EXHIBIT 1
MEADWESTVACO CORPORATION
(a Delaware Corporation)
Debt Securities
UNDERWRITING AGREEMENT
March 26, 2002
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BNY CAPITAL MARKETS, INC.
BANK ONE CAPITAL MARKETS, INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX BARNEY INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
BARCLAYS CAPITAL INC.
COMMERZBANK CAPITAL MARKETS CORP.
FLEET SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
DAIWA SECURITIES SMBC EUROPE LIMITED
SUNTRUST EQUITABLE SECURITIES CORPORATION
WACHOVIA SECURITIES, INC.
x/x
XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
World Financial Center
North Tower, 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
MeadWestvaco Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell up to $750,000,000 aggregate principal amount of its debt
securities (the "Notes") in one or more fixed price offerings on terms
determined at the time of sale. The Notes and any related Guarantees (as defined
below) will be issued under an indenture dated as of April 2, 2002 (the
"Indenture") between the Company, the Guarantors (as defined below) and The Bank
of New York, as Trustee. Each issue of Notes may vary as to aggregate principal
amount, maturity date, interest rate or rates and timing of payments thereof,
redemption provisions and sinking fund re-
quirements, if any, and any other variable terms which the Indenture
contemplates may be set forth in the Notes as issued from time to time. The
Notes may be guaranteed and if so such Guarantees (the "Guarantees" and together
with the Notes, the "Securities") will be unconditional and made on a joint and
several basis by the Guarantors named in Schedule I hereto (the "Guarantors"
and, together with the Company, the "Issuers"), as provided in the Indenture.
Each underwritten offering of Securities will be made through you or
through an underwriting syndicate managed by you. Whenever the Issuers determine
to make such an offering of Securities, they will enter into an agreement (the
"Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, you and such other underwriters, if any,
selected by you as have authorized you to enter into such Terms Agreement on
their behalf (the "Underwriters", which term shall include you whether acting
alone in the sale of Securities or as members of an underwriting syndicate). The
Terms Agreement relating to each offering of Securities shall specify the
principal amount of Securities to be issued and their terms not otherwise
specified in the Indenture, the names of the Guarantors (if any), the names of
the Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof) and the principal amount of Securities which each
severally agrees to purchase, the names of such other Underwriters, if any,
acting as co-managers with you in connection with such offering, the price at
which the Securities are to be purchased by the Underwriters from the Company,
the initial public offering price, any delayed delivery arrangements and the
time and place of delivery and payment. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an exchange
of any standard form of written telecommunication between you and the Issuers.
Each offering of Securities will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon each Underwriter participating
in the offering of such Securities.
The Issuers have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-84060) relating to
the Securities and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933 (the "1933 Act") and has filed such
amendments thereto as may have been required to the date hereof. Such
registration statement as amended has been declared effective by the Commission,
and the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement as amended and the
prospectus relating to the sale of Securities by the Issuers constituting a part
thereof, including all documents incorporated therein by reference, as from time
to time amended or supplemented pursuant to the Securities Exchange Act of 1934
(the "1934 Act"), the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively; provided, however,
that a supplement to the Prospectus prepared pursuant to Section 3(a) hereof (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the offering of Securities to which it relates.
Section 1. Representations and Warranties. The Issuers, jointly and
severally, represent and warrant to you as of the date hereof, and to each
Underwriter named in a Terms Agreement as of the date thereof (in each case the
"Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the
requirements of the 1933 Act, the rules and regulations thereunder (the
"Regulations") and the 1939 Act. The Registration Statement, at the time
the Registration Statement became effective and as of the applicable
Representation Date, did not, and will not, 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. The
Prospectus, at the time the Registration Statement became effective and as
of the applicable Representation Date, did not, and will not contain an
untrue statement of a material fact or
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omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through you expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification under the 1939
Act (Form T-1), of the Trustee under the Indenture.
