18
EXHIBIT 1
WESTVACO CORPORATION
(a Delaware Corporation)
Debt Securities
FORM OF UNDERWRITING AGREEMENT
May 31, 2000 Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Bear, Stearns &
Co. Inc.
Banc of America
Securities LLC BNY
Capital Markets,
Inc. Chase
Securities Inc.
Salomon Smith
Barney Inc.
Wachovia
Securities,
Inc.
c/o Goldman,
Sachs &
Co. 85
Broad
Street
New York, NY 10004
Dear Sirs:
Westvaco Corporation, a Delaware
corporation (the "Company"), proposes to
issue and sell up to $400,000,000
aggregate principal amount of its debt
securities (the "Securities") in one or
more fixed price offerings on terms
determined at the time of sale. The
Securities will be issued under an
indenture dated as of March 1, 1983 (the
"Indenture") between the Company and The
Bank of New York (formerly known as
Irving Trust Company), as Trustee. Each
issue of Securities may vary as to
aggregate principal amount, maturity
date, interest rate or rates and timing
of payments thereof, redemption
provisions and sinking fund requirements,
if any, and any other variable terms
which the Indenture contemplates may be
set forth in the Securities as issued
from time to time.
Each underwritten offering of
Securities will be made through you or
through an underwriting syndicate managed
by you. Whenever the Company determines
to make such an offering of Securities,
it will enter into an agreement (the
"Terms Agreement") providing for the sale
of such Securities to, and the purchase
and offering thereof by, you and such
other underwriters, if any, selected by
you as have authorized you to enter into
such Terms Agreement on their behalf (the
"Underwriters", which term shall include
you whether acting alone in the sale of
Securities or as members of an
underwriting syndicate). The Terms
Agreement relating to each
offering of Securities shall specify the
principal amount of Securities to be
issued and their terms not otherwise
specified in the Indenture, the names of
the Underwriters participating in such
offering (subject to substitution as
provided in Section 10 hereof) and the
principal amount of Securities which each
severally agrees to purchase, the names
of such other Underwriters, if any,
acting as co-managers with you in
connection with such offering, the price
at which the Securities are to be
purchased by the Underwriters from the
Company, the initial public offering
price, any delayed delivery arrangements
and the time and place of delivery and
payment. The Terms Agreement, which
shall be substantially in the form of
Exhibit A hereto, may take the form of an
exchange of any standard form of written
telecommunication between you and the
Company. Each offering of Securities
will be governed by this Agreement, as
supplemented by the applicable Terms
Agreement, and this Agreement and such
Terms Agreement shall inure to the
benefit of and be binding upon each
Underwriter participating in the offering
of such Securities.
The Company has filed with the
Securities and Exchange Commission (the
"Commission") a registration statement on
Form S3 (No. 333-91635) relating to the
Securities and the offering thereof from
time to time in accordance with Rule 415
under the Securities Act of 1933 (the
"1933 Act") and has filed such amendments
thereto as may have been required to the
date hereof. Such registration statement
as amended has been declared effective by
the Commission, and the Indenture has
been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act").
Such registration statement as amended
and the prospectus relating to the sale
of Securities by the Company constituting
a part thereof, including all documents
incorporated therein by reference, as
from time to time amended or supplemented
pursuant to the Securities Exchange Act
of 1934 (the "1934 Act"), the 1933 Act or
otherwise, are referred to herein as the
"Registration Statement" and the
"Prospectus", respectively; provided,
however, that a supplement to the
Prospectus prepared pursuant to
Section 3(a) hereof (a "Prospectus
Supplement") shall be deemed to have
supplemented the Prospectus only with
respect to the offering of Securities to
which it relates.
Section 1. Representations and
Warranties. The Company represents and
warrants to you as of the date hereof,
and to each Underwriter named in a Terms
Agreement as of the date thereof (in each
case the "Representation Date"), as
follows:
(a) The Registration Statement
and the Prospectus, at the time the
Registration Statement became
effective and as of the applicable
Representation Date, complied in all
material respects with the
requirements of the 1933 Act, the
rules and regulations thereunder
(the "Regulations") and the 1939
Act. The Registration Statement, at
the time the Registration Statement
became effective and as of the
applicable Representation Date, did
not, and will not, contain any
untrue statement of a
material fact or omit to state any
material fact required to be stated
therein or necessary to make the
statements therein not misleading.
