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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 2, 1996
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FMC Corporation
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-2376 94-0479804
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(Commission File Number) (IRS Employer Identification No.)
200 East Randolph Drive, Chicago, Illinois 60001
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 861-6000
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Item 5. Other Events.
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The purpose of this Current Report on Form 8-K is to file conformed copies
of an Underwriting Agreement (attached hereto as Exhibit 1-a) executed in
connection with a proposed offering of 7 3/4% Senior Debentures Due 2011 (the
"Senior Debentures") by the Registrant to be issued pursuant to the Registration
Statement on Form S-3 (File No. 33-62415) filed by the Registrant on September
7, 1995, as amended through the date hereof (the "Registration Statement"),
together with a form of Officers' Certificate (attached hereto as Exhibit 4-a),
a form of Senior Debenture (attached hereto as Exhibit 4-b), the opinion of
Winston & Strawn (attached hereto as Exhibit 10-a) and the consent of Winston &
Strawn (included in Exhibit 10-a) for incorporation into the Registration
Statement.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
Number Description
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1-a Conformed copy of executed Underwriting Agreement dated
June 27, 1996 between the Registrant and the
Underwriters named in Schedule I thereto.
4-a Form of Officers' Certificate to be delivered
establishing the Registrant's 7 3/4% Senior Debentures
Due 2011.
4-b Form of Senior Debenture of the Registrant.
10-a Opinion of Winston & Strawn.
23-a Consent of Winston & Strawn (included in its opinion
filed as Exhibit 10-a).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: July 2, 1996 FMC CORPORATION
By: /s/ Robert L. Day
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Name: Robert L. Day
Title: Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Page Number
Number Description In This Report
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<C> <S> <C>
1-a Conformed copy of executed
Underwriting Agreement dated
June 27, 1996 between the
Registrant and the Underwriters
named in Schedule I thereto.
4-a Form of Officers' Certificate
to be delivered establishing
the Registrant's 7 3/4% Senior
Debentures Due 2011.
4-b Form of Senior Debenture of the
Registrant.
10-a Opinion of Winston & Strawn.
23-a Consent of Winston & Strawn
(included in its opinion filed
as Exhibit 10-a).
</TABLE>
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FMC CORPORATION
7 3/4% SENIOR DEBENTURES DUE 2011
UNDERWRITING AGREEMENT
June 27, 1996
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
FMC Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") $100,000,000 principal amount of its 7 3/4% Senior Debentures
Due 2011 (the "Securities"). The Securities are to be issued pursuant to the
provisions of an Indenture dated as of July 1, 1996 (the "Indenture") between
the Company and Harris Trust and Savings Bank, as Trustee.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, which has become
effective, for the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of certain securities (the "Shelf Securities") to be
issued from time to time by the Company. The Company proposes to file with the
Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities and the plan of
distribution thereof and has previously advised you of all further information
with respect to the Company to be set forth therein. The registration
statement, including exhibits, as amended at the date of this Agreement, is
hereinafter referred to as the Registration Statement and the related
prospectus covering the Shelf Securities dated November 20, 1995 is
hereinafter referred to as the Basic Prospectus. Any preliminary form of the
prospectus supplement filed with the Commission pursuant to Rule 424 shall be
referred to as a preliminary prospectus. The Basic Prospectus as supplemented
by the prospectus supplement specifically relating to the Securities is
hereinafter called the Final Prospectus. All references to the Registration
Statement, the Basic Prospectus, a preliminary prospectus and the Final
Prospectus include the documents incorporated therein by reference.
I.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company, the
respective principal amounts of Securities set forth in Schedule I hereto
opposite their names at 98.177% of their principal amount plus accrued
interest from July 1, 1996--the purchase price.
The Company hereby agrees that, without your prior written consent, it will
not offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which are substantially similar to the Securities until the
business day following the Closing Date, other than the Securities to be sold
hereunder.
II.
The Company is advised by you that the Underwriters propose to make a public
offering of their respective portions of the Securities as soon after this
Agreement has become effective as in your judgment is advisable.
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The Company is further advised by you that the Securities are to be offered to
the public initially at 98.927% of their principal amount plus accrued
interest from July 1, 1996--the public offering price--and to certain dealers
selected by you at a price that represents a concession not in excess of 0.50%
of their principal amount under the public offering price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in
excess of 0.25% of their principal amount, to any Underwriter or to certain
other dealers.
III.
