As filed with the Securities and Exchange Commission on May 26, 1994
Registration No. 33-63412
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
UNION CARBIDE CORPORATION
(Exact name of registrant as specified in its charter)
New York 13-1421730
(State of incorporation) (I.R.S. Employer Ide.tification No.)
39 Old Ridgebury Road Joseph E. Geoghan
Danbury, Connecticut 06817-0001 Vice President, General Counsel and
Secretary
(203) 794-2000 (Same address and telephone number
(Address and telephone number as registrant)
of registrant's principal (Name, address and telephone number
executive offices) of agent for service)
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of the Registration
Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /x/
The prospectus included in this Registration Statement relates to
$400,000,000 of Debt Securities, including $100,000,000 of Debt Securities
covered by Registration Statement No. 33-55560, pursuant to Rule 429.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
SUBJECT TO COMPLETION, DATED MAY __, 1994
PROSPECTUS
UNION CARBIDE CORPORATION
DEBT SECURITIES
Union Carbide Corporation ("Company") may offer from time to time up
to an aggregate initial offering price not to exceed $400,000,000 (or the
equivalent in foreign denominated currency or units based on or relating to
currencies) of its senior unsecured debt securities ("Debt Securities" or
"Securities") in one or more series in amounts, at prices and upon terms to be
determined in light of market conditions at the time of sale. The Securities
may be sold directly by the Company, through agents designated from time to
time, or to or through underwriters or dealers (see "Plan of Distribution").
The specific aggregate principal amount, maturity, rate and time of
payment of interest, any redemption provisions, initial public offering price,
proceeds to the Company, and any other specific terms in connection with the
offering and sale of a series of Securities, including the names of the
underwriters or agents, if any, and the terms of such offering, are set forth
in the Prospectus Supplement accompanying this Prospectus.
The Securities may be issued in registered form without coupons, in
bearer form with coupons, in uncertificated form or in any combination
thereof. Subject to certain exceptions, securities in bearer form may not be
offered, sold or delivered in the United States or to United States persons.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1994
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus, including any prospectus supplement in
connection with the offer contained in this Prospectus, and, if given or made,
such information or representation must not be relied upon as having been
authorized by the Company or any underwriter, dealer or agent. This
Prospectus does not constitute an offer to sell or a solicitation of an offer
to buy any of the Securities offered hereby in any jurisdiction to any person
to whom it is unlawful to make such offer or solicitation in such
jurisdiction. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information herein is correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 ("Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and
Exchange Commission ("Commission"). Reports, proxy statements, and other
information filed by the Company may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices at 7 World
Trade Center, 13th Floor, New York, New York 10048 and at the Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of
such information may be obtained by mail from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, reports, proxy statements, and other
information concerning the Company may be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005, the Chicago
Stock Exchange, 440 South LaSalle Street, Chicago, Illinois 60605, and the
Pacific Stock Exchange, 301 Pine Street, San Francisco, California 94104.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company
(File No. 1-10297) are incorporated herein by reference: (1) Annual Report on
Form 10-K for the year ended December 31, 1993; (2) Quarterly Report on Form
10-Q for the quarter ended March 31, 1994; and (3) all other documents filed
by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of this Prospectus and prior to the termination of
the offering of the Securities. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
The Company will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon the request of such person, a copy
of any or all of the documents which are incorporated by reference herein,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Written or telephone requests
should be directed to Union Carbide Corporation, Investor Relations
Department, 39 Old Ridgebury Road, Danbury, Connecticut 06817-0001, telephone
(203) 794-6445.
THE COMPANY
Union Carbide Corporation ("Company") is engaged in the chemicals
and plastics business. On May 1, 1994, the parent of the Company was merged
into the Company. The parent (formerly "Union Carbide Corporation") thereupon
ceased to exist, and the Company (formerly "Union Carbide Chemicals and
Plastics Company Inc.") took the name "Union Carbide Corporation."
Accordingly, the Company is the successor to its former parent. For purposes
of this Registration Statement the term "Company" shall mean, for all purposes
prior to May 1, 1994, the former parent and the Company.
The Company uses state of the art process technologies to convert
manufactured and purchased ethylene and propylene into the higher value
chemicals and polymers it markets. In addition, the Company has specialty
businesses outside the ethylene chain of chemicals, including technology
licensing services.
The Company was incorporated in 1917 under the laws of the State of
New York. The principal executive offices of the Company are located at 39
Old Ridgebury Road, Danbury, Connecticut 06817-0001, telephone (203) 794-2000.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the Securities
for the retirement of outstanding debt or general corporate purposes.
Information concerning the interest rates and maturities of the Company's
outstanding debt is set forth in the notes to the financial statements of the
Company incorporated by reference herein.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges of the Company for the periods indicated:
Three Months
Ended
March 31, Year Ended December 31,
1994 1993 1992 1991 1990 1989
Ratio of Earnings
to Fixed Charges 3.8 2.9 1.7 (b) 2.1 3.1
(a). . . . . . . .
(a) For the purpose of computing the ratio of earnings to fixed charges,
earnings consist of income of consolidated companies from continuing
operations before provision for income taxes, before fixed charges, plus
dividends from less than 50%-owned companies carried at equity and the
registrant's share of pre-tax income of 50%-owned companies carried at equity,
less net capitalized interest and preferred stock dividend requirements of
consolidated subsidiaries. Fixed charges comprise interest on long-term and
short-term debt, capitalized interest, the portion of rentals representative
of an interest factor, preferred stock dividend requirements of consolidated
subsidiaries, interest on debt of a wholly-owned finance subsidiary carried at
equity and the registrant's share of fixed charges of 50%-owned companies
carried at equity. The industrial gas business has been treated as a
discontinued operation in calculating the ratio of earnings to fixed charges
of the Company for all periods. Accordingly, the components of the ratio do
not reflect amounts attributable to the industrial gas business.
(b) In 1991, the Company's operating results included a special charge of $209
million ($160 million after-tax). As a result, earnings were insufficient to
cover historical fixed charges by $169 million. Excluding the effect of the
special charge, earnings would have been sufficient to cover fixed charges by
$40 million.
DESCRIPTION OF SECURITIES
The Securities will be issued in one or more series under an
indenture or indentures ("Indenture") between the Company and one or more
trustees ("Trustee"). The following summaries of certain provisions of the
Indenture do not purport to be complete and are qualified in their entirety by
express reference to the Indenture which is incorporated herein by reference.
General
The Indenture does not limit the amount of Securities that can be
issued thereunder and provides that the Securities may be issued in series up
to the aggregate principal amount which may be authorized from time to time by
the Company. The Securities will be unsecured and will rank on a parity with
all other unsecured and unsubordinated debt of the Company.
Reference is made to the Prospectus Supplement for the following
terms, if applicable, of the Securities offered thereby: (1) the designation,
aggregate principal amount, currency or composite currency and denominations;
(2) the price at which such Securities will be issued and, if an index formula
or other method is used, the method for determining amounts of principal or
interest; (3) the maturity date and other dates, if any, on which principal
will be payable; (4) the interest rate (which may be fixed or variable), if
any; (5) the date or dates from which interest will accrue and on which
interest will be payable, and the record dates for the payment of interest;
(6) the manner of paying principal or interest; (7) the place or places where
principal and interest will be payable; (8) the terms of any mandatory or
optional redemption by the Company; (9) the terms of any redemption at the
option of holders; (10) whether such Securities are to be issuable as
registered Securities, bearer Securities, or both, and whether and upon what
terms upon which any registered Securities may be exchanged for bearer
Securities and vice versa; (11) whether such Securities are to be represented
in whole or in part by a Security in global form and, if so, the identity of
the depositary ("Depositary") for any global Security; (12) any tax indemnity
provisions; (13) if the Securities provide that payments of principal or
interest may be made in a currency other than that in which Securities are
denominated, the manner for determining such payments; (14) the portion of
principal payable upon acceleration of a Discounted Security (as defined
below); (15) whether and upon what terms Securities may be defeased; (16) any
events of default or restrictive covenants in addition to or in lieu of those
set forth in the Indenture; (17) provisions for electronic issuance of
Securities or for Securities in uncertificated form; and (18) any additional
provisions or other special terms not inconsistent with the provisions of the
Indenture, including any terms that may be required or advisable under United
States or other applicable laws or regulations, or advisable in connection
with the marketing of the Securities.
Securities of any series may be issued as registered Securities,
bearer Securities or uncertificated Securities, as specified in the terms of
the series. Unless otherwise indicated in the Prospectus Supplement,
registered Securities will be issued in denominations of $1,000 and whole
multiples thereof and bearer Securities will be issued in denominations of
$5,000 and whole multiples thereof. The Securities of a series may be issued
in whole or in part in the form of one or more global Securities that will be
deposited with, or on behalf of, a Depositary identified in the Prospectus
Supplement relating to the series. Unless otherwise indicated in the
Prospectus Supplement relating to a series, the terms of the depositary
arrangement with respect to any Securities of a series specified in the
Prospectus Supplement as being represented by global Securities will be as set
forth below under "Global Securities."
In connection with its original issuance, no bearer Security will be
offered, sold, resold, or mailed or otherwise delivered to any location in the
United States and a bearer Security in definitive form may be delivered in
connection with its original issuance only if the person entitled to receive
the bearer Security furnishes certification as described in United States
Treasury regulation section 1.163-5(c)(2)(i)(D)(3). If there is a change in
the relevant provisions or interpretation of United States laws, the foregoing
restrictions will not apply to a series if the Company determines that such
provisions no longer apply to the series or that failure to so comply would
not have an adverse tax effect on the Company or on holders or cause the
series to be treated as "registration-required" obligations under United
States law.
For purposes of this Prospectus, unless otherwise indicated, "United
States" means the United States of America (including the States and the
District of Columbia), its territories and possessions and all other areas
subject to its jurisdiction. "United States person" means a citizen or
resident of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States or a political
subdivision thereof or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source. Any special
United States federal income tax considerations applicable to bearer
Securities will be described in the Prospectus Supplement relating thereto.
To the extent set forth in the Prospectus Supplement, except in
special circumstances set forth in the Indenture, principal and interest on
bearer Securities will be payable only upon surrender of bearer Securities and
coupons at a paying agency of the Company located outside of the United
States. During any period thereafter for which it is necessary in order to
conform to United States tax law or regulations, the Company will maintain a
paying agent outside the United States to which the bearer Securities and
coupons may be presented for payment and will provide the necessary funds
therefor to the paying agent upon reasonable notice.
Registration of transfer of registered Securities may be requested
upon surrender thereof at any agency of the Company maintained for that
purpose and upon fulfillment of all other requirements of the agent. Bearer
Securities and the coupons related thereto will be transferable by delivery.
Securities may be issued under the Indenture as Discounted Securities
to be offered and sold at a substantial discount from the principal amount
thereof. Special United States federal income tax and other considerations
applicable thereto will be described in the Prospectus Supplement relating to
such Discounted Securities. "Discounted Security" means a Security where the
amount of principal due upon acceleration is less than the stated principal
amount.
Certain Covenants
The Securities will not be secured by any properties or assets and
will represent unsecured debt of the Company. Since secured debt ranks ahead
of unsecured debt, the limitation on liens and the limitation on
sale-leaseback transactions place some restrictions on the Company's ability
to incur additional secured debt or its equivalent when the asset securing the
debt is a material manufacturing facility in the United States. The
limitations are subject to a number of qualifications and exceptions described
below. There can be no assurance that a facility subject to the limitations
at any time will continue to be subject to those limitations at a later time.
Unless otherwise indicated in a Prospectus Supplement, the covenants
contained in the Indenture and the Securities do not afford holders of the
Securities protection in the event of a highly leveraged or other transaction
involving the Company that may adversely affect holders of the Securities.
Definitions.
"Attributable Debt" for a lease means, as of the date of
determination, the present value of net rent for the remaining term of the
lease. Rent shall be discounted to present value at a discount rate that is
compounded semi-annually. The discount rate shall be 10% per annum or, if
the Company elects, the discount rate shall be equal to the weighted average
Yield to Maturity of the Securities under the Indenture. Such average shall
be weighted by the principal amount of the Securities of each series or, in
the case of Discounted Securities, the amount of principal that would be due
as of the date of determination if payment of the Securities were accelerated
on that date.
Rent is the lesser of (a) rent for the remaining term of the lease
assuming it is not terminated or (b) rent from the date of determination until
the first possible termination date plus the termination payment then due, if
any. The remaining term of a lease includes any period for which the lease
has been extended. Rent does not include (1) amounts due for maintenance,
repairs, utilities, insurance, taxes, assessments and similar charges or (2)
contingent rent, such as that based on sales. Rent may be reduced by the
discounted present value of the rent that any sublessee must pay from the date
of determination for all or part of the same property. If the net rent on a
lease is not definitely determinable, the Company may estimate it in any
reasonable manner.
"Consolidated Net Tangible Assets" means total assets less (a) total
current liabilities (excluding Debt due within 12 months) and (b) goodwill, as
reflected in the Company's most recent consolidated balance sheet preceding
the date of a determination under clause (9) of the "Limitation on Liens"
covenant.
"Debt" means any debt for borrowed money or any guarantee of such a
debt.
"Lien" means any mortgage, pledge, security interest or lien.
"Long-Term Debt" means Debt that by its terms matures on a date more
than 12 months after the date it was created or Debt that the obligor may
extend or renew without the obligee's consent to a date more than 12 months
after the date the Debt was created.
"Principal Property" means any manufacturing facility located in the
United States (excluding territories and possessions), except any such
facility that in the opinion of the board of directors of the Company or any
authorized committee of the board is not of material importance to the total
business conducted by the Company and its consolidated Subsidiaries.
"Restricted Property" means any Principal Property or any shares of
stock of a Restricted Subsidiary, in each case now owned or hereafter acquired
by the Company or a Restricted Subsidiary. At March 31, 1994, "Restricted
Property" includes manufacturing facilities of the Company at Taft, LA;
Seadrift, TX; Texas City, TX; Institute, WV; and South Charleston, WV.
"Restricted Subsidiary" means a Wholly-Owned Subsidiary that has
substantially all of its assets located in the United States (excluding
territories or possessions) or Puerto Rico and owns a Principal Property.
"Sale-Leaseback Transaction" means an arrangement pursuant to which
the Company or a Restricted Subsidiary now owns or hereafter acquires a
Principal Property, transfers it to a person, and leases it back from the
person.
"Subsidiary" means a corporation a majority of whose Voting Stock is
owned by the Company or a Subsidiary.
"Voting Stock" means capital stock having voting power under
ordinary circumstances to elect directors.
"Wholly-Owned Subsidiary" means a corporation all of whose Voting
Stock is owned by the Company or a Wholly-Owned Subsidiary.
"Yield to Maturity" means the yield to maturity on a Security at the
time of its issuance or at the most recent determination of interest on the
Security.
Limitation on Liens. The Company will not, and will not permit any
Restricted Subsidiary to, incur a Lien on Restricted Property to secure a Debt
unless:
(1) the Lien equally and ratably secures the Securities and the
Debt. The Lien may equally and ratably secure the Securities
and any other obligation of the Company or a Subsidiary. The
Lien may not secure an obligation of the Company that is
subordinated to the Securities;
(2) the Lien secures Debt incurred to finance all or some of the
purchase price or the cost of construction or improvement of
property of the Company or a Restricted Subsidiary. The Lien
may not extend to any other Restricted Property owned by the
Company or a Restricted Subsidiary at the time the Lien is
incurred. However, in the case of any construction or
improvement, the Lien may extend to unimproved real property
used for the construction or improvement. The Debt secured by
the Lien may not be incurred more than one year after the later
of the (a) acquisition, (b) completion of construction or
improvement or (c) commencement of full operation, of the
property subject to the Lien;
(3) The Lien is on property of a corporation at the time the
corporation merges into or consolidates with the Company or a
Restricted Subsidiary;
(4) the Lien is on property at the time the Company or a Restricted
Subsidiary acquires the property;
(5) the Lien is on property of a corporation at the time the
corporation becomes a Restricted Subsidiary;
(6) the Lien secures Debt of a Restricted Subsidiary owing to the
Company or another Restricted Subsidiary;
(7) the Lien is in favor of a government or governmental entity and
secures (a) payments pursuant to a contract or statute or (b)
Debt incurred to finance all or some of the purchase price or
cost of construction or improvement of the property subject to
the Lien;
(8) the Lien extends, renews or replaces in whole or in part a Lien
("existing Lien") permitted by any of clauses (1) through (7).
The Lien may not extend beyond (a) the property subject to the
existing Lien and (b) improvements and construction on such
property. However, the Lien may extend to property that at the
time is not Restricted Property. The Debt secured by the Lien
may not exceed the Debt secured at the time by the existing
Lien unless the existing Lien or a predecessor Lien was
incurred under clause (1) or (6); or
(9) the Debt plus all other Debt secured by Liens on Restricted
Property at the time does not exceed 10% of Consolidated Net
Tangible Assets. However, the following Debt shall be excluded
from all other Debt in the determination: (a) Debt secured by a
Lien permitted by any of clauses (1) through (8) and (b) Debt
secured by a Lien incurred prior to the date of the Indenture
that would have been permitted by any of those clauses if the
Indenture had been in effect at the time the Lien was incurred.
