assets (less applicable reserves and other properly deductible items) on Polaroid's balance sheet less (a) all current liabilities and (b) goodwill, trade names, trademarks, patents, organization expenses and other similar intangibles of Polaroid and its consolidated Subsidiaries. (Section 1.1) "Funded Debt" means (a) debt for money borrowed having a maturity of more than 12 months (or renewable or extendible beyond 12 months) and (b) rental obligations payable more than 12 months from that date under leases which 4 are capitalized in accordance with generally accepted accounting principles. These rental obligations are to be included as Funded Debt at the amount capitalized and are to be included for the purposes of the definition of Consolidated Net Tangible Assets both as an asset and Funded Debt at the amount capitalized. (Section 1.1) No Event Risk Covenant The Indenture does not contain any covenants or other provisions that give holders of the Debt Securities protection in the event of a highly leveraged transaction involving Polaroid, except for the "Restrictions on Secured Indebtedness" and "Restrictions on Sale/Leaseback Transactions" described above. Limitation on Merger, Consolidation and Certain Sales of Assets We may not merge into or consolidate with any other corporation, or convey or transfer our properties and assets substantially as an entirety to any person unless: o the successor is a U.S. corporation; o the successor assumes on the same terms and conditions all the obligations under the Debt Securities and the Indenture; and o immediately after giving effect to the transaction, there is no default under the Indenture. (Section 9.1) Upon any merger, consolidation, conveyance or transfer, the successor will succeed to, and will be substituted in lieu of, Polaroid. (Section 9.2) Possible Waiver of Certain Covenants We will not be required to comply with the restrictive covenants described above under "Restrictions on Secured Debt" and "Restrictions on Sale/Leaseback Transactions", if the holders of at least a majority in principal amount of all series of outstanding Debt Securities affected by that covenant (acting as one class) waive compliance with it. (Section 11.7) Computation of Interest We will calculate the interest that is due on the Debt Securities based on a 360-day year of twelve 30 day months, unless the prospectus supplement states otherwise. Payment and Paying Agents Payments on Registered Debt Securities We will pay principal of and premium and interest on Registered Debt Securities in the designated currency or currency unit at the office of a paying agent or paying agents as we designate from time to time. At our option, we may pay interest on Registered Debt Securities by check mailed to the address of the person that appears in the security register. We will pay installments of interest on any Registered Debt Security to the person in whose name the Registered Debt Security is registered at the close of business on the regular record date for such payments. (Sections 4.6 and 4.1) Payments on Bearer Debt Securities We will pay principal of and premium and interest on Bearer Debt Securities in the designated currency unit at the offices of those paying agents outside the United States as we may designate from time to time. We will pay principal and premium on Bearer Debt Securities only against surrender of these Debt Securities, and we will pay interest on Bearer Debt Securities with coupons only against surrender of the coupon relating to the particular interest payment date. (Sections 4.1 and 11.2). We will not make a payment on any Bearer Debt Security at our office or agency in the United States or by check mailed to any address in the United States or by transfer to any account maintained with a bank located in the United States. Notwithstanding the above, we will make payments on Bearer Debt Securities denominated and payable in U.S. dollars at the office of Polaroid's paying agent in the Borough of Manhattan in New York City, if (but only if) payment of the full amount thereof in U.S. dollars at all offices or agencies outside the United States is illegal or effectively precluded by exchange controls or other similar restrictions. (Section 11.2) Payments of Unclaimed Monies All moneys that we have deposited with the Trustee or a paying agent or then held by us (in trust for the payment of principal of or premium and interest on any Debt Security or coupon) which remain unclaimed two years after that payment becomes due and payable will be repaid to Polaroid or, if then held by Polaroid, discharged from that trust. In that event, the holder of that Debt Security or coupon will be able to look only to Polaroid for payment of these moneys. (Section 11.3) Paying Agent State Street Bank and Trust Company will be designated as Polaroid's paying agent unless the prospectus supplement states otherwise. The office of State Street Bank and Trust Company, N.A., an affiliate of State Street Bank and Trust Company, 5 will be the office or agency of Polaroid in the Borough of Manhattan in New York City where (1) Debt Securities that are issuable solely as Registered Debt Securities and (2) Debt Securities (subject to the limitations described above in the case of Bearer Debt Securities) that are issuable solely as Bearer Debt Securities or as both Registered Debt Securities and Bearer Debt Securities may be presented or surrendered for payment. We will name any paying agents outside the United States and any other paying agents in the United States in the prospectus supplement. (Section 11.2) At any time, we may designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which any paying agent acts, subject to the limitations described in the Indenture. (Section 11.2) Exchange, Registration and Transfer Exchange Holders of Debt Securities may present their securities for exchange under the following conditions: o Holders of Registered Debt Securities of any series may exchange their securities for an equal principal amount of other Registered Debt Securities of different authorized denominations of the same series and with the same terms. o Holders of Debt Securities of a series that are issuable as both Registered Debt Securities and Bearer Debt Securities may exchange the Bearer Debt Securities of that series (with all unmatured coupons, except as provided below, and all matured coupons in default) for an equal principal amount of Registered Debt Securities of the same series of any authorized denominations and with the same terms. o If a holder of a Bearer Debt Security (with coupons attached to it) surrenders that security in exchange for a Registered Debt Security after a regular record date (or special record date) but before the relevant interest payment date, then interest will not be payable on that interest payment date on the Registered Debt Security issued in exchange for the Bearer Debt Security. Instead, interest will be payable only to the holder of the coupon issued with the Bearer Debt Security on that interest payment date. o Holders of Bearer Debt Securities may not exchange them for Registered Debt Securities, unless the applicable prospectus supplement describes that they may do so and applicable rules and regulations permit that exchange. Holders of Debt Securities will not be charged a service charge for any transfer or exchange, but we may require payment of a sum sufficient to cover any tax or other governmental charge in connection with that transfer or exchange. (Section 4.4) Registration and Transfer Holders of Registered Debt Securities (other than Book-Entry Debt Securities which are discussed below) may present their securities for registration of transfer (with the form of transfer endorsed thereon duly executed) at the office of the security registrar or at the office of any additional transfer agent designated by us. (Sections 4.4 and 11.2) State Street Bank and Trust Company will be the initial security registrar under the Indenture. State Street Bank and Trust Company, N.A., an affiliate of State Street Bank and Trust Company will initially be designated as the office or agency of Polaroid in the Borough of Manhattan, New York City where holders of Debt Securities may present their Debt Securities for registration of transfer or exchange. State Street Bank and Trust Company, N.A. currently has offices at 61 Broadway, 15th Floor, New York, New York 10006. (Section 4.4) At any time, we may designate, or rescind the designation of, the security registrar or any additional transfer agent or approve a change in the location through which the security registrar or any transfer agent acts. However, if Debt Securities of a series are issuable solely as Registered Debt Securities, then we will be required to maintain a transfer agent in each place of payment for that series. Similarly, if Debt Securities are issuable as both Registered Debt Securities and Bearer Debt Securities or solely as Bearer Debt Securities, then we will be required to maintain (in addition to the security registrar) a transfer agent in a place of payment for that series located outside of the United States. At any time, we may designate additional transfer agents for any series of Debt Securities. (Section 11.2) If we redeem in part any series of Debt Securities, we will not be required to issue, register the transfer of and/or exchange Debt Securities under the following conditions. o If Debt Securities of a series are issuable only as Registered Debt Securities, we will not be 6 required to issue, register the transfer of or exchange Debt Securities of any series during a period beginning at the opening of business 15 business days before any selection of Debt Securities of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption. o If Debt Securities of the series are issuable as Bearer Debt Securities, we will not be required to issue, register the transfer of or exchange Debt Securities of any series during a period beginning at the opening of business 15 business days before any selection of Debt Securities of that series to be redeemed and ending at the close of business on the day of the first publication of the relevant notice of redemption. o If Debt Securities of a series are issuable as both Bearer Debt Securities and as Registered Debt Securities and there is no publication, we will not be required to issue, register the transfer of or exchange Debt Securities of any series during a period beginning at the opening of business 15 business days before any selection of Debt Securities of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption. o We will not be required to register the transfer of, or exchange any Registered Debt Securities selected for redemption, in whole or in part, except the unredeemed portion of any Registered Debt Securities being redeemed in part. o We will not be required to exchange any Bearer Debt Securities selected for redemption, except to exchange Bearer Debt Securities for Registered Debt Securities of that series and of like terms that are simultaneously surrendered for redemption. (Section 4.4) For a description of restrictions on the exchange, registration and transfer of Global Debt Securities, see "Global Securities". Global Securities We may issue Debt Securities of a series in whole or in part as one or more global Debt Securities ("Global Debt Securities") in the following two kinds of forms: o in either registered or bearer form; and o in either temporary or definitive form. We summarize each of these forms below as well as the depositary arrangements that we anticipate will apply to them. Depositary Arrangements The Trustee will deposit the Global Debt Securities of a series with, or on behalf of, a depositary located in the United States (a "U.S. Depositary") or a common depositary located outside the United States (a "Common Depositary") for the benefit of the Euro-clear System ("Euro-clear") or CEDEL, S.A. ("CEDEL") for credit to the respective accounts of the beneficial owners of interests in these Debt Securities. All temporary of definitive Global Debt Securities in bearer form will be deposited with a Common Depositary. (Section 4.3) The prospectus supplement will describe the specific terms of the depositary arrangement for Debt Securities of a series that are issued in global form. None of Polaroid, the Trustee, any paying agent or the security registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Debt Security or for maintaining, supervising or reviewing any records relating to these beneficial ownership interests. (Section 4.11) We anticipate that the following provisions will apply to all depositary arrangements with a U.S. Depositary or a Common Depositary. Temporary Global Securities If the prospectus supplement specifies, all or any portion of the Debt Securities of a series that are issuable as Bearer Debt Securities initially will be represented by one or more temporary Global Debt Securities, without interest coupons. These Bearer Debt Securities in temporary form will be deposited with a Common Depositary in London for Morgan Guaranty Trust Company of New York, Brussels Office, as operator of Euro-clear, and CEDEL for credit to the respective accounts of the beneficial owners of these Debt Securities (or to other accounts as they may direct). On and after the date set for the exchange of these temporary securities, each temporary Global Debt Security will be exchangeable for definitive Debt Securities in any of the following three forms: o in bearer form; o in registered form; o in definitive global bearer form; or o any combination of the above. 