6
Exhibit 1
WESTVACO CORPORATION
(a Delaware Corporation)
Debt Securities
UNDERWRITING AGREEMENT
January 12, 2000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx, Xxxxx & Co.
Banc of America Securities LLC
BNY Capital Markets, Inc.
Chase Securities Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney 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 $400,000,000
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. 333-91635) 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.
(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.
(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.
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 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
(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 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.
(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 will not conflict with or result in a
breach of 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; and (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. 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).
(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 omission 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 the
Company on the one hand and by such Underwriters on the other
hand, provided that 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; provided,
however, that 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 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 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 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 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.
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
Confirmed and Accepted,
as of the date first above written:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx, Xxxxx & Co.
Banc of America Securities LLC
BNY Capital Markets, Inc.
Chase Securities Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
Name:
Title:
Exhibit A
WESTVACO CORPORATION
Debt Securities
TERMS AGREEMENT
Dated: January 13, 2000
To: WESTVACO CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Underwriting Agreement dated January 13, 2000.
Title of Security: % Debentures due 2030.
Principal amount to be issued: $400,000,000
Current ratings: A3 (Moody's); A- (Standard & Poor's).
Interest rate: % Payable: January and July , commencing
July , 2000.
Date of maturity: January , 2030.
Public offering price: % plus accrued interest from
January 19, 2000.
Purchase price: % plus accrued interest from January 19,
2000 (payable in next day funds).
Closing date and location: January 18, 2000; Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Co-Managers: Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Bear, Xxxxxxx & Co. Inc., Xxxxxxx,
Xxxxx & Co., Banc of America Securities LLC, BNY Capital
Markets, Inc., Chase Securities Inc., X.X. Xxxxxx Securities
Inc. and Xxxxxxx Xxxxx Barney Inc.
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 Xxxxx & Co. $
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Bear, Xxxxxxx & Co. Inc..
Xxxxxxx, Xxxxx & Co.
Banc of America Securities LLC,
BNY Capital Markets, Inc.
Chase Securities Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
Total $
Redemption provisions: None
Sinking fund requirements: None.
Delayed Delivery Contracts:
Delivery Date:
Minimum Contract:
Maximum aggregate principal amount:
Fee:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx
Incorporated
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx, Sachs & Co.
Banc of America Securities LLC
BNY Capital Markets, Inc.
Chase Securities Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
By: Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx
Incorporated
By:
Name:
Title:
Accepted:
Westvaco Corporation
By
Senior Vice President
Exhibit B
WESTVACO CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
[Date]
Westvaco Corporation
c/oMerrill Xxxxx & Co.
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 (the "Securities"),
offered by the Company's Prospectus dated , 2000, as
supplemented by its Prospectus Supplement dated ,
2000, receipt of which is hereby acknowledged, at a purchase
price of % of the principal amount thereof, plus accrued
interest from , 2000, 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 , 2000, 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 , 2000, 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 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
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)
