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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 26, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WESTVACO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-1466285
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYERIDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
299 PARK AVENUE NEW YORK, NEW YORK
(ADDRESS OF PRINCIPAL EXECUTIVE 10171
OFFICES) (ZIP CODE)
212-688-5000
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
JOHN W. HETHERINGTON, VICE PRESIDENT AND SECRETARY
WESTVACO CORPORATION
299 PARK AVENUE
NEW YORK, NEW YORK 10171
212-688-5000
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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COPIES TO:
WENDELL L. WILLKIE, II, ESQ. SENIOR KENNETH T. COTE, ESQ. BROWN & WOOD LLP
VICE PRESIDENT AND GENERAL COUNSEL ONE WORLD TRADE CENTER NEW YORK, NEW
WESTVACO CORPORATION 299 PARK AVENUE YORK 10048
NEW YORK, NEW YORK 10171
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
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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 being 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]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT* OFFERING PRICE* REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities........ $300,000,000 100% $300,000,000 $90,909
</TABLE>
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* Estimated solely for the purpose of determining the registration fee.
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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 THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
WESTVACO CORPORATION
DEBT SECURITIES
----------------
Westvaco Corporation (the "Company") intends from time to time to issue up
to $300,000,000 aggregate principal amount of its debt securities (the
"Securities") to the public at prices and on terms determined by market
conditions at the time of sale.
Each issue of Securities may vary as to aggregate principal amount, maturity
date, public offering price, interest rate or rates and timing of payments
thereof, provision for redemption, sinking fund requirements, if any, any
other variable terms, and method of distribution. The specific terms with
regard to the Securities in respect of which this Prospectus will be delivered
will be set forth in an accompanying Prospectus Supplement.
----------------
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 Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents. Such
underwriters will consist of Goldman, Sachs & Co. and Merrill Lynch & Co.
acting alone or as representatives of a group of underwriters. No Securities
may be sold without delivery of a Prospectus Supplement describing such issue
of Securities and the method and terms of offering thereof.
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The date of this Prospectus is February 26, 1997.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES AT
A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There is incorporated herein by reference the Company's Annual Report on
Form 10-K for the fiscal year ended October 31, 1996 filed with the Securities
and Exchange Commission.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 subsequent to the date of this
Prospectus and prior to the termination of the offering described herein shall
be deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO
WHOM THIS PROSPECTUS IS DELIVERED, UPON REQUEST OF SUCH PERSON, A COPY
(WITHOUT EXHIBITS) OF ANY OR ALL DOCUMENTS INCORPORATED BY REFERENCE IN THIS
PROSPECTUS. WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE ADDRESSED TO MR. JOHN
W. HETHERINGTON, VICE PRESIDENT AND SECRETARY, WESTVACO CORPORATION, 299 PARK
AVENUE, NEW YORK, NEW YORK 10171. TELEPHONE REQUESTS MAY BE DIRECTED TO (212)
688-5000.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the Company with the
Commission can be inspected and copied at the offices of the Commission at 450
5th Street, N.W., Washington, D.C.; Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois; and Seven World Trade Center
13th Floor, New York, New York. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 5th Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains an
Internet Web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission, including the Company. The address of such Internet Web site is
http://www.sec.gov. In addition, such material can be examined at the offices
of the New York, Midwest and Pacific Stock Exchanges.
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THE COMPANY
Westvaco Corporation is one of the major producers of paper and paperboard
in the United States. It converts paper and paperboard into a variety of end-
products, manufactures a variety of specialty chemicals, produces lumber,
sells timber from its timberlands and is engaged in land development. In
Brazil, it is a major producer of paperboard and corrugated packaging for the
markets of that country. It also exports products from both the United States
and Brazil to other countries throughout the world.
Westvaco was incorporated in 1899 under the laws of Delaware as the West
Virginia Pulp and Paper Company; its name was changed to Westvaco Corporation
on March 3, 1969. The principal executive offices of Westvaco are located at
299 Park Avenue, New York, New York 10171, and its telephone number at that
address is 212-688-5000. Unless otherwise indicated or the context otherwise
requires, the terms "Westvaco" and the "Company" refer to Westvaco Corporation
and its consolidated subsidiaries.
SUMMARY OF FINANCIAL INFORMATION
The following is a summary of certain financial information of the Company
and its consolidated subsidiaries. With the exception of the inclusion of the
ratios of earnings to fixed charges, the following amounts were derived from
the Company's consolidated financial statements and other financial data
contained in its Annual Report on Form 10-K for the fiscal year ended October
31, 1996 (see "Incorporation of Certain Documents by Reference").
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RATIOS)
<TABLE>
<CAPTION>
YEAR ENDED OCTOBER 31,
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1992 1993 1994 1995 1996
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<S> <C> <C> <C> <C> <C>
Sales................... $2,335,617 $2,344,560 $2,607,474 $3,272,447 $3,045,450
Net income.............. $ 135,912 $ 104,341 $ 103,606 $ 280,836 $ 212,156
Net income per share of
common stock........... $ 1.37 $ 1.04* $ 1.03 $ 2.78** $ 2.09
Ratio of earnings to
fixed charges.......... 2.65 1.48 2.25 4.90 3.73
</TABLE>
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* The 1993 fiscal year includes income of $.55 per share from the adoption of
three new accounting standards required by the FASB, a special charge for
restructuring of $.26 per share, provision of $.13 per share for the impact
of an increase in the federal income tax rate and an extraordinary charge
of $.07 per share for the extinguishment of high interest rate debt.
** The 1995 fiscal year includes an extraordinary charge of $.02 per share for
the extinguishment of high interest rate debt.
For the purpose of computing the consolidated ratio of earnings to fixed
charges (1) earnings have been calculated by adding income taxes and fixed
charges (excluding capitalized interest) to net income before the
extraordinary charge and the cumulative effect of accounting changes, and (2)
fixed charges comprise the total of interest charges and a portion of rentals
determined to be representative of the interest factor.
USE OF PROCEEDS
Except as otherwise set forth in the Prospectus Supplement relating to an
offering of the Securities, the net proceeds from the sale of the Securities
offered hereby will be added to the Company's general corporate funds and will
be available for future capital outlays, for working capital purposes and for
the repayment of existing debt.
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DESCRIPTION OF SECURITIES
The Securities are to be issued under an Indenture, dated as of March 1,
1983 (the "Indenture"), between the Company and The Bank of New York (formerly
known as Irving Trust Company), as Trustee (the "Trustee"), a copy of which is
filed as an exhibit to the Registration Statement. The following summaries of
certain provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all
provisions of the Indenture, including the definitions therein of certain
terms. Wherever particular Sections or defined terms of the Indenture are
referred to, it is intended that such Sections or defined terms shall be
incorporated herein by reference. The following sets forth certain general
terms and provisions of the Securities to which any Prospectus Supplement may
relate. The particular terms of the Securities offered by any Prospectus
Supplement (the "Offered Securities") and the extent, if any, to which such
general provisions may apply to the Securities so offered, will be described
in the Prospectus Supplement relating to such Offered Securities.