Payment for the Securities shall be made by wire transfer to the Company in
immediately available (same day) funds at the office of Winston & Strawn,
Chicago, Illinois, at 10:00 A.M., New York time, on July 2, 1996, or at such
other time on the same or such other date, not later than July 9, 1996, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the Closing Date.
Payment for the Securities shall be made against delivery to you in New York
City for the respective accounts of the several Underwriters of the Securities
registered in such names and in such denominations as you shall request in
writing not later than two full business days prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid.
IV.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission;
(ii) subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading,
in the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(iii) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the Final
Prospectus, that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Securities on the terms
and in the manner contemplated in the Final Prospectus; and
(iv) you shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the
effect set forth in clauses (i) and (ii) above, to the effect that the
representations and warranties of the Company contained herein are true and
correct as of the Closing Date and to the effect that there has not
occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the Final
Prospectus.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(b) You shall have received on the Closing Date an opinion of Winston &
Strawn, counsel for the Company, dated the Closing Date, to the effect
that:
(i) the Indenture has been duly authorized, executed and delivered by
the Company, is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms subject,
as to enforcement of remedies, to bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
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general equity principles regardless of whether such enforceability is
considered in a proceeding in equity or at law and has been duly
qualified under the Trust Indenture Act of 1939, as amended;
(ii) the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by you in accordance with the terms of this
Agreement, will be valid and binding obligations of the Company
enforceable against the Company in accordance with their terms subject,
as to enforcement of remedies, to bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles regardless of whether such enforceability is
considered in a proceeding in equity or at law and will be entitled to
the benefits of the Indenture;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iv) the execution, delivery and performance of this Agreement, the
Securities and the Indenture by the Company, and the issuance and sale
of the Securities by the Company as provided in this Agreement and the
Indenture, will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, the certificate of
incorporation or by-laws of the Company, or the 5-Year Credit Agreement
dated as of December 16, 1994 among the Company, the lenders listed
therein and Morgan Guaranty Trust Company of New York, as Agent, or the
364-Day Credit Agreement dated as of December 16, 1994 among the
Company, the lenders listed therein and Morgan Guaranty Trust Company
of New York, as Agent, or the Fiscal Agency Agreement dated as of
January 16, 1990 between the Company and the Union Bank of Switzerland
relating to the 6 3/4% Exchangeable Senior Subordinated Debentures due
2005 (the "Exchangeable Debentures");
(v) no authorization, consent, approval or order of any court or
governmental agency or body in the United States or any state or
political subdivision thereof is required for the issuance or sale of
or performance of the Company's obligations with respect to the
Securities, in the manner contemplated by this Agreement, the
Securities and the Indenture, except such as are specified and have
been obtained and such as may be required by the securities or blue sky
laws of the various states in connection with the purchase and
distribution of the Securities by the Underwriters;
(vi) the statements in the Final Prospectus under "Description of
Senior Debentures," under "General Description of the Offered
Securities" and under "Description of the Debt Securities" and in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects the
information called for with respect to such legal matters, documents
and proceedings; and
(vii) the Registration Statement and the Final Prospectus and any
supplements or amendments thereto (except for financial statements and
schedules and other financial data and that part of the Registration
Statement that constitutes the Form T-1 hereinafter referred to as to
which such counsel need not express any opinion) comply as to form in
all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
Such counsel shall also have furnished to you a written statement, in
form and substance satisfactory to you, to the effect that nothing has come
to such counsel's attention that causes them to believe that (except for
financial statements and schedules and other financial data and except for
that part of the Registration Statement that constitutes the Form T-1
hereinafter referred to as to which such counsel need not express any
belief) the Registration Statement at the time the Registration Statement
became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Final Prospectus,
as of the Closing Date, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) You shall have received on the Closing Date an opinion of the General
Counsel or Assistant General Counsel for the Company, dated the Closing
Date, to the effect that:
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(i) the Company is validly existing as a corporation in good standing
under the laws of Delaware and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or the ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and has all corporate
power and authority under its certificate of incorporation, bylaws and
the laws of the State of Delaware to own, lease and operate its
properties and conduct its business as described in the Final
Prospectus;
(ii) each Significant Subsidiary (as defined in Regulation S-X
promulgated by the Commission) of the Company is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as whole;
(iii) neither the Company nor any subsidiary is in violation of its
certificate of incorporation or by-laws or, to the best of such
counsel's knowledge after due inquiry, in default in the performance of
any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any
indenture, lease, loan agreement or other instrument governing any