(b) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations thereunder, and, when read together with the
other information in the Prospectus, at the time the Registration Statement
and any amendments thereto become effective, 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 the light
of the circumstances under which they are made, not misleading.
(c) The accountants who certified the financial statements included in
the Registration Statement are independent public accountants as required
by the 1933 Act and the Regulations.
(d) The financial statements incorporated by reference in the
Registration Statement and Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein, during the periods involved.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business and (B) there have been no material
transactions entered into by the Company and its subsidiaries considered as
one enterprise, other than those in the ordinary course of business.
(f) Neither the Company nor any of its subsidiaries is in violation of
its certificate of incorporation or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it or any of them is a party or by which it or
any of them or their properties may be bound; and the execution and
delivery of this Agreement, the Indenture and each Terms Agreement, the
incurrence of the obligations herein and therein set forth and the
consummation of the transactions contemplated herein and therein will not
conflict with or constitute a breach of, or default under, the certificate
of incorporation or by-laws of any of the Issuers or any bond, debenture,
note or other evidence of indebtedness or any contract, indenture,
mortgage, loan agreement or lease to which the Company or any of its
subsidiaries is a party or by which any of them may be bound, by any law,
administrative regulation or court decree.
(g) The Indenture has been duly authorized and executed by each of the
Issuers and, when delivered pursuant to the provisions of this Agreement,
will constitute the valid and legally binding obligation of each of the
Issuers enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights.
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(h) The Securities have been duly authorized for issuance and sale
pursuant to this Agreement (or will have been so authorized prior to each
issuance of Securities) and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and of the Indenture against
payment of the consideration therefor in accordance with this Agreement,
each of the Notes and the Guarantees will constitute valid and legally
binding obligations of its respective issuer enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws affecting enforcement of creditors' rights and
will be entitled to the benefits provided by the Indenture, which will be
substantially in the form heretofore delivered to you.
(i) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by any of
the Issuers of their obligations hereunder, in connection with the
offering, issuance or sale by the Issuers of the Securities hereunder or
the consummation by the Issuers of the transactions contemplated by this
Agreement to be performed by it or for the performance of the Indenture by
the Company, except such as have been already obtained or as may be
required under the 1933 Act, the 1939 Act, the 1934 Act or the Regulations
or state securities laws.
Any certificate signed by any officer of the Company and delivered to you
or counsel for the Underwriters in connection with an offering of Securities
shall be deemed a representation and warranty by the Company, as to the matters
covered thereby, to each Underwriter participating in such offering.
Section 2. Purchase and Sale. The several commitments of the Underwriters
to purchase Securities pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Securities to be
purchased by the Underwriters shall be made at the offices of Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by you and the Company, at 9:00 A.M., New York City time,
on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern Time) on
any given day) business day (unless postponed in accordance with the provisions
of Section 10) following the date of the applicable Terms Agreement or such
other time as shall be agreed upon by you and the Company (each such time and
date being referred to as a "Closing Time"). Payment shall be made to the
Company by wire transfer of immediately available funds in accordance with the
Company's instructions against delivery to you for the respective accounts of
the Underwriters of the Securities to be purchased by them. Such Securities
shall be in such denominations and registered in such names as you may request
in writing at least two business days prior to the applicable Closing Time. Such
Securities, which may be in temporary form, will be made available for
examination and packaging by you on or before the first business day prior to
Closing Time.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit B hereto with such changes therein as the Company may approve.
As compensation for arranging Delayed Delivery Contracts, the Company will pay
to you at Closing Time, for the accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Securities for which Delayed Delivery
Contracts are made at Closing Time as is specified in the applicable Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional investors
of the types set forth in the Prospectus. At Closing Time the Company will enter
into Delayed Delivery Contracts (for not less than the minimum principal amount
of Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate
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principal amount of Securities in excess of that specified in the applicable
Terms Agreement. The Underwriters will not have any responsibility for the
validity of performance of Delayed Delivery Contracts.