GENERAL
The Indenture does not limit the aggregate principal amount of Securities
which may be issued thereunder and provides that Securities may be issued from
time to time in one or more series. The Securities will be unsecured
obligations of the Company.
Reference is made to the Prospectus Supplement relating to the particular
series of Securities offered thereby for the following terms of the Offered
Securities: (1) the title of the Offered Securities; (2) any limit on the
aggregate principal amount of the Offered Securities; (3) the price or prices
(expressed as a percentage of the aggregate principal amount thereof) at which
the Offered Securities will be issued; (4) the date or dates on which the
Offered Securities will mature; (5) the rate or rates (which may be fixed or
variable) per annum at which the Offered Securities will bear interest, if
any; (6) the date from which such interest, if any, on the Offered Securities
will accrue, the dates on which such interest, if any, will be payable, the
date on which payment of such interest, if any, will commence and the Regular
Record Dates for such Interest Payment Dates, if any; (7) the ranking of the
Offered Securities relative to any and all other securities of the Company
theretofore issued; (8) the dates, if any, on which and the price or prices at
which the Offered Securities will, pursuant to any mandatory sinking fund
provisions, or may, pursuant to any optional sinking fund or to any purchase
fund provisions, be redeemed by the Company, and the other detailed terms and
provisions of such sinking and/or purchase funds; (9) the date, if any, after
which and the price or prices at which the Offered Securities may, pursuant to
any optional redemption provisions, be redeemed at the option of the Company
or of the Holder thereof and the other detailed terms and provisions of such
optional redemption; and (10) any other terms of the series (which will not be
inconsistent with the provisions of the indenture).
Unless otherwise indicated in the Prospectus Supplement, principal of and
premium, if any, and interest, if any, on the Securities will be payable, and
the transfer of the Securities will be registrable, at the office of the
Trustee in the Borough of Manhattan, The City of New York, except that, at the
option of the Company, interest may be paid by mailing a check to the address
of the person entitled thereto as it appears on the Security Register.
(Sections 301, 305, 1002)
Unless otherwise indicated in the Prospectus Supplement, the Securities will
be issued only in fully registered form without coupons and in denominations
of $1,000 or any integral multiple thereof. No service charge will be made for
any transfer or exchange of the Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Sections 302, 305)
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Securities may be issued as Original Issue Discount Securities to be sold at
a substantial discount below their principal amount. Special federal income
tax and other considerations applicable thereto will be described in the
Prospectus Supplement relating thereto.
The Indenture does not contain any covenants or other provisions which would
afford Holders of Securities protection in the event of a highly leveraged
transaction involving the Company.
RESTRICTIVE COVENANTS
LIMITATIONS ON LIENS. The Indenture provides that so long as any of the
Securities are outstanding the Company will not, and will not permit any
Domestic Subsidiary (as defined) to, issue, assume or guarantee any debt for
money borrowed (herein referred to as "Debt") if such Debt is secured by any
mortgage, security interest, pledge or other lien (herein referred to as a
"mortgage") upon any Principal Property (as defined) of the Company or any
Domestic Subsidiary or any shares of stock or indebtedness of any Domestic
Subsidiary, whether owned at the date of the Indenture or thereafter acquired,
without effectively securing the Securities equally and ratably with such
Debt. The foregoing restriction does not apply to (i) mortgages on any
property acquired, constructed or improved after the date of the Indenture
which are created or assumed within 120 days after such acquisition,
construction or improvement (or within six months thereafter pursuant to a
firm commitment for financing arrangements entered into within such 120 day
period) to secure or provide for the payment of the purchase price or cost
thereof incurred after the date of the Indenture, or existing mortgages on
property acquired, provided such mortgages shall not apply to any property
theretofore owned by the Company or a Domestic Subsidiary other than
theretofore unimproved real property; (ii) mortgages existing on any property
acquired from a corporation merged with or into the Company or a Domestic
Subsidiary; (iii) mortgages on property of any corporation existing at the
time it becomes a Domestic Subsidiary; (iv) mortgages securing Debt owing by a
Domestic Subsidiary to the Company or to another Domestic Subsidiary; (v)
mortgages in favor of governmental bodies to secure advance or other payments
pursuant to any contract or statute or to secure indebtedness incurred to
finance the purchase price or cost of constructing or improving the property
subject to such mortgages; (vi) mortgages on timberlands in connection with an
arrangement under which the Company or a Domestic Subsidiary is obligated to
cut or pay for timber in order to provide the secured party with a specified
amount of money, however determined; or (vii) mortgages for extending,
renewing or replacing Debt secured by any mortgage referred to in the
foregoing clauses (i) to (vi) inclusive or in this clause or any mortgages
existing on the date of the Indenture. Such restriction does not apply to the
issuance, assumption or guarantee by the Company or any Domestic Subsidiary of
Debt secured by a mortgage which would otherwise be subject to the foregoing
restriction up to an aggregate amount which, together with all other secured
Debt (not including secured Debt permitted under the foregoing exceptions) and
the Value (as defined) of Sale and Lease-back Transactions existing at such
time (other than Sale and Lease-back Transactions the proceeds of which have
been applied to the retirement of Securities or of certain long-term
indebtedness or to the purchase of other Principal Property, and other than
Sale and Lease-back Transactions in which the property involved would have
been permitted to be mortgaged under clause (i) above), does not exceed 5% of
Consolidated Net Tangible Assets (as defined). (Section 1005)
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. Sale and Lease-back
Transactions by the Company or any Domestic Subsidiary of any Principal
Property are prohibited (except for temporary leases for a term, including
renewals, of not more than three years and except for leases between the
Company and a Domestic Subsidiary or between Domestic Subsidiaries) unless (a)
the Company or such Domestic Subsidiary would be entitled to incur Debt
secured by a mortgage on the property to be leased without securing the
Securities pursuant to clause (i) under "Limitations on Liens" or (b) the
value thereof would be an amount permitted under the last sentence under
"Limitations on Liens" or (c) the Company applied an amount equal to the fair
value of such property (i) to the retirement of
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<PAGE>
Securities (other than pursuant to any sinking fund obligations applicable to
such Securities), (ii) to the retirement of certain long-term indebtedness of
the Company or a Domestic Subsidiary or (iii) to the purchase of Principal
Property (other than that involved in such Sale and Lease-back Transaction).
(Section 1006)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to
Securities of any series: (a) failure to pay principal of or any premium on
any Security of that series when due; (b) failure to pay any interest on any
Security of that series when due, continued for 30 days; (c) failure to
deposit any sinking fund payment, when due, in respect of any Security of that
series; (d) failure to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture solely for the
benefit of series of Securities other than that series), continued for 60 days
after written notice as provided in the Indenture; (e) certain events in
bankruptcy, insolvency or reorganization and (f) any other Event of Default
provided with respect to Securities of that series. (Section 501) If an Event
of Default with respect to Securities of any series at the time Outstanding
occurs and is continuing, either the Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series may
declare the principal amount (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Securities of any series has been made, but
before a judgment or decree based on acceleration has been obtained, the
Holders of a majority in aggregate principal amount of Outstanding Securities
of that series may, under certain circumstances, rescind and annul such
acceleration. (Section 502)
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at
the request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of any series will
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of that series.