indebtedness to which the Company or any subsidiary is a party or by
which the Company or any subsidiary or their property or claims is
bound, except to the extent that such violation or default would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iv) such counsel is not aware after due inquiry of the Company's
failure to possess or to be in compliance with any franchises, grants,
authorizations, licenses, permits, easements, consents, certificates or
orders required for the conduct of the business of the Company or any
subsidiary, except to the extent that the failure to so possess or
comply would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(v) except as disclosed in the Final Prospectus, the equity
securities of each direct or indirect subsidiary of the Company listed
on Exhibit 21 to the Company's most recent Annual Report on Form 10-K
which is a Significant Subsidiary (as defined above) are owned by the
Company or a subsidiary of the Company to the extent described therein
free and clear of all liens and encumbrances and any other adverse
claims (other than directors' qualifying shares and shares of common
stock of FMC Gold Company which are exchangeable for the Exchangeable
Debentures);
(vi) the execution, delivery and performance of this Agreement, the
Securities and the Indenture by the Company and the issuance and sale
of the Securities by the Company as provided in this Agreement and the
Indenture, will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, the certificate of
incorporation of the Company or any Significant Subsidiary, or any
provision of applicable law or administrative regulation known to such
counsel or any agreement or other instrument known to such counsel
binding upon the Company or any subsidiary and which is material to the
Company and its subsidiaries taken as a whole or any decree of any
court known to such counsel applicable to the Company or any
subsidiaries or any of their properties;
(vii) there is no action, suit or proceeding pending or threatened
against or affecting the Company or any of its properties before or by
any court, governmental official, commission, board of other
administrative agency or arbitrator that has a reasonable probability
(taking into account the exhaustion of all appeals) of having a
material adverse effect on the business, operations, properties,
consolidated financial condition, consolidated results of operations or
business prospects of the Company, except as disclosed in the Final
Prospectus, or that in any manner questions the validity of this
Agreement, the Indenture or the Securities;
(viii) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that is required to be
described in the Registration
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Statement or the Final Prospectus and is not so described or of any
contract or other document which is required to be described in the
Registration Statement or the Final Prospectus or to be filed as an
exhibit to the Registration Statement that is not described or filed as
required; and
(ix) each document incorporated by reference in the Registration
Statement and the Final Prospectus (except for financial statements and
schedules and other financial data as to which such counsel need not
express any opinion) complied as to form when filed with the Commission
in all material respects with the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder.
Such counsel shall also have furnished to you a written statement, in
form and substance satisfactory to you, to the effect that nothing has come
to such counsel's attention that causes such counsel to believe that
(except for financial statements and schedules and other financial data and
except for that part of the Registration Statement that constitutes the
Form T-1 hereinafter referred to as to which such counsel need not express
any belief) the Registration Statement at the time it became effective
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus, as of the
Closing Date, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of Mayer,
Brown & Platt, counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraphs (i), (ii), (iii), (vi)
(but only as to the statements in the Final Prospectus under "Description
of Senior Debentures," "General Description of the Offered Securities" and
"Description of the Debt Securities") and (vii) (but as to the Registration
Statement only as of the date of this Agreement) of paragraph (b) above.
Such counsel shall also have furnished to you a written statement to the
same effect as the last sentence of paragraph (b) above.
With respect to the last sentence of paragraph (c) above, such counsel
may state that such counsel's belief is based upon his participation in the
preparation of the Registration Statement and Final Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but is without
independent check or verification except as specified. With respect to the
last sentence of paragraph (b) above, Winston & Strawn and Mayer, Brown &
Platt may state that their belief is based upon their participation in the
preparation of the Registration Statement and Final Prospectus and any
amendments or supplements thereto (but not including documents incorporated
therein by reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but is without
independent check or verification except as specified.
(e) You shall have received on the Closing Date a letter dated the
Closing Date, in form and substance satisfactory to you, from KPMG Peat
Marwick LLP and Ernst & Young LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference in the Registration Statement and the Final
Prospectus.
V.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, two copies of the Registration
Statement as filed with the Commission (including exhibits thereto and
documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Final Prospectus,
any documents incorporated therein by reference, and any supplements and
amendments thereto as you may reasonably request. The terms "supplement"
and "amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission pursuant to
the Exchange Act that are deemed to be incorporated by reference in the
Final Prospectus.
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(b) Before amending or supplementing the Registration Statement or the
Final Prospectus with respect to the Securities, to furnish you a copy of
each such proposed amendment or supplement, and to file no such proposed
amendment or supplement (other than quarterly and annual reports on Forms
10-Q and 10-K covering periods commencing after December 31, 1995 or
current reports on Form 8-K covering events occurring after December 31,
1995) to which you reasonably object.