The Prospectus, at the time the
Registration Statement became
effective and as of the applicable
Representation Date, did not, and
will not contain an untrue statement
of a material fact or omit to state
a material fact necessary in order
to make the statements therein, in
the light of the circumstances under
which they were made, not
misleading; provided, however, that
the representations and warranties
in this subsection shall not apply
to statements in or omissions from
the Registration Statement or
Prospectus made in reliance upon and
in conformity with information
furnished to the Company in writing
by any Underwriter through you
expressly for use in the
Registration Statement or Prospectus
or to that part of the Registration
Statement which shall constitute the
Statement of Eligibility and
Qualification under the 1939 Act
(Form T-1), of the Trustee under the
Indenture.
(b) The documents incorporated by reference in
the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in
all material respects with the requirements of the
1934 Act and the rules and regulations thereunder,
and, when read together with the other information in
the Prospectus, at the time the Registration Statement
and any amendments thereto become effective, will not
contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary to make the statements therein, in the
light of the circumstances under which they are made,
not misleading.
(c) The accountants who certified the financial
statements included in the Registration Statement are
independent public accountants as required by the 1933
Act and the Regulations.
(d) The financial statements incorporated by
reference in the Registration Statement and Prospectus
present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates
indicated and the results of their operations for the
periods specified; said financial statements have been
prepared in conformity with generally accepted
accounting principles applied on a consistent basis,
except as otherwise stated therein, during the periods
involved.
(e) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein or
contemplated thereby, (A) there has been no material
adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries
considered as one enterprise, whether or not arising
in the ordinary course of business and (B) there have
been no material transactions entered into by the
Company or any of its subsidiaries other than those in
the ordinary course of business.
(f) Neither the Company nor any of its
subsidiaries is in violation of its certificate of
incorporation or in default in the performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument to which it or any of them is a party
or by
which it or any of them or their properties may be
bound; and the execution and delivery of this
Agreement, the Indenture and each Terms Agreement, the
incurrence of the obligations herein and therein set
forth and the consummation of the transactions
contemplated herein and therein will not conflict with
or constitute a breach of, or default under, the
certificate of incorporation or by-laws of the Company
or any bond, debenture, note or other evidence of
indebtedness or any contract, indenture, mortgage,
loan agreement or lease to which the Company or any of
its subsidiaries is a party or by which it may be
bound, by any law, administrative regulation or court
decree.
(g) The Indenture has been duly authorized and
executed by the Company and, when delivered pursuant
to the provisions of this Agreement, will constitute
the valid and legally binding obligation of the
Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights.
(h) The Securities have been duly
authorized for
issuance and sale pursuant to this Agreement (or will
have been so authorized prior to each issuance of
Securities) and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement
and of the Indenture against payment of the
consideration therefor in accordance with this
Agreement, the Securities will constitute valid and
legally binding obligations of the Company enforceable
in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or
other laws affecting enforcement of creditors' rights
and will be entitled to the benefits provided by the
Indenture, which will be substantially in the form
heretofore delivered to you.
(i) No filing with, or authorization, approval,
consent, license, order, registration,
qualification or decree of, any court or
governmental authority or agency is necessary or
required for the performance by the Company of
its obligations hereunder, in connection with the
offering, issuance or sale by the Company of the
Securities hereunder or the consummation by the
Company of the transactions contemplated by this
Agreement to be performed by it or for the
performance of the Indenture by the Company,
except such as have been already obtained or as
may be required under the 1933 Act, the 1939 Act,
the 1934 Act or the Regulations or state
securities laws.
Any certificate signed by any officer of the Company
and
delivered to you or counsel for the Underwriters in
connection with an offering of Securities shall be
deemed a representation and warranty by the Company,
as to the matters covered thereby, to each Underwriter
participating in such offering.
Section 2. Purchase and Sale. The several
commitments of the Underwriters to purchase Securities
pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the representations and
warranties herein contained and shall be subject to
the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of,
any
Securities to be purchased by the Underwriters shall
be made at the offices of Cahill Gordon & Reindel, 80
Pine Street, New York, New York 10005, or at such
other place as shall be agreed upon by you and the
Company, at 9:00 A M., New York City time, on the
third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern Time) on any given day) business day (unless
postponed in accordance with the provisions of
Section 10) following the date of the applicable
Terms Agreement or such other time as shall be agreed
upon by you and the Company (each such time and date
being referred to as a "Closing Time"). Payment shall be
made to the Company by wire transfer of immediately
available funds against delivery to you for the
respective accounts of the Underwriters of the
Securities to be purchased by them. Such Securities
shall be in such denominations and registered in such
names as you may request in writing at least two
business days prior to the applicable Closing Time.