You are to submit to the Company, at least three business days prior to
Closing Time, the names of any institutional investors with which it is proposed
that the Company will enter into Delayed Delivery Contracts and the principal
amount of Securities to be purchased by each of them, and the Company will
advise you, at least two business days prior to Closing Time, of the names of
the institutions with which the making of Delayed Delivery Contracts is approved
by the Company and the principal amount of Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Securities agreed to be purchased by the respective
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the
principal amount of Securities covered by Delayed Delivery Contracts as to each
Underwriter as set forth in a written notice delivered by you to the Company;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the total amount of Securities covered by the
applicable Terms Agreement, less the principal amount of Securities covered by
Delayed Delivery Contracts.
Section 3. Covenants of the Company. The Issuers covenant with you, and
with each Underwriter participating in the applicable offering of Securities, as
follows:
(a) Immediately following the execution of each Terms Agreement, the
Issuers will prepare a Prospectus Supplement setting forth the principal
amount of Notes covered thereby and the terms of the Securities not
otherwise specified in the Indenture, the names of the Underwriters
participating in the offering and the principal amount of Notes which each
severally has agreed to purchase, the names of any Underwriters acting as
co-managers with you in connection with the offering, the price at which
the Securities are to be purchased by the Underwriters from the Company,
the initial public offering price, the selling concession and reallowance,
if any, any delayed delivery arrangements, and such other information as
you and the Company deem appropriate in connection with the offering of the
Securities. The Issuers will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 of the
Regulations and will use their best efforts to furnish to the Underwriters
named therein as many copies of the Prospectus and such Prospectus
Supplement as the Underwriters shall reasonably request, prior to 10:00
A.M. New York City time on the business day next succeeding the date of the
applicable Terms Agreement. Thereafter, the Issuers will furnish to the
Underwriters as many copies of the Prospectus and the Prospectus Supplement
as the Underwriters may from time to time reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of your counsel or counsel for the Issuers, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such counsel, at any such time
to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the Regulations,
the Issuers will promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents pursuant to the 1934
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such
requirements.
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(c) The Company will make generally available to its security holders,
in each case as soon as practicable, earnings statements (in form complying
with the provisions of Rule 158 under the 1933 Act), covering (i) a twelve
month period beginning not later than the first day of the Company's fiscal
quarter next following the effective date of the Registration Statement and
(ii) a twelve month period beginning not later than the first day of the
Company's fiscal quarter next following the date of each Terms Agreement
and each filing under the 1934 Act of an annual report of the Company on
Form 10-K.
(d) The Issuers will give you notice of their intention to file any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1934 Act, the 1933 Act, or
otherwise, will furnish you with copies of any such amendment or supplement
or other documents proposed to be filed a reasonable time in advance of
filing, and will not file any such amendment or supplement or other
documents in a form in which you or your counsel shall reasonably object.
(e) The Issuers will notify each of you immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document
to be filed pursuant to the 1934 Act, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the
Prospectus or any Prospectus Supplement, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (v) of
the issuance by the Commission of any order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose. The Issuers will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(f) The Issuers will deliver to you as many copies of the registration
statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as you may reasonably request
and will also deliver to you a copy of the Registration Statement and each
amendment thereto for each of the Underwriters.
(g) The Issuers will endeavor, in cooperation with you, to qualify the
Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as you may
designate, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Securities; provided, however,
that the Issuers shall not be obligated to file any general consent to
service or to qualify as a foreign corporation or as a dealer of securities
in any jurisdiction in which they are individually not so qualified. In
each jurisdiction in which the Securities have been qualified as above
provided, the Issuers will file such statements and reports as may be
required by the laws of such jurisdiction.
(h) The Issuers, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required
to be filed with the Commission pursuant to Section 13 or 14 of the 1934
Act.