Attributable Debt for any lease permitted by clause (4) of the
"Limitation on Sale and Leaseback" covenant must be included in
the determination and treated as Debt secured by a Lien on
Restricted Property not otherwise permitted by any of clauses
(1) through (8).
In general, clause (9) above, sometimes called a "basket" clause,
permits Liens to be incurred that are not permitted by any of the exceptions
enumerated in clauses (1) through (8) above if the Debt secured by all such
additional Liens does not exceed 10% of Consolidated Net Tangible Assets at
the time. At March 31, 1994, Consolidated Net Tangible Assets were
$3,731,000,000. At that date, additional Liens securing Debt equal to 10% of
that amount could have been incurred under clause (9).
Limitation on Sale and Leaseback. The Company will not, and will
not permit any Restricted Subsidiary to, enter into a Sale-Leaseback
Transaction unless:
(1) the lease has a term of three years or less;
(2) the lease is between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries;
(3) the Company or a Restricted Subsidiary under clauses (2)
through (8) of the "Limitation on Liens" covenant could create
a Lien on the property to secure Debt at least equal in amount
to the Attributable Debt for the lease;
(4) the Company or a Restricted Subsidiary under clause (9) of the
"Limitation on Liens" covenant could create a Lien on the
property to secure Debt at least equal in amount to the
Attributable Debt for the lease; or
(5) the Company or a Restricted Subsidiary within 180 days of the
effective date of the lease retires Long-Term Debt of the
Company or a Restricted Subsidiary at least equal in amount to
the Attributable Debt for the lease. A Debt is retired when it
is paid, cancelled or defeased. However, the Company or a
Restricted Subsidiary may not receive credit for retirement of:
Debt that is retired at maturity or through mandatory
redemption; Debt of the Company that is subordinated to the
Securities; or Debt, if paid in cash, that is owned by the
Company or a Restricted Subsidiary.
In clauses (3) and (4) above, Sale-Leaseback Transactions and Liens
are treated as equivalents. Thus, if the Company or a Restricted Subsidiary
could create a Lien on a property, it may enter into a Sale-Leaseback
Transaction to the same extent.
Successor Obligor
The Company will not consolidate with or merge into, or transfer all
or substantially all of its assets to, any person, unless (1) the person is
organized under the laws of the United States or a State thereof; (2) the
person assumes by supplemental indenture all the obligations of the Company
under the Indenture, the Securities and any coupons; (3) immediately after the
transaction no Default (as defined) exists; and (4) if, as a result of the
transaction, a Restricted Property would become subject to a Lien not
permitted by the "Limitation on Liens" covenant, the Company or such person
secures the Securities equally and ratably with or prior to all obligations
secured by the Lien.
The successor will be substituted for the Company, and thereafter
all obligations of the Company under the Indenture, the Securities and any
coupons shall terminate.
Exchange of Securities
Registered Securities may be exchanged for an equal aggregate
principal amount of registered Securities of the same series and date of
maturity in such authorized denominations as may be requested upon surrender
of the registered Securities at an agency of the Company maintained for such
purpose and upon fulfillment of all other requirements of the agent.
To the extent permitted by the terms of a series of Securities
authorized to be issued in registered form and bearer form, bearer Securities
may be exchanged for an equal aggregate principal amount of registered or
bearer Securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the bearer Securities with
all unpaid coupons relating thereto (except as may otherwise be provided in
the Securities) at an agency of the Company maintained for such purpose and
upon fulfillment of all other requirements of the agent. As of the date of
this Prospectus, it is expected that the terms of a series of Securities will
not permit registered Securities to be exchanged for bearer Securities.
Defaults and Remedies
An "Event of Default" with respect to a series of Securities will
occur if:
(1) the Company defaults in any payment of interest on any
Securities of the series when the same becomes due and payable
and the Default continues for a period of 10 days;
(2) the Company defaults in the payment of the principal of any
Securities of the series when the same becomes due and payable
at maturity or upon redemption, acceleration or otherwise;
(3) the Company defaults in the performance of any of its other
agreements applicable to the series and the Default continues
for 90 days after the notice specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian for it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect
for 60 days; or
(6) any other Event of Default provided for in the series occurs.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or a similar official under any
Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the
Trustee or the holders of at least 25% in principal amount of the series
notify the Company of the Default and the Company does not cure the Default
within the time specified after receipt of the notice. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Securities of the series. Subject to certain limitations, holders of a
majority in principal amount of the Securities of the series may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Securityholders of the series notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding
notice is in their interest.
The Indenture does not have a cross-default provision. Thus, a
default by the Company or a Subsidiary on any other debt would not constitute
an Event of Default.
Amendments and Waivers
Unless the bond resolution establishing the terms of a series
otherwise provides, the Indenture and the Securities or any coupons of the
series may be amended, and any default may be waived as follows: The
Securities and the Indenture may be amended with the consent of the holders of
a majority in principal amount of the Securities of all series affected voting
as one class. As discussed above under "General," the Company has the right
to issue an unlimited amount of Securities under the Indenture. A default on
a series may be waived with the consent of the holders of a majority in
principal amount of the Securities of the series. However, without the
consent of each Securityholder affected, no amendment or waiver may (1) reduce
the amount of Securities whose holders must consent to an amendment or waiver,
(2) reduce the interest on or change the time for payment of interest on any
Security, (3) change the fixed maturity of any Security, (4) reduce the
principal of any non-Discounted Security or reduce the amount of principal of
any Discounted Security that would be due on acceleration thereof, (5) change
the currency in which principal or interest on a Security is payable or (6)
waive any default in payment of interest on or principal of a Security.
Without the consent of any Securityholder, the Indenture, the Securities or
any coupons may be amended to cure any ambiguity, omission, defect or
inconsistency; to provide for assumption of Company obligations to
Securityholders in the event of a merger or consolidation requiring such
assumption; to provide that specific provisions of the Indenture not apply to
a series of Securities not previously issued; to create a series and establish
its terms; to provide for a separate Trustee for one or more series; or to
make any change that does not materially adversely affect the rights of any
Securityholder.
Legal Defeasance and Covenant Defeasance
Securities of a series may be defeased in accordance with their
terms and, unless the bond resolution establishing the terms of the series
otherwise provides, as set forth below. The Company at any time may terminate
as to a series all of its obligations (except for certain obligations with
respect to the defeasance trust and obligations to register the transfer or
exchange of a Security, to replace destroyed, lost or stolen Securities and
coupons and to maintain agencies in respect of the Securities) with respect to
the Securities of the series and any related coupons and the Indenture ("legal
defeasance"). The Company at any time may terminate as to a series its
obligations with respect to the Securities and coupons of the series under the
covenants described under "Certain Covenants" ("covenant defeasance").
The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option. If the Company
exercises its legal defeasance option, a series may not be accelerated because
of an Event of Default. If the Company exercises its covenant defeasance
option, a series may not be accelerated by reference to the covenants
described under "Certain Covenants."
To exercise either option as to a series, the Company must deposit
in trust (the "defeasance trust") with the Trustee money or U.S. Government
Obligations for the payment of principal, premium, if any, and interest on the
Securities of the series to redemption or maturity and must comply with
certain other conditions. In particular, the Company must obtain an opinion
of tax counsel that the defeasance will not result in recognition of any gain
or loss to holders for Federal income tax purposes. "U.S. Government
Obligations" are direct obligations of the United States of America which have
the full faith and credit of the United States of America pledged for payment
and which are not callable at the issuer's option, or certificates
representing an ownership interest in such obligations.
Global Securities
Global Securities may be issued in registered, bearer or
uncertificated form and in either temporary or permanent form. If Securities
of a series are to be issued as global Securities, one or more global
Securities will be issued in a denomination or aggregate denominations equal
to the aggregate principal amount of outstanding Securities of the series to
be represented by such global Security or Securities.
Ownership of beneficial interests in global Securities will be
limited to persons that have accounts with the Depositary ("participants") or
persons that may hold interests through participants. Ownership interests in
global Securities will be shown on, and the transfer of that ownership
interest will be effected only through, records maintained by the Depositary
or its nominee for such global Securities (with respect to a participant's
interest) and records maintained by participants (with respect to interests of
persons other than participants).
Unless otherwise indicated in a Prospectus Supplement, payment of
principal of and any premium and interest on the book-entry Securities
represented by a global Security will be made to the Depositary or its
nominee, as the case may be, as the sole registered owner and the sole holder
of the book-entry Securities represented thereby for all purposes under the
Indenture. Neither the Company or the Trustee, nor any agent of the Company
or the Trustee, will have any responsibility or liability for any acts or
omissions of the Depositary, for any records of the Depositary relating to
beneficial ownership interests in any global Security or for any transactions
between the Depositary and beneficial owners.
Upon receipt of any payment of principal of or any premium or
interest on a global Security, the Depositary will immediately credit, on its
book-entry registration and transfer system, the accounts of participants with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such global Security as shown on the records of the
Depositary. Payments by participants to owners of beneficial interests in
global Securities held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for customer accounts registered in "street name," and will be the sole
responsibility of such participants.
Unless otherwise stated in a Prospectus Supplement, global
Securities will not be transferred except as a whole by the Depositary to a
nominee of the Depositary. Global Securities will be exchangeable only if (i)
the Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for such global Securities or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), (ii) the Company in its sole discretion
determines that such global Securities shall be exchangeable for definitive
Securities in registered form, or (iii) an Event of Default with respect to
the series of Securities represented by such global Securities has occurred
and is continuing. Any global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Registered Securities issuable in
denominations of $1,000 and integral multiples thereof and registered in such
names as the Depositary holding such global Security shall direct. Subject to
the foregoing, the global Security is not exchangeable, except for a global
Security of like denomination to be registered in the name of the Depositary
or its nominee.
So long as the Depositary for global Securities of a series, or its
nominee, is the registered owner of such global Securities, such Depositary or
such nominee, as the case may be, will be considered the sole holder of
Securities represented by such global Securities for the purposes of receiving
payment on such global Securities, receiving notices and for all other
purposes under the Indenture and such global Securities. Except as provided
above, owners of beneficial interests in global Securities of a series will
not be entitled to receive physical delivery of Securities of such series in
definitive form and will not be considered the holders thereof for any purpose
under the Indenture. Accordingly, each person owning a beneficial interest in
a global Security must rely on the procedures of the Depositary and, if such
person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the Indenture. The Depositary may grant proxies and otherwise authorize
participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a holder is entitled to give or
take under the Indenture. The Company understands that under existing
industry practices, in the event that the Company requests any action of
holders or that an owner of a beneficial interest in such a global Security
desires to give or take any action which a holder is entitled to give or take
under the Indenture, the Depositary would authorize the participants holding
the relevant beneficial interests to give or take such action, and such
participants would authorize beneficial owners owning through such
participants to give or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Unless otherwise specified in a Prospectus Supplement relating to
Securities of a series to be issued as global Securities, the Depositary will
be The Depository Trust Company ("DTC"). DTC has advised the Company that it
is a limited-purpose trust company organized under the law of the State of New
York, a member of the Federal Reserve System, a "clearing corporation" within
the meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered under the Exchange Act. DTC was created to hold the securities of
its participants and to facilitate the clearance and settlement of securities
transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the
need for physical movement of securities certificates. DTC's participants
include securities brokers and dealers (which may include the underwriters,
dealers or agents with respect to the Securities), banks, trust companies,
clearing corporations, and certain other organizations, some of whom (and/or
their representatives) own DTC. Access to DTC's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant either
directly or indirectly.
Trustee
The Trustee for a series of Securities will be named in the
Prospectus Supplement for the series.
The Company may remove the Trustee if certain events occur. The
Company also may remove the Trustee with or without cause if the Company so
notifies the Trustee six months in advance and if no Default occurs during the
six-month period.
PLAN OF DISTRIBUTION
The Company may sell Securities in any of the following ways: (1)
through underwriters or dealers; (2) directly to one or more purchasers; or
(3) through agents. The Prospectus Supplement with respect to the Securities
being offered thereby will set forth the terms of the offering of such
Securities, including the name or names of any underwriters or agents, the
purchase price of such Securities and the proceeds to the Company from such
sale, any underwriting discounts, commissions and other items constituting
underwriters' compensation, any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which such Securities may be listed. Any underwriter
or agent may be deemed to be an underwriter as that term is defined in the
Securities Act of 1933 (the "Act").
If underwriters are used in the sale of Securities, such Securities
will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Securities may be offered to the public either
through underwriting syndicates (which may be represented by managing
underwriters designated by the Company), or directly by one or more
underwriters acting alone. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the Securities
offered thereby will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all such Securities if any are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. The Prospectus Supplement with
respect to any Securities sold in this manner will set forth the name of any
agent involved in the offer or sale of the Securities as well as any
commissions payable by the Company to such agent. Unless otherwise indicated
in the Prospectus Supplement, any such agent is acting on a best efforts basis
for the period of its appointment.
If dealers are utilized in the sale of any Securities, the Company
will sell the Securities to the dealers, as principal. Any dealer may then
resell the Securities to the public at varying prices to be determined by the
dealer at the time of resale. The name of any dealer and the terms of the
transaction will be set forth in the Prospectus Supplement with respect to the
Securities being offered thereby.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement and the Prospectus Supplement will set forth the
commission payable for the solicitation of such contracts.
It has not been determined whether any Securities will be listed on
a securities exchange. Underwriters will not be obligated to make a market in
any Securities. The Company cannot predict the activity of trading in, or
liquidity of, any Securities.
Agents, underwriters and dealers may be entitled, under agreements
entered into with the Company, to indemnification by the Company against
certain civil liabilities, including liabilities under the Act or to
contribution with respect to payments which the agents, underwriters or
dealers may be required to make in respect thereof. Agents, underwriters and
dealers may be customers of, engage in transactions with, or perform services
for the Company in the ordinary course of business.
LEGAL OPINIONS
Certain legal matters in connection with the Securities will be
passed upon for the Company by Joseph E. Geoghan, a director and Vice-
President, General Counsel and Secretary of the Company or by Phyllis Savage,
Chief Finance and Securities Counsel of the Company, or by other counsel to be
named in a Prospectus Supplement, and for the agents, underwriters and dealers
by counsel to be named in a Prospectus Supplement. At April 30, 1994, Mr.
Geoghan owned 24,800 shares of the Company's common stock and 2,636 shares of
its ESOP Convertible Preferred Stock and Ms. Savage owned 443 shares of the
Company's common stock and 1,213 shares of its ESOP Convertible Preferred
Stock. At April 30, 1994, Mr. Geoghan held options to purchase 225,000 shares
of the Company's common stock and Ms. Savage held options to purchase 18,500
shares of the Company's common stock.
EXPERTS
The financial statements and related schedules included or
incorporated by reference in the Company's 1993 Annual Report on Form 10-K
have been examined by KPMG Peat Marwick, independent auditors and Price
Waterhouse, independent accountants, to the extent and for the periods
indicated in their reports included therein, and are incorporated by reference
in this Prospectus in reliance upon the authority of said firms as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC filing fee............................ $ 93,750
Accounting fees and expenses.............. 25,000
Legal fees and expenses................... 35,000
Trustee's fees and expenses............... 12,000
Blue sky fees and expenses................ 15,000
Printing expenses......................... 50,000
Miscellaneous............................. 29,250
Total..................................... $260,000
_______________
*Except for SEC filing fee, all expenses are estimated.
Item 15. Indemnification of Directors and Officers.
Sections 721 through 726 of the New York Business Corporation Law
provide for indemnification of directors and officers. If a director or
officer is successful on the merits or otherwise in a legal proceeding, he
must be indemnified to the extent he was successful. Further, indemnification
is permitted in both third-party and derivative suits if he acted in good
faith and for a purpose he reasonably believed was in the best interests of
the Company, and if, in the case of a criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
Indemnification under this provision applies to judgments, fines,
amounts paid in settlement and reasonable expenses, in the case of third party
actions, and amounts paid in settlement and reasonable expenses, in the case
of derivative actions. In a derivative action, however, a director or officer
may not be indemnified for amounts paid to settle such a suit or for any
claim, issue or matter as to which such person shall have been adjudged liable
to the Company absent a court determination that the person is fairly and
reasonably entitled to indemnity.
Notwithstanding the failure of the Company to provide
indemnification and despite any contrary resolution of the board or
shareholders, indemnification shall be awarded by the proper court pursuant to
Section 724 of the New York Business Corporation Law.
Under New York law, expenses may be advanced upon receipt of an
undertaking by or on behalf of the director or officer to repay the amounts in
the event the recipient is ultimately found not to be entitled to
indemnification. The advance is conditioned only upon receipt of the
undertaking and not upon a finding that the officer or director has met the
applicable indemnity standards.