Such Securities, which may be in temporary form, will
be made available for examination and packaging by you
on or before the first business day prior to Closing
Time.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to
purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the
form of Exhibit B hereto with such changes therein as
the Company may approve. As compensation for arranging
Delayed Delivery Contracts, the Company will pay to
you at Closing Time, for the accounts of the
Underwriters, a fee equal to that percentage of the
principal amount of Securities for which Delayed
Delivery Contracts are made at Closing Time as is
specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with
institutional investors of the types set forth in the
Prospectus. At Closing Time the Company will enter
into Delayed Delivery Contracts (for not less than the
minimum principal amount of Securities per Delayed
Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as
provided below, but not for an aggregate principal
amount of Securities in excess of that specified in
the applicable Terms Agreement. The Underwriters will
not have any responsibility for the validity of
performance of Delayed Delivery Contracts.
You are to submit to the Company, at least three
business days prior to Closing Time, the names of any
institutional investors with which it is proposed that
the Company will enter into Delayed Delivery Contracts
and the principal amount of Securities to be purchased
by each of them, and the Company will advise you, at
least two business days prior to Closing Time, of the
names of the institutions with which the making of
Delayed Delivery Contracts is approved by the Company
and the principal amount of Securities to be covered
by each such Delayed Delivery Contract.
The principal amount of Securities agreed to be
purchased by the respective Underwriters pursuant to
the applicable Terms Agreement shall be reduced by the
principal amount of Securities covered by Delayed
Delivery Contracts as to each Underwriter as set forth
in a written notice delivered by you to the Company;
provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall
be the total amount of Securities covered by the
applicable Terms Agreement, less the principal amount
of Securities covered by Delayed Delivery Contracts.
Section 3. Covenants of the Company. The
Company covenants with you, and with each Underwriter
participating in the applicable offering of
Securities, as follows:
(a) Immediately following the execution of
each Terms Agreement, the Company will prepare a
Prospectus Supplement setting forth the principal
amount of Securities covered thereby and their
terms not otherwise specified in the Indenture,
the names of the Underwriters participating in
the offering and the principal amount of
Securities which each severally has agreed to
purchase, the names of any Underwriters acting as
co-managers with you in connection
with the offering, the price at which the
Securities are to be purchased by the
Underwriters from the Company, the initial
public offering price, the selling concession
and reallowance, if any, any delayed delivery
arrangements, and such other information as you
and the Company deem appropriate in connection
with the offering of the Securities. The Company
will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant
to Rule 424 of the Regulations and will use its
best efforts to furnish to the Underwriters
named therein as many copies of the Prospectus
and such Prospectus Supplement as the
Underwriters shall reasonably request, prior to
10:00 a.m. New York City time on the business
day next succeeding the date of the applicable
Terms Agreement. Thereafter, the Company will
furnish to the Underwriters as many copies of
the Prospectus and the Prospectus Supplement as the
Underwriters may from time to time reasonably request.
(b) If at any time when the Prospectus is required by
the 1933 Act to be delivered in connection with sales
of the Securities any event shall occur or condition
exist as a result of which it is necessary, in the
opinion of your counsel or counsel for the Company, to
further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein
not misleading in the light of circumstances existing
at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such
counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the
Regulations, the Company will promptly prepare and
file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act
or otherwise, as may be necessary to correct such
untrue statement or omission or to make the
Registration Statement comply with such requirements.
(c) The Company will make generally available to its
security holders, in each case as soon as practicable,
earnings statements (in form complying with the
provisions of Rule 158 under the 1933 Act), covering
(i) a twelve month period beginning not later than the
first day of the Company's fiscal quarter next
following the effective date of the Registration
Statement and (ii) a twelve month period beginning not
later than the first day of the Company's fiscal
quarter next following the date of each Terms
Agreement and each filing under the 1934 Act of an
annual report of the Company on Form 10-K.
(d) The Company will give you notice of its
intention to file any amendment to the Registration
Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1934 Act, the 1933
Act, or otherwise, will furnish you with copies of any
such amendment or supplement or other documents
proposed to be filed a reasonable time in advance of
filing, and will not file any such amendment or
supplement or other documents in a form in which you
or your counsel shall reasonably object.
(e) The Company will notify each of you immediately,
and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the
Prospectus or any document to be filed pursuant to the
1934 Act, (iii) of the receipt of any comments from
the Commission with respect to the Registration
Statement, the Prospectus or any Prospectus
Supplement, (iv)
of any request by the Commission for any amendment to
the Registration Statement or any amendment or
supplement to the Prospectus or for additional
information, and (v) of the issuance by the Commission
of any order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(f) The Company will deliver to you as many signed and
conformed copies of the registration statement (as
originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein and documents incorporated by
reference in the Prospectus) as you may reasonably
request and will also deliver to you a conformed copy
of the Registration Statement and each amendment
thereto for each of the Underwriters.