(i) Between the date of any Terms Agreement and termination of any
trading restrictions as notified by you to the Company or Closing Time,
whichever is later, with respect to the Securities covered thereby, the
Company will not, without your prior consent, offer or sell, or enter into
any
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agreement to sell, any debt securities of the Company with a maturity of
more than one year, including additional Notes.
(j) The Company will for a period of five years from the effective
date of the Registration Statement furnish direct to you and to each
Underwriter participating in the applicable offering of Securities, upon
request, as soon as the same shall be sent to stockholders, copies of any
annual or interim reports of the Company to its stockholders, and it will
also furnish you, upon request, the following:
(1) as soon as available, copies of any report which the Company shall
file with the Commission or mail to stockholders; and
(2) such other information as you may reasonably request which affects
the holders of the applicable Securities.
Section 4. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy of and compliance with the representations and warranties of the
Issuers herein contained, to the accuracy of the statements made in any
certificate furnished on behalf of the Issuers pursuant to the provisions
hereof, to the performance by the Issuers of its obligations hereunder and to
the following conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (ii) the rating assigned by any nationally recognized
securities rating agency to any debt securities or preferred stock of the
Company as of the date of the applicable Terms Agreement shall not have
been lowered since that date nor shall any such rating agency have publicly
announced that it has under surveillance or review its rating of the
Securities or any of the Company's other debt securities or preferred stock
and (iii) there shall not have come to your attention any facts that would
cause you to believe that the Prospectus, together with the applicable
Prospectus Supplement, at the time it was required to be delivered to a
purchaser of the Securities, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time,
not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time of Xxxxxxx X. Xxxxxxx, XX, Esq., Senior Vice President and
General Counsel of the Company, in form and substance satisfactory to
such of you as may be named in the applicable Terms Agreement, to the
effect that:
(i) Each of the Issuers has been incorporated in
accordance with, and is validly existing as a corporation in
good standing under its respective jurisdictions of
organization.
(ii) Each of the Issuers has corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Registration
Statement.
(iii) Each of the Issuers is qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which the conduct of its busi-
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ness requires such qualification; and each wholly-owned
subsidiary of the Company has been organized in accordance
with, and is validly existing and in good standing under,
the laws of its jurisdiction of incorporation.
(iv) This Agreement, the applicable Terms Agreement,
and the Delayed Delivery Contracts, if any, have been
authorized, executed and delivered by each of the Issuers.
(v) The Indenture has been authorized, executed and
delivered by each of the Issuers and constitutes the valid
and binding agreement of each of the Issuers, enforceable in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws relating
to or affecting enforcement of creditors' rights.
(vi) The Securities covered by the applicable Terms
Agreement are in the form contemplated by the Indenture,
have been authorized by all necessary corporate action and,
when executed and authenticated as specified in the
Indenture and delivered against payment pursuant to this
Agreement, as supplemented by the applicable Terms
Agreement, each of the Notes and the Guarantees will
constitute valid and binding obligations of its respective
issuer, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement of
creditors' rights and will be entitled to the benefits of
the Indenture.
(vii) The Indenture and the Securities covered by the
applicable Terms Agreement conform in all material respects
to the descriptions thereof in the Prospectus and the
applicable Prospectus Supplement.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the
1933 Act and, to the best of the knowledge and information
of such counsel, no proceedings for a stop order have been
instituted or threatened under Section 8(d) of the 1933 Act.
(x) The Registration Statement (other than the
financial statements included therein, as to which no
opinion need be rendered) appeared on its face to be
appropriately responsive in all material respects to the
requirements of the 1933 Act, the 1939 Act, and the
Regulations, and nothing has come to the attention of such
counsel that would lead such counsel to believe that the
Registration Statement, at the time it became effective, or
if an amendment to the Registration Statement or an annual
report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent
such filing, contained an untrue statement of a material
fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date or as
amended or supplemented at Closing Time, contained or
contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
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(xi) Each document, if any, filed pursuant to the 1934
Act (other than the financial statements included therein,
as to which no opinion need be rendered) and incorporated by
reference in the Prospectus, appeared on its face to be
appropriately responsive when so filed in all material
respects with the 1934 Act and the rules and regulations
thereunder (the "1934 Act Regulations").
