<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 2, 1994
REGISTRATION NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JAMES RIVER CORPORATION
OF VIRGINIA
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
COMMONWEALTH OF VIRGINIA 54-0848173
(STATE OR OTHER (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
JURISDICTION OF
INCORPORATION OR
ORGANIZATION)
</TABLE>
120 TREDEGAR STREET
RICHMOND, VIRGINIA 23219
(804) 644-5411
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CLIFFORD A. CUTCHINS, IV, ESQ., SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND CORPORATE SECRETARY
JAMES RIVER CORPORATION OF VIRGINIA
120 TREDEGAR STREET
RICHMOND, VIRGINIA 23219
(804) 644-5411
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
MARSHALL H. EARL, JR., ESQ.
MCGUIRE, WOODS, BATTLE & BOOTHE
ONE JAMES CENTER
RICHMOND, VIRGINIA 23219
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ( )
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. (x)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities............ $600,000,000(2) 100%(3) $600,000,000(3) $206,898
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
(2) Such amount represents the issue price rather than the principal amount of
any Debt Securities issued at an original issue discount. Any offering of
Debt Securities denominated other than in U.S. dollars will be treated as
the equivalent in U.S. dollars based on the official exchange rate
applicable to the purchase of Debt Securities from the registrant.
(3) Plus accrued interest, if any.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
PROSPECTUS
LOGO
JAMES RIVER CORPORATION
OF VIRGINIA
DEBT SECURITIES
James River Corporation of Virginia ("James River" or the "Company") may
offer from time to time its debt securities consisting of debentures, notes
and/or other evidences of indebtedness (the "Debt Securities"), from which the
Company will receive proceeds of up to $600,000,000 (or the equivalent in
foreign denominated currencies or units of two or more currencies, based on the
applicable exchange rate at the time of offering, as shall be designated by the
Company at the time of offering). The Debt Securities may be offered in one or
more series, in amounts, at prices and on terms to be determined at the time of
offering. Each issue of Debt Securities may vary, where applicable, as to
aggregate principal amount, maturity date, public offering or purchase price,
interest rate or rates and timing of payments thereof, provision for redemption
or sinking fund requirements, if any, currencies or currency units of
denomination or currencies or currency units otherwise applicable thereto, and
any other variable terms and methods of distribution. The specific terms with
regard to the Debt Securities in respect of which this Prospectus is being
delivered are set forth in one or more accompanying Prospectus Supplements (each
a "Prospectus Supplement").
The Debt Securities will be unsecured and will rank equally with all other
unsecured and unsubordinated indebtedness of the Company, but will rank behind
the Company's secured indebtedness, which as of March 27, 1994 aggregated
approximately $2.0 million.
The Debt Securities may be issued in registered form ("Registered
Securities") or bearer form ("Bearer Securities"), or both. In addition, all or
a portion of the Debt Securities of a series may be issuable in temporary or
permanent global form. Bearer Securities, Debt Securities represented by a
permanent global Debt Security exchangeable for Bearer Securities, and Debt
Securities initially represented by a temporary global Debt Security described
under "Description of Debt Securities -- Temporary Global Securities"
(collectively, "Euro-Securities") are offered only to Non-United States persons
and to offices of certain United States financial institutions located outside
the United States and its possessions. See "Limitations on Issuance of
Euro-Securities." For a discussion of certain United States federal income tax
consequences to Holders of Debt Securities, see "United States Taxation."
SEE "INVESTMENT CONSIDERATIONS" FOR CERTAIN INFORMATION WHICH SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The Company may sell Debt Securities to one or more underwriters for public
offering and sale by them or it may sell Debt Securities to investors directly
or through agents. See "Plan of Distribution." The accompanying Prospectus
Supplement sets forth the names of any underwriters, dealers, or agents involved
in the sale of the Debt Securities in respect of which this Prospectus is being
delivered and any applicable fee, commission, or discount arrangements with
them.