(g) The Company will endeavor, in
cooperation with you, to qualify the Securities
for offering and sale under the applicable
securities laws of such states and other
jurisdictions of the United States as you may
designate, and will maintain such qualifications
in effect for as long as may be required for the
distribution of the Securities; provided,
however, that the Company shall not be obligated
to file any general consent to service or to
qualify as a foreign corporation or as a dealer
of securities in any jurisdiction in which it is
not so qualified. In each jurisdiction in which
the Securities have been qualified as above
provided, the Company will file such statements
and reports as may be required by the laws of
such jurisdiction.
(h) The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with
the Commission pursuant to Section 13 or 14 of
the 1934 Act.
(i) Between the date of any Terms Agreement and
termination of any trading restrictions as
notified by you to the Company or Closing Time,
whichever is later, with respect to the
Securities covered thereby, the Company will not,
without your prior consent, offer or sell, or
enter into any agreement to sell, any debt
securities of the Company with a maturity of more
than one year, including additional Securities.
(j) The Company will for a period of five
years from the effective date of the Registration
Statement furnish direct to you and to each
Underwriter participating in the applicable
offering of Securities, upon request, as soon as
the same shall be sent to stockholders, copies of
any annual or interim reports of the Company to
its stockholders, and it will also furnish you,
upon request, the following:
(1) as soon as available, copies of
any report which the Company shall file with
the Commission or mail to stockholders; and
(2) such other information as you may
reasonably request which affects the holders
of the applicable Securities.
Section 4. Conditions of Underwriters'
Obligations. The obligations of the Underwriters to
purchase Securities pursuant to any Terms Agreement
are subject to the accuracy of and compliance with the
representations and warranties of the Company herein
contained, to the accuracy of the statements of the
Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the
following conditions:
(a) At the applicable Closing Time (i) no
stop order suspending the effectiveness of the
Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, (ii) the rating assigned by
any nationally recognized securities
rating agency to any debt securities or preferred
stock of the Company as of the date of the
applicable Terms Agreement shall not have been
lowered since that date nor shall any such rating
agency have publicly announced that it has placed
any debt securities or preferred stock of the
Company on what is commonly termed a "watch list"
for possible downgrading and (iii) there shall
not have come to your attention any facts that
would cause you to believe that the Prospectus,
together with the applicable Prospectus
Supplement, at the time it was required to be
delivered to a purchaser of the Securities,
contained an untrue statement of a material fact
or omitted to state a material fact necessary in
order to make the statements therein, in light of
the circumstances existing at such time, not
misleading.
(b) At the applicable Closing Time you shall
have received:
(1) The favorable opinion, dated as of
the applicable Closing Time of 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.
(v) The Indenture has been
authorized, executed and delivered by
the Company and constitutes the valid
and binding agreement of the Company,
enforceable in accordance with its
terms, except as enforcement thereof
may be limited by bankruptcy,
insolvency or other laws relating to or
affecting enforcement of creditors'
rights.
(vi) The Securities covered by the
applicable Terms Agreement are in the
form contemplated by the Indenture,
have been authorized by all necessary
corporate action and, when executed and
authenticated as specified in the
Indenture and delivered against payment
pursuant to this Agreement, as
supplemented by the applicable Terms
Agreement, will be valid and binding
obligations of the Company, enforceable in
accordance with their terms, except as
enforcement thereof may be limited by
bankruptcy, insolvency or other laws
relating to or affecting enforcement of
creditors' rights and will be entitled
to the benefits of the Indenture.
(vii) The Indenture and the Securities covered
by the applicable Terms Agreement conform
in all material respects to the
descriptions thereof in the Prospectus
and the applicable Prospectus Supplement.
(viii) The Indenture is qualified
under the 1939 Act.
(ix) The Registration Statement is effective
under the 1933 Act and, to the best of
the knowledge and information of such
counsel, no proceedings for a stop
order have been instituted or
threatened under Section 8(d) of the
1933 Act.
(x) The Registration Statement (other than
the financial statements included
therein, as to which no opinion need be
rendered) appeared on its face to be
appropriately responsive in all
material respects to the requirements
of the 1933 Act, the 1939 Act, and the
Regulations, and nothing has come to
the attention of such counsel that
would lead such counsel to believe that
the Registration Statement, at the time
it became effective, or if an amendment
to the Registration Statement or an
annual report on Form 10-K has been
filed by the Company with the
Commission subsequent to the
effectiveness of the Registration
Statement, then at the time of the most
recent such filing, contained an untrue
statement of a material fact or omitted
to state a material fact required to be
stated therein or necessary to make the
statements therein not misleading or
that the Prospectus, as of its date or
as amended or supplemented at Closing
Time, contained or contains an untrue
statement of a material fact or omits
to state a material fact necessary in
order to make the statements therein,
in the light of the circumstances under
which they were made, not misleading.