(c) If, during such period after the first date of the public offering of
the Securities and prior to the completion of the distribution of the
Securities, as determined by you, any event shall occur as a result of
which it is necessary to amend or supplement the Final Prospectus in order
to make the statements therein, in the light of the circumstances when the
Final Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Final Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish to the
Company) to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Final Prospectus so that the statements in the Final
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Final Prospectus is delivered to a purchaser, be
misleading or so that the Final Prospectus will comply with law.
(d) To endeavor with the assistance of your counsel to qualify the
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all reasonable
expenses (including fees and disbursements of counsel) in connection with
such qualification and in connection with the determination of the
eligibility of the Securities for investment under the laws of such
jurisdictions as you may designate, as well as all filing fees payable in
connection with the review (if any) of the offering of the Securities by
the National Association of Securities Dealers, Inc.; provided, however,
that in connection therewith the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified, to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise subject.
(e) To make generally available to the Company's security holders as soon
as practicable an earnings statement covering the twelve-month period
ending June 30, 1997, that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.
VI.
The Company represents and warrants to each Underwriter that (i) each
document filed or to be filed pursuant to the Exchange Act, and incorporated
by reference in the Final Prospectus, complied or will comply when so filed in
all material respects with the Exchange Act, and the rules and regulations
thereunder, (ii) the Registration Statement complied when filed in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (iii) each preliminary prospectus filed pursuant to
Rule 424 under the Securities Act complied when so filed in all material
respects with the Securities Act and the rules and regulations of the
Commission thereunder, (iv) the Registration Statement and Final Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) will comply in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder 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; except that the foregoing representations
and warranties shall not apply to (a) that part of the Registration Statement
that constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939 of Harris Trust and Savings Bank, Trustee under the
Indenture, and (b) statements or omissions in the Registration Statement,
Basic Prospectus or the Final Prospectus based upon information furnished to
the Company in writing by any Underwriter through you expressly for use
therein and (v) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
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The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by any
Underwriter or any such controlling person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Final Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Company in writing by any Underwriter expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Underwriter, if a copy of
the Final Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Final Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use in the Registration Statement, the Final Prospectus, any
amendment or supplement thereto, or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the indemnified party) shall promptly notify the person against whom
such indemnity may be sought (hereinafter called the indemnifying party) in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties, and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by Morgan
Stanley & Co. Incorporated in the case of parties indemnified pursuant to the
second paragraph of this Article VI and by the Company in the case of parties
indemnified pursuant to the third paragraph of this Article VI. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party to the extent set forth above from and against
any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement
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includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the second or third paragraph of this
Article VI is, as a matter of applicable law, unavailable to an indemnified
party in respect of any losses, claims, damages or liabilities for which
indemnification is provided therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
of the Underwriters in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Final Prospectus, bear to the aggregate public offering price of
the Securities. The relative fault of the Company and the Underwriters 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 or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VI were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VI, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article VI are several in
proportion to the respective principal amount of Securities purchased by each
Underwriter and not joint.
The indemnity and contribution agreements contained in this Article VI and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
VII.
This Agreement shall be subject to termination, by notice given by you to
the Company, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the
8
<PAGE>
American Stock Exchange or the National Association of Securities Dealers,
Inc., (ii) trading of the Securities or the Common Stock of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities, or (iv) there
shall have occurred any outbreak or escalation of major hostilities or any
significant change in financial markets or any calamity or crises that, in
your judgment, is material and adverse and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event singly or together
with any other such event makes it, in your judgment, impracticable to market
the Securities substantially on the terms and in the manner contemplated in
the Final Prospectus. Any such termination shall be without liability on the
part of any Underwriter or the Company.
VIII.
This Agreement shall become effective upon execution and delivery hereof by
the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Securities that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I bears to the principal
amount of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Article I be increased pursuant to this Article VIII by an amount
in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of Securities to be
purchased on such date, and arrangements satisfactory to you and the Company
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Final Prospectus or in any other documents
or arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the reasonable fees and disbursements of
their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
The Underwriters agree to advise the Company promptly of the completion of
the distribution of the Securities.