The date of this Prospectus is , 1994.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR BY ANY UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR
THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AT ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND THE PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy and information statements, and
other information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the Commission:
Chicago Regional Office, Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661; and New York Regional Office, 7 World Trade
Center, Suite 1300, New York, New York 10046. Copies of such material can also
be obtained by mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The Company's
common stock is listed on the New York Stock Exchange, and such reports, proxy
and information statements, and other information concerning the Company can be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
This Prospectus does not contain all the information set forth in the
registration statement to which this Prospectus relates (the "Registration
Statement") and the exhibits thereto which the Company has filed with the
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are hereby
incorporated by reference into this Prospectus:
(a) the Annual Report on Form 10-K for the fiscal year ended December 26,
1993;
(b) Proxy Statement dated March 14, 1994, in connection with the Company's
Annual Meeting of Shareholders held on April 28, 1994; and
(c) the Current Reports on Form 8-K dated January 25, 1994, February 22,
1994, April 21, 1994, and April 27, 1994.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14, or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement contained herein or
in a document all or any portion of which is incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents referred to above which have been or may be
incorporated in this Prospectus by reference, other than certain exhibits to
such documents. Requests for such copies should be directed to Celeste Gunter,
Director, Investor Relations, James River Corporation of Virginia, 120 Tredegar
Street, Richmond, Virginia 23219 (telephone (804) 649-4307).
2
<PAGE>
THE COMPANY
James River is a manufacturer and marketer of consumer products, including
towel and tissue and disposable food and beverage service products; food and
consumer packaging, including folding cartons, flexible packaging, and barrier
packaging papers; and communications papers, including uncoated business papers
and coated printing papers. James River is one of the industry leaders, in terms
of sales within the United States, in towel and tissue products, disposable food
service items, folding cartons, and flexible packaging, and, on the West Coast,
in uncoated business papers. The Company produces a number of branded products,
which include Quilted Northernt, Marinat, and Nice 'N Softt bathroom tissue;
Brawnyt paper towels; Vanity Fairt premium food service products; Dixiet plates,
cups, and cutlery; Eureka!e recycled and Word Prot copy papers; Delta Britet
publishing papers; Montereyt magazine paper; Curtis text and cover papers; Qwik
Crispt microwave packaging; and Quilt-Rape sandwich wrap. Each of the Company's
businesses produces an increasing number of recycled paper products to meet the
growing demands of customers. James River, through its consolidated subsidiaries
and its unconsolidated affiliates, has operations in 28 states, Canada, and 12
European countries. James River has pursued a strategy of investment which has
allowed the Company to significantly expand its business and to broaden its
product lines.
James River was incorporated under the laws of the Commonwealth of Virginia
in 1969. The Company's principal executive offices are located at 120 Tredegar
Street, Richmond, Virginia 23219 (P.O. Box 2218, Richmond, Virginia 23217), and
its telephone number is (804) 644-5411.
RECENT DEVELOPMENTS
On April 27, 1994, James River announced the signing of a share acquisition
agreement with Montedison S.p.A. and Rayne Holdings Inc. ("Rayne"), whereby
James River will acquire the 50% ownership interest in Jamont Holdings N.V.
("Jamont Holdings") currently owned by Rayne for $575 million in cash. James
River currently owns the remaining 50% of Jamont Holdings. Jamont Holdings owns
86.4% of Jamont N.V. ("Jamont"), which has operations in 12 European countries
and produces branded and private label tissue and foodservice products for the
retail and away-from-home markets. Jamont had sales of $1.4 billion in 1993.
Upon the consummation of the acquisition, Jamont will become a consolidated
subsidiary of James River. James River intends to finance this transaction
through the issuance of a combination of debt and equity securities. See "Use of
Proceeds" herein. The final transaction, which is subject to normal closing
conditions, as well as obtaining necessary financing and securing the approval
of James River's lenders, is expected to be completed during the third quarter
of 1994.