(xi) Each document, if any, filed
pursuant to
the 1934 Act (other than the financial
statements included therein, as to
which no opinion need be rendered) and
incorporated by reference in the
Prospectus, appeared on its face to be
appropriately responsive when so filed
in all material respects with the 1934
Act and the rules and regulations
thereunder (the "1934 Act
Regulations").
(xii) To the best of the knowledge
and
information of such counsel, there are
no contracts, indentures, mortgages,
loan agreements, leases or other
documents of a character required to be
filed as exhibits to the Registration
Statement other than those filed or
incorporated by reference as exhibits
to the Registration Statement.
(xiii) To the best of the knowledge
and information of such counsel, there
are no legal or governmental
proceedings pending or threatened
against the Company or any of its
subsidiaries which are required to be
disclosed in the Registration
Statement, other than those discussed
therein, and the information set forth
therein to the extent that it
constitutes matters of law or legal
conclusions, has been reviewed by such
counsel and is correct; and
(xiv) The issuance of the
Securities by the Company will not
conflict with or result in a breach of
any of the terms, conditions or
provisions of any agreement or
instrument actually known to such
counsel to which the Company or any of
its subsidiaries is a party or
constitute a default under any such
agreement or instrument.
(2) The favorable opinion or opinions,
dated as of the applicable Closing Time, of
Cahill Gordon & Reindel, counsel for the
Underwriters, with respect to the matters
set forth in (i) and (iv) to (x), inclusive,
of subsection (b)(1) of this Section.
(c) At the applicable Closing Time (i)
there shall not have been, since the date of the
applicable Terms Agreement or since the
respective dates as of which information is given
in the Registration Statement and other than as
contemplated therein, any material adverse change
in the condition, financial or otherwise, or in
the earnings, business affairs or business
prospects of the Company and its subsidiaries
considered as one enterprise, whether or not
arising in the ordinary course of business; (ii)
there shall not have been subsequent to the date
of the applicable Terms Agreement and
transactions entered into by the Company or any
of its subsidiaries other than transactions in
the ordinary course of business or transactions
referred to in the Registration Statement or
transactions which are not material in relation
to the Company and its subsidiaries considered as
one enterprise; (iii) since the date of the
applicable Terms Agreement neither the Company
nor any of its subsidiaries shall have sustained
a loss of, or damage to, its properties (whether
or not insured) which would materially adversely
affect the business, operations, financial
condition or income of the Company and its
subsidiaries considered as one enterprise; and
(iv) except as otherwise stated in the
Registration Statement and Prospectus, no action,
suit or proceeding, at law or in equity, shall be
pending or to the knowledge of the Company
threatened against or affecting the Company or
any of its subsidiaries, and no proceedings shall
be pending or to the knowledge of the Company
threatened against the Company or any of its
subsidiaries before or by any governmental
commission, board or other administrative agency,
wherein an unfavorable decision, ruling or
finding would materially adversely affect the
business, operations, financial condition or
income of the Company and its subsidiaries
considered as one enterprise. Compliance with the
provisions of (i) to (iv), inclusive, of this
subsection shall be evidenced by a certificate of
the Chairman, President and Chief Executive
Officer, an Executive Vice President, or a Senior
Vice President of the Company delivered to you at
such Closing Time. Such certificate shall also
state that the other representations and
warranties contained in
Section 1 hereof are true and correct with the
same effect as though such Closing Time were a
Representation Date.
(d) You shall have received from
PricewaterhouseCoopers LLP a letter, dated as of
the applicable Closing Time and delivered at such
time, in form heretofore agreed to (based upon
the draft letter heretofore delivered).
(e) At the applicable Closing Time counsel
for the Underwriters shall have been furnished
with such documents and opinions as they may
reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the
Securities as herein contemplated and related
proceedings or
in order to evidence the accuracy and
completeness of any of the representations and
warranties, or the fulfillment of any of the
conditions, herein contained and all proceedings
taken by the Company in connection with the
issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and
substance to you and counsel for the
Underwriters.
(f) The Company shall have complied with
the provisions of Section 3(a) hereof with
respect to the furnishing of prospectuses on the
business day next succeeding the date of the
applicable Terms Agreement.
If any of the conditions specified in this
Section shall not have been fulfilled when and as
required to be fulfilled, the applicable Terms
Agreement may be terminated by such of you as may be
named in such Terms Agreement by notice to the Company
at any time at or prior to the applicable Closing
Time, and such termination shall be without liability
of any party to any other party except as provided in
Section 5.