(Section 512)
No Holder of any Security of any series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to Securities of that series and
unless also the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a
majority in principal amount of the Outstanding Securities of that series a
direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days. (Section 507) However, the Holder of any
Security will have an absolute right to receive payment of the principal of
(and premium, if any) and interest on such Security on or after the due dates
expressed in such Security and to institute suit for the enforcement of any
such payment. (Section 508)
The Company is required to furnish to the Trustee annually a statement as to
performance by the Company of certain of its obligations under the Indenture
and as to any default in such performance. (Section 1007)
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MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of 66 2/3% in aggregate principal
amount of the Outstanding Securities of each series affected by such
modification or amendment: provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Security
affected thereby; (a) change the stated maturity date of the principal of, or
any installment of principal or interest on, any Security; (b) reduce the
principal amount of, or any premium or interest on, any Security; (c) reduce
the amount of principal of an Original Issue Discount Security payable upon
acceleration of the maturity thereof; (d) change the place or currency of
payment of principal of, or any premium or interest on, any Security; (e)
impair the right to institute suit for the enforcement of any payment on or
with respect to any Security; or (f) reduce the percentage in principal amount
of Outstanding Securities of any series the consent of whose Holders is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults. (Section 902)
The Holders of 66 2/3% in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of Securities of that
series, waive, insofar as that series is concerned, compliance by the Company
with certain restrictive provisions of the Indenture. (Section 1008) The
Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of Securities of that
series, waive any past default under the Indenture with respect to Securities
of that series, except a default in the payment of principal or any premium or
interest or in respect of a provision which under the Indenture cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of that series affected. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may consolidate or merge with or into, or transfer its assets
substantially as an entirety to, any corporation organized under the laws of
any domestic jurisdiction, provided that the successor corporation assumes the
Company's obligations on the Securities and under the Indenture, that after
giving effect to the transaction no Event of Default, and no event which,
after notice or lapse of time, would become an Event of Default, shall have
occurred and be continuing, and that certain other conditions are met.
(Section 801)
CONCERNING THE TRUSTEE
The Company maintains banking relationships with the Trustee in the ordinary
course of its business. Borrowings totalling $400,000,000 are available to the
Company under its Credit Agreement with a group of banks that includes the
Trustee. There are no borrowings currently outstanding under this Credit
Agreement. The Trustee is also the trustee under the indentures pursuant to
which the Company's publicly held senior debt securities were issued. The
Trustee is also the trustee and a money manager under the Company's employee
retirement plans.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents. Such
underwriters will consist of Goldman, Sachs & Co. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated acting alone or as representatives of a group of
underwriters.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from
time to time), at market prices prevailing at the
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time of sale, at prices related to such prevailing market prices or at
negotiated prices. Each Prospectus Supplement will describe the method of
distribution of the Securities offered thereby.
In connection with the sale of the Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they
may act as agents, in the form of discounts, concessions or commissions. The
underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters under the Securities Act of 1933
and any discounts or commissions received by them and any profit on the resale
of Securities by them may be deemed to be underwriting discounts and
commissions under such Act. Any such underwriter will be identified and any
such compensation will be described in the Prospectus Supplement.
If so indicated in the Prospectus Supplement, the Company will authorize the
underwriters to solicit offers by certain 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 the date stated in the Prospectus Supplement. Each such contract
will be for an amount not less than, and unless the Company otherwise agrees,
the aggregate principal amount of Securities sold pursuant to such contracts
shall not be more than, the respective amounts stated in the Prospectus
Supplement. Institutions with whom such contracts, when authorized, may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions, but shall in all cases be subject to the approval of the
Company. Delayed Delivery Contracts will not be subject to any conditions
except that the purchase by an institution of the Securities covered thereby
shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject.
The Underwriting Agreement entered into with respect to any Securities sold
through underwriters provides that the obligations of the underwriter or
underwriters will be subject to certain conditions precedent and that the
underwriters will be obligated to purchase all of the Securities covered by
the applicable Prospectus Supplement if any are purchased.
The Company has agreed to indemnify the several underwriters against certain
civil liabilities, including liabilities under the Securities Act of 1933.
LEGAL OPINIONS
The legality of the Securities offered hereby will be passed upon for the
Company by Wendell L. Willkie, II, Esq., Senior Vice President and General
Counsel of the Company and for the Underwriters by Brown & Wood LLP, New York,
New York. Mr. Willkie is the beneficial owner of shares of the Company's
common stock held in trust under the Company's Savings and Investment Plan. He
is also the recipient of stock options, stock appreciation rights and limited
stock appreciation rights granted by the Company.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1996 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
8
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $ 90,909
Printing and engraving............................................. 40,000
Trustee's fee and expenses......................................... 10,000
Accounting services................................................ 11,000
Rating agency fees................................................. 180,000
Miscellaneous...................................................... 2,125
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Total............................................................ $334,034
========
</TABLE>
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* All amounts shown are estimates, other than the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware, Section 145, as
amended, permits the registrant to indemnify any person "who was or is a party
or is threatened to be made a party" to any proceeding by his relationship to
the registrant "if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests" of the registrant.
Expenses may be paid in advance and insurance may be carried by the
registrant.
Article II, Section 14 of the registrant's Bylaws provides as follows:
Each director, officer and employee, past or present, of the Corporation,
and each person who serves or may have served at the request of the
Corporation as a director, officer or employee of another corporation and
their respective heirs, administrators and executors, shall be indemnified
by the Corporation in accordance with, and to the fullest extent provided
by, the provisions of the General Corporation Law of the State of Delaware
as it may from time to time be amended. Each agent of the Corporation and
each person who serves or may have served at the request of the Corporation
as an agent of another corporation, or as an employee or agent of any
partnership, joint venture, trust or other enterprise may, in the
discretion of the Board of Directors, be indemnified by the Corporation to
the same extent as provided herein with respect to directors, officers and
employees of the Corporation.
The registrant has purchased an insurance policy insuring officers and
directors of the registrant against certain liabilities, including liabilities
under the Securities Act of 1933, and insuring the registrant against any
payment which it is obligated to make to such persons under the
indemnification provisions of its Bylaws.
Reference is made to Section 6 of the Underwriting Agreement filed as
Exhibit (1) to this Registration Statement.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
(1) Form of Underwriting Agreement relating to the Debt Securities.
(4)(a) Form of Indenture, dated as of March 1, 1983, between Westvaco
Corporation and The Bank of New York, as trustee (incorporated by
reference to Exhibit 2 to registrant's Registration Statement on Form
8-A (File No. 1-3013) dated January 24, 1984).
(4)(b) Proposed form of Debt Security (incorporated by reference to pages 13
through 19 of Exhibit 2 to registrant's Registration Statement on Form
8-A (File No. 1-3013) dated January 24, 1984).