(xii) To the best of the knowledge and information of
such counsel, there are no contracts, indentures, mortgages,
loan agreements, leases or other documents of a character
required to be filed as exhibits to the Registration
Statement other than those filed or incorporated by
reference as exhibits to the Registration Statement.
(xiii) To the best of the knowledge and information of
such counsel, there are no legal or governmental proceedings
pending against any of the Issuers or any of their
subsidiaries which are required to be disclosed in the
Registration Statement, other than those discussed therein,
and the information set forth therein to the extent that it
constitutes matters of law or legal conclusions, has been
reviewed by such counsel and is correct; and
(xiv) The issuance of the Securities by the Issuers and
the compliance by the Issuers with their other obligations
under this agreement will not conflict with or result in a
breach of (i) any applicable law, administrative regulation
or court decree binding upon the Issuers, (ii) the
certificate of incorporation or by-laws of any of the
Issuers, or (iii) any of the terms, conditions or provisions
of any agreement or instrument actually known to such
counsel to which any of the Issuers or any of their
subsidiaries is a party or constitute a default under any
such agreement or instrument.
(2) The favorable opinion or opinions, dated as of the applicable
Closing Time, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, with respect to the matters set forth in (i) and (iv) to
(x), inclusive, of subsection (b)(1) of this Section.
(c) At the applicable Closing Time (i) there shall not have been,
since the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Registration Statement and
other than as contemplated therein, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; (ii)
there shall not have been subsequent to the date of the applicable Terms
Agreement any transactions entered into by any of the Issuers or any of
their subsidiaries other than transactions in the ordinary course of
business or transactions referred to in the Registration Statement or
transactions which are not material in relation to the Issuers and their
subsidiaries considered as one enterprise; (iii) since the date of the
applicable Terms Agreement none of the Issuers nor any of their
subsidiaries shall have sustained a loss of, or damage to, its properties
(whether or not insured) which would materially adversely affect the
business, operations, financial condition or income of the Issuers and
their subsidiaries considered as one enterprise; (iv) except as otherwise
stated in the Registration Statement and Prospectus, no action, suit or
proceeding, at law or in equity, shall be pending, or to the knowledge of
any of the Chairman, President and Chief Executive Officer, an Executive
Vice President, or a Senior Vice President (each a "Senior Officer") of the
Company, threatened in writing against or affecting the Company or any of
its subsidiaries, and no proceedings shall be pending, or to the knowledge
of any Senior Officer of the Company, threatened in writing against the
Company or any of its subsidiaries before or by any governmental
commission, board or other administrative agency, wherein an unfavorable
decision, ruling or
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finding would materially adversely affect the business, operations,
financial condition or income of any of the Issuers and their subsidiaries
considered as one enterprise; and (v) each of the representations and
warranties contained in Section 1 hereof shall be true and correct with the
same effect as though the Closing Time were a Representation Date.
Compliance with the provisions of (i) to (iv), inclusive, of this
subsection shall be evidenced by a certificate of a Senior Officer of the
Company delivered to you at such Closing Time. Such certificate shall also
state that the other representations and warranties contained in Section 1
hereof are true and correct with the same effect as though such Closing
Time were a Representation Date.
(d) You shall have received from the Company's independent public
accountants a letter, dated as of the applicable Closing Time and delivered
at such time, in form heretofore agreed to (based upon the draft letter
heretofore delivered).
(e) At the applicable Closing Time counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained and all proceedings taken by each of the
Issuers in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to you and
counsel for the Underwriters.
(f) The Issuers shall have complied with the provisions of Section
3(a) hereof with respect to the furnishing of prospectuses on the business
day next succeeding the date of the applicable Terms Agreement.
