UNION CAMP CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
October 20, 1997
From time to time Union Camp Corporation, a Virginia corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I attached hereto, with such additions
and deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"), less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as provided in Section
3 hereof and as may be specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, any Designated Securities to be covered by
Delayed Delivery Contracts being herein sometimes referred to as "Contract
Securities" and the Designated Securities to be purchased by the Underwriters
(after giving effect to the deduction, if any, for Contract Securities) being
herein sometimes referred to as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the principal amount of such
Designated Securities to be purchased by each Underwriter and whether any of
such Designated Securities shall be covered by Delayed Delivery Contracts (as
defined in Section 3 hereof) and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (No. 333-_______) in
respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters have been declared
effective by the Commission and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the Company's best
knowledge, threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the registration statement
but excluding Form T-1, and, if applicable, including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the ("Act"), in accordance with Section 5(a) of this Agreement and
deemed by virtue of Rule 430A under the Act to be a part of such
registration statement as amended at the time such part of the
registration statement became effective, are hereinafter collectively
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called the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents, if any, incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust
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Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable effective
date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) The Company and its subsidiaries taken as a whole have not
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus there has not been any material decrease in
the consolidated capital stock (other than as a result of Company
repurchases of its stock in the market) or material increase in the
long-term debt of the Company or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, consolidated financial
position, consolidated stockholders' equity or consolidated results of
operations of the Company and its subsidiaries, in each case otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus;
(f) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and, in the case of any Contract Securities, pursuant to
Delayed Delivery Contracts (as defined in Section 3 hereof) with respect
to such Contract Securities, such Designated Securities will have been
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by
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the Indenture, which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly
authorized and qualified under the Trust Indenture Act and, at the Time
of Delivery for such Designated Securities (as defined in Section 4
hereof) the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(h) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture,
any Delayed Delivery Contracts, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation or By-Laws of the Company or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for
the issue and sale of the Securities or the consummation by the Company
of the transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture or any Delayed Delivery Contract, except such
as have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) The statements set forth in the Prospectus under the caption
"Description of Securities" insofar as they purport to constitute a
summary of the terms of the Securities, are accurate and complete in all
material respects;
(j) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered by
the Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable in accordance with
its terms, subject, as to enforcement,
5
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and any Delayed Delivery Contracts will conform to
the description thereof in the Prospectus; and
(k) Other than as set forth or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which,
in the reasonable judgment of the Company, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, consolidated stockholders' equity or consolidated results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex III attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery (as defined in Section 4
hereof), such commission, if any, as may be set forth in such Pricing Agreement.
Delayed Delivery Contracts, if any, are to be with institutional investors of
the types described in the Prospectus and subject to other conditions therein
set forth. The Underwriters will not have any responsibility in respect of the
validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by the Underwriter under such Pricing Agreement bears
to the total principal amount of the Designated Securities (rounded as the
Representatives may
6
determine). The total principal amount of Underwriters' Securities to be
purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the total principal amount of Designated Securities set forth in Schedule I to
such Pricing Agreement less the principal amount of the Contract Securities. The
Company will deliver to the Representatives not later than 3:30 p.m., New York
time, on the third business day preceding the Time of Delivery specified in the
applicable Pricing Agreement (or such other time and date as the Representatives
and the Company may agree upon in writing) a written notice setting forth the
principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire or internal
bank transfer to an account specified by the Company in immediately available
funds, all in the manner and at the place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Securities in the amount of any compensation
payable by the Company to the Underwriters in respect of any Delayed Delivery
Contracts as provided in Section 3 hereof and in the Pricing Agreement relating
to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act in accordance with the applicable provisions thereof; to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of the
Pricing Agreement relating to such Securities and prior to the Time of
Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives
with copies thereof; and to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
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Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use of
any Prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of such Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