Article V of the Company's By-Laws requires it to indemnify each of
its past, present and future directors, officers and employees to the fullest
extent permitted by law for any and all costs and expenses resulting from or
relating to any suit or claim arising out of his service to the Company or to
other organizations at the Company's request.
The Company has entered into indemnity agreements with each of its
directors and officers which require the Company, among other things, to
indemnify each director or officer for all costs and expenses of suits and
claims (to the fullest extent permitted by law), and to advance to each
director or officer the costs and expenses of defending any suit or claim if
such director or officer undertakes to pay back such advances to the extent
required by law. These provisions do not apply to any suit or claim
voluntarily commenced by the director or officer against the Company, unless
the institution of such proceeding was approved by a majority of the Board of
Directors or the director or officer is successful on the merits in such
proceeding.
Section 402 of the New York Business Corporation Law permits a New
York corporation to include in its certificate of incorporation provisions
eliminating the personal liability of directors to the corporation or its
shareholders for any breach of duty in such capacity unless a judgment or
final adjudication adverse to the director that his acts or omissions were in
bad faith or involved intentional misconduct or a knowing violation of law or
that he personally gained a financial profit or other advantage to which he
was not legally entitled or his acts violated Section 719 of the New York
Business Corporation Law. The certificate of incorporation of the Company
contains a provision eliminating the personal liability of its directors to
the Company or its shareholders except to the extent such liability may not be
eliminated by law.
The Company carries directors' and officers' insurance which covers
its directors and officers against certain liabilities they may incur when
acting in their capacity as directors or officers of the Company. In
addition, Section 6 of the Underwriting Agreement (Exhibit 1 hereto) provides
for the indemnification of the officers and directors of the Company against
certain liabilities.
Item 16. Exhibits.
1 Form of Standard Underwriting Agreement Provisions (including form
of Terms Agreement).
4.1.1 Form of Indenture to be used by the Company to issue Debt Securities
of the Company in series.
4.1.2 Indenture, dated as of August 1, 1992, between the Company and
Chemical Bank, Trustee. See Exhibit 4.1.1 of Registration No.
33-55560, which is incorporated by reference herein.
4.2 Forms of Debt Securities (see Exhibits A and B to Exhibit 4.1.1
above).
5 Opinion of Phyllis Savage, Chief Finance and Securities Counsel of
the Company.
12 Statement re Computation of Ratio of Earnings to Fixed Charges of
the Company - Five Years ended December 31, 1993 and Three Months
ended March 31, 1994.
23.1.1 Consent of KPMG Peat Marwick, independent auditors.
23.1.2 Consent of Price Waterhouse, independent accountants.
23.2 Consent of Counsel (included in Exhibit 5).
24 Powers of attorney (included on the signature pages hereof).
25.1 Statement of Eligibility under the Trust Indenture Act of 1939 (Form
T-1) of Chemical Bank, Trustee.
25.2 Statement of Eligibility under the Trust Indenture Act of 1939
(Amendment No. 1 to Form T-1) of Continental Bank, National
Association, Trustee.
Item 17. Undertakings.
The Company undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, unless the information
required to be included in such post-effective amendment
is contained in a periodic report filed by the Company
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and incorporated herein
by reference;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement, unless the information required
to be included in such post-effective amendment is
contained in a periodic report filed by the Company
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and incorporated herein
by reference; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of an annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described under Item 15
above, or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Union Carbide Corporation certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Post-Effective Amendment No. 1 to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Danbury, Connecticut, on May 26,1994.
UNION CARBIDE CORPORATION
By /s/ John K. Wulff
John K. Wulff
Vice-President and Controller
POWER OF ATTORNEY
Each person whose signature appears below appoints each of
Robert D. Kennedy, William H. Joyce, Joseph E. Geoghan, Gilbert E. Playford or
John K. Wulff his attorney-in-fact and agent, with full power of substitution
and resubstitution, to sign and file with the Securities and Exchange
Commission any amendments to the Registration Statement (including
post-effective amendments) and to file with the Securities and Exchange
Commission one or more supplements to any prospectus included in any of the
foregoing, and generally to do anything else necessary or proper in connection
therewith.
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 1 to the Registration Statement has been
signed by the following persons in the capacities and on the date indicated.
Signature Title Date
/s/ Robert D. Kennedy Director, Chairman May 26, 1994
of the Board and
Chief Executive Officer
/s/ William H. Joyce Director, President May 26, 1994
and Chief Operating
Officer
/s/ Joseph E. Geoghan Director, May 26, 1994
Vice-President,
General Counsel
and Secretary
/s/ Gilbert E. Playford Vice-President May 26, 1994
and Principal Financial
Officer
/s/ John K. Wulff Vice-President May 26, 1994
Controller and
Principal Accounting
Officer
Signature Title Date
/s/ John J. Creedon Director May 26, 1994
/s/ C. Fred Fetterolf Director May 26, 1994
/s/ Rainer E. Gut Director May 26, 1994
/s/ James M. Hester Director May 26, 1994
/s/ Ronald L. Kuehn, Jr. Director May 26, 1994
/s/ C. Peter McColough Director May 26, 1994
/s/ Rozanne L. Ridgway Director May 26, 1994
/s/ William S. Sneath Director May 26, 1994
INDEX TO EXHIBITS
Exhibit Sequential
Number Page Number
1 Form of Standard Underwriting Agreement
Provisions (including Form of Terms Agreement)
4.1.1 Form of Indenture to be used by the
Company to issue Debt Securities
of the Company in series.
5 Opinion of Phyllis Savage, Chief
Finance and Securities Counsel of the Company
12 Statement re Computation of Ratio of
Earnings to Fixed Charges of the Company -
Five Years ended December 31, 1993 and
Three Months ended March 31, 1994.
23.1.1 Consent of KPMG Peat Marwick
independent auditors.
23.1.2 Consent of Price Waterhouse, independent
accountants.
25.1 Statement of Eligibility under the Trust
Indenture Act of 1939 (Form T-1) of Chemical
Bank, Trustee.
25.2 Statement of Eligibility under the Trust
Indenture Act of 1939 (Form T-1) of Continental
Bank, National Association, Trustee.
EXHIBIT 1
May 1994
UNION CARBIDE CORPORATION
DEBT SECURITIES
STANDARD UNDERWRITING AGREEMENT PROVISIONS
1. Introductory. Union Carbide Corporation, a New York corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). The Registered Securities will be
issued under an indenture, dated as of [date] (such indenture as amended or
supplemented is herein referred to as the "Indenture"), between the Company
and [Name of Bank], as Trustee (the "Trustee"), in one or more series, which
series may vary as to interest rates, maturities, redemption provisions,
selling prices and other terms, with all such terms for any particular series
of the Registered Securities being determined at the time of sale. Particular
series of the Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms of offering
determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities." The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives," as used in this Agreement (other
than in clause 2 of the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on
such Form (the file number of which is set forth in the Terms
Agreement), which has become effective, for the registration under the
Act of the Registered Securities. Such registration statement, as
amended at the date of any Terms Agreement, meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies in all other
material respects with said Rule. Such registration statement, including
the exhibits thereto, as amended at the date of any Terms Agreement, is
hereinafter called the "Registration Statement" and the prospectus
included in the Registration Statement, supplemented as contemplated by
Section 3 to reflect the terms of the Securities and the plan of
distribution thereof, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b), is hereinafter called the
"Prospectus." Any reference herein to the Registration Statement or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on or before
the date of any Terms Agreement or the date of the Prospectus, as the
case may be, and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement or the
Prospectus shall include the filing of any document under the Exchange
Act after the date of this Agreement or the date of the Prospectus, as
the case may be, deemed to be incorporated therein by reference.
(b) As of the date of any Terms Agreement, when the Prospectus is
first filed pursuant to Rule 424(b) under the Act, when, prior to the
Closing Date (as defined in Section 3), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement) and at
the Closing Date, (i) the Registration Statement, as amended as of any
such time, and the Prospectus, as amended or supplemented as of any such
time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement, as amended as of
any such time, nor the Prospectus, as amended or supplemented as of any
such time, will contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; provided, however,
that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter specifically
for use in connection with the preparation of the Registration Statement
and the Prospectus.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of New York, and has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus, as amended or supplemented.
(d) Each significant subsidiary (as defined in Regulation S-X of
the Commission) of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority
to own its property and to conduct its business as described in the
Prospectus, as amended or supplemented.
(e) The applicable Terms Agreement has been duly authorized,
executed and delivered by the Company.
(f) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by fraudulent transfer,
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the Indenture and
delivered to and duly paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited
by fraudulent transfer, bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The Delayed Delivery Contracts (as defined below), if any,
have been duly authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in accordance
with their respective terms except as (i) the enforceability thereof may
be limited by fraudulent transfer, bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the applicable
Terms Agreement, the Indenture, the Securities and any Delayed Delivery
Contract does not and will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken
as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of its
subsidiaries, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the applicable Terms
Agreement, the Securities, the Indenture or any Delayed Delivery
Contract, except such as may be required by the securities or Blue Sky
laws of the various states in connection with offer and sale of the
Securities.
(j) There has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(k) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(l) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or incorporated
as required.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
written communications ("Terms Agreement") at the time the Company determines
to sell the Securities. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify (1) the firm or firms which will be Underwriters, (2) the names of any
Representatives, (3) the principal amount of Securities to be purchased by
each Underwriter and the purchase price to be paid by the Underwriters, (4)
the terms of the Securities not already specified in the Indenture, (5)
whether any of the Securities may be sold to institutional investors pursuant
to Delayed Delivery Contracts (as defined below), (6) the time and date on
which delivery of the Securities will be made to the Representatives for the
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price in New York
Clearing House funds (such time and date, or such other time and date not
later than seven full business days thereafter as the Representatives and the
Company agree to as to time and date for payment and delivery, being herein
and in the Terms Agreement referred to as the "Closing Date") and (7) the
place of delivery and payment.
The obligations of the Underwriters to purchase the Securities
will be several and not joint. The Securities delivered to the Underwriters
on the Closing Date will be in definitive fully registered form, in such
denominations and registered in such names as the Representatives may request.
Certificates for the Securities shall be registered in such names
and in such denominations as the Representatives may request not less than
three full Business Days in advance of the Closing Date.
If the Terms Agreement provides for sales of Securities pursuant
to Delayed Delivery Contracts, the Company authorizes the Underwriters to
solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date
the Company will pay, as compensation, to the Representatives for the accounts
of the Underwriters, the fee set forth in such Terms Agreement in respect of
the principal amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of any Delayed
Delivery Contract. If the Company executes and delivers a Delayed Delivery
Contract, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not
later than the business day prior to the Closing Date of the principal amount
of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters,
without charge, one signed copy of the Registration Statement, including all
exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Securities:
(a) At any time when a prospectus relating to the Securities is
required to be delivered under the Act, before amending or supplementing
the Registration Statement or the Prospectus with respect to the
Securities, the Company will furnish to the Representatives a copy of
such proposed amendment or supplement and will not file any such
proposed amendment or supplement to which the Representatives reasonably
object. The Company will also advise the Representatives promptly of
the filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs or a condition
exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made
when the Prospectus was delivered, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the Act, the Company
promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(c) As soon as practicable after the date of each Terms Agreement,
the Company will make generally available to their security holders an
earnings statement that satisfies the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as are reasonably
requested.
(e) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution; provided that the Company shall not be
required to qualify to do business in any jurisdiction where it is not
now qualified or to file a general consent to service of process in any
jurisdiction.
(f) The Company will pay all expenses incident to the performance
of its obligations under this Agreement and will reimburse the
Underwriters for any reasonable expenses (including the fees and
disbursement of counsel) incurred by them in connection with
qualification of the Registered Securities for sale and determination of
their eligibility for investment under the laws of such jurisdictions as
the Representatives may designate, the printing of memoranda relating
thereto, any filing fees of the National Association of Securities
Dealers, Inc., relating to the Securities and for reasonable expenses
incurred in distributing the Prospectus, any preliminary prospectuses
and any prospectus supplements to Underwriters.
(g) Between the date of any Terms Agreement and the Closing Date
specified in such agreement, the Company will not, without the
Representatives' prior consent, offer, sell, contract to sell or
otherwise dispose of debt securities of the Company pursuant to the
Registration Statement or any other registration statement filed by the
Company under the Act, which debt securities have a maturity of more
than one year from the date of issue, except that the Company may offer,
sell, contract to sell or otherwise dispose of obligations of the
Company in respect of industrial revenue bonds or similar securities
exempt from federal income taxes.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of officers of
the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of KPMG Peat Marwick, in form and substance reasonably
satisfactory to the Representatives containing statements and
information of the type customarily included in accountants "comfort
letters" with respect to the financial statements and certain financial
information contained or incorporated by reference in the Prospectus.
(b) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, which is material and adverse; (ii) any downgrading in, or
notice of any proposal to downgrade, the rating of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any public announcement that any such organization has under
surveillance or review with negative implications or without indicating
the direction of the possible change the rating of the Company's debt
securities; (iii) any suspension or limitation of trading in securities
generally on or by the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, or any setting of minimum prices for trading on
such exchange; or (iv) any suspension of trading of any securities of
the Company on any exchange; (v) any banking moratorium declared by
Federal or New York authorities; or (vi) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
set forth in (i) through (vi), in the judgment of the Representatives,
makes it impractical or inadvisable to proceed with the public offering
or the delivery of the Securities on the terms and in the manner
contemplated by the Prospectus.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of [Name], General Counsel of the Company, or other
counsel to the Company acceptable to the Representatives substantially
in the form of Exhibit A.
(e) The Representatives shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, substantially in the form of Exhibit B, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received certificates, dated the
Closing Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers,
to the best of their knowledge, shall state that (i) the representations
and warranties of the Company in this Agreement are true and correct,
that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, (ii) no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission and (iii) subsequent to the date of
the most recent financial statements in the Prospectus, and there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectus or as described in such certificate.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or in any
amendment thereof or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished in writing to the
Company by such Underwriter expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act and each other Underwriter and any person controlling such
Underwriter within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information relating
to such Underwriter furnished to the Company by such Underwriter in writing
expressly for use in the Registration Statement or the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify each person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Representatives, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable
for any settlement of any proceeding in respect of which the indemnified party
is entitled to indemnification pursuant to paragraph (a) or (b) above effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. An indemnifying party shall not without the prior written consent
of the indemnified party (which consent shall not be unreasonably withheld)
effect any settlement releasing the indemnifying party from any pending or
threatened litigation, proceeding or claim in respect of which any indemnified
party is or could have been a party and for which such indemnified party would
have been entitled to indemnity hereunder, unless such settlement includes an
unconditional release of all indemnified parties from all liability with
respect to claims which are the subject matter of such litigation, proceeding
or claim or which relate to or arise out of the same or substantially similar
facts or circumstances.
(d) If the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Securities, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and each Underwriter on the other from the offering of such
Securities or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and each Underwriter on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other in connection with the offering of such
Securities shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Securities (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by the Underwriters. The relative fault of the Company on the one
hand and of each Underwriter on the other shall be determined by reference to,
among other things, whether the untrue or allegedly untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by such Underwriter and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6(d) are several in
proportion to the respective principal amounts of Securities purchased by each
Underwriter and not joint.
(e) The Company and each Underwriter agree that it would not be
just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth in paragraph (c)
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities referred to in paragraph (d) above that were
purchased through such Underwriter exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities
by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
under such Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of the Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of the Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, such Terms Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 8. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter
under this Section. Nothing herein will relieve a defaulting Underwriter
from liability for its default. The respective commitments of the several
Underwriters for the purposes of this Section shall be determined without
regard to reduction in the respective Underwriters' obligations to purchase
the principal amount of the Securities set forth opposite their names in the
Terms Agreement as a result of Delayed Delivery Contracts entered into by the
Company.
The agreements set forth in this Section will not apply if the
Terms Agreement specifies that such agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, its officers and of the several Underwriters set
forth in or made pursuant to any Terms Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the result
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Securities by the Underwriters under the Terms Agreement is
not consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 4 and the respective obligations
of the Company and the Underwriters pursuant to Section 6 shall remain in
effect. If the purchase of the Securities by the Underwriters is not
consummated for any reason other than the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event specified in clause
(iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursement of counsel) reasonably incurred by them in connection with the
offering of the Securities.
9. Notices. All communications hereunder will be in writing, may be
sent by mail, facsimile, telegraphed and confirmed or otherwise delivered, if
to the Underwriters, at their addresses furnished to the Company in writing
for the purpose of communications hereunder, and if to the Company, at Union
Carbide Corporation, 39 Old Ridgebury Road, Danbury, Connecticut 06817-0001,
Attention: Treasurer.