On April 21, 1994, James River published its results for the first quarter
ended March 27, 1994. The Company reported income from operations of $20.3
million and a net loss of $7.1 million, or $0.19 per share. These amounts
compare to income from operations of $17.7 million and a net loss of $10.1
million, or $0.22 per share, in the prior year's first quarter. Operating
results for the Consumer Products Business increased by over 20%, to $28.3
million compared to $23.2 million in the prior year, principally from strong
retail volume and the benefits realized from productivity improvements. Results
for the Food and Consumer Packaging Business increased by 14%, to $26.6 million
in 1994 from $23.3 million in 1993. However, operating losses generated by the
Communications Papers Business increased 24%, to $25.1 million from $20.3
million last year, as pricing in most white paper grades continued to decline
during the quarter due to additional industry capacity and higher levels of
imports.
RATIOS
The following table sets forth the ratio of earnings to fixed charges and
the ratio of earnings to combined fixed charges and preferred stock dividends
for the period indicated.
<TABLE>
<CAPTION>
FISCAL PERIODS ENDED(1)
4/30/89 4/29/90 12/30/90 12/29/91 12/27/92 12/26/93
<S> <C> <C> <C> <C> <C> <C>
(2) (3),(4) (5)
Ratio of Earnings to Fixed Charges (unaudited).......... 2.90x 2.40x 1.21x 1.34x -- 1.04x
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends (unaudited)................. 2.48x 2.09x 1.03x 1.15x -- --
</TABLE>
3
<PAGE>
(1) In computing the ratios of earnings to fixed charges and of earnings to
combined fixed charges and preferred stock dividends, earnings consist of income
before income taxes, extraordinary items, the cumulative effect of changes in
accounting principles, minority interests, and fixed charges excluding
capitalized interest. Fixed charges consist of interest expense, capitalized
interest, and that portion of rental expense (one-third) deemed representative
of the interest factor. Earnings and fixed charges also include the Company's
proportionate share of such amounts for unconsolidated affiliates which are
owned 50% or more and distributed income from less than 50% owned affiliates.
For purposes of the ratio of earnings to combined fixed charges and preferred
stock dividends, fixed charges are increased by the preferred stock dividends
requirements of James River adjusted to amounts representing the pretax earnings
which would be required to cover such dividend requirements.
(2) During 1990, the Company changed its fiscal year from one ending on the
last Sunday of April to one ending on the last Sunday of December. Accordingly,
disclosures for the transition period ended December 30, 1990 include the 35
weeks from April 30 to December 30, 1990. During this period, the Company
initiated an operational restructuring program designed to focus the Company's
operations on those businesses in which it commands a substantial market share
and which are less cyclical. In connection with that program, the Company
recorded a $200 million pretax charge which has been included in the calculation
of the ratios of earnings to fixed charges and earnings to combined fixed
charges and preferred stock dividends for this period. Excluding the impact of
the $200 million pretax restructuring charge from earnings, the ratio of
earnings to fixed charges would have been 2.59x and the ratio of earnings to
combined fixed charges and preferred stock dividends would have been 2.19x for
this period.
(3) For the year ended December 27, 1992, earnings were inadequate to cover
both fixed charges and combined fixed charges and preferred stock dividends. The
amount of the deficiency of earnings compared to fixed charges was $195.6
million, and the amount of the deficiency of earnings compared to combined fixed
charges and preferred stock dividends was $236.1 million for this year.
(4) During 1992, the Company initiated a productivity enhancement program
and recorded a $112 million pretax restructuring charge which has been included
in the calculation of the ratios of earnings to fixed charges and earnings to
combined fixed charges and preferred stock dividends for this year. Excluding
the impact of the $112 million pretax charge from earnings, the amount of the
deficiency of earnings compared to fixed charges would have been $83.9 million,
and the amount of the deficiency of earnings compared to combined fixed charges
and preferred stock dividends would have been $123.1 million for this year.