8
(d) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year after such
Time of Delivery and which are substantially similar to such Designated
Securities, without the prior written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys
which in no event shall exceed $5,000 in the aggregate; (iii) any fees charged
by securities rating services for rating the Securities; (iv) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (v) the cost of
preparing the Securities; (vi) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee
in connection with any Indenture and the Securities; and (vii) all other costs
and expenses incident to the performance of its obligations hereunder and under
any Delayed Delivery Contracts which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representative, to the condition that all
representations and warranties and other
9
statements of the Company herein are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or, to the Company's best knowledge, threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the
Designated Securities, the Delayed Delivery Contracts, if any, the
Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters (such
counsel may rely as to all matters of Virginia law upon the opinion of
Hunton & Xxxxxxxx);
(c) White & Case, counsel for the Company, shall have furnished
to the Representatives their written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
authority to conduct its business as described in the Prospectus
as amended or supplemented;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of the States of Alabama, Georgia, South
Carolina and New Jersey;
(iii) To the best of such counsel's knowledge and other
than as set forth or incorporated by reference in the Prospectus,
there are no legal or governmental proceedings pending to which
the Company is a party or of which any property of the Company is
the subject, which, in such counsel's reasonable judgment,
10
would be individually or in the aggregate material to the
Company; and to the best of such counsel's knowledge no such
proceedings are threatened;
(iv) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed
and delivered by the Company;
(v) In the event any of the Designated Securities are to
be purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized, executed and
delivered by the Company; and any Delayed Delivery Contracts
conform to the description thereof in the Prospectus as amended
or supplemented;
(vi) The Designated Securities have been duly authorized;
the Underwriters' Securities have been duly executed,
authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; the Contract Securities, if
any, when duly executed, authenticated, issued and delivered
against payment therefor pursuant to the Indenture and Delayed
Delivery Contracts, if any, will constitute valid and legally
binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated Securities and the
Indenture conform to the descriptions thereof in the Prospectus
as amended or supplemented;
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(viii) The issue and sale of the Designated Securities and
the compliance by the Company with the provisions of the
Designated Securities, the Indenture, each of the Delayed
Delivery Contracts, if any, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument for borrowed money known to such counsel
to which the Company is a party or by which the
11
Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation
of the provisions of the Articles of Incorporation or By-Laws of
the Company or any Federal or, to the best of such counsel's
knowledge, other statute, order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its material properties;
(ix) No consent, approval, authorization, order,
registration or qualification of or with any Federal or, to the
best of such counsel's knowledge, other regulatory authority or
other governmental agency or body or, to the best of such
counsel's knowledge, any court having jurisdiction over the
Company or any of its material properties is required for the
issue and sale of the Designated Securities or the consummation
by the Company of the transactions contemplated by this Agreement
or such Pricing Agreement or the Indenture or any of such Delayed
Delivery Contracts, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Securities
by the Underwriters;
(x) Based upon such counsel's participation in the
preparation of the Registration Statement but without independent
check or verification, and without assuming any responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus, (A) each
of the Registration Statement at the time of effectiveness and
the Prospectus as of its date (except for the financial
statements and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, and other
than the Trustee's Statement of Eligibility on Form T-1, as to
which such counsel need express no opinion) appears on its face
to comply as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission thereunder; (B) they do not know of any contract or
document of a character required to be described or summarized in
the Registration Statement or to be filed as an exhibit to the
Registration Statement which is not so described, summarized or
filed and (C) nothing has come to their attention which causes
them to believe that (a) as of its effective date the
Registration Statement (other than the financial statements and
related schedules and other financial and statistical data
included or incorporated by reference therein or omitted
therefrom, and other than the Trustee's Statement of Eligibility
on Form T-1, as to which such counsel need express no belief)
contained an untrue statement of a material fact or omitted to
state a material fact required to be
12
stated therein or necessary to make the statements therein not
misleading, (b) as of its date the Prospectus as amended or
supplemented (other than the financial statements and related
schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to
which such counsel need express no belief) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or (c) as of the date of such opinion
either the Registration Statement or the Prospectus, as amended
or supplemented (other than the financial statements and related
schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, and other
than the Trustee's Statement of Eligibility on Form T-1, as to
which such counsel need express no belief), contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
In rendering such opinion, such counsel may rely as to all matters of
Virginia law upon the opinion of Hunton & Xxxxxxxx and may assume that the
Trustee's certificates of authentication on the Designated Securities have been
signed by one of the Trustee's authorized officers;
(d) Xxxx X. Xxxxxxxxxx, Esq., General Counsel for the Company,