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
(5) Opinion of Wendell L. Willkie, II, Esq.
(12) Computation of ratio of earnings to fixed charges.
(23)(a) Consent of Price Waterhouse LLP.
(23)(b) Consent of Wendell L. Willkie, II, Esq. (included in Exhibit (5)).
(24) Power of Attorney of certain officers and directors (included on pages
II-4 and II-5).
(25) Statement of eligibility of trustee on Form T-1.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby 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;
(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;
(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;
provided, however, that the undertakings set forth in clauses (i) and
(ii) of this paragraph shall not apply if the information required to
be included in such post-effective amendments is contained in periodic
reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant 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
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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 registrant 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 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.
II-2
<PAGE>
(i)(1) 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 registrant 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.
(2) 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.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF NEW YORK, AND THE STATE OF NEW YORK, ON THE 25TH
DAY OF FEBRUARY, 1997.
Westvaco Corporation
(Registrant)
/s/ John A. Luke, Jr.
By __________________________________
(JOHN A. LUKE, JR., CHAIRMAN,
PRESIDENT AND CHIEF EXECUTIVE
OFFICER)
POWER OF ATTORNEY
Know All Men by These Presents, that each person whose name appears below
constitutes and appoints John A. Luke, Jr. and Rudolph G. Johnstone, Jr., and
each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitutions and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
SIGNATURE TITLE DATE
/s/ John A. Luke, Jr. Chairman, President, February 25, 1997
- --------------------------------- Chief Executive Officer
JOHN A. LUKE, JR. and Director
/s/ Rudolph G. Johnstone, Jr. Executive Vice President February 25, 1997
- --------------------------------- and Director
RUDOLPH G. JOHNSTONE, JR.
/s/ James E. Stoveken, Jr. Senior Vice President February 25, 1997
- --------------------------------- (Principal Financial
JAMES E. STOVEKEN, JR. Officer)
/s/ John E. Banu Comptroller (Principal February 25, 1997
- --------------------------------- Accounting Officer)
JOHN E. BANU
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Samuel W. Bodman III Director February 25, 1997
- -------------------------------------
SAMUEL W. BODMAN III
/s/ W.L. Lyons Brown, Jr. Director February 25, 1997
- -------------------------------------
W.L. LYONS BROWN, JR.
/s/ Dr. Thomas W. Cole, Jr. Director February 25, 1997
- -------------------------------------
DR. THOMAS W. COLE, JR.
/s/ David L. Hopkins, Jr. Director February 25, 1997
- -------------------------------------
DAVID L. HOPKINS, JR.
/s/ Douglas S. Luke Director February 25, 1997
- -------------------------------------
DOUGLAS S. LUKE
/s/ John A. Luke Director February 25, 1997
- -------------------------------------
JOHN A. LUKE
/s/ William R. Miller Director February 25, 1997
- -------------------------------------
WILLIAM R. MILLER
/s/ Katherine G. Peden Director February 25, 1997
- -------------------------------------
KATHERINE G. PEDEN
/s/ Richard A. Zimmerman Director February 25, 1997
- -------------------------------------
RICHARD A. ZIMMERMAN
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS PAGE
-------- ----
<C> <S> <C>
(1) Form of Underwriting Agreement relating to the Debt
Securities....................................................
(4)(a) Form of Indenture, dated as of March 1, 1983, between Westvaco
Corporation and The Bank of New York, as trustee (incorporated
by reference to Exhibit 2 to registrant's Registration
Statement on Form 8-A (File No. 1-3013) dated January 24,
1984).........................................................
(4)(b) Proposed form of Debt Security (incorporated by reference to
pages 13 through 19 of Exhibit 2 to registrant's Registration
Statement on Form 8-A (File No. 1-3013) dated January 24,
1984).........................................................
(5) Opinion of Wendell L. Willkie, II, Esq. ......................
(12) Computation of ratio of earnings to fixed charges.............
(23)(a) Consent of Price Waterhouse LLP...............................
(23)(b) Consent of Wendell L. Willkie, II, Esq. (included in Exhibit
(5))..........................................................
(24) Power of Attorney of certain officers and directors (included
on pages II-4 and II-5).......................................
(25) Statement of eligibility of trustee on Form T-1...............
</TABLE>
<PAGE>
Exhibit 1
WESTVACO CORPORATION
(a Delaware Corporation)
Debt Securities
UNDERWRITING AGREEMENT
----------------------
_________, 1997
Goldman, Sachs & Co.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
Westvaco Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell up to $300,000,000 aggregate principal amount of its debt
securities (the "Securities") in one or more fixed price offerings on terms
determined at the time of sale. The Securities will be issued under an
indenture dated as of March 1, 1983 (the "Indenture") between the Company and
The Bank of New York (formerly known as Irving Trust Company), as Trustee. Each
issue of Securities may vary as to aggregate principal amount, maturity date,
interest rate or rates and timing of payments thereof, redemption provisions and
sinking fund requirements, if any, and any other variable terms which the
Indenture contemplates may be set forth in the Securities as issued from time to
time.
Each underwritten offering of Securities will be made through you or
through an underwriting syndicate managed by you. Whenever the Company
determines to make such an offering of Securities, it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Securities to,
and the purchase and offering thereof by, you and such other underwriters, if
any, selected by you as have authorized you to enter into such Terms Agreement
on their behalf (the "Underwriters", which term shall include you whether acting
alone in the sale of Securities or as members of an underwriting syndicate).
The Terms Agreement relating to each offering of Securities shall specify the
principal amount of Securities to be issued and their terms not otherwise
specified in the Indenture, the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof) and the
principal amount of Securities which each severally agrees to purchase, the
names of such other Underwriters, if any, acting as co-managers with you in
connection with such offering, the price at which the Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, any delayed delivery arrangements and the time and place of delivery and
payment. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each offering of
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of
such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-___________)
relating to the Securities and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933 (the "1933 Act") and
has filed such amendments thereto as may have been required to the date hereof.
Such registration statement as amended has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture
<PAGE>
Act of 1939, as amended (the "1939 Act"). Such registration statement as amended
and the prospectus relating to the sale of Securities by the Company
constituting a part thereof, including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are
referred to herein as the "Registration Statement" and the "Prospectus",
respectively; provided, however, that a supplement to the Prospectus prepared
pursuant to Section 3(a) hereof (a "Prospectus Supplement") shall be deemed to
have supplemented the Prospectus only with respect to the offering of Securities
to which it relates.
Section 1. Representations and Warranties. The Company represents and
warrants to you as of the date hereof, and to each Underwriter named in a Terms
Agreement as of the date thereof (in each case the "Representation Date"), as
follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the
requirements of the 1933 Act, the rules and regulations thereunder (the
"Regulations") and the 1939 Act. The Registration Statement, at the time
the Registration Statement became effective and as of the applicable
Representation Date, did not, and will not, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement became effective and as
of the applicable Representation Date, did not, and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through you
expressly for use in the Registration Statement or Prospectus or to that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1), of the Trustee
under the Indenture.