Section 5. Payment of Expenses. The Company
will pay all expenses incident to the performance of
its obligations under this Agreement, including (i)
the printing and filing of the registration statement
and all amendments thereto, and the printing of this
Agreement and each Terms Agreement, (ii) the
preparation, issuance and delivery of the Securities
to the Underwriters, (iii) the fees and disbursements
of the Company's counsel and accountants related to
the registration statement and prospectus and all
amendments or supplements thereto, (iv) the
qualification of the Securities under securities laws
in accordance with the provisions of Section 3(g),
including filing fees and the fees and disbursements
of counsel for the Underwriters in connection
therewith and in connection with the preparation of
any Blue Sky Survey and Legal Investment Survey, (v)
the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the
registration statement and all amendments thereto, of
the Registration Statement and any amendments thereto,
and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to
the Underwriters of copies of the Indenture and any
Blue Sky Survey and Legal Investment Survey to be
prepared by counsel for the Underwriters, (vii) the
fees of rating agencies and (viii) the fees and
expenses, if any, incurred in connection with the
listing of the Securities on the New York Stock
Exchange.
If a Terms Agreement is terminated by such of you as
are
named therein in accordance with the provisions of
Section 4 or clause (i) of Section 9, the Company
shall reimburse the Underwriters named in such Terms
Agreement for all of their outofpocket expenses,
including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 6. Indemnification. (a) The Company
agrees to indemnify and hold harmless each Underwriter
and each person if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or
alleged untrue statement of a material fact
contained in the Registration Statement (or any
amendment thereto), or the omission or alleged
omission therefrom of a material fact required to
be stated therein or necessary to make the
statements therein not misleading or arising out
of any untrue statement or alleged untrue
statement of a material fact contained in a
preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact
necessary in order to make the statements
therein, in the light of the circumstances under
which they were made, not misleading, unless such
untrue statement or omission or such alleged
untrue statement or omission was made in reliance
upon and in conformity with written information
furnished to the Company by any Underwriter
through you expressly for use in the Registration
Statement (or any amendment thereto) or any such
preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or was made in
reliance upon the Form T-1 of the Trustee under
the Indenture;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever contemplated
by this Section, as incurred, to the extent of
the aggregate amount paid in settlement of any
litigation or investigation or proceeding by any
governmental agency or body, commenced or
threatened, or of any claim whatsoever which, in
any such case, is based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, if such settlement is
effected with the written consent of the Company;
and
(iii) against any and all expense
whatsoever, as incurred (other than any fees and
expenses of counsel described in the fourth and
fifth sentences of subsection (c) of this Section
6) reasonably incurred in investigation preparing
or defending against any litigation or
investigation or proceeding by any governmental
agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above.
(b) Each Underwriter severally agrees to
indemnify and hold harmless the Company, each of its
officers who signed the Registration Statement, and
each of its directors and each person, if any, who
controls the Company within the meaning of Section 15
of the 1933 Act to the same extent as the foregoing
indemnity from the Company, but only with respect to
statements or omissions made in the Registration
Statement (or any amendment thereto) or a preliminary
prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity
with information furnished to the Company in writing
by such Underwriter through you expressly for use in
the Registration Statement (or any amendment thereto)
or any such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt
notice to each indemnifying party of any action
commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any
liability which it may have otherwise than on account
of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such
action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such
notice, may assume the defense of such action with
counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such
indemnified parties reasonably object to such
assumption on the ground that there may be legal
defenses available to them which are different from or
in addition to those available to such indemnifying
party. If an indemnifying party assumes the defense
of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection
with such action. In no event shall the indemnifying
parties be liable for
the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action
or separate but similar or related actions in the same
jurisdiction arising out of the same general
allegations or circumstances.
Section 7. Contribution. In order to provide
for just and equitable contribution in circumstances
in which the indemnity agreement provided for in
Section 6 is for any reason held to be unavailable to
the Underwriters other than in accordance with its
terms, the Company and the Underwriters of each
offering of Securities shall contribute to the
aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity
agreement incurred by the Company and one or more of
such Underwriters in respect of such offering in such
proportions as will reflect the relative benefits from
the offering of such Securities received by the
Company on the one hand and by such Underwriters on
the other hand; provided, that, if such allocation is
not permitted by applicable law or if the indemnified
party failed to give the notice required under Section
6(c) above, then each indemnifying party shall
contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and
the Underwriters of the relevant offering of
Securities on the other hand. If the Securities are
offered by Underwriters at an initial public offering
price set forth in a Prospectus Supplement, the
relative benefits shall be deemed to be such that the
Underwriters shall be responsible for that portion of
the aggregate losses, liabilities, claims, damages and
expenses represented by the percentage that the
underwriting discount appearing in such Prospectus
Supplement bears to the initial public offering price
appearing therein and the Company shall be responsible
for the balance. The relative fault, if applicable,
shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission
to state a material fact relates to information
supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative
intent, knowledge, access to information and
opportunity to correct or prevent such statement or
omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11
(f) of the 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. The Underwriters'
obligations to contribute as provided in this Section
7 are several in proportion to their respective
underwriting commitments as set forth in the
applicable Terms Agreement, and not joint.