7 Bearer Debt Securities (including Debt Securities in definitive global bearer form), which are to be delivered in exchange for a portion of temporary Global Debt Securities, will not be mailed or otherwise delivered to any location in the United States in connection with that exchange. (Sections 4.2 and 4.3) Unless the prospectus states otherwise, we will pay interest on that portion of temporary Global Debt Securities that is due before the issuance of definitive Debt Securities to Euro-clear or CEDEL for that portion of the temporary Global Debt Securities held for its account. As a condition of making that payment, we will require that Euro-clear or CEDEL deliver to the Trustee a certificate signed by Euro-clear or CEDEL dated no earlier than that interest payment date. The certificate must be based on statements provided to it by its account holders who are beneficial owners of interests in those temporary Global Debt Securities. The certificate must state either of the following: o that portion (1) is not beneficially owned by a "U.S. person" and (2) has not been acquired by or on behalf of a U.S. person or for offer to resell or for resale to a U.S. person or any person inside the United States; (for the purposes of the certificate, a "U.S. person" means a citizen or resident of the United States, a corporation or partnership created or organized in or under the laws of the United States or an estate or trust the income of which is subject to U.S. federal income taxation regardless of its source); or o if a beneficial interest in that portion has been acquired by a U.S. person, (1) that that person is a financial institution (as defined in the U.S. Treasury Regulations promulgated under the Internal Revenue Code of 1986 (the "Code")), purchasing for its own account or has acquired the Debt Security through a financial institution and (2) that these Debt Securities are held by a financial institution that has agreed in writing to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Code and the U.S. Treasury Regulations and that it did not purchase for offer to resell or for resale inside the United States. Euro-clear or CEDEL will credit the interest received by it regarding these temporary Global Debt Securities to the accounts of their beneficial owners (or to other accounts as these beneficial owners may direct). (Section 4.3) Definitive Global Securities Bearer Debt Securities. If any Debt Securities of a series are issuable in definitive global bearer form, the prospectus supplement will describe the circumstances under which beneficial owners of interests in any of these definitive global Bearer Debt Securities may exchange these interests for Debt Securities of that series and of like term and principal amount in any authorized form and denomination. Bearer Debt Securities delivered in exchange for a portion of definitive Global Debt Securities will not be mailed or otherwise delivered to any location in the United States in connection with that exchange. (Section 4.4) We will pay principal of and premium and interest on definitive global Bearer Debt Securities in the manner described in the prospectus supplement. Book-Entry Debt Securities. If Debt Securities of a series are to be represented by a definitive global Registered Debt Securities to be deposited with or on behalf of a U.S. Depositary, then these Debt Securities ("Book-Entry Debt Securities") will be represented by definitive Global Debt Securities registered in the name of the U.S. Depositary or its nominee. Book-Entry Debt Securities are subject to the following procedures and rules: o Following the issuance of definitive Global Debt Securities registered in the name of the U.S. Depositary, the U.S. Depositary will credit, on its book-entry registration and transfer system, the principal amounts of the Book-Entry Debt Securities represented by those Global Debt Securities to the accounts of institutions that have accounts with that depositary or its nominee ("participants"). The accounts to be credited will be designated by the underwriters or agents for the sale of these Book-Entry Debt Securities or by us, if we sell Debt Securities directly. o Ownership of Book-Entry Debt Securities will be limited to participants or persons that may hold interests through participants. Ownership of Book-Entry Debt Securities will be shown on, and the transfer of that ownership will be effected only through, records maintained by the U.S. Depositary or its nominee for the applicable definitive Global Debt Securities or by participants or persons that hold through participants. So long as the U.S. Depositary, or its nominee, is the registered owner of those global Debt Securities, that depositary or its nominee will be considered the sole owner or holder of the Book-Entry Debt Securities 8 represented by those Global Debt Securities for all purposes under the Indenture. o We will pay principal, premium and interest on Book-Entry Debt Securities to the U.S. Depositary or its nominee as the registered owner or the holder of the Global Debt Securities representing those Book-Entry Debt Securities. o Owners of Book-Entry Debt Securities will not be entitled to have those Debt Securities registered in their names in the security register, will not receive or be entitled to receive physical delivery of those Debt Securities in definitive form and will not be considered the owners or holders thereof under the Indenture. We expect that the U.S. Depositary for a series of Book-Entry Debt Securities, following the receipt of any payment of principal of or premium or interest on the related definitive Global Debt Securities, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of those Global Debt Securities as shown on the records of the U.S. Depositary. We also expect that standing instructions and customary practices will govern the payments by participants to owners of beneficial interests in any Global Debt Securities held through these participants and that these payments will be the responsibility of these participants. These procedures are currently in practice with securities held for the accounts of customers in bearer form or registered in "street name". Some jurisdictions require that certain purchasers of securities take physical delivery of these securities in definitive form. These limits and laws impair the ability to purchase or transfer Book-Entry Debt Securities. Satisfaction and Discharge; Defeasance Satisfaction and Discharge At our request, the Indenture will terminate as to the Debt Securities of any series (except for certain obligations to register the transfer or exchange of the Debt Securities and related coupons and hold moneys for payment of these Debt Securities and coupons in trust) when either: o all the Debt Securities and coupons have been delivered to the Trustee for cancellation; or o all the Debt Securities and coupons have become due and payable (or will become due and payable at their stated maturity within one year or are to be called for redemption within one year) and we have deposited with the Trustee in trust, money, in the currency or currencies or currency unit or currency units in which these Debt Securities are payable, in an amount sufficient to make all remaining payments on these Debt Securities. (Section 5.1) Defeasance Unless the prospectus supplement states otherwise, if we deposit with the Trustee money, U.S. government obligations (in the case of Debt Securities denominated in U.S. dollars) or foreign government obligations (in the case of Debt Securities and coupons denominated in a foreign currency) that will be sufficient to pay principal of and interest on these Debt Securities when due, then we may elect one of the following two options: o to be discharged after 91 days from all of our obligations regarding that series of Debt Securities (except for certain obligations to register the transfer of or exchange Debt Securities and related coupons, replace stolen, lost or mutilated Debt Securities and coupons, maintain paying agencies and hold moneys for payment in trust) regarding that series of Debt Securities; or o to be released from the restrictions of the covenants described under "Certain Covenants". To elect either option described above, we must deliver to the Trustee an opinion of counsel to the effect that the deposit and related defeasance described above would not cause the holders of that series to recognize income, gain or loss for U.S. federal income tax purposes and that the holders of that series will be subject to U.S. federal income tax in the same amounts, in the same manner and at the same times as would have been the case if that option had not been exercised. (Section 5.3) Events of Default, Notice and Waiver Events of Default An "Event of Default" regarding any series of Debt Securities is any one of the following events: o default for 30 days in the payment of any interest installment when due and payable; o default in the payment of principal or premium when due at its stated maturity, by declaration, when called for redemption or otherwise; 9 o default in the making of any sinking fund payment when due; o default in the performance of any covenant in the Debt Securities or in the Indenture for 90 days after notice to Polaroid by the Trustee or by holders of 25% in principal amount of the outstanding Debt Securities of that series; o certain events of bankruptcy, insolvency and reorganization of Polaroid; and o any other Event of Default that series that is specified in the prospectus supplement. A default regarding a single series of Debt Securities will not necessarily constitute a default regarding any other series. A Default under other debt of Polaroid will not be a default under the Indenture. If an Event for Default for any series of Debt Securities occurs and is continuing, either the Trustee or the holders of 25% in principal amount of the outstanding Debt Securities of that series (in the case of certain events of bankruptcy, insolvency and reorganization, voting as one class with all other outstanding Debt Securities) may declare the principal of all the Debt Securities of that series (together with any accrued interest on the Debt Securities) to be immediately due and payable by notice in writing to Polaroid. If the holders of Debt Securities give notice of that declaration of acceleration to Polaroid, then they must also give notice to the Trustee. The holders of a majority in principal amount of the outstanding Debt Securities may rescind a declaration of acceleration if: o Polaroid has paid a sum sufficient to pay principal, interest (including overdue interest and interest thereon), any premium and the fee and expenses of the Trustee; and o any other Events of Default (besides the failure to pay principal due because of the declaration of acceleration) have been cured or waived. (Section 6.2) We are required to file every year with the Trustee an officers' certificate stating whether any default exists and specifying any default that exists. (Section 11.6) Notices The Trustee is required to give notice to holders of Debt Securities of a default (which remains uncured or has not been waived) that is known to the Trustee within 90 days after the occurrence of the default. The Trustee may withhold this notice, however, if it determines in good faith that the withholding of the notice is in the interest of the holders of the Debt Securities. However, the Trustee may not withhold the notice in the case of default in the payment of principal of and premium or interest on (or a sinking fund installment on) any of the Debt Securities. In addition, the Trustee is only required to give notice of the failure by Polaroid to perform any covenant (other than for payment) until at least 30 days after that failure has become a default. The term "default" for this purpose means any event which is, or after notice or lapse of time or both would become, an Event of Default. (Section 7.2) Certain Rights of the Trustee The holders of a majority in principal amount of outstanding Debt Securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or other power conferred on the Trustee. The Trustee may decline to follow that direction, however, if it either would involve the Trustee in personal liability or would be unduly prejudicial to holders of the Debt Securities of that series that do not join in that direction. (Section 6.12) During a default, Trustee is required to exercise the standard of care that a prudent man would exercise or use under the circumstances in the conduct of his own affairs. Otherwise, the Trustee is not obligated, however, to exercise any of its rights or powers under the Indenture at the request or direction of any of the holders of Debt Securities unless those holders have offered to the Trustee reasonable security or indemnity. (Section 7.3) Waiver In certain cases, the holders of a majority in principal amount of the outstanding series of Debt Securities may, on behalf of the holders of all Debt Securities of that series, waive any past default or Event of Default regarding that series or compliance with certain provisions of the Indenture. The following defaults may not, however, be waived: o default in the payment of the principal of and premium or interest on any of that series which has not been cured until that time; or o a default regarding a covenant or provision of the Indenture which cannot be modified or amended without the consent of the holder of each outstanding Debt Security of the series affected. (Section 6.13) 10 Modification of the Indenture Modification Not Requiring Consent of Holders Without the consent of any holders of Debt Securities, we and the Trustee may modify the Indenture, among other things, to: o add to the covenants of Polaroid for the benefit of any series of Debt Securities; o add any additional Events of Default for any series of Debt Securities; o cure any ambiguity or inconsistencies in the Indenture; or o add any other provision provided that these other provisions are not adverse to holders of Debt Securities of any series in any material respect. (Section 10.1) Modification Requiring Consent of Holders With the consent of the holders of at least a majority in principal amount of the outstanding series of the Debt Securities that would be affected by a modification of the Indenture, the Indenture permits us and the Trustee to modify the Indenture or the rights of the holders of the Debt Securities. However, without the consent of each holder of all of the outstanding Debt Securities affected by that modification, we may not: o change the stated maturity date of the principal of (or any installment of principal of or interest on) any Debt Security; o reduce the principal amount of, the rate of interest on, or any premium payable upon the redemption of, any Debt Security; o reduce the principal amount of an OID Debt Security that would be due and payable upon acceleration of the maturity of that security; o change any place of payment where, or the currency or currencies or currency unit or currency units in which, any Debt Security or any premium or interest thereon is payable; o impair the right to sue for the enforcement of any payment on or after the stated maturity date thereof (or, in the case of redemption, on or after the redemption date); o adversely affect the terms of conversion of any Debt Security into stock or other securities of Polaroid or of any other corporation; o reduce the percentage in principal amount of the outstanding Debt Securities of any series required to consent to modify the Indenture or to consent