(b) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations thereunder, and, when read together with the
other information in the Prospectus, at the time the Registration Statement
and any amendments thereto become effective, will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
(c) The accountants who certified the financial statements
included in the Registration Statement are independent public accountants
as required by the 1933 Act and the Regulations.
(d) The financial statements incorporated by reference in the
Registration Statement and Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein, during the periods involved.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business and (B) there have been no material
transactions entered into by the Company or any of its subsidiaries other
than those in the ordinary course of business.
2
<PAGE>
(f) Neither the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it or any of them is a
party or by which it or any of them or their properties may be bound; and
the execution and delivery of this Agreement, the Indenture and each Terms
Agreement, the incurrence of the obligations herein and therein set forth
and the consummation of the transactions contemplated herein and therein
will not conflict with or constitute a breach of, or default under, the
certificate of incorporation or by-laws of the Company or any bond,
debenture, note or other evidence of indebtedness or any contract,
indenture, mortgage, loan agreement or lease to which the Company or any of
its subsidiaries is a party or by which it may be bound, by any law,
administrative regulation or court decree.
(g) The Securities have been duly authorized for issuance and sale
pursuant to this Agreement (or will have been so authorized prior to each
issuance of Securities) and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and of the Indenture against
payment of the consideration therefor in accordance with this Agreement,
the Securities will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights and will be entitled to the benefits
provided by the Indenture, which will be substantially in the form
heretofore delivered to you.
Any certificate signed by any officer of the Company and delivered to you
or counsel for the Underwriters in connection with an offering of Securities
shall be deemed a representation and warranty by the Company, as to the matters
covered thereby, to each Underwriter participating in such offering.
Section 2. Purchase and Sale. The several commitments of the
Underwriters to purchase Securities pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
Payment of the purchase price for, and delivery of, any Securities to be
purchased by the Underwriters shall be made at the office of Brown & Wood llp,
One World Trade Center, New York, New York 10048, or at such other place as
shall be agreed upon by you and the Company, at 9:00 A M., New York City time,
on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern Time) on
any given day) business day (unless postponed in accordance with the provisions
of Section 10) following the date of the applicable Terms Agreement or such
other time as shall be agreed upon by you and the Company (each such time and
date being referred to as a "Closing Time"). Payment shall be made to the
Company by certified or official bank check or checks in New York Clearing House
or similar next day funds payable to the order of the Company against delivery
to you for the respective accounts of the Underwriters of the Securities to be
purchased by them. Such Securities shalt be in such denominations and
registered in such names as you may request in writing at least two business
days prior to the applicable Closing Time. Such Securities, which may be in
temporary form, will be made available for examination and packaging by you on
or before the first business day prior to Closing Time.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit B hereto with such changes therein as the Company may approve.
As compensation for arranging Delayed Delivery Contracts, the Company will pay
to you at Closing Time, for the accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Securities for which Delayed Delivery
Contracts are made at Closing Time as is specified in the applicable Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional
investors of the types set forth in the Prospectus. At Closing Time the Company
will enter into Delayed Delivery Contracts (for not less than the minimum
principal amount of Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all
3
<PAGE>
purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate principal amount of Securities in
excess of that specified in the applicable Terms Agreement. The Underwriters
will not have any responsibility for the validity of performance of Delayed
Delivery Contracts.
You are to submit to the Company, at least three business days prior to
Closing Time, the names of any institutional investors with which it is proposed
that the Company will enter into Delayed Delivery Contracts and the principal
amount of Securities to be purchased by each of them, and the Company will
advise you, at least two business days prior to Closing Time, of the names of
the institutions with which the making of Delayed Delivery Contracts is approved
by the Company and the principal amount of Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Securities agreed to be purchased by the respective
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the
principal amount of Securities covered by Delayed Delivery Contracts as to each
Underwriter as set forth in a written notice delivered by you to the Company;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the total amount of Securities covered by the
applicable Terms Agreement, less the principal amount of Securities covered by
Delayed Delivery Contracts.
Section 3. Covenants of the Company. The Company covenants with you, and
with each Underwriter participating in the applicable offering of Securities, as
follows:
(a) Immediately following the execution of each Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the principal
amount of Securities covered thereby and their terms not otherwise specified in
the Indenture, the names of the Underwriters participating in the offering and
the principal amount of Securities which each severally has agreed to purchase,
the names of any Underwriters acting as co-managers with you in connection with
the offering, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the selling
concession and reallowance, if any, any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in connection with the
offering of the Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the
Regulations and will use its best efforts to furnish to the Underwriters named
therein as many copies of the Prospectus and such Prospectus Supplement as the
Underwriters shall reasonably request, prior to 10:00 a.m. New York City time on
the business day next succeeding the date of the applicable Terms Agreement.
Thereafter, the Company will furnish to the Underwriters as many copies of the
Prospectus and the Prospectus Supplement as the Underwriters may from time to
time reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities any event shall occur
or condition exist as a result of which it is necessary, in the opinion of your
counsel or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances existing at the
time it is delivered to a purchaser or if it shall be necessary, in the opinion
of either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the Regulations, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant to
the 1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement comply with such requirements.
(c) The Company will make generally available to its security
holders, in each case as soon as practicable, earnings statements (in form
complying with the provisions of Rule 158 under the
4
<PAGE>
1933 Act), covering (i) a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the effective date of the
Registration Statement and (ii) a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the date of each
Terms Agreement and each filing under the 1934 Act of an annual report of the
Company on Form 10-K.
(d) The Company will give you notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1934 Act, the 1933 Act, or otherwise, will
furnish you with copies of any such amendment or supplement or other documents
proposed to be filed a reasonable time in advance of filing, and will not file
any such amendment or supplement or other documents in a form in which you or
your counsel shall reasonably object.
(e) The Company will notify each of you immediately, and confirm
the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or any
Prospectus Supplement, (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or for additional information, and (v) of the issuance by the Commission of any
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company will deliver to you as many signed and conformed
copies of the registration statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as you may reasonably
request and will also deliver to you a conformed copy of the Registration
Statement and each amendment thereto for each of the Underwriters.
(g) The Company will endeavor, in cooperation with you, to qualify
the Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as you may designate,
and will maintain such qualifications in effect for as long as may be required
for the distribution of the Securities; provided, however, that the Company
shall not be obligated to file any general consent to service or to qualify as a
foreign corporation or as a dealer of securities in any jurisdiction in which it
is not so qualified. In each jurisdiction in which the Securities have been
qualified as above provided, the Company will file such statements and reports
as may be required by the laws of such jurisdiction.
(h) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all documents required to
be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Between the date of any Terms Agreement and termination of any
trading restrictions as notified by you to the Company or Closing Time,
whichever is later, with respect to the Securities covered thereby, the Company
will not, without your prior consent, offer or sell, or enter into any agreement
to sell, any debt securities of the Company with a maturity of more than one
year, including additional Securities.