Section 8. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement,
or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of
any termination of this Agreement, or any
investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the
Company, and shall survive delivery of any Securities
to the Underwriters.
Section 9. Termination. This Agreement may
be terminated
for any reason at any time by either the Company or
you upon giving of thirty days' written notice of such
termination to the other party hereto. You may also
terminate such Terms Agreement, immediately upon
notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there has been, since
the date of such Terms Agreement or since the
respective dates as of which information is given in
the Registration Statement, any material adverse
change in the condition, financial or otherwise, of
the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there
has occurred any outbreak or escalation of hostilities
or other calamity or crisis the effect of which on the
financial markets of the United States is such as to
make it, in your judgment, impracticable to market the
Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in the Common Stock of
the Company has been suspended by the Commission or a
national securities exchange, or if trading generally
on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required,
by either of said exchanges or by order of the
Commission or any other governmental authority, or if
a banking moratorium has been declared by either
Federal or New York authorities or (iv) if the rating
assigned by any nationally recognized securities
rating agency to any debt securities or preferred
stock of the Company as of the time any applicable
Terms Agreement was entered into shall have been
lowered since that time or if any such rating agency
shall have publicly announced that it has placed any
debt securities or preferred stock of the Company on
what is commonly termed a "watch list" for possible
downgrading. In the event of any such termination, (x)
the covenants set forth in Section 3 with respect to
any offering of Securities shall remain in effect so
long as any Underwriter owns any such Securities
purchased from the Company pursuant to the applicable
Terms Agreement and (y) the covenant set forth in
Section 3(c), the provisions of Section 5, the
indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7, and
the provisions of Sections 8 and 13 shall remain in
effect.
Section 10. Default. If one or more of the
Underwriters
participating in an offering of Securities shall fail
at the applicable Closing Time to purchase the
Securities which it or they are obligated to purchase
hereunder and under the applicable Terms Agreement
(the "Defaulted Securities"), then you shall have the
right, within 24 hours thereafter, to make
arrangements for one or more of the nondefaulting
Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and
upon the terms herein set forth. If, however, during
such 24 hours you shall not have completed such
arrangements for the purchase of all of the Defaulted
Securities, then:
(a) if the aggregate principal amount of
Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to
be purchased pursuant to such Terms Agreement,
the non-defaulting Underwriters named in such
Terms Agreement shall be obligated to purchase
the full amount thereof in the proportions that
their respective underwriting obligations
hereunder bear to the underwriting obligations of
all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of
Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the
applicable Terms Agreement shall terminate,
without any liability on the part of any non-
defaulting
Underwriter or the Company.
No action taken pursuant to this Section shall
relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this
Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriter or
Underwriters as set forth in this Section, either you
or the Company shall have the right to postpone the
applicable Closing Time for a period not exceeding
seven days in order that any required changes in the
Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
Section 11. Notices. All notices and other
communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to you
at 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.
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Bear, Stearns & Co.
Inc.
Banc of America
Securities LLC BNY
Capital Markets,
Inc. Chase
Securities
Inc.
Salomon Smith
Barney Inc.
Wachovia
Securities,
Inc.
By: Goldman,
Sachs & Co.
By:
Name:
Title:
Exhibit A WESTVACO
CORPORATION
Debt Securities
TERMS AGREEMENT
Dated:
May 31, 2000 To: WESTVACO CORPORATION
299 Park Avenue
New York, New York 10171
Re: Underwriting Agreement dated May 31, 2000.
Title of Floating Reate Notes 8.4% Notes due
Security due June 5, 2003 June 1, 2007
Principal to be issued $200,000,000 $200,000,000
Current Ratings A3 (Moody's); A3 (Moody's);
BBB+ (S&P) BBB+ (S&P)
Interest Rate: LIBOR plus .9% Rate: 8.40%
reset quarterly
Payable: March 5, Payable: June 1
June 5, September 5 and December 1
and December 5,commencing commencing December 1,
September 5, 2000 2000
Maturity: June 5, 2003 June 1, 2007
Public Offering 100% plus accrued 99.654% plus accrued
Price: interest from June 5, interest from June 5,
2000 2000
Purchase Price: 99.65% plus accrued 99.029% plus accrued
interest from June 5, interest from June 5,
2000 (payable by wire 2000 (payable by wire
transfer) transfer)
Redemption: On any interest payment At any time, in whole
date on or after or in part, at par
June 5, 2001, in whole plus a make whole
or in part, at par. premium calculated on
a T plus 25 basis
points basis.