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
9
<PAGE>
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Very truly yours,
FMC Corporation
/s/ Michael J. Callahan
By: _________________________________
Michael J. Callahan
Executive Vice President and
Chief Financial Officer
Accepted, June 27, 1996
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
Acting on behalf of themselves
and the several Underwriters
named in Schedule I hereto
By: Morgan Stanley & Co. Incorporated
/s/ William H. White
By: _________________________________
William H. White
Principal
10
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ----------------
<S> <C>
Morgan Stanley & Co. Incorporated........................ $ 50,000,000
Salomon Brothers Inc..................................... 50,000,000
------------
Total................................................ $100,000,000
============
</TABLE>
11
<PAGE>
Exhibit 4-a
FMC CORPORATION
Officers' Certificate
---------------------
Michael J. Callahan, Executive Vice President and Chief Financial Officer,
and Robert L. Day, Secretary, of FMC Corporation, a Delaware corporation (the
"Company"), each hereby certify that we are duly authorized to, and do hereby,
deliver this certificate to Harris Trust and Savings Bank (the "Trustee"), as
Trustee under the Indenture dated as of July 1, 1996 (the "Indenture"), that
attached hereto as Exhibit 1 are the resolutions duly adopted by an Offering
Committee appointed by the Board of Directors of the Company establishing the
Company's 7 3/4% Senior Debentures Due 2011 (the "Debentures") pursuant to
Section 2.3 of the Indenture and a form of the Debentures duly adopted by said
Offering Committee and that:
(a) Each of us has read the conditions in the Indenture relating to the
authentication and delivery by the Trustee of the Debentures and has read the
definitions in the Indenture relating thereto;
(b) Each of us has examined the Indenture;
(c) Each of us has, in our respective opinions, made such examination and
investigation as is necessary to enable each of us, respectively, to express an
informed opinion as to whether such conditions have been complied with; and
(d) In the opinion of each of us, all such conditions have been complied
with.
* * * * *
<PAGE>
Dated: July 2, 1996
FMC CORPORATION
By: /s/ Michael J. Callahan
___________________________
Michael J. Callahan
Executive Vice President
and Chief Financial
Officer
By: /s/ Robert L. Day
___________________________
Robert L. Day
Secretary
-2-
<PAGE>
EXHIBIT 1
RESOLUTIONS
OF
FMC CORPORATION
OFFERING COMMITTEE
------------------
RESOLVED, that pursuant to the authority granted this Committee by
resolutions of the Board of Directors of the Company duly adopted on August 31,
1995 and October 20, 1995, in connection with the offering and sale of up to
$500,000,000 in aggregate public offering price of securities of the Company,
this Committee hereby approves the issuance of $100,000,000 aggregate principal
amount of the Company's debt securities which shall be designated as 7 3/4%
Senior Debentures Due 2011 (the "Senior Debentures") and the sale thereof to
Morgan Stanley & Co. Incorporated and Salomon Brothers Inc (the "Underwriters"),
with the following terms and conditions:
(a) the offering price to the public of the Senior Debentures shall be
98.927% of the principal amount thereof, plus accrued interest from July 1,
1996;
(b) the issuance price of the Senior Debentures to the Underwriters shall
be 98.177% of the principal amount thereof, plus accrued interest from July 1,
1996, and the amount of proceeds to be received by the Company from the sale of
the
<PAGE>
Senior Debentures shall be $98,198,527.78 (assuming a closing date of July 2,
1996);
(c) the Senior Debentures shall have no sinking fund;
(d) the Senior Debentures shall be redeemable in whole or in part, at the
option of the Company at any time, at a redemption price equal to the greater of
(i) 100% of their principal amount and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the
date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Yield (as defined in the form of Senior
Debenture attached hereto) plus in each case accrued interest to the date of
redemption;Z
(e) the Senior Debentures shall not be convertible into any other
securities of the Company;
(f) the Senior Debentures shall bear interest at 7 3/4% per annum, payable
January 1 and July 1 each year, commencing January 1, 1997, to persons in whose
names the Senior Debentures are registered at the close of business on the next
preceding December 15 and June 15, respectively;
(g) the Senior Debentures shall have an initial issue date of July 2, 1996,
and shall bear interest from July 1, 1996;
(h) the Senior Debentures shall not be listed on any stock exchange;
-2-
<PAGE>
(i) the Senior Debentures shall mature, and the entire principal shall be
payable on July 1, 2011;
(j) the provisions of Sections 10.1(B)(ii) and 10.1(B)(iii) of the
Indenture referred to below relating to defeasance and covenant defeasance shall
apply to the Senior Debentures and the provisions of Article Twelve of the
Indenture shall apply to the Senior Debentures (except that holders of Senior
Debentures to be redeemed shall be entitled to receive notice thereof at least
30 days and not more than 60 days prior to the date fixed for redemption);
(k) the Senior Debentures shall be represented initially by one global
debenture which shall be deposited with, or on behalf of, The Depository Trust
Company (the "Depository"), such global debenture to be registered initially in
the name of a nominee of the Depository, and the Senior Debentures shall be
subsequently issuable in definitive form only in the circumstances described in
the Indenture or the prospectus or prospectus supplement related to the Senior
Debentures; and
(l) the Senior Debentures shall be limited to $100,000,000 aggregate
principal amount to be authenticated and delivered under the Indenture (except
for Senior Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Senior Debentures pursuant to
Sections 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture).