If any of the conditions specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by such of you as may be named in such Terms Agreement by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 5.
Section 5. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the registration statement and all amendments thereto,
and the printing of this Agreement and each Terms Agreement, (ii) the
preparation, issuance and delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel and accountants related to
the registration statement and prospectus and all amendments or supplements
thereto, (iv) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Survey and Legal
Investment Survey, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the registration statement and all
amendments thereto, of the Registration Statement and any amendments thereto,
and of the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of the Indenture and any
Blue Sky Survey and Legal Investment Survey to be prepared by counsel for the
Underwriters, (vii) the fees of rating agencies and (viii) the fees and
expenses, if any, incurred in connection with the listing of the Securities on
the New York Stock Exchange.
If a Terms Agreement is terminated by such of you as are named therein in
accordance with the provisions of Section 4 or clause (i) of Section 9, the
Issuers shall reimburse the Underwriters named in such Terms Agreement for all
of their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
-10-
Section 6. Indemnification. (a) The Issuers, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in a preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in reliance
upon and in conformity with written information furnished to the Company or
any Guarantor, as the case may be, by any Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) or any
such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or was made in reliance upon the Form T-1 of the
Trustee under the Indenture;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever contemplated by this Section, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation or investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever which, in any such case, is based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company or any Guarantor, as the case may be; and
(iii) against any and all expense whatsoever, as incurred (other than
any fees and expenses of counsel described in the fourth and fifth
sentences of subsection (c) of this Section 6) reasonably incurred in
investigation preparing or defending against any litigation or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless each
of the Issuers, each of their respective officers who signed the Registration
Statement, and each of their respective directors and each person, if any, who
controls such Issuer within the meaning of Section 15 of the 1933 Act to the
same extent as the foregoing indemnity from the Issuers, but only with respect
to statements or omissions made in the Registration Statement (or any amendment
thereto) or a preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with information
furnished to the Issuers in writing by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) or any such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
which are different from or in addition
-11-
to those available to such indemnifying party. If an indemnifying party assumes
the defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. 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 or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unavailable to the Underwriters other
than in accordance with its terms, the Issuers and the Underwriters of each
offering of Securities shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Issuers and one or more of such Underwriters in
respect of such offering in such proportions as will reflect the relative
benefits from the offering of such Securities received by the Issuers on the one
hand and by such Underwriters on the other hand; provided, that if such
allocation is not permitted by applicable law or if the indemnified party failed
to give the notice required under Section 6(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 Issuers on the one hand and the Underwriters
of the relevant offering of Securities on the other hand. If the Securities are
offered by Underwriters at an initial public offering price set forth in a
Prospectus Supplement, the relative benefits shall be deemed to be such that the
Underwriters shall be responsible for that portion of the aggregate losses,
liabilities, claims, damages and expenses represented by the percentage that the
underwriting discount appearing in such Prospectus Supplement bears to the
initial public offering price appearing therein and the Issuers shall be
responsible for the balance. The relative fault, if applicable, 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 Issuers on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as such Underwriter, and each director of the Issuers, each officer of the
Issuers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Issuers. The Underwriters' obligations to
contribute as provided in this Section 7 are several in proportion to their
respective underwriting commitments as set forth in the applicable Terms
Agreement, and not joint.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of any of the Issuers submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
termination of this Agreement, or any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of any of the Issuers, and
shall survive delivery of any Securities to the Underwriters.