(j) The Company will for a period of five years from the effective
date of the Registration Statement furnish direct to you and to each Underwriter
participating in the applicable offering of Securities, upon request, as soon as
the same shall be sent to stockholders, copies of any
5
<PAGE>
annual or interim reports of the Company to its stockholders, and it will also
furnish you, upon request, the following:
(1) as soon as available, copies of any report which the
Company shall file with the Commission or mail to stockholders; and
(2) such other information as you may reasonably request which
affects the holders of the applicable Securities.
Section 4. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy of and compliance with the representations and warranties of the
Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (ii) the rating assigned by any nationally recognized
securities rating agency to any debt securities or preferred stock of the
Company as of the date of the applicable Terms Agreement shall not have
been lowered since that date nor shall any such rating agency have publicly
announced that it has placed any debt securities or preferred stock of the
Company on what is commonly termed a "watch list" for possible downgrading
and (iii) there shall not have come to your attention any facts that would
cause you to believe that the Prospectus, together with the applicable
Prospectus Supplement, at the time it was required to be delivered to a
purchaser of the Securities, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time,
not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time of Wendell L. Willkie, II, Esq., Senior Vice President and
General Counsel of the Company, in form and substance satisfactory
to such of you as may be named in the applicable Terms Agreement,
to the effect that:
(i) The Company has been incorporated in accordance with,
and is validly existing as a corporation in good standing
under, the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement.
(iii) The Company is qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which the conduct of its business requires such
qualification; and each wholly-owned subsidiary of the Company
has been organized in accordance with, and is validly existing
and in good standing under, the laws of its jurisdiction of
incorporation.
(iv) This Agreement, the applicable Terms Agreement, and
the Delayed Delivery Contracts, if any, have been authorized,
executed and delivered by the Company.
6
<PAGE>
(v) The Indenture has been authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights.
(vi) The Securities covered by the applicable Terms
Agreement are in the form contemplated by the Indenture, have
been authorized by all necessary corporate action and, when
executed and authenticated as specified in the Indenture and
delivered against payment pursuant to this Agreement, as
supplemented by the applicable Terms Agreement, will be valid
and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws relating to
or affecting enforcement of creditors' rights and will be
entitled to the benefits of the Indenture.
(vii) The Indenture and the Securities covered by the
applicable Terms Agreement conform in all material respects to
the descriptions thereof in the Prospectus and the applicable
Prospectus Supplement.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the
1933 Act and, to the best of the knowledge and information of
such counsel, no proceedings for a stop order have been
instituted or threatened under Section 8(d) of the 1933 Act.
(x) The Registration Statement (other than the financial
statements included therein, as to which no opinion need be
rendered) appeared on its face to be appropriately responsive
in all material respects to the requirements of the 1933 Act,
the 1939 Act, and the Regulations, and nothing has come to the
mention of such counsel that would lead such counsel to
believe that the Registration Statement, at the time it became
effective, or if an amendment to the Registration Statement or
an annual report on Form 10-K has been filed the Company with
the Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent
such filing, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date or as
amended or supplemented at Closing Time, contained or contains
an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(xi) Each document, if any, filed pursuant to the 1934
Act (other than the financial statements included therein, as
to which no opinion need be rendered) and incorporated by
reference in the Prospectus, appeared on its face to be
appropriately responsive when so filed in all material
respects with the 1934 Act and the rules and regulations
thereunder (the "1934 Act Regulations").
(xii) To the best of the knowledge and information of
such counsel, there are no contracts, indentures, mortgages,
loan agreements, leases or other documents of a character
required to be filed as exhibits to the Registration Statement
other than those filed or incorporated by reference as
exhibits to the Registration Statement.
(xiii) To the best of the knowledge and information of such
counsel, there are no legal or governmental proceedings
pending or threatened against the Company
7
<PAGE>
or any of its subsidiaries which are required to be disclosed
in the Registration Statement, other than those discussed
therein, and the information set forth therein to the extent
that it constitutes matters of law or legal conclusions, has
been reviewed by such counsel and is correct; and
(xiv) The issuance of the Securities by the Company will
not conflict with or result in a breach of any of the terms,
conditions or provisions of any agreement or instrument
actually known to such counsel to which the Company or any of
its subsidiaries is a party or constitute a default under any
such agreement or instrument.
(2) The favorable opinion or opinions, dated as of the
applicable Closing Time, of Brown & Wood llp, counsel for the
Underwriters, with respect to the matters set forth in (i) and (iv) to
(x), inclusive, of subsection (b)(1) of this Section.
(c) At the applicable Closing Time (i) there shall not have been, since
the date of the applicable Terms Agreement or since the respective dates as of
which information is given in the Registration Statement and other than as
contemplated therein, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business; (ii) there shall not have been
subsequent to the date of the applicable Terms Agreement and transactions
entered into by the Company or any of its subsidiaries other than transactions
in the ordinary course of business or transactions referred to in the
Registration Statement or transactions which are not material in relation to the
Company and its subsidiaries considered as one enterprise; (iii) since the date
of the applicable Terms Agreement neither the Company nor any of its
subsidiaries shall have sustained a loss of, or damage to, its properties
(whether or not insured) which would materially adversely affect the business,
operations, financial condition or income of the Company and its subsidiaries
considered as one enterprise; and (iv) except as otherwise stated in the
Registration Statement and Prospectus, no action, suit or proceeding, at law or
in equity, shall be pending or to the knowledge of the Company threatened
against or affecting the Company or any of its subsidiaries, and no proceedings
shall be pending or to the knowledge of the Company threatened against the
Company or any of its subsidiaries before or by any governmental commission,
board or other administrative agency, wherein an unfavorable decision, ruling or
finding would materially adversely affect the business, operations, financial
condition or income of the Company and its subsidiaries considered as one
enterprise. Compliance with the provisions of (i) to (iv), inclusive, of this
subsection shall be evidenced by a certificate of the Chairman, President and
Chief Executive Officer, an Executive Vice President, or a Senior Vice President
of the Company delivered to you at such Closing Time. Such certificate shall
also state that the other representations and warranties contained in Section 1
hereof are true and correct with the same effect as though such Closing Time
were a Representation Date.
(d) You shall have received from Price Waterhouse LLP a letter, dated as
of the applicable Closing Time and delivered at such time, in form heretofore
agreed to (based upon the draft letter heretofore delivered).
(e) At the applicable Closing Time counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained and
all proceedings taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be satisfactory in form and
substance to you and counsel for the Underwriters.
If any of the conditions specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by such of you as may be named in such Terms Agreement by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 5.
8
<PAGE>
Section 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the registration statement and all amendments
thereto, and the printing of this Agreement and each Terms Agreement, (ii) the
preparation, issuance and delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel and accountants related to
the registration statement and prospectus and all amendments or supplements
thereto, (iv) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
fee and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Survey and Legal
Investment Survey, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the registration statement and all
amendments thereto, of the Registration Statement and any amendments thereto,
and of the Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of the Indenture and any
Blue Sky Survey and Legal Investment Survey to be prepared by counsel for the
Underwriters, (vii) the fees of rating agencies and (viii) the fees and
expenses, if any, incurred in connection with the listing of the Securities on
the New York Stock Exchange.