-3-
<PAGE>
FURTHER RESOLVED, that the Company hereby appoints Harris Trust and
Savings Bank to act as trustee (the "Trustee") under the Indenture and that the
Indenture to be dated as of July 1, 1996 between the Company and the Trustee
(the "Indenture") and the form of Senior Debenture, each attached hereto, are
hereby approved, each with such additions thereto, changes and insertions
thereon and deletions therefrom as the officers executing such Indenture and
Senior Debentures shall deem necessary, appropriate or desirable, the authority
of such officers to be conclusively evidenced by their execution thereof;
FURTHER RESOLVED, that the Underwriting Agreement among the Company
and the Underwriters, a form of which is attached hereto, is hereby approved,
with such additions thereto, changes and insertions thereon and deletions
therefrom as the officers executing such documents shall deem necessary,
appropriate or desirable, the authority of such officers to be conclusively
evidenced by their execution thereof; and
FURTHER RESOLVED, that the Company's Prospectus dated November 20,
1995 used in connection with the Senior Debentures, the Company's Preliminary
Prospectus Supplement dated June 25, 1996 used in connection with the Senior
Debentures and the final form of such Prospectus Supplement (so long as it is
consistent with these resolutions) are hereby approved, with such additions and
amendments thereto, changes and insertions thereon and deletions therefrom as
the Company's officers shall deem necessary, appropriate or desirable.
-4-
<PAGE>
Exhibt 4-b
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
NO. R-1 $100,000,000
FMC CORPORATION
7 3/4% SENIOR DEBENTURE DUE 2011
CUSIP: 302491AL9
FMC Corporation, a Delaware corporation (herein called the "Issuer,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & Co. or
registered assigns, the principal sum of $100,000,000 on July 1, 2011, and to
pay interest, semiannually on January 1 and July 1 of each year, commencing
January 1, 1997, on said principal sum, at the rate per annum specified in the
title of this Senior Debenture, on a semiannual bond equivalent basis using a
360-day year composed of twelve 30-day months from July 1, 1996 until payment of
said principal sum has been made or duly provided for. Payments of such
principal and interest shall be made at the office or agency of the Issuer in
Chicago, Illinois, which, subject to the right of the Issuer to vary or
terminate the appointment of such agency, shall initially be at the principal
office of Harris Trust and Savings Bank. If the Issuer shall default in the
payment of interest due on January 1 or July 1, then this Senior Debenture shall
bear interest from the next preceding January 1 or July 1, to which interest has
been paid or, if no interest has been paid on this Senior Debenture, from
July 1, 1996. The interest so payable on any January 1 or July 1, will, subject
to certain exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this Senior Debenture is registered
at the close of business on the December 15 or June 15, as the case may be, next
preceding such January 1 or July 1.
Reference is made to the further provisions of this Senior Debenture
set forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
<PAGE>
This Senior Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, FMC CORPORATION has caused this instrument to be
signed by its duly authorized officers and has caused its corporate seal to be
affixed hereunto or imprinted hereon.
FMC CORPORATION
By:_____________________________
By:_____________________________
[CORPORATE SEAL]
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated herein referred
to in the within-mentioned Indenture.
Dated: HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:_____________________________
Authorized Signatory
-2-
<PAGE>
REVERSE OF SENIOR DEBENTURE
FMC CORPORATION
7 3/4% SENIOR DEBENTURE DUE 2011
This Senior Debenture is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the Series hereinafter specified, all issued or to
be issued under and pursuant to an Indenture dated as of July 1, 1996 (herein
called the "Indenture"), duly executed and delivered by the Issuer to Harris
Trust and Savings Bank, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Issuer and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more Series, which different Series may be
issued in various aggregate principal amounts, may bear interest at different
rates, which may be fixed or variable, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary as provided in the Indenture. This Senior
Debenture is one of a Series designated as the 7 3/4% Senior Debentures Due 2011
of the Issuer, limited in aggregate principal amount to $100,000,000.