10. Successors. Any Terms Agreement will inure to the benefit of and
be binding upon the Company and such Underwriters as are identified therein
and their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. Applicable Law. The Terms Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
ANNEX I
DELAYED DELIVERY CONTRACT
__________, 199_
Union Carbide Corporation
39 Old Ridgebury Road
Danbury, Connecticut 06817-0001
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from Union Carbide
Corporation, a New York corporation (the "Company"), and the Company agrees to
sell to the undersigned,
$_________________
principal amount of the Company's [Insert title of securities] (the
"Securities") offered by the Company's Prospectus dated ___________, 199_ and
a Prospectus Supplement dated ___________, 199_ relating thereto, receipt of
copies of which is hereby acknowledged, at ___% of the principal amount
thereof plus accrued interest, if any, from ___________, 199_, and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
Each of such delivery dates is hereinafter referred to as a "Delivery Date."
Payment for the Securities that the undersigned has agreed to purchase
for delivery on each Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day)
funds at the office of ____________________________ at 10:00 A.M. on such
Delivery Date upon delivery to the undersigned of the Securities to be
purchased by the undersigned on such Delivery Date in definitive fully
registered form and in such denominations and registered in such names as the
undersigned shall designate by written or telegraphic communication addressed
to the Company not less than five business days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract subject to the first paragraph hereof with respect
to the accrual of interest; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on each Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at such Delivery Date be prohibited under the laws of any jurisdiction in
the United States to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the principal amount of the Securities
less the principal amount thereof covered by this and other similar Contracts.
The undersigned represents 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 governs 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.
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 acceptance of any such 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 below
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
______________________________
(NAME OF PURCHASER)
By___________________________
Name:
Title:
______________________________
______________________________
(Address of Purchaser)
Accepted, as of the above date
UNION CARBIDE CORPORATION
By __________________________
Name:
Title:
UNION CARBIDE CORPORATION
DEBT SECURITIES
TERMS AGREEMENT
____________, 199_
Union Carbide Corporation
39 Old Ridgebury Road
Danbury, Connecticut 06817-0001
Attention:
Referring to the Debt Securities of Union Carbide Corporation (the
"Company") covered by the Company's Registration Statement on Form S-3 (No.
33-___________) (the "Registration Statement"), on the basis of the
representations, warranties and agreements contained in this Agreement, and
subject to the terms and conditions herein set forth, the Underwriters named
on Schedule A hereto ("Underwriters") agree to purchase, severally but not
jointly, and the Company agrees to sell to the Underwriters, $_____________
aggregate principal amount of ___% ____________ Due ____________ (the
"Securities") in the respective principal amounts set forth opposite the names
of the Underwriters on Schedule A hereto.
The price at which the Securities shall be purchased from the Company
by the Underwriters shall be ___% of the principal amount thereof [plus
accrued interest from _________, 199_]. The Securities will be offered as set
forth in the Prospectus Supplement relating thereto.
The Securities will have the following terms:
Title: _______________________
Interest Rate: ___% per annum
Interest Payment Dates: ____________ and _____________
commencing ___________, 199_
Maturity: _____________________
Other Provisions: as set forth in the Prospectus Supplement
relating to the Securities
Closing: __:__ A.M. on ___________, 199_, _______________, in New York
Clearing House ________________ (next day) funds.
Name[s] and Address[es] of Representative[s]:
The provisions contained in the Union Carbide Corporation Standard
Underwriting Agreement Provisions (May 1994 Edition), a copy of which has been
filed as Exhibit 1 to the Registration Statement, are incorporated herein by
reference, [except that the obligations and agreements set forth in Section 7
("Default of Underwriters") of the Underwriting Agreement shall not apply to
the obligations of the Underwriters to purchase the above Securities.]
The Securities will be made available for checking and packaging at
the office of ___________________________ at least 24 hours prior to the
Closing Date.
We represent that we are authorized to act for the several
Underwriters named in Schedule A hereto in connection with this financing and
any action under this agreement by any of us will be binding upon all the
Underwriters.
This Terms Agreement may be executed in one or more counterparts, all
of which counterparts shall constitute one and the same instrument.
If the foregoing is in accordance with your under- standing of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
[NAMES OF REPRESENTATIVES
On behalf of themselves and
as Representatives of the
Several Underwriters
By: ___________________________
By: ___________________________
Name:
Title:
The foregoing Terms Agreement
is hereby confirmed as of the
date first above written
UNION CARBIDE CORPORATION
By: _________________________
Name:
Title:
SCHEDULE A
Principal
Underwriter Amount
. . . . . . . . . . . . . $
________
Total . . . . . . . . . . . .$_______
EXHIBIT A
[FORM OF OPINION OF COMPANY COUNSEL]
[Dated the Closing Date]
[Names and Addresses of Representatives]
Dear Sirs:
I have acted as counsel for Union Carbide Corporation, a New York
corporation (the "Company") in connection with the sale by the Company of
$______________ principal amount of its ___% _____________ Due ____________
(the "Securities") pursuant to the Terms Agreement dated _________, 199_ (such
agreement, together with the Standard Underwriting Agreement Provisions (May
1994 Edition) incorporated therein, is referred to herein as the "Terms
Agreement") between you and the Company. The Securities are to be issued under
an Indenture dated as of [Date] (the "Indenture") among the Company and [Name
of Bank], Trustee (the "Trustee").
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as I have deemed necessary for the
purpose of rendering this opinion.
I have participated in the preparation of the registration statement
on Form S-3 (Registration No. 33-_________) filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the
provisions of the Securities Act of 1933 (the "Act"), registering
$[_____________] aggregate initial offering price of debt securities to be
issued from time to time by the Company. In addition, I have examined
evidence that the Registration Statement was declared effective under the Act
and the Indenture was qualified under the Trust Indenture Act of 1939 (the
"Trust Indenture Act"), on ___________, 199_. Such registration statement as
amended at the date hereof (including the documents incorporated by reference
therein) is herein referred to as the Registration Statement and the related
prospectus (including the documents incorporated by reference therein)
together with the prospectus supplement dated ________, 199_ specifically
relating to the Securities, as filed with the Commission pursuant to Rule
424(b) under the Act, is herein referred to as the "Prospectus."
Based upon the foregoing, I am of the opinion that:
(A) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of New York,
and has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, as amended or
supplemented.
(B) The Terms Agreement has been duly authorized, executed and
delivered by the Company [and any Delayed Delivery Contract has been
duly authorized, executed and delivered by the Company].
(C) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its terms.
(D) The Securities have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly
paid for by you, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, enforceable in
accordance with their terms.
(E) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Terms
Agreement, the Securities and the Indenture [and any Delayed Delivery
Contract] will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole,
or, to the best of my knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any of its subsidiaries.
(F) No consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Terms Agreement,
the Securities or the Indenture except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Securities.
(G) The statements in the Prospectus, as amended or supplemented,
under the captions "Description of Securities," and "Description of
[__________]," in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein.
(H) The documents filed pursuant to the Securities Exchange Act of
1934 and incorporated by reference in the Prospectus (other than the
financial statements, related schedules and statistical information of a
financial nature contained or incorporated therein, as to which I have
not been asked to, and do not, express any opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act and the Securities Exchange Act of 1934, as applicable, and the
rules and regulations promulgated thereunder.
(I) The Registration Statement, as of its effective date, and the
Registration Statement and the Prospectus, as of the date hereof (other
than the Statement of Eligibility on Form T-1 of the Trustee, the
financial statements, related schedules and statistical information of a
financial nature contained or incorporated by reference therein, as to
which I have not been asked to, and do not, express any opinion),
complied as to form in all material respects with the requirements of
the Act and the rules and regulations promulgated thereunder.
The opinions set forth in paragraphs (C) and (D) above are qualified
insofar as enforceability may be limited by fraudulent transfer, bankruptcy,
insolvency or similar laws affecting creditors' rights generally and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
I have participated in conferences, by person or by telephone, with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company and your representatives and
your counsel, at which the contents of the Registration Statement and
Prospectus and related matters were discussed, and although I am not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus, I advise you that on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company), no facts have come to my attention which lead
me to believe that at the time the Registration Statement became effective it
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 the date
hereof 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 (it being
understood that I have not been asked to, and do not, comment on the financial
statements, related schedules or statistical information of a financial nature
contained or incorporated therein or on any of the information contained in
the Statement of Eligibility on Form T-1 of the Trustee).
This opinion is limited to the federal laws of the United States of
America and the laws of the State of New York.
Very truly yours,
EXHIBIT B
[FORM OF OPINION OF COUNSEL FOR THE UNDERWRITERS]
[Dated the Closing Date]
[Names and Addresses of Representatives]
Dear Sirs:
We have acted as your counsel in connection with the sale by Union
Carbide Corporation, a New York corporation (the "Company"), of $____________
principal amount of its ___% ____________ Due ____________ (the
"Securities") and the purchase of the Securities by you, severally, pursuant
to a Terms Agreement dated _________, 199_ (such agreement, together with the
Union Carbide Corporation Standard Underwriting Agreement Provisions (May 1994
Edition) incorporated therein is referred to herein as the "Terms Agreement").
The Securities will be issued pursuant to the provisions of an indenture dated
as of [Date] (the "Indenture"), between the Company and [Name of Bank],
Trustee (the "Trustee").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for the purpose of rendering this opinion, including
those relating to the authorization, execution and delivery by the Company of
the Indenture and the Terms Agreement, and the authorization of the Securities
by the Company.
We have participated in the preparation of the registration statement
on Form S-3 (Registration No. 33-__________) (other than the documents
incorporated by reference in the prospectus included therein (the
"Incorporated Documents")) filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the provisions of the
Securities Act of 1933, as amended (the "Act"), registering $[__________]
aggregate initial offering price of debt securities to be issued from time to
time by the Company. Although we did not participate in the preparation of
the Incorporated Documents, we have reviewed such documents. In addition, we
have received oral confirmation that the registration statement was declared
effective under the Act and that the Indenture was qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), on ___________,
199_. Such registration statement (including the Incorporated Documents), as
amended at the date hereof, is herein referred to as the "Registration
Statement" and the related prospectus dated _________, 199_ (including the
Incorporated Documents), together with the prospectus supplement dated
__________, 199_ specifically relating to the Securities, as filed with the
Commission pursuant to Rule 424(b) under the Act, is herein referred to as the
"Prospectus."
We have assumed the conformity of the documents filed with the
Commission via the Electronic Data Gathering, Analysis and Retrieval System
("EDGAR"), except for required EDGAR formatting changes, to physical copies of
the documents delivered to the Underwriters and submitted for our examination.
Based upon the foregoing, we are of the opinion that:
(1) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(2) The Securities have been duly authorized and established in
conformity with the provisions of the Indenture and, when the
Securities have been executed by the Company and authenticated by the
Trustee in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof pursuant to
the Terms Agreement, they will be entitled to the benefits of such
Indenture and will be valid and binding obligations of the Company,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability; and
(3) The Terms Agreement has been duly authorized, executed and
delivered by the Company.
We have considered the matters required to be included in the
Registration Statement and Prospectus and the information contained therein.
We are of the opinion that the statements in the Prospectus under the captions
"Description of Securities," "Description of [_________]," "Plan of
Distribution" and "Underwriters," insofar as such statements constitute
summaries of the documents referred to therein, fairly present the information
called for with respect to such documents.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to other matters in
the Registration Statement or the Prospectus, but we have generally reviewed
and discussed with your representatives and with certain officers and
employees of, and counsel and independent public accountants for, the Company
the information furnished, whether or not subject to our check and
verification. On the basis of such consideration, review and discussion, but
without independent check or verification, except as stated, (1) no facts came
to our attention which lead us to believe that (except for financial
statements and schedules as to which we do not express any belief and except
for that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) of the Trustee) each part of the Registration
Statement, when such part became effective contained any 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, (2) we are
of the opinion that the Registration Statement and Prospectus (except for
financial statements and schedules included therein as to which we do not
express any opinion) comply as to form in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder and (3)
no facts came to our attention which lead us to believe that (except as to
financial statements and schedules as to which we do not express any belief)
the Prospectus as of the date hereof contains any 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.
We have examined the opinion dated the date hereof of [Name], counsel
for the Company, delivered to you pursuant to Section 5(d) of the Terms
Agreement, and we believe that such opinion is responsive to the requirements
of the Terms Agreement.
We have also examined the letter dated _________, 199_ of KPMG Peat
Marwick, independent certified public accountants, relating to the financial
statements and other information contained or incorporated by reference in the
Registration Statement and the other matters referred to in such letter,
delivered to you pursuant to Section 5(a) of the Terms Agreement. We
participated in discussions with your representatives and representatives of
KPMG Peat Marwick relating to the form of such letter, and we believe that it
is substantially in the form agreed to.
Very truly yours,
EXHIBIT 4.1.1
UNION CARBIDE CORPORATION
DEBT SECURITIES
INDENTURE
_______________________________________________________________
Dated as of
, Trustee
PARTIAL CROSS-REFERENCE TABLE
Indenture Section TIA Section
2.05 317(b)
2.06 312(a)
2.11 316(a)
(last sentence)
4.07 314(a)(4)
4.08 314(a)(1)
6.04 316(a)(1)(B)
6.05 316(a)(1)(A)
6.07 317(a)(1)
7.04 315(b)
7.05 313(a)
7.05 313(d)
7.07 310(a), 310(b)
[7.10 310(b)(1)]*
8.02 310(a), 310(b)
9.04 316(c)
10.01 318(a)
10.02 313(c)
10.03 314(c)(1)
314(c)(2)
10.04 314(e)
_________________________
* Insert if applicable.
- i -
TABLE OF CONTENTS
Article Section Heading Page
1 DEFINITIONS
1.01 Definitions ....................... 1
1.02 Other Definitions ................. 3
1.03 Rules of Construction ............. 3
2 THE SECURITIES
2.01 Issuable in Series ................ 4
2.02 Execution and Authentication....... 5
2.03 Bond Agents ....................... 6
2.04 Bearer Securities ................. 6
2.05 Paying Agent to Hold Money in
Trust ........................... 7
2.06 Securityholder Lists .............. 8
2.07 Transfer and Exchange ............. 8
2.08 Replacement Securities ............ 9
2.09 Outstanding Securities ............ 9
2.10 Discounted Securities ............. 9
2.11 Treasury Securities ............... 10
2.12 Global Securities ................. 10
2.13 Temporary Securities .............. 10
2.14 Cancellation ...................... 11
2.15 Defaulted Interest ................ 11
3 REDEMPTION
3.01 Notices to Trustee ................ 11
3.02 Selection of Securities to Be
Redeemed ........................ 12
3.03 Notice of Redemption .............. 12
3.04 Effect of Notice of
Redemption ...................... 13
3.05 Payment of Redemption Price ....... 13
3.06 Securities Redeemed in Part ....... 14
4 COVENANTS
4.01 Certain Definitions ............... 14
4.02 Payment of Securities ............. 15
4.03 Overdue Interest .................. 16
4.04 Limitation on Liens ............... 16
4.05 Limitation on Sale and
Leaseback ....................... 17
4.06 No Lien Created, etc. ............. 18
4.07 Compliance Certificate ............ 18
4.08 SEC Reports ....................... 18
- ii -
Article Section Heading Page
5 SUCCESSORS
5.01 When Company May Merge, etc. ...... 19
6 DEFAULTS AND REMEDIES
6.01 Events of Default ................. 19
6.02 Acceleration ...................... 20
6.03 Other Remedies .................... 21
6.04 Waiver of Past Defaults ........... 21
6.05 Control by Majority ............... 21
6.06 Limitation on Suits ............... 22
6.07 Collection Suit by Trustee ........ 22
6.08 Priorities ........................ 22
7 TRUSTEE
7.01 Rights of Trustee ................. 23
7.02 Individual Rights of Trustee ...... 24
7.03 Trustee's Disclaimer .............. 24
7.04 Notice of Defaults ................ 24
7.05 Reports by Trustee to Holders ..... 24
7.06 Compensation and Indemnity ........ 25
7.07 Replacement of Trustee ............ 25
7.08 Successor Trustee by Merger,
etc. ............................ 26
7.09 Trustee's Capital and Surplus ..... 27
[7.10 No Conflicting Interest ........... 27]*
8 DISCHARGE OF INDENTURE
8.01 Defeasance ........................ 27
8.02 Conditions to Defeasance .......... 27
8.03 Application of Trust Money ........ 29
8.04 Repayment to Company .............. 29
9 AMENDMENTS
9.01 Without Consent of Holders ........ 29
9.02 With Consent of Holders ........... 30
9.03 Compliance with Trust
Indenture Act ................... 30
9.04 Effect of Consents ................ 31
9.05 Notation on or Exchange of
Securities ...................... 31
9.06 Trustee Protected ................. 31
_________________________
* Insert if applicable.
