WESTVACO CORPORATION
(a Delaware Corporation)
Debt Securities
UNDERWRITING AGREEMENT
February 1, 2001
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
COMMERZBANK CAPITAL MARKETS CORPORATION
SUN TRUST 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:
Westvaco Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell up to $300,000,000 aggregate principal amount of its debt
securities (the "Securities") in one or more fixed price offerings on terms
determined at the time of sale. The Securities will be issued under an indenture
dated as of March 1, 1983 (the "Indenture") between the Company and The Bank of
New York (formerly known as Irving Trust Company), as Trustee. Each issue of
Securities may vary as to aggregate principal amount, maturity date, interest
rate or rates and timing of payments thereof, redemption provisions and sinking
fund requirements, if any, and any other variable terms which the Indenture
contemplates may be set forth in the Securities as issued from time to time.
Each underwritten offering of Securities will be made through you or
through an underwriting syndicate managed by you. Whenever the Company
determines to make such an offering of Securities, it 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 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 Company. 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 Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-54424) 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 Company 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 Company represents and
warrants 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 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.
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(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 or any of its subsidiaries 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 the Company 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 it may be bound, by any law, administrative regulation or
court decree.
(g) The Indenture has been duly authorized and executed by the Company
and, when delivered pursuant to the provisions of this Agreement, will
constitute the valid and legally binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws affecting enforcement of
creditors' rights.
(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,
the Securities will constitute valid and legally binding obligations of the
Company enforceable in accordance with their 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.
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(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 the
Company of its obligations hereunder, in connection with the offering,
issuance or sale by the Company of the Securities hereunder or the
consummation by the Company 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 certified or official bank check or checks in New York Clearing House
or similar next day funds payable to the order of the Company 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 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.
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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 Company covenants 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
Company will prepare a Prospectus Supplement setting forth the principal
amount of Securities covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters participating in
the offering and the principal amount of Securities 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 Company will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424 of the Regulations and will
use its 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 Company 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 Company, 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 Company 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.
(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 Company will give you notice of its 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
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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 Company 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 Company 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 Company will deliver to you as many signed and conformed
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
conformed copy of the Registration Statement and each amendment thereto for
each of the Underwriters.
(g) The Company 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 Company 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 it is not so qualified. In each jurisdiction
in which the Securities have been qualified as above provided, the Company
will file such statements and reports as may be required by the laws of
such jurisdiction.
(h) The Company, 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 agreement to sell, any debt securities of the Company with a maturity
of more than one year, including additional Securities.
(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
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(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
Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company 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 placed any debt securities or preferred stock of the
Company on what is commonly termed a "watch list" for possible downgrading
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) The Company has been incorporated in accordance with,
and is validly existing as a corporation in good standing under,
the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement.
(iii) The Company is qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the conduct of its business 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 the Company.
(v) The Indenture has been authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by
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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, will be valid and
binding obligations of the Company, enforceable in accordance
with their 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.
(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.
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(xiii) To the best of the knowledge and information of such
counsel, there are no legal or governmental proceedings pending
or threatened against the Company or any of its 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 Company and the
compliance by the Company with its 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 Company, (ii) the certificate of incorporation or
by-laws of the Company, or (iii) any of the terms, conditions or
provisions of any agreement or instrument actually known to such
counsel to which the Company or any of its 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 and transactions entered into by the Company or any of its
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 Company and its subsidiaries
considered as one enterprise; (iii) since the date of the applicable Terms
Agreement neither the Company nor any of its 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 Company and its 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 the Company threatened against or
affecting the Company or any of its subsidiaries, and no proceedings shall
be pending or to the knowledge of the Company threatened 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 finding would materially adversely affect the business,
operations, financial condition or income of the Company and its
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 the
Chairman, President and Chief Executive Officer, an Executive Vice
President, or a Senior Vice President 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 PricewaterhouseCoopers LLP 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).
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(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 the Company 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 Company 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
Company 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.
Section 6. Indemnification. (a) The Company agrees 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
omis-
10
sion or such alleged untrue statement or omission was made in reliance upon
and in conformity with written information furnished to the Company 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; 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 the
Company, each of its officers who signed the Registration Statement, and each of
its directors and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act to the same extent as the foregoing
indemnity from the Company, 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 Company 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 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 Company 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 Company 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
11
the Company 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 Company 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
Company 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 Company 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 Company, each officer
of the Company 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 Company. 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 the Company 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 the Company, 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 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 placed any debt securities or preferred stock of
the Company on what is commonly termed a "watch list" for possible downgrading.
In the event of any such termination, (x) the covenants set forth in Section 3
with respect to any offering of Securities
12
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 the Company.
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 Company 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.
Section 12. Parties. This Agreement shall inure to the benefit of and be
binding upon you and the Company, and any Terms Agreement shall inure to the
benefit of and be binding upon the Company 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
13
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,
Westvaco Corporation
By
---------------------------------
Senior Vice President
15
Confirmed and Accepted,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
COMMERZBANK CAPITAL MARKETS CORPORATION
SUN TRUST EQUITABLE SECURITIES CORPORATION
WACHOVIA SECURITIES, INC.
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _______________________________________
Name:
Title:
16
Exhibit A
WESTVACO CORPORATION
Debt Securities
TERMS AGREEMENT
Dated: February 1, 2001
To: WESTVACO CORPORATION
Xxx Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Underwriting Agreement dated February 1, 2001.
Title of Security: 7.95% Debentures due 2031.
Principal amount to be issued: $300,000,000
Current ratings: Baa1 (Xxxxx'x); BBB+ (Standard & Poor's).
Interest rate: ____7.95% Payable: February 15 and August 15, commencing
August 15, 2001.
Date of maturity: February 15, 2031.
Public offering price: 99.735% plus accrued interest from February 6, 2001.
Purchase price: 98.860 % plus accrued interest from February 6, 2001.
Closing date and location: February 6, 2001; Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Co-Managers: Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxxx, Sachs & Co., BNY Capital Markets, Inc., Banc of America
Securities LLC, Chase Securities Inc., X.X. Xxxxxx Securities Inc., Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx Barney Inc., Commerzbank Capital
Markets Corporation, Sun Trust 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
Incorporated............................ $120,000,000
Xxxxxxx, Sachs & Co................................... 90,000,000
Banc of America Securities LLC........................ 12,000,000
BNY Capital Markets, Inc.............................. 12,000,000
Chase Securities Inc.................................. 12,000,000
Xxxxxx Xxxxxxx & Co. Incorporated..................... 12,000,000
Xxxxxxx Xxxxx Barney Inc.............................. 12,000,000
Commerzbank Capital Markets Corporation............... 10,000,000
Sun Trust Equitable Securities Corporation............ 10,000,000
Wachovia Securities, Inc.............................. 10,000,000
Total................................................. $300,000,000
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
XXXXXXX, SACHS & CO.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX BARNEY INC.
COMMERZBANK CAPITAL MARKETS CORPORATION
SUN TRUST EQUITABLE SECURITIES CORPORATION
WACHOVIA SECURITIES, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------------
Name:
Title:
Accepted:
Westvaco Corporation
By__________________________________________
Senior Vice President
-A3-
Exhibit B
WESTVACO CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
[Date]
WESTVACO 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 Westvaco 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 2031 (the "Securities"), offered by the Company's Prospectus
dated , 2001, as supplemented by its Prospectus Supplement dated , 2001, receipt
of which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus accrued interest from , 2001, 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 certified or
official bank check in New York Clearing House funds, at the office of Xxxxxxx
Xxxxx & Co., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 , 2001, 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
, 2001, 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.
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
-B1-
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.
WESTVACO 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-