If a Terms Agreement is terminated by such of you as are named
therein in accordance with the provisions of Section 4 or clause (i) of Section
9, the Company shall reimburse the Underwriters named in such Terms Agreement
for all of their out-of-pocket expenses, including the reasonable fee and
disbursements of counsel for the Underwriters.
Section 6. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in a preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and
in conformity with written information furnished to the Company by
any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any such preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or was made in reliance upon the Form T-1 of the Trustee
under the Indenture;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever contemplated by this Section, as
incurred, to the extent of the aggregate amount paid in settlement
of any litigation or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any
claim whatsoever which, in any such case, is based upon any such
untrue statement or omission, or any such alleged untrue statement
or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(other than any fees and expenses of counsel described in the
fourth and fifth sentences of subsection (c) of this Section 6)
reasonably incurred in investigation preparing or defending against
any litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above.
9
<PAGE>
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its officers who signed the Registration
Statement, and each of its directors and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company, but only with respect to statements or
omissions made in the Registration Statement (or any amendment thereto) or a
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or any such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party if an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for the fees
and expenses of more than one counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 is for any reason held to be unavailable to the
Underwriters other than in accordance with its terms, the Company and the
Underwriters of each offering of Securities shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of such
Underwriters in respect of such offering in such proportions as will reflect the
relative benefits from the offering of such Securities received by the Company
on the one hand and by such Underwriters on the other hand, provided that if the
Securities are offered by Underwriters at an initial public offering price set
forth in a Prospectus Supplement, the relative benefits shall be deemed to be
such that the Underwriters shall be responsible for that portion of the
aggregate losses, liabilities, claims, damages and expenses represented by the
percentage that the underwriting discount appearing in such Prospectus
Supplement bears to the initial public offering price appearing therein and the
Company shall be responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Securities to the Underwriters.
Section 9. Termination. This Agreement may be terminated for
any reason at any time by either the Company or you upon giving of thirty days'
written notice of such termination to the other party hereto.
10
<PAGE>
You may also terminate such Terms Agreement, immediately upon notice to the
Company, at any time at or prior to the applicable Closing Time (i) if there has
been, since the date of such Terms Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable to market the
Securities or enforce contracts for the sale of the Securities, or (iii) if
trading in the Common Stock of the Company has been suspended by the Commission
or a national securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal or New York authorities or (iv)
if the rating assigned by any nationally recognized securities rating agency to
any debt securities or preferred stock of the Company as of the time any
applicable Terms Agreement was entered into shall have been lowered since that
time or if any such rating agency shall have publicly announced that it has
placed any debt securities or preferred stock of the Company on what is commonty
termed a "watch list" for possible downgrading. In the event of any such
termination, (x) the covenants set forth in Section 3 with respect to any
offering of Securities shall remain in effect so long as any Underwriter owns
any such Securities purchased from the Company pursuant to the applicable Terms
Agreement and (y) the covenant set forth in Section 3(c), the provisions of
Section 5, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7, and the provisions of Sections 8 and 13 shall
remain in effect.
Section 10. Default. If one or more of the Underwriters
participating in an offering of Securities shall fail at the applicable Closing
Time to purchase the Securities which it or they are obligated to purchase
hereunder and under the applicable Terms Agreement (the "Defaulted Securities"),
then you shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the nondefaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth. If, however, during
such 24 hours you shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of
the Securities to be purchased pursuant to such Terms Agreement,
the non-defaulting Underwriters named in such Terms Agreement shall
be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to
the underwriting obligations of all such non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the
Securities to be purchased pursuant to such Terms Agreement, the
applicable Terms Agreement shall terminate, without any liability
on the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either you or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices
11
<PAGE>
to the Underwriters shall be directed to you at 85 Broad Street, New York, New
York 10004, attention of Registration Department; notices to the Company shall
be directed and confirmed to it at 299 Park Avenue, New York, New York 10171,
attention of Wendell L. Willkie, II, Senior Vice President and General Counsel.
Section 12. Parties. This Agreement shall inure to the benefit of
and be binding upon you and the Company, and any Terms Agreement shall inure to
the benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof or thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 13. Governing Law. This Agreement and each Terms Agreement
shall be governed by the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
WESTVACO CORPORATION
By
---------------------------
Senior Vice President
Confirmed and Accepted,
as of the date first above written:
- -----------------------------------
(Goldman, Sachs & Co.)
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By
---------------------------
Investment Banking Division
12
<PAGE>
Exhibit A
WESTVACO CORPORATION
Debt Securities
TERMS AGREEMENT
---------------
Dated: , 1997
To: WESTVACO CORPORATION
299 Park Avenue
New York, New York 10171
Re: Underwriting Agreement dated February , 1997.
Title of Security: % , .
Principal amount to be issued: $ .
Current ratings: A1 (Moody's); A (Standard & Poor's).
Interest rate: % Payable: and , commencing , .
Date of maturity: , . , .
Public offering price: % plus accrued interest from , .
Purchase price: % plus accrued interest from , (payable in next day
funds).
Closing date and location: , ; Brown & Wood llp, One World Trade
Center, 58th Floor, New York, New York 10048.
Co-managers: Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
<PAGE>
Each Underwriter severally agrees, subject to the terms and
provisions of the above-referenced Underwriting Agreement, which is incorporated
herein in its entirety and made a part hereof, to purchase the principal amount
of Securities set forth opposite its name.
Name Principal Amount
---- ----------------
Goldman, Sachs & Co. ..................
Merrill Lynch, Pierce, Fenner &
Smith Incorporated .................
----------------
Total.................................. $
===============
Redemption provisions: Redeemable at any time during twelve month periods
beginning , in whole or in part, at redemption prices declining to par on
and after . Non-refundable prior to through
application of borrowed funds having an interest cost of less than %.
Sinking fund requirements: $ per year commencing ; option to increase
by additional $ per year.
Delayed Delivery Contracts:
Delivery Date:
Minimum Contract:
Maximum aggregate principal amount:
Fee:
---------------------------------------
(Goldman, Sachs & Co.)
MERRILL LYNCH & CO.
MERRILL LYNCH PIERCE, FENNER & SMITH
INCORPORATED
By
-------------------------------------
Vice President
Investment Banking Division
Accepted:
WESTVACO CORPORATION
By___________________________________
Senior Vice President
2
<PAGE>
Exhibit B
WESTVACO CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
-------------------------
[Date]
WESTVACO CORPORATION
c/o GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Westvaco Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned on , 19 (the "Delivery Date"),
principal amount of the Company's % debt securities due (the
"Securities"), offered by the Company's Prospectus dated , 19 , as
supplemented by its Prospectus Supplement dated , 19 , receipt of
which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus accrued interest from , 19 , to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds, at the office of Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, on the Delivery Date,
upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before , 19 ,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated , 19 , between the Company and the
Underwriters. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
<PAGE>
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contact will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of $
and that the acceptance of any Delayed Delivery Contract is in the Company's
sole discretion and, without limiting the foregoing, need not be on a first-
come, first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This agreement shall be governed by the laws of the State of New York.