- iii -
Article Section Heading Page
10 MISCELLANEOUS
10.01 Trust Indenture Act ............... 31
10.02 Notices ........................... 32
10.03 Certificate and Opinion as to
Conditions Precedent ............ 33
10.04 Statements Required in
Certificate or Opinion .......... 33
10.05 Rules by Company and Agents ....... 33
10.06 Legal Holidays .................... 34
10.07 No Recourse Against Others ........ 34
10.08 Duplicate Originals ............... 34
10.09 Governing Law ..................... 35
SIGNATURES ................................ 35
Exhibit A: A Form of Registered
Security
Exhibit B: A Form of Bearer Security
Notes to Exhibits A and B
Exhibit C: A Form of Assignment
- iv -
INDENTURE dated as of between UNION CARBIDE
CORPORATION, a New York corporation ("Company"), and ,
a banking corporation ("Trustee").
Each party agrees as follows for the benefit of the
Holders of the Company's debt securities issued under this
Indenture:
ARTICLE 1 DEFINITIONS
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company.
"Agent" means any Registrar, Transfer Agent or Paying
Agent.
"Authorized Newspaper" means a newspaper that is:
(1) printed in the English language or in an
official language of the country of publication;
(2) customarily published on each business day in
the place of publication; and
(3) of general circulation in the relevant place or
in the financial community of such place.
Whenever successive publications in an Authorized Newspaper are
required, they may be made in the same or different Authorized
Newspapers.
"Bearer Security" means a Security payable to bearer.
"Board" means the Board of Directors of the Company or any
authorized committee of the Board.
"Bond Resolution" means a resolution adopted by the Board
or by an Officer or a committee of Officers pursuant to Board
delegation authorizing a series of Securities.
"Company" means the party named as such above until a
successor replaces it and thereafter means the successor.
"coupon" means an interest coupon for a Bearer Security.
"Default" means any event which is, or after notice or
passage of time would be, an Event of Default.
"Discounted Security" means a Security where the amount of
principal due upon acceleration is less than the stated
principal amount.
"Holder" or "Securityholder" means the person in whose
name a Registered Security is registered and the bearer of a
Bearer Security or coupon.
"Indenture" means this Indenture and any Bond Resolution
as amended from time to time.
"Officer" means the Chairman, any Vice-Chairman, the
President, any Vice-President, the Treasurer, the Secretary,
the Controller or any Assistant Treasurer or Associate
Treasurer of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Secretary or
Assistant Controller of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be
an employee of or counsel to the Company or the Trustee.
"principal" of a debt security means the principal of the
security plus the premium, if and when applicable, on the
security.
"Registered Security" means a Security registered as to
principal and interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under this
Indenture.
"series" means a series of Securities or the Securities of
the series.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date shown above.
"Trustee" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the
President or any other officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate
trust matters.
"United States" means the United States of America, its
territories and possessions and other areas subject to its
jurisdiction.
SECTION 1.02. Other Definitions.
Term Defined in Section
"Attributable Debt" 4.01
"Bankruptcy Law" 6.01
"Consolidated Net Tangible
Assets" 4.01
"Custodian" 6.01
"Debt" 4.01
"Event of Default" 6.01
"Legal Holiday" 10.06
"Lien" 4.01
"Long-Term Debt" 4.01
"Paying Agent" 2.03
"Principal Property" 4.01
"Registrar" 2.03
"Restricted Property" 4.01
"Restricted Subsidiary" 4.01
"Sale-Leaseback Transaction" 4.01
"Subsidiary" 4.01
"Transfer Agent" 2.03
"Treasury Regulations" 2.04
"U.S. Government Obligations" 8.02
"Voting Stock" 4.01
"Wholly-Owned Subsidiary" 4.01
"Yield to Maturity" 4.01
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with
generally accepted accounting principles in the
United States;
(3) generally accepted accounting principles are
those applicable from time to time;
(4) all terms used in this Indenture that are
defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the
TIA have the meanings assigned to them by such
definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in
the plural include the singular.
ARTICLE 2 THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be
issued under this Indenture is unlimited. The Securities may
be issued from time to time in one or more series. Each series
shall be created by a Bond Resolution or a supplemental
indenture that establishes the terms of the series, which may
include the following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate, if any, or method of
calculating the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on
Registered Securities;
(6) the dates when principal and interest are
payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are
payable;
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional
redemption by the Company;
(11) the terms of any redemption at the option of
Holders;
(12) the denominations in which Securities are
issuable;
(13) whether Securities will be issuable as
Registered Securities or Bearer Securities;
(14) whether and upon what terms Registered
Securities and Bearer Securities may be
exchanged;
(15) whether any Securities will be represented by a
Security in global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite
currency) in which principal or interest may be
paid;
(19) if payments of principal or interest may be made
in a currency other than that in which
Securities are denominated, the manner for
determining such payments;
(20) if amounts of principal or interest may be
determined by reference to an index, formula or
other method, the manner for determining such
amounts;
(21) provisions for electronic issuance of Securities
or for Securities in uncertificated form;
(22) the portion of principal payable upon
acceleration of a Discounted Security;
(23) any Events of Default or covenants in addition
to or in lieu of those set forth in this
Indenture;
(24) whether and upon what terms Securities may be
defeased;
(25) the forms of the Securities or any coupon, which
may be in the form of Exhibit A or B;
(26) any terms that may be required by or advisable
under U.S. laws; and
(27) any other terms not inconsistent with this
Indenture.
All Securities of one series need not be issued at the
same time and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
The creation and issuance of a series and the
authentication and delivery thereof are not subject to any
conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or
facsimile signature. The Company's seal shall be reproduced on
the Securities. An Officer shall sign any coupons by facsimile
signature.
If an Officer whose signature is on a Security or its
coupons no longer holds that office at the time the Security is
authenticated or delivered, the Security and coupons shall
nevertheless be valid.
A Security and its coupons shall not be valid until the
Security is authenticated by the manual signature of the
Registrar. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date
of its original issuance or as provided in the Bond Resolution.
Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreement or usage.
SECTION 2.03. Bond Agents.
The Company shall maintain an office or agency where
Securities may be authenticated ("Registrar"), where Securities
may be presented for registration of transfer or for exchange
("Transfer Agent") and where Securities may be presented for
payment ("Paying Agent"). Whenever the Company must issue or
deliver Securities pursuant to this Indenture, the Registrar
shall authenticate the Securities at the Company's request.
The Transfer Agent shall keep a register of the Securities and
of their transfer and exchange.
The Company may appoint more than one Registrar, Transfer
Agent or Paying Agent for a series. The Company shall notify
the Trustee of the name and address of any Agent not a party to
this Indenture. If the Company fails to maintain a Registrar,
Transfer Agent or Paying Agent for a series, the Trustee shall
act as such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or
exchanges of and payments on Bearer Securities. Therefore,
except as provided below:
(1) Bearer Securities will be offered, sold and
delivered only outside the United States and
will be delivered only upon presentation of a
certificate in a form prescribed by the Company
to comply with U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange
for Registered Securities.
(3) All payments of principal and interest
(including original issue discount) on Bearer
Securities will be made outside the United
States by a Paying Agent located outside the
United States unless the Company determines
that:
(A) such payments may not be made by such
Paying Agent because the payments are
illegal or prevented by exchange controls
as described in Treasury Regulation
Section 1.163-5(c)(2)(v); and
(B) making the payments in the United States
would not have an adverse tax effect on the
Company.
If there is a change in the relevant provisions of U.S.
laws or Treasury Regulations or the judicial or administrative
interpretation thereof, a restriction set forth in paragraph
(1), (2) or (3) above will not apply to a series if the Company
determines that the relevant provisions no longer apply to the
series or that failure to comply with the relevant provisions
would not have an adverse tax effect on the Company or on
Securityholders or cause the series to be treated as
"registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations
by the Company under this Section.
"Treasury Regulations" means regulations of the U.S.
Treasury Department under the Internal Revenue Code of 1986, as
amended.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series
other than the Trustee to agree in writing that the Paying
Agent will hold in trust for the benefit of the persons
entitled thereto all money held by the Paying Agent for the
payment of principal of or interest on the series, and will
notify the Trustee of any default by the Company in making any
such payment.
While any such default continues, the Trustee may require
a Paying Agent to pay all money so held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent shall have no further liability for
the money.
If the Company or an Affiliate acts as Paying Agent for a
series, it shall segregate and hold as a separate trust fund
all money held by it as Paying Agent for the series.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Securityholders. If the Trustee is
not the Transfer Agent, the Company shall furnish to the
Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of
Registered Securities and Holders of Bearer Securities whose
names are on the list referred to below.
The Transfer Agent shall keep a list of the names and
addresses of Holders of Bearer Securities who file a request to
be included on such list. A request will remain in effect for
two years but successive requests may be made.
Whenever the Company or the Trustee is required to mail a
notice to all Holders of Registered Securities of a series, it
also shall mail the notice to Holders of Bearer Securities of
the series whose names are on the list.
Whenever the Company is required to publish a notice to
all Holders of Bearer Securities of a series, it also shall
mail the notice to such of them whose names are on the list.
SECTION 2.07. Transfer and Exchange.
When Registered Securities of a series are presented to
the Transfer Agent with a request to register transfer or to
exchange them for an equal principal amount of Registered
Securities of other denominations of the series, the Transfer
Agent shall register the transfer or make the exchange if its
requirements for such transactions are met.
The Transfer Agent may require a Holder to pay a sum
sufficient to cover any taxes imposed on a transfer or
exchange.
If a series provides for Registered and Bearer Securities
and for their exchange, Bearer Securities may be exchanged for
Registered Securities and Registered Securities may be
exchanged for Bearer Securities as provided in the Securities
or the Bond Resolution if the requirements of the Transfer
Agent for such transactions are met and if Section 2.04 permits
the exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has
been lost, destroyed or wrongfully taken, then, in the absence
of notice to the Company or the Trustee that the Security or
coupon has been acquired by a bona fide purchaser, the Company
shall issue a replacement Security or coupon if the Company and
the Trustee receive:
(1) evidence satisfactory to them of the loss,
destruction or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their
expenses and any taxes for replacing the
Security or coupon.
A replacement Security shall have coupons attached
corresponding to those, if any, on the replaced Security.
Every replacement Security or coupon is an additional
obligation of the Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the
Securities authenticated by the Registrar except for those
cancelled by it, those delivered to it for cancellation, and
those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it
ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced Security
is held by a bona fide purchaser.
If Securities are considered paid under Section 4.02, they
cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate holds the Security.
SECTION 2.10. Discounted Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, the principal amount of a Discounted
Security shall be the amount of principal that would be due as
of the date of such determination if payment of the Security
were accelerated on that date.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company or an
Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which
the Trustee knows are so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Bond Resolution so provides, the Company may issue
some or all of the Securities of a series in temporary or
permanent global form. A global Security may be in registered
form, in bearer form with or without coupons or in
uncertificated form. A global Security shall represent that
amount of Securities of a series as specified in the global
Security or as endorsed thereon from time to time. At the
Company's request, the Registrar shall endorse a global
Security to reflect the amount of any increase or decrease in
the Securities represented thereby.
The Company may issue a global Security only to a
depository designated by the Company. A depository may
transfer a global Security only as a whole to its nominee or to
a successor depository.
The Bond Resolution may establish, among other things, the
manner of paying principal and interest on a global Security
and whether and upon what terms a beneficial owner of an
interest in a global Security may exchange such interest for
definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall
not be responsible for any acts or omissions of a depository,
for any depository records of beneficial ownership interests or
for any transactions between the depository and beneficial
owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for
delivery, the Company may use temporary Securities. Temporary
Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers
appropriate for temporary Securities. Temporary Securities may
be in global form. Temporary Bearer Securities may have one or
more coupons or no coupons. Without unreasonable delay, the
Company shall deliver definitive Securities in exchange for
temporary Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the
Registrar for cancellation. The Transfer Agent and the Paying
Agent shall forward to the Registrar any Securities and coupons
surrendered to them for payment, exchange or registration of
transfer. The Registrar shall cancel all Securities or coupons
surrendered for payment, registration of transfer, exchange or
cancellation as follows: the Registrar will cancel all
Registered Securities and matured coupons. The Registrar also
will cancel all Bearer Securities and unmatured coupons unless
the Company requests the Registrar to hold the same for
redelivery. Any Bearer Securities so held shall be considered
delivered for cancellation under Section 2.09. The Registrar
shall destroy cancelled Securities and coupons unless the
Company otherwise directs.
Unless the Bond Resolution otherwise provides, the Company
may not issue new Securities to replace Securities that the
Company has paid or that the Company has delivered to the
Registrar for cancellation.
SECTION 2.15. Defaulted Interest
If the Company defaults in a payment of interest on
Registered Securities, it need not pay the defaulted interest
to Holders on the regular record date. The Company may fix a
special record date for determining Holders entitled to receive
defaulted interest or the Company may pay defaulted interest in
any other lawful manner.
ARTICLE 3 REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity
shall be redeemable in accordance with their terms and, unless
the Bond Resolution otherwise provides, in accordance with this
Article.
In the case of a redemption by the Company, the Company
shall notify the Trustee of the redemption date and the
principal amount of Securities to be redeemed. The Company
shall notify the Trustee at least 50 days before the redemption
date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may
reduce the principal amount of Securities required to be
redeemed to the extent it is permitted a credit by the terms of
the Securities and it notifies the Trustee of the amount of the
credit and the basis for it. If the reduction is based on a
credit for acquired or redeemed Securities that the Company has
not previously delivered to the Registrar for cancellation, the
Company shall deliver the Securities at the same time as the
notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select the Securities to be
redeemed by a method the Trustee considers fair and
appropriate. The Trustee shall make the selection from
Securities of the series outstanding not previously called for
redemption. The Trustee may select for redemption portions of
the principal of Securities having denominations larger than
the minimum denomination for the series. Securities and
portions thereof selected for redemption shall be in amounts
equal to the minimum denomination for the series or an integral
multiple thereof. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 20 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder of Registered Securities
whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall
publish a notice of redemption in an Authorized Newspaper as
provided in the Securities.
A notice shall identify the Securities of the series to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together
with all coupons, if any, maturing after the
redemption date, must be surrendered to the
Paying Agent to collect the redemption price;
(5) that interest on Securities called for
redemption ceases to accrue on and after the
redemption date; and
(6) whether the redemption by the Company is
mandatory or optional.
A redemption notice given by publication need not identify
Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is given, Securities called for
redemption become due and payable on the redemption date at the
redemption price stated in the notice.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Securities to
be redeemed on that date.
When the Holder of a Security surrenders it for redemption
in accordance with the redemption notice, the Company shall pay
to the Holder on the redemption date the redemption price and
accrued interest to such date, except that:
(1) the Company will pay any such interest (except
defaulted interest) to Holders on the record
date of Registered Securities if the redemption
date occurs on an interest payment date; and
(2) the Company will pay any such interest to
Holders of coupons that mature on or before the
redemption date upon surrender of such coupons
to the Paying Agent.
Coupons maturing after the redemption date on a called
Security are void absent a payment default on that date.
Nevertheless, if a Holder surrenders for redemption a Bearer
Security missing any such coupons, the Company may deduct the
face amount of such coupons from the redemption price. If
thereafter the Holder surrenders to the Paying Agent the
missing coupons, the Company will return the amount so
deducted. The Company also may waive surrender of the missing
coupons if it receives an indemnity bond satisfactory to the
Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Company shall deliver to the Holder a new Security of the same
series equal in principal amount to the unredeemed portion of
the Security surrendered.
ARTICLE 4 COVENANTS
SECTION 4.01. Certain Definitions.
"Attributable Debt" for a lease means, as of the date of
determination, the present value of net rent for the remaining
term of the lease. Rent shall be discounted to present value
at a discount rate that is compounded semiannually. The
discount rate shall be 10% per annum or, if the Company elects,
the discount rate shall be equal to the weighted average Yield
to Maturity of the Securities. Such average shall be weighted
by the principal amount of the Securities of each series or, in
the case of Discounted Securities, the amount of principal that
would be due as of the date of determination if payment of the
Securities were accelerated on that date.
Rent is the lesser of (a) rent for the remaining term of
the lease assuming it is not terminated or (b) rent from the
date of determination until the first possible termination date
plus the termination payment then due, if any. The remaining
term of a lease includes any period for which the lease has
been extended. Rent does not include (1) amounts due for
maintenance, repairs, utilities, insurance, taxes, assessments
and similar charges or (2) contingent rent, such as that based
on sales. Rent may be reduced by the discounted present value
of the rent that any sublessee must pay from the date of
determination for all or part of the same property. If the net
rent on a lease is not definitely determinable, the Company may
estimate it in any reasonable manner.
"Consolidated Net Tangible Assets" means total assets less
(a) total current liabilities (excluding Debt due within 12
months) and (b) goodwill, as reflected in the Company's most
recent consolidated balance sheet preceding the date of a
determination under Section 4.04(9).
"Debt" means any debt for borrowed money or any guarantee
of such a debt.