Section 9. Termination. This Agreement may be terminated for any reason at
any time by either the Company or you upon giving of thirty days' written notice
of such termination to the other party hereto. You may also terminate such Terms
Agreement, immediately upon notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, of the Company and its subsidiaries considered as one enterprise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make
-12-
it, in your judgment, impracticable to market the Securities or enforce
contracts for the sale of the Securities, or (iii) if trading in the Common
Stock of the Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities or (iv) if the rating
assigned by any nationally recognized securities rating agency to any debt
securities or preferred stock of the Company as of the time any applicable Terms
Agreement was entered into shall have been lowered since that time or if any
such rating agency shall have publicly announced that it has under surveillance
or review its rating of any of the debt securities or preferred stock of the
Company. In the event of any such termination, (x) the covenants set forth in
Section 3 with respect to any offering of Securities shall remain in effect so
long as any Underwriter owns any such Securities purchased from the Company
pursuant to the applicable Terms Agreement and (y) the covenant set forth in
Section 3(c), the provisions of Section 5, the indemnity agreement set forth in
Section 6, the contribution provisions set forth in Section 7, and the
provisions of Sections 8 and 13 shall remain in effect.
Section 10. Default. If one or more of the Underwriters participating in an
offering of Securities shall fail at the applicable Closing Time to purchase the
Securities which it or they are obligated to purchase hereunder and under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
nondefaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, during such 24 hours you shall
not have completed such arrangements for the purchase of all of the Defaulted
Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriter or any of the Issuers.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either you or the Issuers shall have the right to postpone the
applicable Closing Time for a period not exceeding seven days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
Section 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at World Financial Center, North Tower,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, attention of Xxxxx Xxxxxx; notices
to the Company shall be directed and confirmed to it at Xxx Xxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, attention of Xxxxxxx X. Xxxxxxx, XX, Senior Vice
President and General Counsel.
-13-
Section 12. Parties. This Agreement shall inure to the benefit of and be
binding upon you and each Issuer, and any Terms Agreement shall inure to the
benefit of and be binding upon each Issuer and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof or thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 13. Governing Law. This Agreement and each Terms Agreement shall be
governed by the laws of the State of New York.
-14-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and us
in accordance with its terms.
Very truly yours,
MeadWestvaco Corporation
By /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President &
Chief Financial Officer
THE XXXX CORPORATION,
as Guarantor
By /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President, Finance &
Treasurer
WESTVACO CORPORATION,
as Guarantor
By /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President &
Chief Financial Officer
-15-
Confirmed and Accepted, as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BNY CAPITAL MARKETS, INC.
BANK ONE CAPITAL MARKETS, INC.
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX BARNEY INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
BARCLAYS CAPITAL INC.
COMMERZBANK CAPITAL MARKETS CORP.
FLEET SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
DAIWA SECURITIES SMBC EUROPE LIMITED
SUNTRUST EQUITABLE SECURITIES CORPORATION
WACHOVIA SECURITIES, INC.
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx X. Xxxxx, Xx.
---------------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President Investment Banking
-16-
EXHIBIT 1
SCHEDULE I
THE XXXX CORPORATION
WESTVACO CORPORATION
Exhibit A
MEADWESTVACO CORPORATION
Debt Securities
TERMS AGREEMENT
Dated: March 26, 2002
To: MEADWESTVACO CORPORATION
Xxx Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Underwriting Agreement dated March 26, 2002.
Title of Security: 6.85% Notes due 2012.
Principal amount to be issued: $750,000,000
Guarantors: The Xxxx Corporation
Westvaco Corporation
Current ratings: Baa2 (Moody's); BBB (Standard & Poor's).
Interest rate:____6.85% Payable: April 1 and October 1, commencing October 1,
2002.
Date of maturity: April 1, 2012.
Public offering price: 99.338% plus accrued interest from April 2, 2002.
Purchase price: 98.688% plus accrued interest from April 2, 2002.
Closing date and location: April 2, 2002; Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Co-Managers: XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, BNY CAPITAL MARKETS, INC., BANK ONE CAPITAL MARKETS, INC., BANC OF
AMERICA SECURITIES LLC, XXXXXXX XXXXX BARNEY INC., X.X. XXXXXX SECURITIES INC.,
XXXXXXX, SACHS & CO., XXXXXX XXXXXXX & CO. INCORPORATED, BARCLAYS CAPITAL INC.,
COMMERZBANK CAPITAL MARKETS CORP., FLEET SECURITIES, INC., SCOTIA CAPITAL (USA)
INC., DAIWA SECURITIES SMBC EUROPE LIMITED, SUNTRUST EQUITABLE SECURITIES
CORPORATION, WACHOVIA SECURITIES, INC.