shall have furnished to the Representatives his written opinion, dated
the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The documents, if any, incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and he has no reason to
believe that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and, in the case of other
documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted
to state a
13
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(e) At the Time of Delivery for such Designated Securities, Price
Waterhouse shall have furnished to the Representatives a letter, dated
such Time of Delivery to the effect set forth in Annex II hereto, and as
to such other matters as the Representatives may reasonably request and
in form and substance satisfactory to the Representatives;
(f)(i) The Company shall not have sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement related to the Designated Securities any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree otherwise than
as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement related to the
Designated Securities and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior
to the date of the Pricing Agreement related to the Designated
Securities, there shall not have been any change in the consolidated
capital stock (other than as a result of Company repurchases of its
stock in the market) or consolidated long-term debt of the Company or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, consolidated financial
position, consolidated stockholders' equity or consolidated results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented
prior to the date of the Pricing Agreement related to the Designated
Securities, the effect of which in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's senior debt securities by any "nationally
recognized securities rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with negative implications, its rating of any of
the Company's senior debt securities;
14
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation on trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the declaration
by the United States of a national emergency or war if the effect of any
such event specified in this Clause (iii) in the judgment of the
Representatives, after consultation with the Company, is material and
adverse to the market for the Designated Securities and makes it
impracticable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated
Securities; and
(i) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, and as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through
15
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities; and provided, further, that the
Company shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) with respect to any Preliminary Prospectus or preliminary
prospectus supplement to the extent that any such loss, claim, damage or
liability of such Underwriter results from (i) the fact that such Underwriter
sold designated securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus as
then amended or supplemented (or of any amendments or supplements thereto if the
Company has previously furnished copies thereof to such Underwriter) relating to
such Designated Securities or (ii) the use by such Underwriter of any
Preliminary Prospectus or preliminary prospectus supplement from and after the
date the Prospectus or the Prospectus as then amended or supplemented has been
made available to such Underwriter or the use of the Prospectus without the
inclusion therein of all amendments or supplements thereto, if any, from and
after the date such are made available to such Underwriter. Such Prospectus or
amendments or supplements shall not be deemed to include documents incorporated
by reference therein and shall not be deemed to have been made available to such
Underwriter until such time after the receipt thereof by the Representatives as
would permit the Representatives with reasonable diligence to deliver the same
to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
16
indemnified party otherwise than under such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
In no event shall the indemnifying parties be liable for the fees and expenses
of more than one counsel for all indemnified parties in connection with any one
action in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand, and such Underwriters on the
other, shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, 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 contribution
pursuant to this
17
subsection (d) were 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 account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include 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 subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such 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 obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint. No party shall be liable for contribution for any
settlement of any action or claim made without its consent.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase under the Pricing
Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Underwriters' Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Underwriters' Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or
18
in any other documents or arrangements, and the Company agrees to file promptly
any amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
19
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof. If any Pricing Agreement
shall be terminated because of any failure to comply with the terms or to
fulfill the conditions of the Pricing Agreement on the part of the Company to be
performed, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in Schedule II to the Pricing Agreement delivered to the Company. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
20
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
ANNEX I
Union Camp Corporation
DEBT SECURITIES
PRICING AGREEMENT
___________ __, 19__
Dear Sirs:
Union Camp Corporation, a Virginia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated as of October 20, 1997 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be
a part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of Designated Securities pursuant to Section 12 of
the Underwriting Agreement and the address referred to in such Section 12 are
set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the principal amount of Designated Securities set
forth opposite the name of such Underwriter in Schedule I hereto, less the
principal amount of Designated Securities covered by Delayed Delivery Contracts,
if any, as may be specified in such Schedule II.
If the foregoing is in accordance with your understanding, please
sign and return to us six counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement Among Underwriters, the form of which
shall be submitted to the Company for examination upon request.