to any waiver of compliance with the Indenture; o change Polaroid's obligation, to maintain an office or agency for the payment of outstanding Debt Securities; or o modify any of the provisions listed above, the provisions for the waiver of certain covenants and defaults (except to increase the percentage of the total principal amount of outstanding Debt Securities required to modify the Indenture where consent is currently required) or to modify the provisions for modification or waiver that require the consent of each holder of the outstanding Debt Securities affected. (Section 10.2) Meetings Purpose and Calling of Meetings The Indenture contains provisions for convening meetings of the holders of Debt Securities of any series for any action to be made, given or taken by holders of Debt Securities. (Section 14.1) The Trustee, Polaroid and the holders of at least 10% in principal amount of the outstanding Debt Securities of a series may call a meeting, in each case after notice to holders of that series has been properly given according to the requirements stated under "Notices" below. (Section 14.2) Quorum and Action Persons entitled to vote a majority in principal amount of the outstanding Debt Securities of a series will constitute a quorum at a meeting of holders of Debt Securities of that series. If a meeting is called by holders of Debt Securities and a quorum does not exist, then the chairman of the meeting is required to dissolve the meeting. If a meeting is called by either Polaroid or the Trustee, then the chairman of the meeting may adjourn that meeting for a period of not less than 10 days and may further adjourn it for a period of not less than 10 days if a quorum does not exist. (Section 14.4) Any resolution passed or decision taken at any meeting of holders of Debt Securities of any series that has been properly held in accordance with the Indenture will bind all holders of Debt Securities of that series and the related coupons. (Section 14.4) Notices Except as otherwise provided in the Indenture, notices to holders of Bearer Debt Securities, will be 11 given by (1) publication at least once in a daily newspaper in New York City and in London and in another city or cities as may be specified in such Bearer Debt Securities and (2) mail to those persons whose names and addresses were previously filed with the Trustee, within the prescribed time period. Notices to holders of Registered Debt Securities will be given by mail or by overnight courier to the addresses of those holders as they appear in the security register. (Section 1.6) Title Title to any Bearer Debt Securities and any related coupons will pass by delivery. Polaroid, the Trustee and any their agents may treat the bearer of any Bearer Debt Security or related coupon and, prior to due presentment for registration of transfer, the registered owner of any Registered Debt Security (including Registered Debt Securities in global registered form), as the absolute owner of that security for the purpose of making payment and for all other purposes. This will be the case whether or not that Debt Security or coupon shall be overdue and notwithstanding any notice to the contrary. (Section 4.7) Replacement of Securities and Coupons Mutilated Coupons We will replace any mutilated Debt Security and any Debt Security with a mutilated coupon relating to it at the expense of the holder and on surrender of that mutilated Debt Security or Debt Security with a mutilated coupon to the security registrar. (Section 4.5) Destroyed, Stolen or Lost Coupons We will replace Debt Securities or coupons that are destroyed, stolen or lost at the expense of the holder and on delivery to the security registrar of evidence of that destruction, loss or theft which is satisfactory to us and the security registrar. In the case of a coupon that is destroyed, stolen or lost, that coupon will be replaced (on surrender to the security registrar of the Debt Security with all other coupons not destroyed, stolen or lost) by issuance of a new Debt Security in exchange for the Debt Security to which that coupon relates. Before we issue a replacement Debt Security or coupon, we and the security registrar may require an indemnity from the party seeking the replacement security. (Section 4.5) Bearer Securities If the Debt Security that we replace is a Bearer Security, we will deliver that new Debt Security only outside the United States. (Section 4.5) Governing Law The laws of the State of New York govern the Indenture and will govern the Debt Securities and the coupons, including any matters of interpretation under them. (Section 1.12) Information Concerning the Trustee We may from time to time maintain lines of credit, and have other customary banking relationships, with State Street Bank and Trust Company, State Street Bank and Trust Company, N.A., an affiliate of State Street Bank and Trust Company, or with either of their affiliates. State Street Bank and Trust Company, as successor to The First National Bank of Boston, also serves as the trustee under Polaroid's Indenture dated as of December 15, 1991, providing for an unlimited amount of debt securities and under which are issued and outstanding Polaroid's 8% Notes due March 15, 1999. Boston EquiServe, L.P., a joint venture, of which State Street Bank and Trust Company is an affiliate, serves as transfer agent and registrar for our common stock. LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES Bearer Debt Securities are subject to the following limitations: o Bearer Debt Securities may not be offered or sold during the "restricted period" (as defined in U.S. Treasury Regulations Section 1.163- 5(c)(2)(i)(D)(7)) within the United States or its possessions or to U.S. persons other than to (a) an office located outside the United States and its possessions of a U.S. financial institution (as defined in Section 1.165-12(c)(1)(v) of the U.S. Treasury Regulations), that purchases for its own account or for resale or for the account of certain customers, and provides a certificate stating that it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Code and the U.S. Treasury Regulations, or (b) certain other persons described in Section 1.163-- 12 5(c)(2)(i)(D)(1)(iii)(B) of the U.S. Treasury Regulations. o Bearer Debt Securities may not be delivered in connection with their sale during the restricted period within the United States or its possessions. o Any distributor (as defined in Section 1.163-5(c)(2)(i)(D)(4) of the U.S. Treasury Regulations) participating in the offering or sale of Bearer Debt Securities must agree that (a) it will not offer or sell during the restricted period any Bearer Debt Securities within the United States or its possessions or to United States persons other than those described above, (b) it will not deliver in connection with the sale of Bearer Debt Securities during the restricted period any Bearer Debt Securities within the United States or its possessions and (c) it has in effect procedures reasonably designed to ensure that its employees and agents who are directly engaged in selling Bearer Debt Securities are aware of the restrictions on the offers and sales described above. o Bearer Debt Securities (other than a Bearer Debt Security in temporary global form) may not be delivered, nor may interest be paid on any Bearer Debt Securities until delivery to the Trustee of the certificate signed by either Euro-clear or CEDEL, which is described above under "Global Securities--Temporary Global Securities". o Bearer Debt Securities will bear a legend to the following effect: "Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Section 165(j) and 1287(a) of the Internal Revenue Code." CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES TO NON-U.S. PERSONS The following is a summary of certain U.S. federal income tax considerations for beneficial owners of the Debt Securities that are "non-U.S. persons" under the Code. Under the Code, a "non-U.S. person" means a person that is not any of the following: o a citizen or resident of the United States; o a corporation or partnership created or organized in or under the laws of the United States or any political subdivision thereof; o an estate the income of which is subject to U.S. federal income taxation regardless of its source; or o a trust which is subject to the supervision of a court within the United States and the control of one or more U.S. persons. This summary is based on current law which is subject to change (perhaps retroactively), is for general purposes only and should not be considered tax advice. This summary does not represent a detailed description of the federal income tax consequences to you in light of your particular circumstances. In addition, it does not represent a detailed description of the U.S. federal income tax consequences applicable to you if you are subject to special treatment under the U.S. federal income tax laws (including if you are a "controlled foreign corporation," "passive foreign investment company" or "foreign personal holding company"). We cannot assure you that a change in law will not alter significantly the tax considerations that we describe in this summary. You should consult your own tax advisor concerning the particular U.S. federal income tax consequences to you of the ownership of the Debt Securities, as well as the consequences to you arising under the laws of any other taxing jurisdiction. U.S. Federal Withholding Tax The 30% U.S. federal withholding tax will not apply to any payment of principal or interest (including original issue discount) on a particular series of Debt Securities provided that: o you do not actually (or constructively) own 10% or more of the total combined voting power of all classes of our voting stock within the meaning of the Code and the U.S. Treasury Regulations; o you are not a controlled foreign corporation that is related to us through stock ownership; o you are not a bank whose receipt of interest on the Debt Securities is described in the Code; and o if the Debt Securities are issued as Registered Debt Securities, either (a) you provide your name and address on an IRS Form W-8, and certify, under penalty of perjury, that you are not a U.S. person or (b) a financial institution holding the Debt Securities on your behalf certifies, under penalty of perjury, that it has 13 received an IRS Form W-8 from the beneficial owner and provides us with a copy. If you cannot satisfy the requirements described above, payments of premium, and interest (including original issue discount) made to you will be subject to the 30% U.S. federal withholding tax, unless you provide us with a properly executed (1) IRS Form 1001 claiming an exemption from withholding under the benefit of a tax treaty or (2) IRS Form 4224 stating that interest paid on the Debt Security is not subject to withholding tax because it is effectively connected with your conduct of a trade or business in the United States. The 30% U.S. federal withholding tax will not apply to any gain or income that you realize on the sale, exchange, retirement or other disposition of the Debt Security. U.S. Federal Estate Tax Your estate will not be subject to U.S. federal estate tax on Debt Securities of a series beneficially owned by you at the time of your death, provided that (1) you do not own 10% or more of the total combined voting power of all classes of our voting stock (within the meaning of the Code and the U.S. Treasury Regulations) and (2) interest on that Debt Security would not have been, if received at the time of your death, effectively connected with the conduct by you of a trade or business in the United States. U.S. Federal Income Tax If you are engaged in a trade or business in the United States and interest on the Debt Securities is effectively connected with the conduct of that trade or business (although exempt from the 30% withholding tax), you will be subject to U.S. federal income tax on that interest on a net income basis in the same manner as if you were a U.S. person as defined under the Code. In addition, if you are a foreign corporation, you may be subject to a branch profits tax equal to 30% (or lower applicable treaty rate) of your earnings and profits for the taxable year, subject to adjustments that are effectively connected with the conduct by you of a trade or business in the United States. For this purpose, interest on Debt Securities will be included in earnings and profits. Any gain or income realized on the disposition of a Debt Security generally will not be subject to U.S. federal income tax unless (1) that gain or income is effectively connected with the conduct of a trade or business in the United States by you, or (2) you are an individual who is present in the United States for 183 days or more in the taxable year of that disposition, and certain other conditions are met. Information Reporting and Backup Withholding In general, you will not be required to provide information reporting and backup withholding regarding payments that we make to you provided that we do not have actual knowledge that you are a U.S. person and, in the case of a holder of a Registered Debt Security, we have received from you the statement described above under "U.S. Federal Withholding Tax." In addition, you will not be required to pay backup withholding and provide information reporting regarding the proceeds of the sale of a Debt Security within the United States or conducted through certain U.S.-related financial intermediaries, if the payor receives the statement described above and does not have actual knowledge that you are a U.S. person, as defined under the Code, or you otherwise establish an exemption. U.S. Treasury Regulations were recently issued that generally modify the information reporting and backup withholding rules applicable to certain payments made after December 31, 1999. In general, the new U.S. Treasury Regulations would not significantly alter the present rules discussed above, except in certain special situations. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your U.S. federal income tax liability provided the required information is furnished to the IRS. PLAN OF DISTRIBUTION We may sell the Debt Securities in any of three ways: o through underwriters; o through agents; or o directly to a limited number of institutional purchasers or to a single purchaser. The prospectus supplement for each series of Debt Securities will describe that offering, including: o the name or names of any underwriters; o the purchase price and the proceeds to us from that sale; o any underwriting discounts and other items constituting underwriters' compensation; 14 o any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers; and o any securities exchanges on which the Debt Securities of that series may be listed. Underwriters If underwriters are used in the sale, we will execute an underwriting agreement with those underwriters. Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase Debt Securities will be subject to certain conditions. The underwriters will be obligated to purchase all of the Debt Securities of a series if any are purchased. The Debt Securities will be acquired by the underwriters for their own account and may be resold by them from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and may also receive commissions from the purchasers of Debt Securities for whom they may act as agent. Underwriters may sell Debt Securities to or through dealers. These dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. We may authorize underwriters to solicit offers by certain types of institutions to purchase Debt Securities from us at the public offering price stated in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. If we sell Debt Securities pursuant to these delayed delivery contracts, the prospectus supplement will state that as well as the conditions to which these delayed delivery contracts will be subject and the commissions payable for that solicitation. Agents We may also sell Debt Securities through agents designated by us from time to time. We will name any agent involved in the offer or sale of the Debt Securities and will list commissions payable by us to these agents in the prospectus supplement. These agents will be acting on a best efforts basis to solicit purchases for the period of its appointment, unless we state otherwise in the prospectus supplement. Direct Sales We may sell Debt Securities directly to purchasers. In this case, we will not engage underwriters or agents in the offer and sale of Debt Securities. Indemnification We may indemnify Underwriters, dealers or agents who participate in the distribution of Debt Securities against certain liabilities, including liabilities under the Securities Act of 1933 and agree to contribute to payments which these underwriters, dealers or agents may be required to make. No Assurance of Liquidity Each series of Debt Securities will be a new issue of securities with no established trading market. Any underwriters that purchase Debt Securities from us may make a market in these Debt Securities. The underwriters will not be obligated, however, to make such a market and may discontinue market-making at any time without notice to holders of the Debt Securities. We cannot assure you that there will be liquidity in the trading market for any Debt Securities of any series. EXPERTS The consolidated financial statements and schedules of Polaroid and subsidiary companies as of December 31, 1997 and 1996, and for each of the years in the three-year period ended December 31, 1997, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts of accounting and auditing. The report of KPMG Peat Marwick LLP covering the December 31, 1997, consolidated financial statements refers to a change in the method of accounting for depreciation. LEGAL OPINIONS Simpson Thacher & Bartlett, New York, New York, has issued an opinion regarding the legality of the Debt Securities. Thomas M. Lemberg, Esq., who is the Senior Vice President, General Counsel and Secretary of Polaroid, may issue an opinion regarding certain other matters for us. Any underwriters, dealers or agents may be advised about other issues relating to any offering by their own legal counsel. 15 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses Of Issuance And Distribution The following is an itemization of all fees and expenses incurred or expected to be incurred by the Registrant in connection with the issuance and distribution of the securities being registered hereby, other than underwriting discounts and commissions. All but the Securities and Exchange Commission registration fee are estimates and remain subject to future contingencies. Securities and Exchange Commission registration fee .................... $ 83,400* Legal fees and expenses .............. 350,000 Accounting fees and expenses ......... 20,000 Trustee's fees and expenses .......... 20,000 Printing and engraving fees .......... 50,000 Rating Agency Fees ................... 350,000 Blue Sky fees and expenses ........... 50,000 Miscellaneous expenses ............... 6,600 --------- Total ...................................... $ 930,000 ========= * In addition, the Registrant has previously paid a registration fee of $64,664 in connection with the filing of an aggregate principal amount of $200,000,000 of Debt Securities that remain eligible to be sold under the Prior Registration Statement and that are being carried forward to the Prospectus included herein pursuant to Rule 429 under the Securities Act. Item 15. Indemnification Of Directors And Officers As permitted by Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), the Registrant's Restated Certificate of Incorporation eliminates a director's personal liability for monetary damages to the Registrant and its stockholders arising from a breach of a director's fiduciary duty, except (1) for liability with respect to an illegal dividend or stock repurchase or (2) liability for a breach of the director's duty of loyalty to the Registrant or its stockholders, (3) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or (4) for any transaction in which the director derived an improper personal benefit. The effect of this provision in the Certificate of Incorporation is to eliminate the rights of the Registrant and its stockholders (through stockholders' derivative suits on behalf of the Registrant) to recover monetary damages against a director for breach of fiduciary duty as a director (including breaches resulting from negligent or grossly negligent behavior) except in the situations described above. Section 145 of the DGCL provides for indemnification by the Registrant of its directors and officers and certain other persons. The Registrant's By-Laws provide that, to the extent not inconsistent with Delaware or other applicable law in effect from time to time, the Registrant shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Registrant) by reason of the fact that he is or was a director, officer, employee or agent of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The Registrant's By-Laws also provide that, to the extent not inconsistent with Delaware or other applicable law in effect from time to time, the Registrant shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Registrant to II-1 procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorney's fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Registrant, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine that despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Generally, a director will be entitled to be indemnified against a claim if a majority of a quorum of the directors who are not parties to the relevant legal proceedings, independent legal counsel or the stockholders determine that the director acted under the relevant standard of conduct set forth in the two preceding paragraphs. The Registrant's By-Laws further provide that to the extent that a director, officer, employee or agent of the Registrant has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to above or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith; that the indemnification provided for by the By-Laws shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the Registrant is empowered to purchase and maintain insurance on behalf of a person who is or was acting in any of the capacities set forth above against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Registrant would have the power to indemnify him against such liabilities under the By-Laws. The Registrant maintains policies of insurance under which directors, officers and certain employees of the Registrant and its subsidiaries are insured, subject to certain specific exclusions and deductible maximum amounts, against loss arising from any civil claim which may be made against them, or any of them, arising out of any misstatement, misleading statement, omission or other act done or alleged to have been done, or wrongfully attempted, while acting in their representative capacities. Any agreement with underwriters or agents may contain provisions providing for the indemnified of the Registrant and certain of its directors and officers in certain circumstances. Item 16. Exhibits The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description ----------- ----------- 1* Form of Underwriting Agreement. 4.1 Indenture, dated as of January 9, 1997, between Polaroid and State Street Bank and Trust Company, as Trustee. 4.2 Form of Fixed Rate Security with or without Optional Redemption Provision. (The Form of Debt Security, included in Exhibit 4.1, is hereby incorporated herein by reference.) 5* Opinion of Simpson Thacher & Bartlett as to the legality of the Debt Securities. 12 Statement of Computation of Ratio of Earnings To Fixed Charges. (The Statement, included as Exhibit 12 to Polaroid's Form 10-Q for the quarter ended September 27, 1998, is hereby incorporated herein by reference.) 15.1 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to Polaroid's Form 10-Q for the quarter ended March 29, 1998, is hereby incorporated by reference herein.) 15.2 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to Polaroid's Form 10-Q for the quarter ended June 28, 1998, is hereby incorporated by reference herein.) 15.3 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to Polaroid's Form 10-Q for the quarter ended September 27, 1998, is hereby incorporated by reference herein.) 23.1* Consent of KPMG Peat Marwick LLP. 23.2* Consent of Simpson Thacher & Bartlett (The consent is included in Exhibit 5.) 24* Powers of Attorney. (The Powers of Attorney are included on page II-4 of the Registration Statement.) 25* Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of State Street Bank and Trust Company, as Trustee.
- ------------ * Filed herewith. II-2 In addition, the Registrant hereby agrees to furnish to the Commission, upon request, copies of certain debt instruments defining the rights of holders of long-term debt of the kind described in, and pursuant to, Item 601(b)(4)(iii) of Regulation S-K of the Commission. Item 17. Undertakings (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more that a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act, (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section (d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, Commonwealth of Massachusetts, on November 20, 1998. POLAROID CORPORATION BY: /s/ GARY T. DICAMILLO ------------------------------ Name: Gary T. Dicamillo Title: Chairman of the Board And Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Gary T. DiCamillo, Judith G. Boynton and Thomas M. Lemberg, severally, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, and in any and all capacities, to sign this Registration Statement and any and all amendments to this Registration Statement and Registration Statement No. 333-0791 of the Registrant, together with all schedules and exhibits thereto, and to file the same with all scheduled exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, severally, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as each such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof, all on November 20, 1998. [The rest of this page has been left blank intentionally; the signature page follows.] II-4 Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on November 20, 1998.
Signature Title - ------------------------------- --------------------------------------------- /s/ GARY T. DICAMILLO Chairman of the Board and Chief Executive - ----------------------------- Officer (Chief Executive Officer) Gary T. Dicamillo /s/ JUDITH G. BOYNTON Executive Vice President and Chief Financial - ----------------------------- Officer (Principal Financial Officer) Judith G. Boynton /s/ CARL L. LUEDERS Vice President and Controller (Controller) - ----------------------------- Carl L. Lueders /s/ RALPH E. GOMORY Director - ----------------------------- Ralph E. Gomory Director - ----------------------------- Frank S. Jones /s/ STEPHEN P. KAUFMAN Director - ----------------------------- Stephen P. Kaufman /s/ JOHN W. LOOSE Director - ----------------------------- John W. Loose /s/ ALBIN F. MOSCHNER Director - ----------------------------- Albin F. Moschner /s/ RONALD F. OLSEN Director - ----------------------------- Ronald F. Olsen /s/ RALPH Z. SORENSON Director - ----------------------------- Ralph Z. Sorenson /s/ DELBERT C. STALEY Director - ----------------------------- Delbert C. Staley /s/ CAROLE F. ST. MARK Director - ----------------------------- Carole F. St. Mark /s/ BERNEE D. L. STROM Director - ----------------------------- Bernee D. L. Strom /s/ ALFRED M. ZEIEN Director - ----------------------------- Alfred M. Zeien
II-5 EXHIBIT INDEX
Exhibit No. Description ----------- ----------- 1* Form of Underwriting Agreement. 4.1 Indenture, dated as of January 9, 1997, between Polaroid and State Street Bank and Trust Company, as Trustee. 4.2 Form of Fixed Rate Security with or without Optional Redemption Provision. (The Form of Debt Security, included in Exhibit 4.1, is hereby incorporated herein by reference.) 5* Opinion of Simpson Thacher & Bartlett as to the legality of the Debt Securities. 12 Statement of Computation of Ratio of Earnings To Fixed Charges. (The Statement, included as Exhibit 12 to Polaroid's Form 10-Q for the quarter ended September 27, 1998, is hereby incorporated herein by reference.) 15.1 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to Polaroid's Form 10-Q for the quarter ended March 29, 1998, is hereby incorporated by reference herein.) 15.2 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to Polaroid's Form 10-Q for the quarter ended June 28, 1998, is hereby incorporated by reference herein.) 15.3 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to Polaroid's Form 10-Q for the quarter ended September 27, 1998, is hereby incorporated by reference herein.) 23.1* Consent of KPMG Peat Marwick LLP. 23.2* Consent of Simpson Thacher & Bartlett (The consent is included in Exhibit 5.) 24* Powers of Attorney. (The Powers of Attorney are included on page II-4 of the Registration Statement.) 25* Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of State Street Bank and Trust Company, as Trustee.