The Senior Debentures are represented by a Global Debenture deposited
with, or on behalf of, The Depository Trust Company, New York, New York ("DTC"),
and registered in the name of a nominee of DTC. Except as set forth herein, the
Senior Debentures shall be available for purchase in book-entry form only. So
long as DTC or its nominee is the registered owner of the Global Debenture, DTC
or such nominee, as the case may be, will be considered the sole owner or Holder
of the Senior Debentures represented by the Global Debenture for all purposes
under the Indenture. Unless and until certificated Senior Debentures are issued
in exchange for the Global Debenture, no beneficial owner of a Senior Debenture
shall be entitled to receive a definitive certificate representing a Senior
Debenture. Upon such exchange, Senior Debentures in definitive form shall be
issued in registered form only, without coupons, in denominations of $1,000 and
integral multiples thereof.
If at any time DTC notifies the Issuer that it is unwilling or unable
to continue as depository for the Senior Debentures or if at any time DTC shall
no longer be registered or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation and a successor
-3-
<PAGE>
depository is not appointed by the Issuer within 90 days after the Issuer
receives such notice or becomes aware of such condition, as the case may be, the
Issuer will execute, and the Trustee will authenticate and deliver, Senior
Debentures in definitive registered form in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for the Global
Debenture. In addition, the Issuer may at any time determine that some or all
of the Senior Debentures shall no longer be represented by a Global Debenture.
In such event, the Issuer will execute and the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Issuer, will
authenticate and deliver Senior Debentures in definitive form, in authorized
denominations, (i) to the Person specified by DTC equal to and in exchange for
such Person's beneficial interest in the Global Debenture and (ii) to DTC a new
Global Debenture in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Debenture and the aggregate principal
amount of definitive Senior Debentures delivered to Holders thereof, or
interests in applicable portions thereof. Upon the exchange of the Global
Debenture for all Senior Debentures in definitive form, in authorized
denominations, the surrendered Global Debenture shall be cancelled by the
Trustee. Senior Debentures in definitive registered form issued in exchange for
the Global Debenture or portion thereof shall be issued in such authorized
denominations as DTC, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Senior Debentures to the Persons in whose name such Senior
Debentures are so registered.
In case an Event of Default with respect to the 7 3/4% Senior
Debentures Due 2011 shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of a majority of the aggregate
principal amount of the Securities at the time Outstanding (as defined in the
Indenture) of all Series to be affected (treated as one class), evidenced as
provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each such Series; provided, however,
that no such supplemental indenture shall (i) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable upon redemption thereof, or impair or affect the right of any
Holder to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, without
the consent of the Holder of
-4-
<PAGE>
each Security so affected, or (ii) reduce the aforesaid percentage of Securities
of any Series, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holder of each Security
affected. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any Series, the
Holders of a majority in aggregate principal amount outstanding of the
Securities of such Series may on behalf of the Holders of all the Securities of
such Series waive any such past default or Event of Default and its
consequences. The preceding sentence shall not, however, apply to a default in
the payment of the principal of or interest on any of the Securities. Any such
consent or waiver by the Holder of this Senior Debenture (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Senior Debenture and any Senior
Debenture which may be issued in exchange or substitution herefor, irrespective
of whether or not any notation thereof is made upon this Senior Debenture or
such other Senior Debenture.
No reference herein to the Indenture, and no provision of this Senior
Debenture or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Senior Debenture in the manner, at the respective times, at the
rate, and in the coin or currency herein prescribed.
As provided in the Indenture, and subject to certain limitations set
forth therein, Senior Debentures in registered form are exchangeable for one or
more new Debentures of this Series and of like tenor, for the same aggregate
principal amount and of authorized denominations, as requested by the Holder
surrendering the same at the agency of the Issuer in Chicago, Illinois. No
service charge shall be made for any such exchange, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Senior Debentures will be redeemable in whole or in part, at the
option of the Issuer at any time, at a redemption price equal to the greater of
(i) 100% of their principal amount and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the
date of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Yield plus in each case accrued interest
to the date of redemption (the "Redemption Date").
"Treasury Yield" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
-5-
<PAGE>
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker (as defined herein) as having a
maturity comparable to the remaining term of the Senior Debentures that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Senior Debentures. "Independent Investment
Banker" means Morgan Stanley & Co. Incorporated or, if such firm is unwilling or
unable to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee.
"Comparable Treasury Price" means with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four Reference Treasury Dealer Quotations,
the average of all such Quotations. "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and any Redemption Date,
the average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such Redemption Date.