Very truly yours,
UNION CAMP CORPORATION
By: _________________________
Title:
Accepted as of the date hereof:
By:____________________________
On behalf of each of the Underwriters
2
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- ---------------------
---------
Total.................................. $
=========
3
SCHEDULE II
TITLE OF DESIGNATED SECURITIES
[_____%] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNTS:
$------------
PRICE TO PUBLIC:
_____% of the principal amount of the Designated Securities, plus
accrued interest[, if any,] from __________ to _________ [and accrued
amortization[, if any,] from __________ to __________]
PURCHASE PRICE BY UNDERWRITERS:
_____% of the principal amount of the Designated Securities, plus
accrued interest from __________ to __________ [and accrued
amortization, if any, from __________ to __________]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Immediately available funds
INDENTURE:
Indenture, dated as of November 1, 1994, between the Company and The
Bank of New York, as successor in interest to NationsBanc of Georgia,
National Association, as Trustee
MATURITY:
INTEREST RATE:
[_____%] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[month and dates, commencing _________ __, ____]
REDEMPTION PROVISIONS:
[No provisions for redemption]
4
[The Designated Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount of
$_______ or an integral multiple thereof, _________]
[on or after __________, ________ at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or
before _________, ______%, and if] redeemed during the 12-month period
beginning __________,
Redemption
Year Price
---- -----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after ____________, ____, at
the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire $__________ principal amount of Designated Securities on
____________ in each of the years ____ through ____ at 100% of their
principal amount plus accrued interest][, together with [cumulative]
[non-cumulative] redemptions at the option of the Company to retire an
additional $____________ principal amount of Designated Securities in
the years ____ through ____ at 100% of their principal amount plus
accrued interest.]
5
[If Designated Securities are extendable debt securities, insert --
EXTENDABLE PROVISIONS:
Designated Securities are repayable on ____________, ____ [insert date
and years], at the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be _____%, and thereafter annual
interest rate will be adjusted on ____________, ____ and _________ to a rate not
less than _____% of the effective annual interest rate on U.S. Treasury
obligations with _____-year maturities as of the [insert date 15 days prior to
maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert --
FLOATING RATE PROVISIONS:
Initial annual interest rate will be _____% through ____________ [and
thereafter will be adjusted [monthly] [on each ____________, ____, and
______][to an annual rate of ___% above the average rate for ___-year [month]
[securities] [certificates of deposit] issued by __________________ and
__________________ [insert names of banks],] [and the annual interest rate
[thereafter] [from ____________ through ____________] will be the interest yield
equivalent of the weekly average per annum market discount rate for ____-month
Treasury bills plus _____% of Interest Differential (the excess, if any, of (i)
the then current weekly average per annum secondary market yield for _____-month
certificates of deposit over (ii) the then current interest yield equivalent of
the weekly average per annum market discount rate for _____-month Treasury
bills); [from ____________ and thereafter the rate will be the then current
interest yield equivalent plus _____% of Interest Differential].]
TIME OF DELIVERY:
[Time and date], 19__
DEFEASANCE PROVISIONS:
CLOSING LOCATION:
DELAYED DELIVERY:
[None] [Underwriters' commission shall be _____% of the principal amount
of Designated Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the order
of________________________.]