"Lien" means any mortgage, pledge, security interest or
lien.
"Long-Term Debt" means Debt that by its terms matures on a
date more than 12 months after the date it was created or Debt
that the obligor may extend or renew without the obligee's
consent to a date more than 12 months after the date the Debt
was created.
"Principal Property" means any manufacturing facility
located in the United States (excluding territories and
possessions), except any such facility that in the opinion of
the Board is not of material importance to the total business
conducted by the Company and its consolidated Subsidiaries.
"Restricted Property" means any Principal Property or any
shares of capital stock of a Restricted Subsidiary, in each
case, now owned or hereafter acquired by the Company or a
Restricted Subsidiary.
"Restricted Subsidiary" means a Wholly-Owned Subsidiary
that has substantially all of its assets located in the United
States (excluding territories and possessions) or Puerto Rico
and owns a Principal Property.
"Sale-Leaseback Transaction" means an arrangement pursuant
to which the Company or a Restricted Subsidiary now owns or
hereafter acquires a Principal Property, transfers it to a
person, and leases it back from the person.
"Subsidiary" means a corporation a majority of whose
Voting Stock is owned by the Company or a Subsidiary.
"Voting Stock" means capital stock having voting power
under ordinary circumstances to elect directors.
"Wholly-Owned Subsidiary" means a corporation all of whose
Voting Stock is owned by the Company or a Wholly-Owned
Subsidiary.
"Yield to Maturity" means the yield to maturity on a
Security at the time of its issuance or at the most recent
determination of interest on the Security.
SECTION 4.02. Payment of Securities.
The Company shall pay the principal of and interest on a
series in accordance with the terms of the Securities for the
series, any related coupons, and this Indenture. Principal and
interest on a series shall be considered paid on the date due
if the Paying Agent for the series holds on that date money
sufficient to pay all principal and interest then due on the
series.
SECTION 4.03. Overdue Interest.
Unless the Bond Resolution otherwise provides, the Company
shall pay interest on overdue principal of a Security of a
series at the rate (or Yield to Maturity in the case of a
Discounted Security) borne by the series; it shall pay interest
on overdue installments of interest at the same rate or Yield
to Maturity to the extent lawful.
SECTION 4.04. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, incur a Lien on Restricted Property to secure a
Debt unless:
(1) the Lien equally and ratably secures the
Securities and the Debt. The Lien may equally
and ratably secure the Securities and any other
obligation of the Company or a Subsidiary. The
Lien may not secure an obligation of the Company
that is subordinated to the Securities;
(2) the Lien secures Debt incurred to finance all or
some of the purchase price or the cost of
construction or improvement of property of the
Company or a Restricted Subsidiary. The Lien
may not extend to any other Restricted Property
owned by the Company or a Restricted Subsidiary
at the time the Lien is incurred. However, in
the case of any construction or improvement, the
Lien may extend to unimproved real property used
for the construction or improvement. The Debt
secured by the Lien may not be incurred more
than one year after the later of the
(a) acquisition, (b) completion of construction
or improvement, or (c) commencement of full
operation, of the property subject to the Lien;
(3) the Lien is on property of a corporation at the
time the corporation merges into or consolidates
with the Company or a Restricted Subsidiary;
(4) the Lien is on property at the time the Company
or a Restricted Subsidiary acquires the
property;
(5) the Lien is on property of a corporation at the
time the corporation becomes a Restricted
Subsidiary;
(6) the Lien secures Debt of a Restricted Subsidiary
owing to the Company or another Restricted
Subsidiary;
(7) the Lien is in favor of a government or
governmental entity and secures (a) payments
pursuant to a contract or statute or (b) Debt
incurred to finance all or some of the purchase
price or cost of construction or improvement of
the property subject to the Lien;
(8) the Lien extends, renews or replaces in whole or
in part a Lien ("existing Lien") permitted by
any of clauses (1) through (7). The Lien may
not extend beyond (a) the property subject to
the existing Lien and (b) improvements and
construction on such property. However, the
Lien may extend to property that at the time is
not Restricted Property. The Debt secured by
the Lien may not exceed the Debt secured at the
time by the existing Lien unless the existing
Lien or a predecessor Lien was incurred under
clause (1) or (6); or
(9) the Debt plus all other Debt secured by Liens on
Restricted Property at the time does not exceed
10% of Consolidated Net Tangible Assets.
However, the following Debt shall be excluded
from all other Debt in the determination:
(a) Debt secured by a Lien permitted by any of
clauses (1) through (8) and (b) Debt secured by
a Lien incurred prior to the date of this
Indenture that would have been permitted by any
of those clauses if this Indenture had been in
effect at the time the Lien was incurred.
Attributable Debt for any lease permitted by
clause (4) of Section 4.05 must be included in
the determination and treated as Debt secured by
a Lien on Restricted Property not otherwise
permitted by any of clauses (1) through (8).
SECTION 4.05. Limitation on Sale and Leaseback.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into a Sale-Leaseback Transaction unless:
(1) the lease has a term of three years or less;
(2) the lease is between the Company and a
Restricted Subsidiary or between Restricted
Subsidiaries;
(3) the Company or a Restricted Subsidiary under any
of clauses (2) through (8) of Section 4.04 could
create a Lien on the property to secure Debt at
least equal in amount to the Attributable Debt
for the lease;
(4) the Company or a Restricted Subsidiary under
clause (9) of Section 4.04 could create a Lien
on the property to secure Debt at least equal in
amount to the Attributable Debt for the lease;
or
(5) the Company or a Restricted Subsidiary within
180 days of the effective date of the lease
retires Long-Term Debt of the Company or a
Restricted Subsidiary at least equal in amount
to the Attributable Debt for the lease. A Debt
is retired when it is paid, cancelled or
defeased. However, the Company or a Restricted
Subsidiary may not receive credit for retirement
of: Debt that is retired at maturity or through
mandatory redemption; Debt of the Company that
is subordinated to the Securities; or Debt, if
paid in cash, that is owned by the Company or a
Restricted Subsidiary.
SECTION 4.06. No Lien Created, etc.
This Indenture and the Securities do not create a Lien,
charge or encumbrance on any property of the Company or any
Subsidiary.
SECTION 4.07. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a brief
certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of
the Company, as to the signer's knowledge of the Company's
compliance with all conditions and covenants under this
Indenture (determined without regard to any period of grace or
requirement of notice provided herein).
The certificate need not comply with Section 10.04.
SECTION 4.08. SEC Reports.
The Company shall file with the Trustee, within 15 days
after the Company is required to file the same with the SEC,
copies of the annual reports and of the information, documents,
and other reports (or such portions of the foregoing as the SEC
may prescribe) which the Company is required to file with the
SEC pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934.
ARTICLE 5 SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into, or
transfer all or substantially all of its assets to, any person
unless:
(1) the person is organized under the laws of the
United States or a State thereof;
(2) the person assumes by supplemental indenture all
the obligations of the Company under this
Indenture, the Securities and any coupons;
(3) immediately after the transaction no Default
exists; and
(4) if, as a result of the transaction, a Restricted
Property would become subject to a Lien not
permitted by Section 4.04, the Company or such
person secures the Securities equally and
ratably with or prior to all obligations secured
by the Lien.
The successor shall be substituted for the Company, and
thereafter all obligations of the Company under this Indenture,
the Securities and any coupons shall terminate.
ARTICLE 6 DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" on a series occurs if:
(1) the Company defaults in any payment of interest
on any Securities of the series when the same
becomes due and payable and the Default
continues for a period of 10 days;
(2) the Company defaults in the payment of the
principal of any Securities of the series when
the same becomes due and payable at maturity or
upon redemption, acceleration or otherwise;
(3) the Company defaults in the performance of any
of its other agreements applicable to the series
and the Default continues for 90 days after the
notice specified below;
(4) the Company pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a Custodian
for it or for all or substantially all of
its property, or
(D) makes a general assignment for the benefit
of its creditors;
(5) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian for the Company or for
all or substantially all of its property,
or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in
effect for 60 days; or
(6) any other event of default provided for in the
series occurs.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The
term "Custodian" means any receiver, trustee, assignee,
liquidator or a similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal
amount of the series notify the Company of the Default and the
Company does not cure the Default within the time specified
after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice
is a "Notice of Default." If Holders notify the Company of a
Default, they shall notify the Trustee at the same time.
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing on a
series, the Trustee by notice to the Company, or the Holders of
at least 25% in principal amount of the series by notice to the
Company and the Trustee, may declare the principal of and
accrued interest on all the Securities of the series to be due
and payable immediately. Discounted Securities may provide
that the amount of principal due upon acceleration is less than
the stated principal amount.
The Holders of a majority in principal amount of the
series by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default on the
series have been cured or waived except nonpayment of principal
or interest that has become due solely because of the
acceleration.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a
series, the Trustee may pursue any available remedy to collect
principal or interest then due on the series, to enforce the
performance of any provision applicable to the series, or
otherwise to protect the rights of the Trustee and Holders of
the series.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or coupons or does not produce
any of them in the proceeding. A delay or omission by the
Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event
of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Unless the Bond Resolution otherwise provides, the Holders
of a majority in principal amount of a series by notice to the
Trustee may waive an existing Default on the series and its
consequences except:
(1) a Default in the payment of the principal of or
interest on the series, or
(2) a Default in respect of a provision that under
Section 9.02 cannot be amended without the
consent of each Securityholder affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series
may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or of
exercising any trust or power conferred on the Trustee, with
respect to the series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture.
SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with
respect to the series only if:
(1) the Holder gives to the Trustee notice of a
continuing Event of Default on the series;
(2) the Holders of at least 25% in principal amount
of the series make a request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against
any loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and
the offer of indemnity; and
(5) during such 60-day period the Holders of a
majority in principal amount of the series do
not give the Trustee a direction inconsistent
with such request.
A Securityholder may not use this Indenture to prejudice
the rights of another Securityholder or to obtain a preference
or priority over another Securityholder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal
specified in Section 6.01(1) or (2) occurs and is continuing on
a series, the Trustee may recover judgment in it own name and
as trustee of an express trust against the Company for the whole
amount of principal and interest remaining unpaid on the series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant to
this Article, it shall pay out the money in the following
order:
First: to the Trustee for amounts due under
Section 7.06;
Second: to Securityholders of the series for
amounts due and unpaid for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable for
principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a payment date for any payment to
Securityholders.
ARTICLE 7 TRUSTEE
SECTION 7.01. Rights of Trustee.
(1) The Trustee may rely on any document believed by
it to be genuine and to have been signed or
presented by the proper person. The Trustee
need not investigate any fact or matter stated
in the document.
(2) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an
Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take
in good faith in reliance on the Certificate or
Opinion.
(3) The Trustee may act through agents and shall not
be responsible for the misconduct or negligence
of any agent appointed with due care.
(4) The Trustee shall not be liable for any action
it takes or omits to take in good faith in
accordance with a direction received by it
pursuant to Section 6.05.
(5) The Trustee may refuse to perform any duty or
exercise any right or power which it reasonably
believes may expose it to any loss, liability or
expense unless it receives indemnity
satisfactory to it against such loss, liability
or expense.
(6) The Trustee shall not be liable for interest on
any money received by it except as the Trustee
may agree with the Company. Money held in trust
by the Trustee need not be segregated from other
funds except to the extent required by law.
(7) The Trustee shall have no duty with respect to a
Default unless it has actual knowledge of the
Default.
(8) The Trustee shall not be liable for any action
it takes or omits to take in good faith which it
believes to be authorized and within its powers.
(9) Any Agent shall have the same rights and be
protected to the same extent as if it were
Trustee.
SECTION 7.02. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities or coupons and may
otherwise deal with the Company or an Affiliate with the same
rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 7.03. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities or any coupons; it
shall not be accountable for the Company's use of the proceeds
from the Securities; it shall not be responsible for any
statement in the Securities or any coupons; it shall not be
responsible for any overissue; it shall not be responsible for
determining whether the form and terms of any Securities or
coupons were established in conformity with this Indenture; and
it shall not be responsible for determining whether any
Securities were issued in accordance with this Indenture.
SECTION 7.04. Notice of Defaults.
If a Default occurs and is continuing on a series and if
it is known to the Trustee, the Trustee shall mail a notice of
the Default within 90 days after it occurs to Holders of
Registered Securities of the series. Except in the case of a
Default in payment on a series, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the
interest of Holders of the series. The Trustee shall withhold
notice of a Default described in Section 6.01(3) until at least
90 days after it occurs.
SECTION 7.05. Reports by Trustee to Holders.
Any report required by TIA Section 313(a) to be mailed to
Securityholders shall be mailed by the Trustee on or before
June 30 of each year.
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange on which any Securities are listed. The Company shall
notify the Trustee when any Securities are listed on a stock
exchange.
SECTION 7.06. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss
or liability incurred by it. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities
and any coupons on all money or property held or collected by
the Trustee, except that held in trust to pay principal or
interest on particular securities.
SECTION 7.07. Replacement of Trustee.
A resignation of removal of the Trustee and appointment of
a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in
this Section.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the Securities may
remove the Trustee by so notifying the Trustee and may appoint
a successor Trustee with the Company's consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA Section 310(a) or
Section 310(b) or with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a Custodian or other public officer takes charge
of the Trustee or its property;
(4) the Trustee becomes incapable or acting; or
(5) an event of the kind described in Section
6.01(4) or (5) occurs with respect to the
Trustee.
The Company also may remove the Trustee with or without
cause if the Company so notifies the Trustee six months in
advance and if no Default occurs during the six-month period.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal
amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA { 310(a) or
{ 310(b) or with Section 7.09, any Securityholder may petition
any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Registered Securities. The retiring
Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided
for in Section 7.06.
SECTION 7.08. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.09. Trustee's Capital and Surplus.
The Trustee at all times shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent
published report of condition.
[SECTION 7.10. No Conflicting Interest
In determining whether the Trustee has a conflicting
interest under TIA Section 310(b)(1) the following are excluded:]
ARTICLE 8 DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with
their terms and, unless the Bond Resolution otherwise provides,
in accordance with this Article.
The Company at any time may terminate as to a series all
of its obligations under this Indenture, the Securities of the
series and any related coupons ("legal defeasance option"). The
Company at any time may terminate as to a series its obligations
under Sections 4.04 and 4.05 ("covenant defeasance option").
However, in the case of the legal defeasance option, the
Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.08, 7.06, 7.07 and 8.04 shall survive until the Securities of
the series are no longer outstanding; thereafter the Company's
obligations in Section 7.06 shall survive.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option,
a series may not be accelerated because of an Event of Default.
If the Company exercises its covenant defeasance option, a
series may not be accelerated by reference to Section 4.04 or
4.05.
The Trustee upon request shall acknowledge in writing the
discharge of those obligations that the Company terminates.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal
defeasance option or its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with
the Trustee or another trustee money or U.S.
Government Obligations;
(2) the Company delivers to the Trustee a
certificate from a nationally recognized firm of
independent accountants expressing their opinion
that the payments of principal and interest when
due on the deposited U.S. Government Obligations
without reinvestment plus any deposited money
without investment will provide cash at such
times and in such amounts as will be sufficient
to pay principal and interest when due on all
the Securities of the series to maturity or
redemption, as the case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under
any other agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a
conflicting interest under TIA Section 310(a) or
Section 310(b) as to another series;
(6) the Company delivers to the Trustee an Opinion
of Counsel to the effect that Holders of the
series will not recognize income, gain or loss
for Federal income tax purposes as a result of
the defeasance;
(7) the Company delivers to the Trustee an Opinion
of Counsel to the effect that the trust
resulting from the deposit does not constitute,
or is qualified as, a regulated investment
company under the Investment Company Act of
1940; and
(8) 91 days pass after the deposit is made and
during the 91-day period no Default specified in
Section 6.01(4) or (5) occurs that is continuing
at the end of the period.
Before or after a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
"U.S. Government Obligations" means direct obligations of
the United States which have the full faith and credit of the
United States pledged for payment and which are not callable at
the issuer's option, or certificates representing an ownership
interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.02. It
shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and
interest on Securities of the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over
to the Company upon request any excess money or securities held
by them at any time.
The Trustee and the Paying Agent shall pay to the Company
upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years.
After payment to the Company, Securityholders entitled to the
money must look to the Company for payment as unsecured general
creditors unless an abandoned property law designates another
person.
ARTICLE 9 AMENDMENTS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the
Securities or any coupons without the consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 5;
(3) to provide that specific provisions of this
Indenture shall not apply to a series not
previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or
more series; or
(6) to make any change that does not materially
adversely affect the rights of any
Securityholder.
SECTION 9.02. With Consent of Holders.