- ------------ * Filed herewith. II-6 EX-1 2 UNDERWRITING AGREEMENT POLAROID CORPORATION DEBT SECURITIES UNDERWRITING AGREEMENT ---------------------- New York, New York , 1998 To the Representatives named in Schedule I hereto of the Underwriters named in Schedule II hereto Dear Sirs: Polaroid Corporation, a Delaware corporation (the "Company"), may issue and sell from time to time series of its debt securities registered under the registration statement[s] referred to in Paragraph 1(a) hereof (the "Securities" and, individually, a "Security"). The Company proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representatives (the "Representative"), a series of Securities, of the designation, with the terms and in the aggregate principal amount specified in Schedule I hereto (the "Underwritten Securities" and, individually, an "Underwritten Security"). If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representative" shall each be deemed to refer to such firm or firms. 1. Representations, Warranties and Agreements of the Company. The Company represents, warrants and agrees that: (a) [A] [R]egistration statement[s] (No[s]. 333-0791 and 333-_____), including a prospectus, with respect to the Securities has [have] been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and has [have] become effective. As used in this Agreement, (i) "Registration Statement" means [each] such registration statement, as amended and supplemented to the date hereof; (ii) "Preliminary Prospectus" means each prospectus (including all documents incorporated therein by reference) included in that [the most recently filed] Registration Statement, or amendments or supplements thereof, before it became effective under the Act, including any prospectus filed with the Commission pursuant to Rule 424(a) of the Rules and Regulations; (iii) "Basic Prospectus" means the prospectus included in the [most recently filed] Registration Statement; and (iv) "Prospectus" means the Basic Prospectus, together with any prospectus amendment or supplement (including in each case all documents incorporated therein by reference) specifically relating to the Underwritten Securities, as 2 filed with the Commission pursuant to paragraph (b) of Rule 424 of the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of any Prospectus, and no proceedings for such purposes have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. (b) The Registration Statements and each Prospectus contain, and (in the case of any amendment or supplement to any such document, or any material incorporated by reference in any such document, filed with the Commission after the date as of which this representation is being made) will contain at all times during the period specified in Paragraph 7(c) hereof, all statements which are required by the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations of the Commission under such Acts; the Indenture, dated as of January 7, 1997, by and between the Company and State Street Bank and Trust Company, as trustee (the "Trustee") pursuant to which the Underwritten Securities will be issued (the "Indenture") conforms, and with any amendments and supplements thereto will conform, with the requirements of the Trust Indenture Act and the rules and regulations of the Commission thereunder; and the Registration Statements and each Prospectus do not, and (in the case of any amendment or supplement to any such document, or any material incorporated by reference in any such document, filed with the Commission after the date as of which this representation is being made) will not, at any time during the period specified in Paragraph 7(c) hereof, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the Company makes no representation or warranty as to information contained in or omitted from any Registration Statement or any Prospectus in reliance and based upon information furnished to the Company through the Representative by or on behalf of any Underwriter, or as to any statements in or omissions from the Statement of Eligibility of the Trustee under the Indenture. (c) Neither the Company nor the Significant Subsidiary (as defined in paragraph (h) hereof) is in violation of its corporate charter or by-laws or in default under any agreement, indenture or instrument, except for such defaults that would not result in a material adverse change, or any development involving a material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and the Significant Subsidiary (a "Material Adverse Effect"), otherwise than as set forth or contemplated in the Prospectus; and the execution, delivery and performance of this Agreement, the Indenture, the Underwritten Securities, and any Delayed Delivery Contracts (as defined in Paragraph 3 hereof) and the consummation of the transactions contemplated herein, and in the Prospectus (including the issuance and sale of the Underwritten Securities and the use of the proceeds from the 3 sale thereof as described in the Prospectus under the caption "Use of Proceeds") have been duly authorized by all necessary corporate action and do not and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Significant Subsidiary pursuant to, any material agreement, indenture or instrument to which the Company or the Significant Subsidiary is a party or by which any of them is bound or to which any of their respective properties or assets is subject, nor will such action result in a material violation of the charter or by-laws of the Company or the Significant Subsidiary or any order, rule or regulation of any court or governmental agency having jurisdiction over the Company, the Significant Subsidiary or their respective properties; and except as required by the Act, the Trust Indenture Act, the Exchange Act and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency is required for the execution, delivery and performance of this Agreement, the Delayed Delivery Contracts and the Indenture or the consummation of the transactions contemplated hereby and thereby. (d) Except as described in or contemplated by the Registration Statements and the Prospectus, neither the Company nor any of its subsidiaries has sustained 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; and there has not been 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, except as described in or contemplated by the Prospectus. (e) KPMG Peat Marwick LLP ("KPMG"), whose report appears in the Company's most recent Annual Report on Form 10-K which is incorporated by reference in each Prospectus, are independent accountants as required by the Act and the Rules and Regulations. (f) On the Delivery Date (as defined in Paragraph 6 hereof) (i) the Indenture will have been validly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act and will constitute the legally binding obligation of the Company, (ii) the Underwritten Securities will have been validly authorized and executed and, upon payment therefor as provided in this Agreement, will be validly issued and outstanding, and will constitute legally binding obligations of the Company entitled to the benefits of the Indenture, and (iii) the Underwritten Securities and the Indenture will conform to the descriptions thereof contained in the Prospectus. 4 (g) This Agreement has been validly authorized, executed and delivered by the Company. (h) The Company and the Significant Subsidiary have been duly incorporated and are validly existing and remain subsisting corporations under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and in good standing as foreign corporations in each jurisdiction in which their respective ownership of properties or the conduct of their respective businesses require such qualification, except where the failure to so qualify would not have a Material Adverse Effect, and have power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged and, with respect to the Company, to enter into and perform its obligations under this Agreement; and none of the subsidiaries of the Company (other than Polaroid International B.V. (the "Significant Subsidiary")) is a "significant subsidiary", as such term is defined in Rule 405 of the Rules and Regulations. (i) There is no material action, suit or proceeding before any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or the Significant Subsidiary, which is required to be disclosed in any Prospectus (other than as disclosed therein), or which might reasonably be expected to have a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder. (j) The financial statements filed as part of the Registration Statements or included in any Preliminary Prospectus present, or (in the case of any amendment or supplement to any such document, or any material incorporated by reference in any such document, filed with the Commission after the date as of which this representation is being made) will present at all times during the period specified in Paragraph 7(c) hereof, fairly, the financial condition and results of operations of the Company and its consolidated subsidiaries, at the dates and for the periods indicated, and have been, and (in the case of any amendment or supplement to any such document, or any material incorporated by reference in any such document, filed with the Commission after the date as of which this representation is being made) will be at all times during the period specified in Paragraph 7(c) hereof, prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved. The supporting schedules incorporated by reference in any Prospectus present fairly in accordance with GAAP the information required to be stated therein. The pro forma financial statements and the related notes thereto incorporated by reference in the Registration Statements and any Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and 5 the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. (k) The documents incorporated by reference into any Preliminary Prospectus or Prospectus have been, and (in the case of any amendment or supplement to any such document, or any material incorporated by reference in any such document, filed with the Commission after the date as of which this representation is being made) will be at all times during the period specified in Paragraph 7(c) hereof, prepared by the Company in conformity with the applicable requirements of the Act and Rules and Regulations and the Exchange Act and the rules and regulations of the Commission thereunder and such documents have been, or (in the case of any amendment or supplement to any such document, or any material incorporated by reference in any such document, filed with the Commission after the date as of which this representation is being made) will be at all times during the period specified in Paragraph 7(c) hereof, timely filed as required thereby. (l) There are no contracts or other documents which are required to be filed as exhibits to the Registration Statements by the Act or by the Rules and Regulations, or which were required to be filed as exhibits to any document incorporated by reference in any Prospectus by the Exchange Act or the rules and regulations of the Commission thereunder, which have not been filed as exhibits to the Registration Statements or to such document or incorporated therein by reference as permitted by the Rules and Regulations or the rules and regulations of the Commission under the Exchange Act as required. (m) The Company and the Significant Subsidiary have good and valid title to all or substantially all of their respective properties. (n) The Company is not, and upon the issuance and sale of the Underwritten Securities as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended (the "1940 Act"). 2. Purchase of the Securities by the Underwriters. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price and on the other terms set forth in Schedule I hereto, the principal amount of the Underwritten Securities set forth opposite its name in Schedule II hereto. 6 3. Delayed Delivery Contracts. Any offer to purchase Underwritten Securities by institutional investors solicited by the Underwriters for delayed delivery shall be made pursuant to contracts substantially in the form of Exhibit A attached hereto, with such changes therein as the Company and the Representative may approve (the "Delayed Delivery Contracts"). The Company shall have the right, in its sole discretion, to approve or disapprove each such institutional investor. Underwritten Securities which are subject to Delayed Delivery Contracts are herein sometimes called "Delayed Delivery Underwritten Securities" and Underwritten Securities which are not subject to Delayed Delivery Contracts are herein sometimes called "Immediate Delivery Underwritten Securities". Contemporaneously with the purchase on the Delivery Date by the Underwriters of the Immediate Delivery Underwritten Securities pursuant to this Agreement, the Company will pay to the Representative, for the account of the Underwriters, the compensation specified in Schedule I hereto for arranging the sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no responsibility with respect to the validity or performance of any Delayed Delivery Contracts. For the purposes of determining the principal amount of Immediate Delivery Underwritten Securities to be purchased by each Underwriter, there shall be deducted from the principal amount of Underwritten Securities to be purchased by such Underwriter as set forth in Schedule II hereto that portion of the aggregate principal amount of Delayed Delivery Underwritten Securities that the principal amount of Underwritten Securities to be purchased by such Underwriter as set forth in Schedule II hereto bears to the aggregate principal amount of Underwritten Securities set forth there to be purchased by all of the Underwriters (in each case as adjusted by the Representative to avoid fractions of the minimum principal amount in which the Underwritten Securities may be issued), except to the extent that the Representative determines, in its discretion, that such deduction shall be otherwise than in such proportion and so advises the Company. 4. Conditions of the Company's Obligations. The Company shall not be obligated to deliver any Underwritten Securities except upon payment for all Immediate Delivery Underwritten Securities to be purchased pursuant to this Agreement as hereinafter provided. 5. Defaulting Underwriters. If any Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters, if any, shall be obligated to purchase the Immediate Delivery Underwritten Securities which the defaulting Underwriter agreed but failed to purchase in the respective proportions which the principal amount of Underwritten Securities set forth in Schedule II hereto to be purchased by each remaining non-defaulting Underwriter set forth therein bears to the aggregate principal amount of Underwritten Securities set forth therein to be purchased by all the remaining non-defaulting Underwriters; provided that the remaining non-defaulting Underwriters shall not be obligated to purchase any Immediate Delivery Underwritten Securities if the aggregate principal amount of 7 Immediate Delivery Underwritten Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds 9.09% of the total principal amount of Underwritten Securities, and any remaining non-defaulting Underwriter shall not be obligated to purchase more than 110% of the principal amount of Underwritten Securities set forth in Schedule II hereto to be purchased by it. If the foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or those other underwriters satisfactory to the Representative who so agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Immediate Delivery Underwritten Securities. If the remaining Underwriters or other underwriters satisfactory to the Representative do not elect to purchase the Immediate Delivery Underwritten Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Paragraph 7(k) hereof. Nothing contained in this Paragraph 5 shall relieve a defaulting Underwriter of any liability it may have to the Company for damages caused by its default. If other underwriters are obligated or agree to purchase the Immediate Delivery Underwritten Securities of a defaulting or withdrawing Underwriter, either the Representative or the Company may postpone the Delivery Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statements, any Prospectus or in any other document or arrangement. 6. Delivery and Payment for the Securities. Delivery of and payment for the Immediate Delivery Underwritten Securities shall be made at such address, date and time as may be specified in Schedule I hereto. This date and time are sometimes referred to as the "Delivery Date". On the Delivery Date the Company shall deliver the Immediate Delivery Underwritten Securities to The Depository Trust Company, on behalf of the Representative, for the account of each Underwriter against payment to the Company by wire transfer of immediately available funds to a bank account designated by the Company. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall be in registered form and in such denominations as may be set forth on Schedule I hereto. The certificates representing the Immediate Delivery Underwritten Securities shall be registered in the name of Cede & Co. and shall be made available for inspection by the Representative in New York, New York not later than 2:00 P.M., local time, on the business day prior to the Delivery Date. 8 7. Further Agreements of the Company. The Company agrees: (a) To furnish promptly to the Representative and to counsel for the Underwriters a conformed copy of each Registration Statement as originally filed and each amendment or supplement thereto filed prior to the date hereof or relating to or covering the Underwritten Securities, and a copy of each Prospectus filed with the Commission, including all documents incorporated therein by reference and all consents and exhibits filed therewith; (b) To deliver promptly to the Representative such reasonable number of the following documents as the Representative may request: (i) conformed copies of the Registration Statements (excluding exhibits other than the computation of the ratio of earnings to fixed charges, the Indenture and this Agreement), (ii) each Prospectus and (iii) any documents incorporated by reference in the Prospectus; (c) During such period following the date hereof as, in the opinion of counsel for the Underwriters, any Prospectus is required by law to be delivered, to comply with the Act, the Exchange Act, the Trust Indenture Act and the rules and regulations under each thereof, so as to permit the completion of the distribution of the Underwritten Securities as contemplated in this Agreement and in each Prospectus. If at any time when a prospectus is required by the Act to be delivered in connection with sales of the Underwritten Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or for the Company, to amend any Registration Statement or amend or supplement any Prospectus in order that such Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend any Registration Statement or amend or supplement any Prospectus in order to comply with the requirements of the Act or the Rules and Regulations, the Company will promptly prepare and file with the Commission, subject to paragraph (d) below, such amendment or supplement as may be necessary to correct such statement or omission or to make any such Registration Statement or any such Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request; (d) Prior to filing with the Commission during the period referred to in (c) above (i) any amendment or supplement to any Registration Statement, (ii) any Prospectus or any amendment or supplement thereto or (iii) any document incorporated by reference in any of the foregoing or any amendment or supplement to such incorporated document, to furnish a copy thereof to the Representative and to counsel for the Underwriters and not to file any document that shall have been disapproved by the Representative; 9 (e) To advise the Representative promptly (i) when any post-effective amendment to any Registration Statement relating to or covering the Underwritten Securities becomes effective or any supplement to any Prospectus shall have been filed, (ii) of any comments from the Commission or any request or proposed request by the Commission for an amendment or supplement to any Registration Statement (insofar as the amendment or supplement relates to or covers the Underwritten Securities), to any Prospectus, to any document incorporated by reference in any of the foregoing or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or any order directed to any Prospectus or any document incorporated therein by reference or the initiation or threat of any stop order proceeding or of any challenge to the accuracy or adequacy of any document incorporated by reference in any Prospectus, (iv) of receipt by the Company of any notification with respect to the suspension of the qualification of the Underwritten Securities for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose and (v) of the happening of any event which makes untrue any statement of a material fact made in any Registration Statement (insofar as such Registration Statement relates to or covers the Underwritten Securities) or any Prospectus or which requires the making of a change in any Registration Statement or any Prospectus in order to make any material statement therein not misleading; (f) If, during the period referred to in (c) above, the Commission shall issue a stop order suspending the effectiveness of any Registration Statement, to make every reasonable effort to obtain the lifting of that order at the earliest possible time; (g) As soon as practicable, to make generally available to its security holders and to deliver to the Representative an earnings statement, conforming with the requirements of Section 11(a) of the Act, covering a period of at least twelve months beginning after the latest of (i) the most recent effective date of the registration statement relating to part of the Underwritten Securities, (ii) the effective date of the most recent post-effective amendment to the last Registration Statement that became effective prior to the date of this Agreement and (iii) the date of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement; (h) So long as any of the Underwritten Securities are outstanding, to furnish to the Representative copies of all reports and financial statements furnished by the Company to each securities exchange on which securities issued by the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder; (i) To endeavor to qualify the Underwritten Securities for offer and sale under the securities laws of such jurisdictions as the Representative may reasonably request and to maintain such qualifications in effect for as long as may be required for the distribution of 10 the Underwritten Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; (j) To use its best efforts to obtain the listing of the Underwritten Securities on the securities exchange, if any, set forth on Schedule I (the "Stock Exchange") on or prior to the Delivery Date and to cause such listing to be continued so long as any amount of the Securities remains outstanding; to furnish from time to time any and all documents, instruments, information and undertakings that may be necessary in order to effect such listing; and to maintain the same until none of the Underwritten Securities is outstanding or until such time as payment of principal of and premium, if any, and interest on all the Underwritten Securities has been duly provided for, whichever is earlier; provided that if the Company can no longer reasonably maintain such listing, the Company shall use its best efforts to obtain and maintain the quotation for, or listing of, the Underwritten Securities on such other securities exchange or exchanges as the Company may, with the approval of the Representative, determine; (k) To pay the costs incident to the authorization, issuance, sale and delivery of the Underwritten Securities and any taxes payable in that connection; the costs incident to the preparation, printing and filing under the Act of the Registration Statements and any amendments, supplements and exhibits thereto; the costs incident to the preparation, printing and filing of any document and any amendments and exhibits thereto required to be filed by the Company under the Exchange Act; the costs of distributing the Registration Statements as originally filed and each amendment and post-effective amendment thereof (including exhibits), any Preliminary Prospectus, each Prospectus and any documents incorporated by reference in any of the foregoing documents; the costs of printing this Agreement and the Delayed Delivery Contracts, if any; the fees and disbursements of the Company's counsel, accountants and other advisors; the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Underwritten Securities, to the extent the Trustee or its counsel, as the case may be, requires reimbursement thereof; the costs of any filings with the National Association of Securities Dealers, Inc.; fees paid to rating agencies in connection with the rating of the Securities, including the Underwritten Securities; the fees and expenses of qualifying the Underwritten Securities under the securities laws of the several jurisdictions as provided in this paragraph and of preparing and printing a Blue Sky Memorandum (including fees of counsel to the Underwriters); the cost of listing the Underwritten Securities on the Stock Exchange; and all other costs and expenses incident to the performance of the Company's obligations under this Agreement; provided that, except as provided in this paragraph and in Paragraph 11 hereof, the Underwriters shall pay their own costs and expenses, including the fees and 11 expenses of their counsel, any transfer taxes on the Underwritten Securities which they may sell and the expenses of advertising any offering of the Underwritten Securities made by the Underwriters; (l) Until the termination of the offering of the Underwritten Securities, to timely file all documents, and any amendments to previously filed documents, required to be filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; (m) During the period beginning on the date hereof and continuing to the Delivery Date, without the consent of the Representative, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company with maturities longer than one year, other than the Underwritten Securities to the Underwriters; (n) (i) Neither the Company nor the Significant Subsidiary shall have sustained, except as described in or contemplated by the Registration Statements and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) there shall not have been 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 the Significant Subsidiary, otherwise than as described in or contemplated by the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus; (o) Subsequent to the execution and delivery of this Agreement, (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) of the Rules and Regulations 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; and (p) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving 12 the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of a majority in interest of the several Underwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Securities on the terms and in the manner contemplated in the Prospectus. 8. Indemnification and Contribution. (a) The Company shall indemnify and hold harmless each Underwriter, its officers and employees and each person, if any, who controls any Underwriter within the meaning of the Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Securities), to which that Underwriter, officer, employee or controlling person may become subject, under the Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained (A) in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, or (B) in any blue sky application or other document prepared or executed by the Company (or based upon any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Securities under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a "Blue Sky Application"), or the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky Application any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter and each such officer, employee and controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any such amendment or supplement, or in any Blue Sky Application in reliance upon and in conformity with the written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein and described in Paragraph 8(e); and provided further that as to any Preliminary Prospectus this indemnity agreement shall not inure to the benefit of any Underwriter, its officers or employees or any person controlling that Underwriter on account of any loss, claim, damage, liability or action arising from the sale of Securities to any person by that Underwriter if that Underwriter failed to send or give a copy of the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Act, and the untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact in such 13 Preliminary Prospectus was corrected in the Prospectus, unless such failure resulted from non-compliance by the Company with Paragraph 7(c). For purposes of the last proviso to the immediately preceding sentence, the term "Prospectus" shall not be deemed to include the documents incorporated therein by reference, and no Underwriter shall be obligated to send or give any supplement or amendment to any document incorporated by reference in any Preliminary Prospectus or the Prospectus to any person other than a person to whom such Underwriter had delivered such incorporated document or documents in response to a written request therefor. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Underwriter or to any officer, employee or controlling person of that Underwriter. (b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, its officers and employees, each of its directors and each person, if any, who controls the Company within the meaning of the Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky Application any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the written information furnished to the Company through the Representative by or on behalf of that Underwriter specifically for inclusion therein and described in Paragraph 8(e), and shall reimburse the Company and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company or any such director, officer or controlling person. (c) Promptly after receipt by an indemnified party under this Paragraph 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Paragraph 8, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Paragraph 8 except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this 14 Paragraph 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Paragraph 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment thereof has been specifically authorized by the indemnifying party in writing, (ii) such indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party and in the reasonable judgment of such counsel it is advisable for such indemnified party to employ separate counsel or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such indemnified parties, which firm shall be designated in writing by the Representative, if the indemnified parties under this Paragraph 8 consist of any Underwriter or any of their respective officers, employees or controlling persons, or by the Company, if the indemnified parties under this Paragraph consist of the Company or any of the Company's directors, officers, employees or controlling persons. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss of liability by reason of such settlement or judgment. 15 (d) If the indemnification provided for in this Paragraph 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Paragraph 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased under this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the shares of the Securities purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the shares of the Securities under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Paragraph 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Paragraph 8(d) shall be deemed to include, for purposes of this Paragraph 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Paragraph 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public was offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute as provided in this Paragraph 8(d) are several in proportion to their respective underwriting obligations and not joint. 16 (e) The Underwriters severally confirm that the statements with respect to the public offering of the Securities set forth on the cover page of, and under the caption "Underwriting" in, the Prospectus are correct and constitute the only information furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in the Registration Statement and the Prospectus. 9. Termination. (a) The obligations of the Underwriters hereunder may be terminated by the Representative by notice given to and received by the Company prior to delivery of and payment for the Immediate Delivery Underwritten Securities if, prior to that time, any of the events described in Paragraphs 7(n), 7(o) or 7(p) hereof shall have occurred or if the Underwriters shall decline to purchase the Immediate Delivery Underwritten Securities for any reason permitted under this Agreement. (b) If this Agreement is terminated pursuant to this Paragraph 9, such termination shall be without liability of any party to any other party except as provided in Paragraph 11 hereof, and provided further that Paragraphs 1 and 8 shall survive such termination and remain in full force and effect. 10. Conditions of the Underwriters' Obligations. The respective obligations of the Underwriters under the Agreement with respect to the Underwritten Securities are subject to the accuracy, on the date hereof and on the Delivery Date, of the representations and warranties of the Company contained herein, to performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions applicable to the Underwritten Securities. (a) At or before the Delivery Date, no stop order suspending the effectiveness of any Registration Statement nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and prior to that time no stop order proceeding shall have been initiated or threatened by the Commission and no challenge shall have been made to the accuracy or adequacy of any document incorporated by reference in any Prospectus; any request of the Commission for inclusion of additional information in any Registration Statement or any Prospectus or otherwise shall have been complied with; and after the date hereof the Company shall not have filed with the Commission any amendment or supplement to any Registration Statement or any Prospectus (or any document incorporated by reference therein) that shall have been disapproved by the Representative. (b) No Underwriter shall have discovered and disclosed to the Company on or prior to the Delivery Date that any Registration Statement or any Prospectus contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. 