-A1-
Each Underwriter severally agrees, subject to the terms and provisions of
the above-referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the principal amount of Securities
set forth opposite its name.
Name Principal Amount
$
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 300,000,000
Incorporated
BNY Capital Markets, Inc. 60,000,000
Bank One Capital Markets, Inc. 60,000,000
Banc of America Securities LLC 60,000,000
Xxxxxxx Xxxxx Barney Inc. 60,000,000
X.X. Xxxxxx Securities Inc. 60,000,000
Xxxxxxx, Sachs & Co. 22,500,000
Xxxxxx Xxxxxxx & Co. Incorporated 22,500,000
Barclays Capital Inc. 15,000,000
Commerzbank Capital Markets Corp. 15,000,000
Fleet Securities, Inc. 15,000,000
Scotia Capital (USA), Inc. 15,000,000
Daiwa Securities SMBC Europe Limited 15,000,000
SunTrust Equitable Securities Corporation 15,000,000
Wachovia Securities, Inc. 15,000,000
Total.............................................. $750,000,000
Redemption provisions: Redeemable at any time, in whole or in part, at par plus
a make whole premium calculated on a T plus 25 basis points basis.
Sinking fund requirements: None.
Delayed Delivery Contracts:
Delivery Date:
Minimum Contract:
Maximum aggregate principal amount:
Fee:
-A2-
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BNY CAPITAL MARKETS, INC.
BANK ONE CAPITAL MARKETS
BANC OF AMERICA SECURITIES LLC
XXXXXXX XXXXX BARNEY INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
BARCLAYS CAPITAL INC.
COMMERZBANK CAPITAL MARKETS CORP.
FLEET SECURITIES, INC.
SCOTIA CAPITAL (USA), INC.
DAIWA SECURITIES SMBC EUROPE LIMITED
SUNTRUST EQUITABLE SECURITIES CORPORATION
WACHOVIA SECURITIES, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------------------
Name:
Title:
-A3-
Accepted:
MEADWestvaco Corporation
By_____________________________________________
Name:
Title:
THE XXXX CORPORATION, as Guarantor
By_____________________________________________
Name:
Title:
WESTVACO CORPORATION, as Guarantor
By______________________________________________
Name:
Title:
-A4-
Exhibit B
MEADWESTVACO CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
[Date]
MEADWESTVACO CORPORATION
x/x XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
World Financial Center
North Tower, 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from MeadWestvaco Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned on , (the "Delivery Date"), principal amount of the Company's
% debt securities due 20[ ] (the "Securities"), offered by the Company's
Prospectus dated , 20[ ], as supplemented by its Prospectus Supplement dated
, 20[ ], receipt of which is hereby acknowledged, at a purchase price of
% of the principal amount thereof, plus accrued interest from , 20[ ], to
the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by wire transfer of
immediately available funds in accordance with the Company's instructions on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned in definitive 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 Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before , 20[ ], shall have
sold to the Underwriters of the Securities (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Terms
Agreement dated , 20[ ], between the Company and the Underwriters. The
obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
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.
-B1-
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
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 the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of $ and
that the acceptance of any Delayed Delivery Contract 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 on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This agreement shall be governed by the laws of the State of New York.
Yours very truly,
---------------------------------------
(Name of Purchaser)
By
-------------------------------------
(Title)
---------------------------------------
---------------------------------------
(Address)
Accepted
as of the date first above written.
MEADWESTVACO CORPORATION
By
--------------------------------------
-B2-
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed is as follows:
(Please print.)
Telephone No.
Name (Including Area Code)
----- ---------------------
-B3-