6
NAMES AND ADDRESSES OF REPRESENTATIVES:
DESIGNATED REPRESENTATIVES:
ADDRESS FOR NOTICES, ETC.:
OTHER TERMS:
7
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall provide a comfort letter to the effect that:
(i) They are independent accountants with respect to the Company
and its consolidated subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
schedules examined by them and included or incorporated by reference in
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the published rules and regulations thereunder;
(iii) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the latest available unaudited interim
consolidated financial data of the Company and its consolidated
subsidiaries, a reading of the minute books of the Company since the
date of the latest audited consolidated financial statements included or
incorporated by reference in the Prospectus and inquiries of officials
of the Company responsible for financial and accounting matters, nothing
came to their attention that caused them to believe that:
(A) the selected financial data for the five most recent
fiscal years which was included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year does not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act
and the published rules and regulations thereunder and does not
agree with the corresponding amounts in the audited consolidated
financial statements for such fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form
10-K for the three applicable fiscal years (except for
restatements, or reclassifications made in various years for
comparative purposes);
(B) the selected financial information for the five most
recent fiscal years which was included or incorporated by
reference in the Prospectus does not agree with the corresponding
amounts in the audited consolidated financial statements for such
fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for the three
applicable fiscal years (except for restatements or
reclassifications made in various years for comparative
purposes);
(C) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published
rules and regulations thereunder or are not stated on a basis
substantially consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) the unaudited financial data derived from general
accounting records included in the Prospectus as at any time, or
for any period ending, after the end of the latest interim period
covered by a Quarterly Report on Form 10-Q of the Company (and
any data for any comparable prior period included therein) do not
agree with the corresponding amounts in the unaudited
consolidated financial data from which such data were derived,
and any such unaudited financial data were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(E) As of a specified date not more than five days prior
to the Time of Delivery in the case of the letter to be delivered
pursuant to Section 7(e) of the Underwriting Agreement, there
have been any changes in the consolidated capital stock (other
than issuances of Common Stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest consolidated financial
statements included or incorporated by reference in the
Prospectus) or consolidated long-term debt of the Company and its
consolidated subsidiaries, or as of the end of the latest period
for which financial data are available, there have been any
decreases in consolidated net current assets or stockholders'
equity, or any increases in consolidated current liabilities, in
each case as compared with amounts shown in the most current
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the most current
consolidated financial statements included or incorporated by
reference in the Prospectus to the end of the most recent period
for which unaudited financial data are available there were any
decreases in net sales or the total or per share amount of income
before extraordinary items or net income, in each case as
compared with the comparable period of the preceding year and
with the
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period of corresponding length immediately preceding such period,
except in each case for decreases or increases which the
Prospectus discloses have occurred or may occur or which are
described in such letter;
(iv) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the procedures, including a reading of minute books, inquiries and other
procedures referred to in subparagraph (iii) above, they have carried
out certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives and agreed to prior to the date of a Pricing Agreement
which are derived from the general accounting records of the Company,
which appear in the Prospectus (excluding documents incorporated by
reference), in exhibits to the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared such
amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus as defined in the Underwriting Agreement as of the date
of the letter delivered on the date of the Pricing Agreement for purposes of
such letter and to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities for purposes of the letter delivered at the
Time of Delivery for such Designated Securities.
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ANNEX III
DELAYED DELIVERY CONTRACT
Union Camp Corporation
x/x
, 00
Xxxxxxxxx:
Dear Sirs:
The undersigned hereby agrees to purchase from Union Camp Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated
, 19 as amended or supplemented, receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof, plus
accrued interest from the date from which interest accrues as set forth below,
and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the Company
on , 19 (the "Delivery Date") and interest on the Designated Securities
so purchased will accrue from , 19 .
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts set
forth below:
Principal Date from Which
Delivery Date Amount Interest Accrues
------------- ------ ----------------
, 19 $ , 19
, 19 $ , 19
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed
to purchase on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in Clearing House
funds at the office of ,
, , or by wire transfer to a bank account specified by the
Company, on [the] [such] Delivery Date upon delivery to the undersigned of the
Designated Securities then to be purchased by the undersigned in definitive
fully registered form and in such denominations and registered in such names as
the undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to [the] [such]
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [the] [each] Delivery Date shall be subject to the
conditions that (a) the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject and (b) the Company, on
or before , 19 , shall have sold to the several Underwriters,
pursuant to the Pricing Agreement dated , 19 with the Company,
an aggregate principal amount of Designated Securities equal to $ ,
minus the aggregate principal amount of Designated Securities covered by this
contract and other contracts similar to this contract. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the Opinion of Counsel for the Company
delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed by it under the laws of the jurisdiction to which the
undersigned is subject.
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.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts 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
2
address set forth below. This will become a binding contract between the Company
and the undersigned when such counterpart is so mailed or delivered by the
Company.
Yours very truly,
.........................................
By ......................................
(Signature)
.........................................
(Name and Title)
.........................................
(Address)
Accepted, , 19
UNION CAMP CORPORATION
BY ..............................
[TITLE]
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