17 (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Underwritten Securities and the Indenture and the form of the Registration Statements, each Prospectus (other than financial statements and other financial data) and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that such counsel may reasonably request to enable it to pass upon such matters. (d) Thomas M. Lemberg, Esq., Senior Vice President, General Counsel and Secretary of the Company, shall have furnished to the Representative his opinion addressed to the Underwriters and dated the Delivery Date to the effect that: (i) Each of the Company and the Significant Subsidiary has been duly incorporated and is validly existing and remains a subsisting corporation under the laws of their respective jurisdictions of incorporation; (ii) Each of the Company and the Significant Subsidiary is duly qualified to do business and is in good standing as a foreign corporation in all jurisdictions in which its ownership of property or the conduct of its business requires such qualification (except where the failure to so qualify would not have a Material Adverse Effect), and has all power and authority necessary to own its properties and conduct the business in which it is engaged as described in the Prospectus; (iii) No order issued by the Commission directed to any document incorporated by reference in any Prospectus has been issued and, to the knowledge of such counsel, no challenge has been made by the Commission to the accuracy or adequacy of any such document; (iv) Such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company which would affect the subject matter of this Agreement or is required to be disclosed in any Prospectus (including the documents incorporated by reference therein) which is not disclosed and correctly summarized therein; (v) To the best of such counsel's knowledge, the Company is not in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument; and (vi) The execution, delivery and performance of this Agreement and the Delayed Delivery Contracts, if any, and compliance by the Company with the provisions of the Underwritten Securities and the Indenture will not constitute a breach of, or result 18 in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company pursuant to the terms of, or constitute a default under, any agreement, indenture or instrument known to such counsel, or result in a violation of the corporate charter or by-laws of the Company or, to the best of such counsel's knowledge, any order, rule or regulation of any court or governmental agency having jurisdiction over the Company or its property. In giving such opinion, such counsel need not express any opinion regarding any order, consent or other authorization or approval which may be legally required pursuant to any state securities law. In rendering such opinion, such counsel may: (i) state that his opinion is limited to matters governed by the federal laws of the United States of America, the laws of the District of Columbia and the General Corporation Law of the State of Delaware and that such counsel is not admitted in the State of Delaware; and (ii) rely (to the extent such counsel deems proper and specifies in his opinion), as to matters involving the application of the laws of other jurisdictions upon the opinion of other counsel of good standing, provided that such other counsel is satisfactory to counsel for the Underwriters and furnishes a copy of its opinion to the Representative. (e) Simpson Thacher & Bartlett, counsel for the Company, shall have furnished to the Representative its opinion addressed to the Underwriters and dated the Delivery Date, to the effect that: (i) The Company and the Significant Subsidiary have been duly incorporated and are validly existing and in good standing as corporations under the laws of their respective jurisdictions; (ii) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act and, assuming that the Indenture is a valid and binding agreement of the Trustee, constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms; (iii) The Immediate Delivery Underwritten Securities have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with this Agreement, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms and entitled to the benefits of the Indenture; (iv) The Delayed Delivery Underwritten Securities, if any, have been duly authorized and, when duly executed and issued by the Company and, assuming due 19 authentication thereof by the Trustee and upon payment and delivery by the respective purchasers thereof in accordance with the terms of the related Delayed Delivery Contracts, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms and entitled to the benefits of the Indenture; (v) The Delayed Delivery Contracts, if any, have been duly authorized, executed and delivered by the Company and, assuming that the Delayed Delivery Contracts are the valid and binding agreements of the purchasers thereunder, are valid and legally binding obligations of the parties thereto; (vi) The statements made in each Prospectus under the caption "Description of Debt Securities" (or a comparable caption), insofar as they purport to constitute summaries of the documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects; (vii) Each Registration Statement is effective under the Act and, to the knowledge of such counsel, no stop order suspending its effectiveness has been issued and no proceeding for that purpose is pending or threatened by the Commission; (viii) This Agreement has been duly authorized, executed and delivered by the Company; and (ix) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the 1940 Act. Such counsel may state that the opinions set forth in paragraphs (ii), (iii), (iv) and (v) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the General Corporation Law of the State of Delaware and that such counsel is not admitted in the State of Delaware. Such counsel shall also have furnished to the Representative a written statement, addressed to the Underwriters and dated the Delivery Date, in form and substance satisfactory to the Representative, to the effect that (1) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement (No. 333-_____ ) and the offer and 20 sale of the Securities (although the Company is also represented by its General Counsel and, with respect to certain other matters, by other outside counsel); (2) in the course of the preparation by the Company of the Registration Statement (333- ) and the Prospectus, such counsel participated in conferences with certain officers and employees of the Company, with representatives of KPMG and with counsel to the Company; (3) prior to the Company's filing with the Commission documents under the Exchange Act, such counsel reviewed such documents; and (4) based on (a) such counsel's examination of the Registration Statements, the Prospectus and the documents filed by the Company under the Exchange Act, (b) such counsel's investigation made in connection with the preparation of Registration Statement (333- ) and the Prospectus (excluding the documents filed by the Company under the Exchange Act) and (c) such counsel's participation in the conferences referred to in clause (2) of this paragraph above, (i) that such counsel is of the opinion that the Registration Statements, as of their respective effective dates, and each Prospectus, as of its issue date, complied as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder, and each document incorporated by reference in each Prospectus as filed under the Exchange Act complied as to form when filed in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, except that in each case no opinion need be expressed as to the financial statements and other financial data contained or incorporated by reference therein, and (ii) such counsel has no reason to believe that (I) any Registration Statements, on the dates they became effective (or, with respect to such Registration Statements, if the Company has filed an Annual Report on Form 10-K since their effective dates, the date of the Company's most recent Annual Report on Form 10-K), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus, as of its issue date and as of the Delivery Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (II) any document incorporated by reference in the Prospectus when they were filed with the Commission contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that with respect to each of clauses (I) and (II) above, such counsel may state that it expresses no belief with respect to the financial statements or other financial data contained in or incorporated by reference in the Registration Statements, the Prospectus or documents filed by the Company under the Exchange Act. The foregoing opinion and statement may be qualified by a statement to the effect that such counsel has not independently verified the accuracy, completeness or fairness of the statements made or included in the Registration Statements, the Prospectus or the documents filed by the Company under the Exchange Act and takes no responsibility therefor, except as and to the extent set forth in paragraph (v) above. 21 (f) The Company shall have furnished to the Representative a certificate, dated the Delivery Date, of its Chairman of the Board, its President or a Vice President and its chief financial officer stating that: (i) The representations, warranties and agreements of the Company in Paragraph 1 are true and correct as of the Delivery Date; the Company has complied with all its agreements contained herein; and the conditions set forth in Paragraph 10(a) have been fulfilled; (ii) (A) Except as described in or contemplated by the Registration Statements and the Prospectus, neither the Company nor any of its subsidiaries has sustained, 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, or (B) there has not been 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 described in or contemplated by the Prospectus; and (iii) They have carefully examined the Registration Statements and the Prospectus and, in their opinion (A) the Registration Statements, as of their respective effective dates, and the Prospectus, as of its issue date, did not include any untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since the effective date of Registration Statement (No. 333-______), no event has occurred which should have been set forth in a supplement or amendment to either of the Registration Statements or the Prospectus. (g) (i) Neither the Company nor any of its subsidiaries shall have sustained, except as described in or contemplated by the Registration Statements and the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or there shall not have been 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, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus. 22 (h) If Underwritten Securities in bearer form are being delivered by the Company on the Delivery Date in a jurisdiction other than the United States, the Company shall have furnished to the Representative such legal opinion or opinions as the Representative may reasonably request addressed to the Underwriters and dated the Delivery Date, with respect to matters relating to the offering, sale and delivery of the Underwritten Securities in such jurisdiction. (i) The Company shall have furnished to the Representative (i) a letter of KPMG, addressed to the Underwriters and dated the date hereof of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72 and covering such specified financial statement items as counsel for the Underwriters may reasonably have requested and (ii) a letter of KPMG, addressed to the Underwriters and dated the Delivery Date, stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by its letter referred to in subclause (i) above, confirming in all material respects the conclusions and findings set forth in such prior letter. (j) The Underwritten Securities shall have been accepted for listing on the Stock Exchange (if any), subject to official notice of issuance. (k) At the Delivery Date, the Underwritten Securities shall be rated at least "Baa3" by Moody's Investor's Service Inc. and "BBB-" by Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., and the Company shall have delivered to the Representative a letter dated the Delivery Date, from each such rating agency, or other evidence satisfactory to the Representative, confirming that the Underwritten Securities have such ratings. Subsequent to the execution and delivery of this Agreement, 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) of the Rules and Regulations, and 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. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory to counsel for the Underwriters. 11. Reimbursement of Underwriters' Expenses. If the Company shall fail to tender the Immediate Delivery Underwritten Securities for delivery to the Underwriters for any reason permitted under this Agreement, or if the Underwriters shall decline to purchase the Immediate 23 Delivery Underwritten Securities for any reason permitted under this Agreement (other than pursuant to Paragraph 5 hereof), the Company shall reimburse the Underwriters for reasonable fees and expenses of their counsel and for such other out-of-pocket expenses as shall have been incurred by them in connection with this Agreement and the proposed purchase of Immediate Delivery Underwritten Securities and the solicitation of any purchases of the Delayed Delivery Underwritten Securities, and upon demand the Company shall pay the full amount thereof to the Representative. If this Agreement is terminated pursuant to Paragraph 5 hereof by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account of those expenses. 12. Notices, etc. The Company shall be entitled to act and rely upon any request, consent, notice or agreement by, or on behalf of, the Representative. Any notice by the Company to the Underwriters shall be sufficient if given in writing or by telegraph addressed to the Representative at its address set forth in Schedule I hereto, and any notice by the Underwriters to the Company shall be sufficient if given in writing or by facsimile addressed to the Company at 784 Memorial Drive, Cambridge, Massachusetts 02139 (Facsimile Number: (781) 386-3228), Attention of the Treasurer. 13. Persons Entitled to the Benefit of this Agreement. This Agreement shall be binding upon the Underwriters, the Company, and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Act, and (b) the indemnity agreement of the Underwriters contained in Paragraph 8 hereof shall be deemed to be for the benefit of directors of the Company, officers of the Company who have signed any Registration Statement and any person controlling the Company. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Paragraph, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. 14. Certain Definitions. For purposes of this Agreement, (a) "business day" means any day on which the New York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations. 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New York. 16. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. 24 17. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. [The rest of this page is left blank intentionally; the signature page follows.] 