Unless the Bond Resolution otherwise provides, the
Company and the Trustee may amend this Indenture, the Securities
and any coupons with the written consent of the Holders of a
majority in principal amount of the Securities of all series
affected by the amendment voting as one class. However, without
the consent of each Securityholder affected, an amendment under
this Section may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment;
(2) reduce the interest on or change the time for
payment of interest on any Security;
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted
Security or reduce the amount of principal of
any Discounted Security that would be due upon
an acceleration thereof;
(5) change the currency in which principal or
interest on a Security is payable; or
(6) make any change in Section 6.04 or 9.02, except
to increase the amount of Securities whose
Holders must consent to an amendment or waiver
or to provide that other provisions of this
Indenture cannot be amended or waived without
the consent of each Securityholder affected
thereby.
An amendment of a provision included solely for the
benefit of one or more series does not affect Securityholders
of any other series.
Securityholders need not consent to the exact text of a
proposed amendment or waiver; it is sufficient if they consent
to the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 9.01 or 9.02 shall be
set forth in a supplemental indenture that complies with the
TIA as then in effect.
If a provision of the TIA requires or permits a provision
of this Indenture and the TIA provision is amended, then the
Indenture provision shall be automatically amended to like
effect.
SECTION 9.04. Effect of Consents.
An amendment or waiver becomes effective in accordance
with its terms and thereafter binds every Securityholder
entitled to consent to it.
A consent to an amendment or waiver by a Holder of a
Security is a continuing consent by the Holder and every
subsequent Holder of a Security that evidences the same debt as
the consenting Holder's Security. Any Holder or subsequent
Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or
waiver becomes effective.
The Company may fix a record date for the determination of
Holders of Registered Securities entitled to give a consent.
The record date shall not be less than 10 nor more than 60 days
prior to the first written solicitation of Securityholders.
SECTION 9.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate
notation about an amendment or waiver on any Security
thereafter authenticated. The Company may issue in exchange
for affected Securities new Securities that reflect the
amendment or waiver.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that
adversely affects its rights.
ARTICLE 10 MISCELLANEOUS
SECTION 10.01. Trust Indenture Act.
The provisions of TIA Sections 310 through 317 that impose
duties on any person (including the provisions automatically
deemed included herein unless expressly excluded by this
Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be
included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02. Notices
Any notice by one party to another is duly given if in
writing and delivered in person, sent by facsimile transmission
confirmed by mail or mailed by first-class mail to the other's
address shown below:
Company: Union Carbide Corporation
39 Old Ridgebury Road
Danbury, CT 06817-0001
Attention: Treasurer
Trustee:
Attention:
A party by notice to the other parties may designate
additional or different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to
his address shown on the register kept by the Transfer Agent or
on the list referred to in Section 2.06. Failure to mail a
notice to a Securityholder or any defect in a notice mailed to
a Securityholder shall not affect the sufficiency of the notice
mailed to other Securityholders or the sufficiency of any
published notice.
If a notice is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice to Securityholders, it shall
mail a copy to the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a
notice required to be mailed or to publish a notice required to
be published, the Company may give such substitute notice as
the Trustee approves. Failure to publish a notice as required
or any defect in it shall not affect the sufficiency of any
mailed notice.
All notices shall be in the English language, except that
any published notice may be in an official language of the
country of publication.
A "notice" includes any communication required by this
Indenture.
SECTION 10.03. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall if so requested furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions
precedent, if any, provided for in this
Indenture relating to the proposed action have
been complied with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
shall include:
(1) a statement that the person making such
certificate or opinion has read such covenant or
condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person,
he has made such examination or investigation as
is necessary to enable him to express an
informed opinion as to whether or not such
covenant or condition has been complied with;
and
(4) a statement as to whether or not, in the opinion
of such person, such condition or covenant has
been complied with.
SECTION 10.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a
meeting of Securityholders. An Agent may make reasonable rules
and set reasonable requirements for its functions.
SECTION 10.06. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on
which banking institutions are not required to be open. If a
payment date is a Legal Holiday at a place of payment, unless
the Bond Resolution otherwise provides, payment may be made at
that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening
period.
SECTION 10.07. No Recourse Against Others.
All liability described in the Securities of any director,
officer, employee or stockholder, as such, of the Company is
waived and released.
SECTION 10.08. Duplicate Originals.
The parties may sign any number of copies of this
Indenture. One signed copy is enough to prove this Indenture.
SECTION 10.09. Governing Law.
The laws of the State of New York shall govern this
Indenture, the Securities and any coupons, unless federal law
governs.
SIGNATURES
Dated: UNION CARBIDE CORPORATION
By ______________________________
Name:
Title:
Attest: (SEAL)
_________________________
Assistant Secretary
Dated:
By ______________________________
Name:
Title:
Attest: (SEAL)
_________________________
Assistant Secretary
EXHIBIT A
A Form of Registered Security
No. $
UNION CARBIDE CORPORATION
[Title of Security]
Union Carbide Corporation
promises to pay to
or registered assigns
the principal sum of Dollars on
Interest Payment Dates:
Record Dates:
Dated:
UNION CARBIDE CORPORATION UNION CARBIDE
CORPORATION
Transfer Agent and Paying Agent
by
(SEAL)
Authenticated: Chairman of the Board
[Name of Registrar]
Registrar, by
Authorized Signature Vice-President
UNION CARBIDE CORPORATION
[Title of Security]
1. Interest.(1)
Union Carbide Corporation ("Company"), a New York
corporation, promises to pay interest on the principal
amount of this Security at the rate per annum shown
above. The Company will pay interest semiannually on
and of
each year commencing .
Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no
interest has been paid, from . Interest
will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment.(2)
The Company will pay interest on the Securities to
the persons who are registered holders of Securities
at the close of business on the record date for the
next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender
Securities to a Paying Agent to collect principal
payments. The Company will pay principal and
interest in money of the United States that at the
time of payment is legal tender for payment of public
and private debts. The Company may pay principal and
interest by check payable in such money. It may mail
an interest check to a holder's registered address.
3. Bond Agents.
Initially, Union Carbide Corporation, 39 Old
Ridgebury Road, Danbury, CT 06817-0001 Attention:
Shareholder Services, will act as Paying Agent and
Transfer Agent, and will act as
Registrar. The Company may change any Paying Agent,
Transfer Agent or Registrar without notice. The
Company or any Affiliate may act in any such
capacity. Subject to certain conditions, the Company
may change the Trustee.
4. Indenture.
The Company issued the securities of this series
("Securities") under an Indenture dated as of
("Indenture") between the Company
and ("Trustee"). The terms of the
Securities include those stated in the Indenture and in
the Bond Resolution creating the Securities and those
made part of the Indenture by the Trust Indenture Act of
1939 (15 U.S. Code Sections 77aaa-77bbbb). Securityholders
are referred to the Indenture, the Bond Resolution
and the Act for a statement of such terms.
5. Optional Redemption.(3)
On or after , the Company may redeem
all the Securities at any time or some of them from
time to time at the following redemption prices
(expressed in percentages of principal amount), plus
accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.(4)
The Company will redeem $ principal amount of
Securities on and on each
thereafter through
at a redemption price of 100% of principal amount,
plus accrued interest to the redemption date.(5) The
Company may reduce the principal amount of Securities
to be redeemed pursuant to this paragraph by
subtracting 100% of the principal amount (excluding
premium) of any Securities (i) that the Company has
acquired or that the Company has redeemed other than
pursuant to this paragraph and (ii) that the Company
has delivered to the Registrar for cancellation. The
Company may so subtract the same Security only once.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above
paragraph(s), the Company may redeem not more than
$ principal amount of Securities on
and on each thereafter
through at a redemption price of 100% of
principal amount, plus accrued interest to the
redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be mailed at least 20 days
but not more than 60 days before the redemption date
to each holder of Securities to be redeemed at his
registered address.
9. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons
in denominations of $1,000(8) and whole multiples of
$1,000. The transfer of Securities may be registered
and Securities may be exchanged as provided in the
Indenture. The Transfer Agent may require a holder,
among other things, to furnish appropriate
endorsements and transfer documents and to pay any
taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the
transfer of any Security or portion of a Security
selected for redemption. Also, it need not exchange
or register the transfer of any Securities for a
period of 15 days before a selection of Securities to
be redeemed.
10. Persons Deemed Owners.
The registered holder of a Security may be treated as
its owner for all purposes.
11. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the
Securities may be amended with the consent of the
holders of a majority in principal amount of the
securities of all series affected by the amendment.(9)
Subject to certain exceptions, a default on a series
may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the
Indenture or the Securities may be amended, among
other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make
any change that does not materially adversely affect
the rights of any Securityholder.
12. Restrictive Covenants.(10)
The Securities are unsecured general obligations of
the Company limited to $ principal amount.
The Indenture does not limit other unsecured debt.
It does limit certain mortgages and sale-leaseback
transactions if the property mortgaged or leased is a
manufacturing facility in the United States
(excluding its territories and possessions) that is
of material importance to the Company's consolidated
business. The limitations are subject to a number of
important qualifications and exceptions.
13. Successors.
When a successor assumes all the obligations of the
Company under the Securities and the Indenture, the
Company will be released from those obligations.
14. Defeasance Prior to Redemption or Maturity.(11)
Subject to certain conditions, the Company at any
time may terminate some or all of its obligations
under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S.
Government Obligations for the payment of
principal and interest on the Securities to
redemption or maturity. U.S. Government Obligations
are securities backed by the full faith and credit of
the United States of America or certificates
representing an ownership interest in such
Obligations.
15. Defaults and Remedies.
An Event of Default(12) includes: default for 10 days
in payment of interest on the Securities; default in
payment of principal on the Securities; default by
the Company for a specified period after notice to it
in the performance of any of its other agreements
applicable to the Securities; certain events of
bankruptcy or insolvency; and any other Event of
Default provided for in the series. If an Event of
Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the
Securities may declare the principal(13) of all the
Securities to be due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority
in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of
any continuing default (except a default in payment
of principal or interest) if it determines that
withholding notice is in their interests. The
Company must furnish annual compliance certificates
to the Trustee.
16. Trustee Dealings with Company.
, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to,
accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal
with those persons, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability
for any obligations of the Company under the
Securities or the Indenture or for any claim
based on, in respect of or by reason of
such obligations or their creation. Each
Securityholder by accepting a Security waives and
releases all such liability. The waiver and release
are part of the consideration for the issue of the
Securities.
18. Authentication.
This Security shall not be valid until authenticated
by a manual signature of the Registrar.
19. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM
(=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
The Company will furnish to any Securityholder upon
written request and without charge a copy of the Indenture and
the Bond Resolution. Requests may be made to: Secretary, Union
Carbide Corporation, 39 Old Ridgebury Road, Danbury, CT 06817-
0001.
EXHIBIT B
A Form of Bearer Security
No. $
UNION CARBIDE CORPORATION
[Title of Security]
Union Carbide Corporation
promises to pay to bearer
the principal sum of Dollars on
Interest Payment Dates:
Dated:
UNION CARBIDE CORPORATION UNION CARBIDE
CORPORATION
Transfer Agent
(SEAL) by
Authenticated: Chairman of the Board
[Name of Registrar]
Registrar, by
Authorized Signature Vice-President
UNION CARBIDE CORPORATION
[Title of Security]
1. Interest.(1)
Union Carbide Corporation ("Company"), a New York
corporation, promises to pay to bearer interest on the
principal amount of this Security at the rate per annum
shown above. The Company will pay interest semiannually
on and of each year commencing
.
Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no
interest has been paid, from . Interest
will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment.(2)
Holders must surrender Securities and any coupons to
a Paying Agent to collect principal and interest
payments. The Company will pay principal and
interest in money of the United States that at the
time of payment is legal tender for payment of public
and private debts. The Company may pay principal and
interest by check payable in such money.
3. Bond Agents.
Initially, Union Carbide Corporation, 39 Old
Ridgebury Road, Danbury, CT 06817-0001 Attention:
Shareholder Services, will act as Transfer Agent,
will act as the Paying Agent and will
act as the Registrar. The Company may change any
Paying Agent, Transfer Agent or Registrar without
notice. The Company or any Affiliate may act in any
such capacity. Subject to certain conditions, the
Company may change the Trustee.
4. Indenture.
The Company issued the securities of this series
("Securities") under an Indenture dated as of
("Indenture") between the Company and
("Trustee"). The terms of the Securities
include those stated in the Indenture and the Bond
Resolution and those made part of the Indenture by the
Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-
77bbbb). Securityholders are referred to the Indenture,
the Bond Resolution and the Act for a statement of such
terms.
5. Optional Redemption.(3)
On or after , the Company may redeem all
the Securities at any time or some of them from time
to time at the following redemption prices (expressed
in percentages of principal amount), plus accrued
interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter 100%.
6. Mandatory Redemption.(4)
The Company will redeem $ principal amount of
Securities on and on each
thereafter through at a redemption price
of 100% of principal amount, plus accrued interest to
the redemption date.(5) The Company may reduce the
principal amount of Securities to be redeemed
pursuant to this paragraph by subtracting 100% of the
principal amount (excluding premium) of any
Securities (i) that the Company has acquired or that
the Company has redeemed other than pursuant to this
paragraph and (ii) that the Company has delivered to
the Registrar for cancellation. The Company may so
subtract the same Security only once.
7. Additional Optional Redemption.(6)
In addition to redemptions pursuant to the above
paragraph(s), the Company may redeem not more than
$ principal amount of Securities on
and on each thereafter through
at a redemption price of 100% of principal amount,
plus accrued interest to the redemption date.
8. Notice of Redemption.(7)
Notice of redemption will be published once in an
Authorized Newspaper in the City of New York and if
the Securities are listed on any stock exchange
located outside the United States and such stock
exchange so requires, in any other required city
outside the United States at least 20 days but not
more than 60 days before the redemption date. Notice
of redemption also will be mailed to holders who have
filed their names and addresses with the Transfer
Agent within the two preceding years. A holder of
Securities may miss important notices if he fails to
maintain his name and address with the Transfer
Agent.
9. Denominations, Transfer, Exchange.
The Securities are in bearer form with coupons in
denominations of $5,000(8) and whole multiples of
$5,000. The Securities may be transferred by
delivery and exchanged as provided in the Indenture.
Upon an exchange, the Transfer Agent may require a
holder, among other things, to furnish appropriate
documents and to pay any taxes and fees required by
law or the Indenture. The Transfer Agent need not
exchange any Security or portion of a Security
selected for redemption. Also, it need not exchange
any Securities for a period of 15 days before a
selection of Securities to be redeemed.
10. Persons Deemed Owners.
The holder of a Security or coupon may be treated as
its owner for all purposes.
11. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the
Securities may be amended with the consent of the
holders of a majority in principal amount of the
securities of all series affected by the amendment.(9)
Subject to certain exceptions, a default on a series
may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the
Indenture or the Securities may be amended, among
other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make
any change that does not materially adversely affect
the rights of any Securityholder.
12. Restrictive Covenants.(10)
The Securities are unsecured general obligations of
the Company limited to $ principal amount.
The Indenture does not limit other unsecured debt.
It does limit certain mortgages and sale-leaseback
transactions if the property mortgaged or leased is a
manufacturing facility in the United States
(excluding its territories and possessions) that is
of material importance to the Company's consolidated
business. The limitations are subject to a number of
important qualifications and exceptions.
13. Successors.
When a successor assumes all the obligations of the
Company under the Securities, any coupons and the
Indenture, the Company will be released from those
obligations.
14. Defeasance Prior to Redemption or Maturity.(11)
Subject to certain conditions, the Company at any
time may terminate some or all of its obligations
under the Securities, any coupons and the
Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations
for the payment of principal and interest on the
Securities to redemption or maturity. U.S.
Government Obligations are securities backed by the
full faith and credit of the United States of America
or certificates representing an ownership interest in
such Obligations.
15. Defaults and Remedies.
An Event of Default(12) includes: default for 10 days
in payment of interest on the Securities; default in
payment of principal on the Securities; default by
the Company for a specified period after notice to it
in the performance of any of its other agreements
applicable to the Securities; certain events of
bankruptcy or insolvency; and any other Event of
Default provided for in the series. If an Event of
Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the
Securities may declare the principal(13) of all the
Securities to be due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority
in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of
any continuing default (except a default in payment
of principal or interest) if it determines that
withholding notice is in their interests. The
Company must furnish annual compliance certificates
to the Trustee.
16. Trustee Dealings with Company.
, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to,
accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal
with those persons, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability
for any obligations of the Company under the
Securities or the Indenture or for any
claim based on, in respect of or by reason
of such obligations or their creation. Each
Securityholder by accepting a Security waives and
releases all such liability. The waiver and release
are part of the consideration for the issue of the
Securities.
18. Authentication.
This Security shall not be valid until authenticated
by a manual signature of the Registrar.
19. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM
(=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
The Company will furnish to any Securityholder upon
written request and without charge a copy of the Indenture and
the Bond Resolution. Requests may be made to: Secretary, Union
Carbide Corporation, 39 Old Ridgebury Road, Danbury, CT 06817-
0001.
[FACE OF COUPON]
...............