Yours very truly,
-------------------------------
(Name of Purchaser)
By
-----------------------------
(Title)
-----------------------------
-----------------------------
(Address)
Accepted
as of the date first above written.
WESTVACO CORPORATION
By
----------------------
3
<PAGE>
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed is as follows:
(Please print.)
Telephone No.
Name (Including Area Code)
---- ---------------------
4
<PAGE>
February 25, 1997
Westvaco Corporation
299 Park Avenue
New York, New York 10171
Gentlemen:
As Senior Vice President and General Counsel for Westvaco Corporation (the
"Company") I have acted as your counsel in connection with the authorization of
$300,000,000 principal amount of debt securities (the "Securities") of the
Company and have examined a copy of the Indenture between the Company and Irving
Trust Company, as Trustee, dated as of March 1, 1983 (the "Indenture"), in the
form in which it was executed by the Company and the Trustee, the Company's
registration statement on Form S-3 relating to the Securities (the "Registration
Statement") and the form of Security to be issued pursuant to the Indenture.
I have examined such corporate records, documents, certificates and instruments
as in my judgment are necessary and appropriate to enable me to render the
opinion expressed below and I have participated in the preparation of the
Securities and the Registration Statement and Prospectus referred to below. I
have also examined and am familiar with the Indenture.
It is my opinion that:
(a) The Company has been incorporated and is validly existing as a
Corporation in good standing under the laws of the State of Delaware;
(b) The Indenture is a valid and binding instrument according to its terms
except as enforcement may be limited by bankruptcy, insolvency or other
laws affecting enforcement of creditors' rights;
(c) When the issuance of a Security has been authorized by the Company as
contemplated in the Indenture, and when such Security has been executed,
authenticated and delivered in accordance with the terms of the Indenture,
and as described in the Registration Statement and in the Underwriting
Agreement filed as an exhibit thereto, such Security will constitute a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or other laws affecting enforcement of creditors'
rights and will be entitled to the benefits of the Indenture.
<PAGE>
Westvaco Corporation
299 Park Avenue
New York, New York 10171 February 25, 1997
I consent to the filing of this Opinion as an exhibit to the Registration
Statement of the Company filed with the Securities and Exchange Commission for
the registration under Securities Act of 1933 as amended of the Securities, and
to the use of my name under the heading, "Legal Opinion," in the Prospectus.
Very truly yours,
/s/ Wendell L. Willkie, II
--------------------------
Wendell L. Willkie, II
Senior Vice President and
General Counsel
<PAGE>
WESTVACO CORPORATION AND CONSOLIDATED SUBSIDIARY COMPANIES
Computation of Ratio of Earnings to Fixed Charges
(unaudited)
(In thousands, except ratio)
<TABLE>
<CAPTION>
Year Ended October 31,
-----------------------------------------------------------
1992 1993 1994 1995 1996
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Pre Tax Earnings from Continuing Operations $206,112 $ 92,912 $161,906 $470,326 $335,956
Interest charges 78,966 82,696 109,069 100,205 90,063
Interest factor portion of rentals 8,705 9,657 10,219 11,324 12,210
-------- -------- -------- -------- --------
Earnings as adjusted $293,783 $185,265 $281,194 $581,855 $438,229
======== ======== ======== ======== ========
Fixed charges:
Interest charges, including capitalized interest $102,093 $115,494 $114,947 $107,501 $105,312
Interest factor in rent charges 8,705 9,657 10,219 11,324 12,210
-------- -------- -------- -------- --------
Total fixed charges $110,798 $125,151 $125,166 $118,825 $117,522
======== ======== ======== ======== ========
Ratio of earnings to fixed charges 2.65 1.48 2.25 4.90 3.73
======== ======== ======== ======== ========
</TABLE>
<PAGE>
EXHIBIT 23(a)
[LETTERHEAD OF PRICE WATERHOUSE LLP]
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
November 18, 1996, which appears on page 33 of the 1996 Annual Report to
Shareholders of Westvaco Corporation, which is incorporated by reference in
Westvaco Corporation's Annual Report on Form 10-K for the year ended October 31,
1996. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
February 26, 1997
<PAGE>
EXHIBIT 25
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
WESTVACO CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 13-1466285
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
299 Park Avenue
New York, New York 10171
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
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.
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24 OF THE
COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 24th day of February, 1997.
THE BANK OF NEW YORK
By: /S/ PAUL J. SCHMALZEL
--------------------------
Name: PAUL J. SCHMALZEL
Title: ASSISTANT TREASURER
-4-
<PAGE>
- --------------------------------------------------------------------------------
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1996, 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 Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin...................... $ 4,404,522
Interest-bearing balances.............. 732,833
Securities:
Held-to-maturity securities............ 789,964
Available-for-sale securities.......... 2,005,509
Federal funds sold in domestic offices
of the bank:
Federal funds sold..................... 3,364,838
Loans and lease financing receivables:
Loans and leases, net of unearned
income ....................28,728,602
LESS: Allowance for loan and
lease losses .................584,525
LESS: Allocated transfer risk
reserve...........................429
Loans and leases, net of unearned
income, allowance, and reserve....... 28,143,648
Assets held in trading accounts.......... 1,004,242
Premises and fixed assets (including
capitalized leases).................... 605,668
Other real estate owned.................. 41,238
Investments in unconsolidated
subsidiaries and associated
companies.............................. 205,031
Customers' liability to this bank on
acceptances outstanding................ 949,154
Intangible assets........................ 490,524
Other assets............................. 1,305,839
-----------
Total assets............................. $44,043,010
===========
LIABILITIES
Deposits:
In domestic offices.................... $20,441,318
Noninterest-bearing ..........8,158,472
Interest-bearing ............12,282,846
In foreign offices, Edge and
Agreement subsidiaries, and IBFs....... 11,710,903
Noninterest-bearing .............46,182
Interest-bearing ............11,664,721
Federal funds purchased in domestic
offices of the bank:
Federal funds purchased................ 1,565,288
Demand notes issued to the U.S.
Treasury............................... 293,186
Trading liabilities...................... 826,856
Other borrowed money:
With original maturity of one year
or less.............................. 2,103,443
With original maturity of more than
one year............................. 20,766
Bank's liability on acceptances executed
and outstanding...................... 951,116
Subordinated notes and debentures........ 1,020,400
Other liabilities........................ 1,522,884
-----------
Total liabilities........................ 40,456,160
-----------
EQUITY CAPITAL
Common stock............................. 942,284
Surplus.................................. 525,666
Undivided profits and capital
reserves............................... 2,129,376
Net unrealized holding gains (losses)
on available-for-sale securities....... (2,073)
Cumulative foreign currency translation
adjustments............................ (8,403)
-----------
Total equity capital..................... 3,586,850
-----------
Total liabilities and equity capital .... $44,043,010
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared
in conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Thomas A. Renyi Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