25 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, POLAROID CORPORATION By ------------------------------- Name: Title: The foregoing Agreement is hereby confirmed and accepted as of the date first above written. [ ] By ----------------------------- Name: Title: For itself and as Representative of the other Underwriters named in Schedule II to the foregoing Agreement. SCHEDULE I Underwriting Agreement dated , 1998. Registration Statement Nos. 333-0791 and 333- . Representatives and Addresses: Underwritten Securities Designation: Principal amount: Indenture: Date of Maturity: Interest Rate: Purchase Price: Redemption Provisions: Authorized Denominations: Stock Exchange Listing: Delivery Date, Time and Location: SCHEDULE II Principal Amount of Underwritten Name of Underwriter Securities - ------------------------------------------------------------- ---------------- ............................................................. $ ............................................................. $ Total --------- $ ========= EXHIBIT A $ POLAROID CORPORATION DEBT SECURITIES DELAYED DELIVERY CONTRACT [DATE] POLAROID CORPORATION 784 Memorial Drive Cambridge, Massachusetts 02139 Dear Sirs: The undersigned hereby agrees to purchase from Polaroid Corporation, Inc., a Delaware corporation ("Company"), and the Company hereby agrees to sell to the undersigned, $ principal amount of the Company's above-captioned securities ("Securities"), offered by the Company's prospectus dated ________, 199 , as supplemented by the prospectus supplement dated ________, 199 (collectively, the "Prospectus"), receipt of a copy of which is hereby acknowledged, at a purchase price of ___% of the principal amount thereof plus accrued interest from , 199 to the Delivery Date (as defined in the next paragraph) and on the further terms and conditions set forth in this Contract. Payment for and delivery of the Securities to be purchased by the undersigned shall be made on ________, 199 , herein called the "Delivery Date". At 10:00 A.M., New York time, on the Delivery Date, the Securities to be purchased by the undersigned hereunder will be delivered by the Company to the undersigned, and the undersigned will accept delivery of such Securities and will make payment to the Company of the purchase price therefor, at the office of ________. Payment will be certified or official bank check payable in next-day funds settled through the New York Clearing House to or upon the order of the Company. This Contract will terminate and be of no further force and effect after ________, 199 , unless (i) on or before such date it shall have been executed and delivered by both parties hereto or (ii) the Company shall have sold to the Underwriters named in the Prospectus the Immediate Delivery Underwritten Securities (as defined in the Underwriting Agreement referred to in the Prospectus) and the Company shall have mailed or delivered to the undersigned at its address set forth below a notice to that effect, stating the date of the occurrence thereof, accompanied by copies of the opinion of counsel for the Company delivered to such Underwriters pursuant to Paragraph 10(d) of the Underwriting Agreement. The obligation of the undersigned to accept delivery and make payment for the Securities on the Delivery Date will be subject to the condition that the Securities shall not, on the Delivery Date, be an investment prohibited by the laws of the jurisdiction to which the undersigned is subject, the undersigned hereby representing that such an investment is not so prohibited on the date hereof. This Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors but will not be assignable by either party hereto without the written consent of the other. It is understood that acceptance of any Delayed Delivery Contract (as defined in said Underwriting Agreement) is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If this Contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so mailed or delivered. Very truly yours, By -------------------------- Name: Title: Address: Accepted as of , 199 . POLAROID CORPORATION By --------------------- Name: Title: EX-5 3 OPINION RE: LEGALITY [LETTERHEAD OF SIMPSON THACHER & BARTLETT] (212) 455-2000 November 20, 1998 POLAROID CORPORATION 549 Technology Square Cambridge, Massachusetts 02139 Ladies and Gentlemen: We have acted as counsel to Polaroid Corporation, a Delaware corporation (the "Company"), in connection with (i) Post-Effective Amendment No. 1 ("Post-Effective Amendment No. 1") to the Registration Statement on Form S-3 (File No. 333-0791) (the "Prior Registration Statement") filed by the Company under the Securities Act of 1933, as amended (the "Act"), relating to debt securities (the "Debt Securities") of the Company, of which an aggregate principal amount of $200,000,000 of Debt Securities (or the equivalent thereof in one or more foreign currencies or a composite of currencies) remain eligible to be issued and sold thereunder, and (ii) the Registration Statement on Form S-3 (the "Registration Statement") filed by the Company under the Act on the date hereof relating to Debt Securities of the Company in an aggregate principal amount of $300,000,000 (or the equivalent thereof in one or more foreign currencies or a composite of currencies). The Debt Securities will be issued under an Indenture (the "Indenture") dated as of January 9, 1997 by and between the Company and State Street Bank and Trust Company, as trustee (the "Trustee"). We have examined the Prior Registration Statement, Post-Effective Amendment No. 1, the Registration Statement and the Indenture, which has been filed as an exhibit to the Prior Registration Statement and the Registration Statement. In addition, we have examined, and have relied as to matters of fact upon originals or copies, certified or POLAROID CORPORATION -2- November 20, 1998 otherwise identified to our satisfaction, of such corporate records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such other and further investigations, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents. In addition, we have assumed that prior to the issuance and sale of Debt Securities covered by the Prior Registration Statement and the Registration Statement: (i) a prospectus supplement (the "Prospectus Supplement") supplementing the prospectus (the "Prospectus") forming a part of the Prior Registration Statement and the Registration Statement will have been prepared and filed with the Commission describing the Debt Securities pursuant to Rule 424(b); (ii) the Debt Securities issued will be issued and sold in compliance with applicable federal and state securities laws and solely in the manner contemplated by the Prior Registration Statement, the Registration Statement and the Prospectus Supplement; and (iii) a definitive purchase, underwriting or similar agreement with respect to the Debt Securities will have been duly authorized and validly executed and delivered by each of the Company and the other parties thereto. Based upon the foregoing, and subject to the qualifications and limitations stated herein, we are of the opinion that, when (i) the Board of Directors of the Company have taken all necessary corporate action to approve the terms of the offering of such Debt Securities and related matters, and (ii) such Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and the applicable definitive purchase, underwriting or similar agreement approved by the Board of Directors of the Company, and upon payment of the consideration therefor provided for therein, such Debt Securities will be valid and legally binding obligations of the Company. POLAROID CORPORATION -3- November 20, 1998 Our opinions set forth in the preceding paragraphs is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. We are members of the Bar of the State of New York, and we do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States and the Delaware General Corporation Law. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement and to the use of our name under the caption "Legal Opinions" in the Prospectus. Very truly yours, /S/ SIMPSON THACHER & BARTLETT SIMPSON THACHER & BARTLETT EX-23.1 4 CONSENTS OF EXPERTS Exhibit 23.1 ------------ Consent of Independent Auditors ------------------------------- The Board of Directors Polaroid Corporation: We consent to the incorporation by reference in the Registration Statement on Form S-3 dated the date hereof and the Registration Statement on Form S-3 (File No. 333-0791), as amended as of the date hereof, of Polaroid Corporation of our report dated January 27, 1998, relating to the consolidated balance sheets of Polaroid Corporation and subsidiary companies as of December 31, 1997 and 1996, and the related consolidated statements of earnings, cash flows, and changes in common stockholders' equity, and related schedules for each of the years in the three-year period ended December 31, 1997, which report appears in the Annual Report on Form 10-K for the fiscal year ended December 31, 1997 of Polaroid Corporation and to the reference to our firm under the heading "Experts" in the Prospectus. Our report refers to a change in 1997 in the method of accounting for depreciation. /s/ KPMG PEAT MARWICK LLP Boston, Massachusetts November 20, 1998 EX-25 5 STATEMENT OF ELIGIBILITY OF TRUSTEE SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------- STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) X_ STATE STREET BANK AND TRUST COMPANY (Exact name of trustee as specified in its charter) Massachusetts 04-1867445 (Jurisdiction of incorporation or (I.R.S. Employer organization if not a U.S. national bank) Identification No.) 225 Franklin Street, Boston, Massachusetts 02110 (Address of principal executive offices) (Zip Code) John R. Towers, Esq. Senior Vice President and Corporate Secretary 225 Franklin Street, Boston, Massachusetts 02110 (617)654-3253 (Name, address and telephone number of agent for service) --------------------- Polaroid Corporation -------------------- (Exact name of obligor as specified in its charter) Delaware 04-1734655 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 784 Memorial Drive Cambridge, MA 02139 (617) 386-2000 (Address of principal executive offices) (Zip Code) -------------------- Debt Securities "Issued Pursuant to a Delayed Offering Registration Statement" (Title of indenture securities) GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervisory authority to which it is subject. Department of Banking and Insurance of The Commonwealth of Massachusetts, 100 Cambridge Street, Boston, Massachusetts. Board of Governors of the Federal Reserve System, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations with Obligor. If the Obligor is an affiliate of the trustee, describe each such affiliation. The obligor is not an affiliate of the trustee or of its parent, State Street Boston Corporation. (See note on page 2.) Item 3. through Item 15. Not applicable. Item 16. List of Exhibits. List below all exhibits filed as part of this statement of eligibility. 1. A copy of the articles of association of the trustee as now in effect. A copy of the Articles of Association of the trustee, as now in effect, is on file with the Securities and Exchange Commission as Exhibit 1 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with the Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto. 2. A copy of the certificate of authority of the trustee to commence business, if not contained in the articles of association. A copy of a Statement from the Commissioner of Banks of Massachusetts that no certificate of authority for the trustee to commence business was necessary or issued is on file with the Securities and Exchange Commission as Exhibit 2 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with the Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto. 3. A copy of the authorization of the trustee to exercise corporate trust powers, if such authorization is not contained in the documents specified in paragraph (1) or (2), above. A copy of the authorization of the trustee to exercise corporate trust powers is on file with the Securities and Exchange Commission as Exhibit 3 to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with the Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference thereto. 4. A copy of the existing by-laws of the trustee, or instruments corresponding thereto. A copy of the by-laws of the trustee, as now in effect, is on file with the Securities and Exchange Commission as Exhibit 4 to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed with the Registration Statement of Eastern Edison Company (File No. 33-37823) and is incorporated herein by reference thereto. 1 5. A copy of each indenture referred to in Item 4. if the obligor is in default. Not applicable. 6. The consents of United States institutional trustees required by Section 321(b) of the Act. The consent of the trustee required by Section 321(b) of the Act is annexed hereto as Exhibit 6 and made a part hereof. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority is annexed hereto as Exhibit 7 and made a part hereof. NOTES In answering any item of this Statement of Eligibility and Qualification which relates to matters peculiarly within the knowledge of the obligor or any underwriter for the obligor, the trustee has relied upon information furnished to it by the obligor and the underwriters, and the trustee disclaims responsibility for the accuracy or completeness of such information. The answer furnished to Item 2. of this statement will be amended, if necessary, to reflect any facts which differ from those stated and which would have been required to be stated if known at the date hereof. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, State Street Bank and Trust Company, a corporation organized and existing under the laws of The Commonwealth of Massachusetts, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston and The Commonwealth of Massachusetts, on the 19th day of November, 1998. STATE STREET BANK AND TRUST COMPANY By: /s/ Ruth A. Smith ------------------------------------ Ruth A. Smith Vice President 2 EXHIBIT 6 CONSENT OF THE TRUSTEE Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939, as amended, in connection with the proposed issuance pursuant to a delayed offering registration statement by Polaroid Corporation, of its Debt Securities we hereby consent that reports of examination by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor. STATE STREET BANK AND TRUST COMPANY By: /s/ Ruth A. Smith ---------------------------------------- Ruth A. Smith Vice President Dated: November 19, 1998 3 EXHIBIT 7 Consolidated Report of Condition of State Street Bank and Trust Company, Massachusetts and foreign and domestic subsidiaries, a state banking institution organized and operating under the banking laws of this commonwealth and a member of the Federal Reserve System, at the close of business June 30, 1998, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act and in accordance with a call made by the Commissioner of Banks under General Laws, Chapter 172, Section 22(a).
Thousands of ASSETS Dollars Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin .............................. 1,553,703 Interest-bearing balances ....................................................... 12,440,716 Securities .................................................................................. 9,436,138 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and its Edge subsidiary ............................................. 8,785,353 Loans and lease financing receivables: Loans and leases, net of unearned income ......................... 6,633,608 Allowance for loan and lease losses .............................. 92,999 Allocated transfer risk reserve................................... 0 Loans and leases, net of unearned income and allowances ......................... 6,540,609 Assets held in trading accounts ............................................................. 1,267,679 Premises and fixed assets ................................................................... 491,928 Other real estate owned ..................................................................... 100 Investments in unconsolidated subsidiaries .................................................. 1,278 Customers' liability to this bank on acceptances outstanding ................................ 68,312 Intangible assets ........................................................................... 231,294 Other assets................................................................................. 1,667,282 ------------ Total assets ................................................................................ 42,484,392 ============ LIABILITIES Deposits: In domestic offices ............................................................. 12,553,371 Noninterest-bearing ................................... 10,204,405 Interest-bearing ...................................... 2,348,966 In foreign offices and Edge subsidiary .......................................... 16,961,571 Noninterest-bearing ................................... 154,792 Interest-bearing ...................................... 16,806,779 Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge subsidiary ............................................. 8,182,794 Demand notes issued to the U.S. Treasury and Trading Liabilities ............................ 0 Trading liabilities.......................................................................... 883,096 Other borrowed money ........................................................................ 361,141 Subordinated notes and debentures ........................................................... 0 Bank's liability on acceptances executed and outstanding .................................... 68,289 Other liabilities ........................................................................... 1,017,284 Total liabilities ........................................................................... 40,027,546 ------------ EQUITY CAPITAL Perpetual preferred stock and related surplus................................................ 0 Common stock ................................................................................ 29,931 Surplus ..................................................................................... 455,288 Undivided profits and capital reserves/Net unrealized holding gains (losses) ................ 1,964,924 Net unrealized holding gains (losses) on available-for-sale securities....................... 15,557 Cumulative foreign currency translation adjustments ........................................ (8,854) ------------ Total equity capital ........................................................................ 2,456,846 ------------ Total liabilities and equity capital ........................................................ 42,484,392 ------------
4 I, Rex S. Schuette, Senior Vice President and Comptroller of the above named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. /s/ Rex S. Schuette We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct. /s/ David A. Spina /s/ Marshall N. Carter /s/ Truman S. Casner 5 -----END PRIVACY-ENHANCED MESSAGE-----