[$]............
Due............
UNION CARBIDE CORPORATION
[Title of Security]
Unless the Security attached to this coupon has been
called for redemption, Union Carbide Corporation ("Company") will
pay to bearer, upon surrender,
the amount shown hereon when due. This coupon may be
surrendered for payment to any Paying Agent listed on the back
of this coupon unless the Company has replaced such Agent.
Payment may be made by check. This coupon represents six
months' interest.
Union Carbide Corporation
By_______________________________
[REVERSE OF COUPON]
PAYING AGENTS
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate
per annum, insert a description of the manner in which the
rate of interest is to be determined. If the Security is
not to bear interest prior to maturity, so state.
2 If the method or currency of payment is different, insert
a statement thereof.
3 If applicable.
4 If applicable.
5 If the Security is a Discounted Security, insert amount to
be redeemed or method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for
repayment of Securities at the option of the
Securityholder.
7 If applicable.
8 If applicable. Insert additional or different
denominations.
9 If different terms apply, insert a brief summary thereof.
10 If applicable. If additional or different covenants
apply, insert a brief summary thereof.
11 If applicable. If different defeasance terms apply,
insert a brief summary thereof.
12 If additional or different Events of Default apply, insert
a brief summary thereof.
13 If the Security is a Discounted Security, set forth the
amount due and payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted
and Bearer Securities.
EXHIBIT C
A FORM OF ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_________________________________________
: :
: :
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Date: _______________ Your Signature: ________________________
________________________
(Sign exactly as your name appears on the other side of
this Security)
Exhibit 5
UNION CARBIDE CORPORATION 39 OLD RIDGEBURY ROAD, DANBURY CT 06817-0001
PHONE: (203) 794-6327
FAX: (203) 794-6269
Phyllis Savage
CHIEF FINANCE AND SECURITIES COUNSEL
May 26, 1994
BOARD OF DIRECTORS
Union Carbide Corporation
Post-Effective Amendment No. 1 to Registration Statement
on Form S-3 (No. 33-63412)
Ladies and Gentlemen:
This opinion is being rendered in connection with Post-Effective
Amendment No. 1 to the Registration Statement on Form S-3 (No. 33-63412)
("Registration Statement") filed by Union Carbide Corporation ("Company")
with the Securities and Exchange Commission ("Commission") for registration
under the Securities Act of 1933 ("Act") of $300 million aggregate initial
offering price of the Company's debt securities. Pursuant to Rule 429, the
prospectus included in the Registration Statement also relates to $100 million
aggregate initial offering price of the Company's debt securities covered by
registration statement No. 33-55560. Such $400 million of debt securities
("Securities") are to be issued pursuant to one or more indentures
("Indenture") as described in the Registration Statement.
In that connection, I have examined copies of such corporate records
and made such inquiries as I have deemed necessary for the purposes of
rendering the opinion set forth herein.
Based upon the foregoing, in my opinion, when the Registration
Statement has become effective under the Act and the terms of the Securities
and of their issue and sale have been duly established so as not to violate
any applicable law or agreement or instrument binding on the Company and upon
execution and authentication of the Securities in accordance with the
Indenture and delivery of the Securities to the purchasers thereof against
payment therefor, the Securities will be valid and binding obligations of the
Company, enforceable in accordance with their terms. This opinion is
qualified insofar as enforceability may be limited by fraudulent transfer,
bankruptcy, insolvency or similar laws affecting creditor's rights generally
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
New York Office: 777 Old Saw Mill River Road, Tarrytown, NY 10591
This opinion is limited to the federal laws of the United States of
America and the laws of the State of New York.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to my name under the caption
"Legal Opinions" in the Registration Statement. My consent to such reference
does not constitute a consent under Section 7 of the Act, as in consenting to
such reference I have not certified any part of the Registration Statement and
do not otherwise come within the categories of persons whose consent is
required under Section 7 or under the rules and regulations of the Commission
thereunder.
Very truly yours,
Phyllis Savage
- 2 -
Exhibit 12
Union Carbide Corporation and Subsidiaries
Ratio of Earnings to Fixed Charges
(Millions of dollars, except ratios)
March 31,
1994 1993 1992 1991 1990 1989
Income
Income (loss) of consolidated
companies before provision for
income taxes - continuing
operations $ 76 $227 $ 178 $(147) $ 365 $ 780
Add (deduct):
Capitalized interest (2) (10) (15) (14) (11) (14)
Preferred stock cash dividends
of consolidated subsidiaries 0 0 0 0 (11) (21)
Dividends from less than
50 percent-owned companies
carried at equity 0 0 0 0 4 2
UCC share of income (loss)
before provision for income
taxes of 50 percent-owned
companies carried at equity 14 32 (8) (17) 66 39
Amortization of capitalized
interest 3 10 9 9 9 9
91 259 164 (169) 422 795
Fixed Charges
Interest on long-term and
short-term debt 16 70 146 228 269 268
Capitalized interest 2 10 15 14 11 14
Rental expenses representative
of an interest factor 8 33 30 28 32 29
Preferred stock cash dividends
of consolidated subsidiaries 0 0 0 0 11 21
UCC share of fixed charges of
50 percent-owned companies
carried at equity 7 26 30 28 48 55
Total fixed charges 33 139 221 298 371 387
Total adjusted income available
for payment of fixed charges $ 124 $ 398 $ 385 $ 129 $ 793 $1,182
Ratio of income to fixed charges 3.8 2.9 1.7 (a) 2.1 3.1
(a) In 1991, operating results included a special charge of $209 million
($160 million after tax). As a result, earnings were insufficient to
cover historical fixed charges by $169 million. Excluding the effect of
the special charge, earnings would have been sufficient to cover
historical fixed charges by $40 million.
Exhibit 23.1.1
Consent of Independent Auditors
The Board of Directors of
Union Carbide Corporation
We consent to the incorporation by reference in Post-Effective
Amendment No. 1 to the Registration Statement on Form S-3 (No.
33-63412) of Union Carbide Corporation of our reports on Union
Carbide Corporation included and incorporated by reference in the
Annual Report on Form 10-K of Union Carbide Corporation for the
year ended December 31, 1993. Our reports refer to changes in
accounting principles as described in Note 1 to the consolidated
financial statements.
We also consent to the reference to our Firm under the heading
"Experts" in the Prospectus.
KPMG PEAT MARWICK
Stamford, Connecticut
May 26, 1994
Exhibit 23.1.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by
reference in the Prospectus constituting part of this Post-
Effective Amendment No. 1 to Registration Statement on Form S-3
(No. 33-63412) of our report dated January 26, 1994 relating to
the consolidated financial statements of UOP and its
subsidiaries, which appears on page 17 of Union Carbide
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993. We also consent to the reference to us under
the heading "Experts" in such Prospectus.
Price Waterhouse
Chicago, Illinois
May 24, 1994
_____________________________________________________EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
Union Carbide Corporation
(Exact name of obligor as specified in its charter)
New York 13-14217301
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
39 Old Ridgebury Road
Danbury, CT 06817-0001
(Address of principal executive offices) (Zip Code)
___________________________________________
Debt Securities
(Title of the indenture securities)
___________________________________________________
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551 and Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9,
1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed
in connection with Registration Statement No. 33-50010, which is incorporated
by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-46892, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 9th day of May, 1994.
CHEMICAL BANK
By /s/ Erica J. Scherz
Erica J. Scherz
Assistant Vice President
- 3 -
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1993, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . $ 4,371
Interest-bearing balances . . . . . . . . . . . . 5,829
Securities . . . . . . . . . . . . . . . . . . . . . 21,834
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold . . . . . . . . . . . . . . . 2,125
Securities purchased under agreements to resell. . 900
Loans and lease financing receivables:
Loans and leases, net of unearned income $60,826
Less: Allowance for loan and lease losses 2,326
Less: Allocated transfer risk reserve . . 121
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . 58,379
Assets held in trading accounts . . . . . . . . . . . 8,556
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . . 1,238
Other real estate owned . . . . . . . . . . . . . . . 713
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . 112
Customer's liability to this bank on acceptance
outstanding . . . . . . . . . . . . . . . . . . . 1,063
Intangible assets . . . . . . . . . . . . . . . . . . 526
Other assets . . . . . . . . . . . . . . . . . . . . 9,864
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . $115,510
- 4 -
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . $ 51,611
Noninterest-bearing . . . . . . . . . . . $19,050
Interest-bearing . . . . . . . . . . . . 32,561
In foreign offices, Edge and Agreement subsidiaries,
and IBF's . . . . . . . . . . . . . . . . . . . . 24,886
Noninterest-bearing . . . . . . . . . . . $ 136
Interest-bearing . . . . . . . . . . . . 24,750
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased . . . . . . . . . . . . . 8,496
Securities sold under agreements to repurchase. . 514
Demand notes issued to the U.S. Treasury. . . . . . . 1,501
Other Borrowed money . . . . . . . . . . . . . . . . 8,538
Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . 20
Bank's liability on acceptance executed and outstanding 1,084
Subordinated notes and debentures . . . . . . . . . . 3,500
Other liabilities . . . . . . . . . . . . . . . . . . 7,419
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . 107,569
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . . . . . 4,501
Undivided profits and capital reserves. . . . . . . . 2,663
Less: Net unrealized loss on marketable equity
securities. . . . . . . . . . . . . . . . . . . . (159)
Cumulative foreign currency translation adjustments.. (2)
TOTAL EQUITY CAPITAL. . . . . . . . . . . . . . . . . 7,941
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL. . . . . . . . . . . . . $115,510
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition is true and correct to the best of my knowledge
and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We
declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in confor-
mance with the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
- 5 -
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2)
CONTINENTAL BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
36-0947896
(I.R.S. employer
identification no.)
231 South LaSalle Street, Chicago, Illinois 60697
(Address of principal executive offices) (Zip code)
UNION CARBIDE CORPORATION
(Exact name of obligor as specified in its charter)
New York 13-1421730
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
39 Old Ridgebury Road
Danbury, Connecticut 06817-0001
(Address of principal executive offices) (Zip code)
DEBT SECURITIES
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Chicago Clearing House Association, 164 W. Jackson Boulevard,
Chicago, Illinois.
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting
securities of the trustee:
As of May 26, 1994
Col. B.
Col. A. Amount
Title of class Outstanding
Not applicable by virtue of response to Item 13.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities, of the obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such other indenture.
Not applicable by virtue of response to Item 13.
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section
310(b)(1) of the Act arises as a result of the trusteeship under
any such other indenture, including a statement as to how the
indenture securities will rank as compared with the securities
issued under such other indenture.
Not applicable by virtue of response to Item 13.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor
or Underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the
obligor, identify each such person having any such connection and
state the nature of each such connection.
Not applicable by virtue of response to Item 13.
Item 6. Voting Securities of the Trustee Owned by the Obligor or Its
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director,
partner and executive officer of the obligor.
As of May 26, 1994
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given
Name of Owner Title of class beneficially in Col. C.
Not applicable by virtue of response to Item 13.
Item 7. Voting Securities of the Trustee Owned by Underwriters or Their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and
each director, partner, and executive officer of each such
underwriter.
As of May 26, 1994
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Amount owned amount given
Name of Owner Title of class beneficially in Col. C.
Not applicable by virtue of response to Item 13.
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations
in default by the trustee:
As of May 26, 1994
Col. A Col. B Col. C Col. D
Amount owned
Whether the beneficially or
securities held as collateral Percent of
are voting security for class represented
or nonvoting obligations by amount given
Title of class securities in default in Col. C.
Not applicable by virtue of response to Item 13.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held
by the trustee.
As of May 26, 1994
Col. A Col. B Col. C Col. D
Amount owned
beneficially
or held as Percent of class
Name of collateral security represented by
issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C.
Not applicable by virtue of response to Item 13.
Item 10. Ownership of Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the trustee (1) owns 10 percent or more of the voting
securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following information as to
the voting securities of such person.
As of May 26, 1994
Col. A Col. B Col. C Col. D
Amount owned
beneficially
or held as Percent of class
Name of collateral security represented by
issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C.
Not applicable by virtue of response to Item 13.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such person any of which are so owned
or held by the trustee.
As of May 26, 1994
Col. A Col. B Col. C Col. D
Amount owned
beneficially
or held as Percent of class
Name of collateral security represented by
issuer and Amount for obligations in amount given
title of class outstanding default by trustee in Col. C.
Not applicable by virtue of response to Item 13.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
As of May 26, 1994
Col. A Col. B Col. C
Nature of indebtedness Amount outstanding Date due
Not applicable by virtue of response to Item 13.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
There is not nor has there been a default with respect to the
securities under this indenture.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities, of the obligor are outstanding, or is trustee
for more than one outstanding series or securities under the
indenture, state whether there has been a default under any such
indenture or series, identify the indenture or series affected, and
explain the nature of any such default.
There is not nor has there been a default with respect to
securities under this indenture. The trustee is not a trustee under
any other indentures under which securities are outstanding.
Item 14. Affiliations With the Underwriters.
If any underwriter is an affiliate of the trustee, describe each
such affiliation.
Not applicable by virtue of response to Item 13.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to
be qualified under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of Continental Bank,
National Association as now in effect, incorporated herein by
reference to Exhibit 1 to T-1; Registration No. 33-40462.
2. A copy of the certificate of authority of Continental Bank,
National Association to commence business, incorporated herein by
reference to Exhibit 2 to T-1; Registration No. 33-26747.
3. A copy of the authorization of Continental Bank, National
Association to exercise corporate trust powers, incorporated herein
by reference to Exhibit 3 of Amendment No. 1 to T-1; Registration
No. 2-51075.
4. A copy of the existing By-Laws of Continental Bank, National
Association as now in effect, incorporated herein by reference to
Exhibit 4 to T-1; Registration No. 33-43020.
5. Not applicable by virtue of response to Item 13.
6. The consent of Continental Bank, National Association required
by Section 321(b) of the Trust Indenture Act of 1939, incorporated
herein by reference to Exhibit 6 of Amendment No. 1 to T-1;
Registration No. 2-51075.
7. A copy of the latest report of condition of Continental Bank,
National Association published pursuant to law or the requirements
of its supervising or examining authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
Continental Bank, National Association, a national banking association
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago, and State
of Illinois, as of the 26th day of May, 1994.
CONTINENTAL BANK, NATIONAL
ASSOCIATION
By /S/ Nancie J. Arvin
Nancie J. Arvin
Trust Officer
EXHIBIT 7
(OFFICIAL PUBLICATION)
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
Continental Bank, National Association
Charter No. 13639 National Bank Region No. 7
In the state of Illinois at the close of business on March 31, 1994 published
in response to call made by Comptroller of the Currency, under title 12,
United States Code, Section 161.
ASSETS In Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.................. $ 1,786
Interest-bearing balances........................................... 1,226
Securities:
Held-to-maturity securities........................................ 536
Available-for-sale securities...................................... 1,192
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds sold.................................................. 727
Securities purchased under agreements to resell..................... 1,044
Loans and lease financing receivables:
Loans and leases, net of unearned income........... $11,917
LESS: Allowance for loan and lease losses.......... 320
LESS: Allocated transfer risk reserve.............. 0
Loans and leases, net of unearned income,
allowance, and reserve.............................................. 11,597
Assets held in trading accounts...................................... 2,442
Premises and fixed assets (including capitalized leases)............. 228
Other real estate owned.............................................. 212
Investments in unconsolidated subsidiaries and associated companies.. 0
Customers' liability to this bank on acceptances outstanding......... 112
Intangible assets.................................................... 0
Other assets......................................................... 1,343
TOTAL ASSETS........................................................ $22,445
LIABILITIES
Deposits:
In domestic offices................................................ $ 8,874
Noninterest-bearing................................ $2,560
Interest-bearing................................... 6,314
In foreign offices, Edge and Agreement subsidiaries, and IBFs....... 4,504
Non-interest bearing............................... $ 13
Interest-bearing................................... 4,491
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased............................................ 1,051
Securities sold under agreements to repurchase..................... 300
Demand notes issued to the U.S. Treasury............................ 1,296
Trading liabilities................................................. 1,220
Other borrowed money:
With original maturity of one year or less........................ 1,534
With original maturity of more than one year...................... 37
Mortgage indebtedness and obligations under capitalized leases...... 0
Bank's liability on acceptances executed and outstanding............ 112
Subordinated notes and debentures................................... 398
Other liabilities................................................... 1,020
TOTAL LIABILITIES.................................................. 20,346
Limited-life preferred stock and related surplus.................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock........................................................ 685
Surplus............................................................. 827
Undivided profits and capital reserves.............................. 598
Net unrealized holding gains (losses) on available-for-sale
securities.......................................................... (6)
Cumulative foreign currency translation adjustments................. (5)
TOTAL EQUITY CAPITAL............................................... 2,099
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL................................................. $22,445
I, John J. Higgins, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
/s/John J. Higgins
Controller
May 10, 1994
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