"Reference Treasury Dealer" means each of Morgan Stanley & Co.
Incorporated, Salomon Brothers Inc and two other Primary Treasury Dealers (as
defined herein) selected by the Issuer, provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Issuer shall substitute therefor
another Primary Treasury Dealer.
Holders of Senior Debentures to be redeemed will receive notice
thereof by first-class mail at least 30 and not more than 60 days prior to the
date fixed for redemption.
Upon due presentment for registration of transfer of this Senior
Debenture at the office or agency of the Issuer in Chicago, Illinois, a new
Senior Debenture or Senior Debenture of this Series of authorized denominations
for an equal aggregate principal amount will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture, without
charge except
-6-
<PAGE>
for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this Senior
Debenture (whether or not this Senior Debenture shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in this Senior
Debenture, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either directly or through
the Issuer or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
The Indenture with respect to any Series will be discharged and
cancelled except for certain Sections thereof, subject to the terms of the
Indenture, upon the payment of all the Securities of such Series or upon the
irrevocable deposit with the Trustee of cash or Government Obligations (or a
combination thereof) sufficient for such payment in accordance with Article Ten
of the Indenture.
The Indenture and this Senior Debenture shall be deemed to be
contracts made under the internal laws of the State of Illinois (without regard
to conflicts of laws provisions hereof), and for all purposes shall be governed
by and construed in accordance with the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
-7-
<PAGE>
_________________________________________________
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
______________________________________________________________________
[Please Print or Typewrite Name and Address of Assignee]
______________________________________________________________________
the within Senior Debenture and hereby does irrevocably constitute and appoint
_______________________________________________ Attorney to transfer said Senior
Debenture on the books of the within-mentioned Issuer, with full power of
substitution in premises.
Dated:_______________________ _______________________________*
________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the Senior Debenture in every
particular, without alteration or enlargement
or any change whatever.
____________________________________
* Your signature must be guaranteed by a commercial bank or trust
company or by a member or members' organization of the New York Stock Exchange
or American Stock Exchange.
-8-
<PAGE>
July 2, 1996
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Gentlemen:
We have acted as special counsel to FMC Corporation, a Delaware
corporation ("FMC"), in connection with matters relating to the proposed
issuance and sale by FMC of $100,000,000 aggregate principal amount of its
7 3/4% Senior Debentures Due 2011 (the "Senior Debentures"). The Senior
Debentures are to be issued pursuant to the provisions of an Indenture dated as
of July 1, 1996 between FMC and Harris Trust and Savings Bank, as Trustee (the
"Indenture"). All capitalized terms not defined herein shall have the meanings
provided in the Underwriting Agreement.
In connection with rendering this opinion, we have examined: (a) the
Registration Statement on Form S-3 (Registration No. 33-62415) filed by FMC with
the Securities and Exchange Commission (the "Commission") on September 7, 1995
(the "Registration Statement"), Amendment No. 1 to the Registration Statement
filed by FMC with the Commission on November 1, 1995 and Amendment No. 2 to the
Registration Statement filed by FMC with the Commission on November 17, 1995;
(b) the Indenture; and (c) the Underwriting Agreement dated June 27, 1996 by and
among FMC and the Underwriters named in Schedule I thereto (the "Underwriting
Agreement").
Based upon the foregoing, we advise you that in our opinion the Senior
Debentures have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
you in accordance with the terms of the Underwriting Agreement, will constitute
valid and binding obligations of FMC, enforceable against FMC in accordance with
its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles regardless of whether such enforceability is considered in a
<PAGE>
FMC Corporation
July 2, 1996
Page 2
proceeding in equity or at law and will be entitled to the benefits of the
Indenture.
The foregoing opinions are limited to laws of the United States, the
State of Illinois and the General Corporation Law of the State of Delaware, and
we express no opinion with respect to the laws of any other state or
jurisdiction.
For purposes of this opinion, we have assumed the due authorization,
execution and delivery of the Underwriting Agreement by the Underwriters, the
due authorization, execution and delivery of the Indenture by the Trustee, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies and that the signatures
on all documents examined by us are genuine.
We hereby consent to the incorporation by reference of this opinion to
the Registration Statement and to the use of our name in the Prospectus
Supplement relating to the Senior Debentures and constituting a part of the
Registration Statement. In giving this consent, we do not concede that we are
experts within the meaning of the Securities Act of 1933, as amended (the
"Act"), or the rules and regulations thereunder or that this consent is required
by Section 7 of the Act.
Very truly yours,
/s/ Winston & Strawn