Sinking Fund None None
requirements:
Delayed None None
delivery
contracts
Closing date and location: June 5, 2000; Cahill Gordon &
Reindel, 80 Pine Street, 17th Floor, New York, New York
10005.
Co-Managers: Goldman, Sachs & Co., J.P. Morgan Securities
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Bear, Stearns & Co. Inc., Banc of America Securities LLC,
BNY Capital Markets, Inc., Chase Securities Inc., Salomon
Smith Barney Inc. and Wachovia Securities, Inc.
Each Underwriter severally agrees, subject to the terms
and provisions of the above-referenced Underwriting
Agreement, which is incorporated herein in its entirety and
made a part hereof, to purchase the principal amount of
Securities set forth opposite its name.
Name Floating Fixed
Rate Notes Rate Notes
Goldman, Sachs & Co. $80,000,000 $80,000,000
J.P. Morgan Securities Inc. 30,000,000 30,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 30,000,000 30,000,000
Bear, Stearns & Co. Inc.. 15,000,000 15,000,000
Banc of America Securities LLC 9,000,000 9,000,000
BNY Capital Markets, Inc. 9,000,000 9,000,000
Chase Securities Inc. 9,000,000 9,000,000
Salomon Smith Barney Inc. 9,000,000 9,000,000
Wachovia Securities, Inc. 9,000,000 9,000,000
Total $200,000,000 $200,000,000
Goldman, Sachs & Co.
J.P. Morgan
Securities Inc.
Merrill Lynch,
Pierce, Fenner &
Smith Incorporated
Bear, Stearns & Co. Inc.
Banc of America
Securities LLC BNY
Capital Markets, Inc.
Chase Securities Inc.
Salomon Smith
Barney Inc.
Wachovia Securities, Inc.
By: Goldman, Sachs & Co.
By:
Name:
Title:
Accepted:
WESTVACO CORPORATION
By
Senior Vice President
Exhibit B
WESTVACO CORPORATION
Debt Securities
DELAYED DELIVERY CONTRACT
[Date]
Westvaco Corporation
c/oGoldman, 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 ,
(the "Delivery Date"), principal
amount of the Company's % debt securities
due (the "Securities"), offered
by the Company's Prospectus dated , 2000,
as supplemented by its Prospectus Supplement dated ,
2000, receipt of which is hereby acknowledged, at a
purchase price of % of the
principal amount thereof, plus accrued interest
from , 2000, to the Delivery Date, and
on
the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned
has agreed to purchase on the Delivery Date shall be
made to the Company or its order by certified or
official bank check in New York Clearing House funds,
at the office of 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
, 2000, shall have sold to the
Underwriters of the Securities (the "Underwriters")
such principal amount of the Securities as is to be
sold to them pursuant to the Terms Agreement dated , 2000,
between the Company and the
Underwriters. The obligation of the undersigned to
take delivery of and make payment for Securities shall
not be affected by the failure of any purchaser to
take delivery of and make payment for Securities
pursuant to other contracts similar to this contract.
The undersigned represents and warrants to you that
its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and
which govern such investment.
Promptly after completion of the sale to the
Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters
in connection therewith.
By the execution hereof, the undersigned
represents and warrants to the Company that all
necessary corporate action for the due execution and
delivery of this contract and the payment for and
purchase of the Securities has been taken by it and no
further authorization or approval of any governmental
or other regulatory authority is required for such
execution, delivery,
payment or purchase, and that, upon acceptance hereof
by the Company and mailing or delivery of a copy as
provided below, this contract will constitute a valid
and binding agreement of the undersigned in accordance
with its terms.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective
successors, but will not be assignable by either party
hereto without the written consent of the other.
It is understood that the Company will not accept
Delayed Delivery Contracts for an aggregate principal
amount of Securities in excess of $
and that the acceptance of any Delayed
Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a
firstcome, first-served basis. If this contract is
acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof
and mail or deliver a signed copy hereof to the
undersigned at its address set forth below. This will
become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This agreement shall be governed by the laws of
the State of New York.
Yours very truly,
(Name of Purchaser)
By
(Title)
(Address)
Accepted
as of the date first above written.
WESTVACO CORPORATION
By
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of
the
Purchaser with whom details of delivery on the
Delivery Date may be discussed is as follows: (Please
print.)
Telephone No. Name (Including
Area
Code)