(5) For the year ended December 26, 1993, earnings were inadequate to cover
combined fixed charges and preferred stock dividends. The amount of the
deficiency of earnings compared to combined fixed charges and preferred stock
dividends was $48.5 million for this year.
INVESTMENT CONSIDERATIONS
RECENT INDUSTRY CONDITIONS
A substantial portion of James River's business is strongly influenced by
conditions in the pulp and paper industry. Beginning in 1990, the financial
performance of the pulp and paper industry began to decline, primarily due to a
combination of (i) significant levels of excess industry capacity, (ii) slowing
demand growth resulting from recessionary conditions in both the U.S. and
Europe, and (iii) foreign currency devaluations which have provided cost
advantages to certain foreign competitors. These conditions resulted in intense
competition, declining utilization rates, increased levels of foreign imports,
and depressed pricing, domestically as well as abroad. The depressed levels of
earnings reported by many pulp and paper producers have continued through 1993.
For James River and other competitors serving the tissue, foodservice,
packaging, and communications papers markets, difficult market conditions
persist. In addition, severely depressed prices for market pulp and bleached
paper board have reduced James River's return on assets compared to competitors
which are less fully integrated and able to purchase these raw materials at
prices which are generally below the Company's total cost of production.
4
<PAGE>
RECENT JAMES RIVER FINANCIAL PERFORMANCE
For the year ended December 26, 1993, James River reported operating income
of $114.0 million and a net loss of $0.3 million, equivalent to a loss of $.40
per share after preferred dividends. Results for 1993 included a charge of $11.0
million, or $.13 per share, representing the cumulative increase in the deferred
income tax liability resulting from the 1% increase in the statutory federal
income tax rate enacted during 1993. James River's ratio of earnings to fixed
charges for the year ended December 26, 1993, was 1.04x. For the year ended
December 27, 1992, James River reported a loss from operations of $62.4 million,
including a $111.7 million pretax restructuring charge, and a net loss of $427.3
million, or $5.55 per share. In addition to the restructuring charge, results
for 1992 included a charge of $273.8 million net of income tax benefits, or
$3.35 per share, for the cumulative effect of changes in accounting principles
and an extraordinary loss of $31.4 million net of income tax benefits, or $.38
per share, on the early extinguishment of debt. For the year ended December 27,
1992, the Company's earnings were inadequate to cover fixed charges by $195.6
million. Improvements in both operating and net results during 1993, as compared
to 1992, reflect increased productivity, cost reductions, and limited pricing
improvements in certain of the Company's product lines. However, competitive
pricing pressures still exist in each of the Company's business segments,
particularly in communications papers including uncoated free sheet papers and
coated groundwood papers, where excess industry capacity and imports have
resulted in continuing reductions in pricing.
RECENT JAMONT HOLDINGS FINANCIAL PERFORMANCE
For the year ended December 31, 1993, Jamont Holdings reported operating
income of $68 million and a net loss of $0.4 million, after reflecting
adjustments necessary to conform accounting principles to those generally
accepted in the United States. These results represent a significant decline
from those of the prior year. Jamont Holdings was negatively affected in 1993 by
the deep recessionary conditions experienced in Western Europe, as well as by
significant amounts of industry overcapacity. These combined factors caused
tissue pricing to fall steadily beginning in the second half of 1992. As of the
end of 1993, pricing was at a level approximately 13% below that of mid-1992.
However, the negative effects of reduced pricing were partially offset by Jamont
Holdings' cost reduction, productivity improvement, and asset rationalization
programs. During 1993, Jamont Holdings closed three converting plants and
reduced its workforce by approximately 5%, or 450 employees. In addition, Jamont
Holdings completed its $600 million capital investment program during the summer
of 1993. This program, which began in 1991, consisted of a number of capital
projects aimed at enhancing quality, expanding capacity, and reducing costs, and
included the construction of six new paper machines.
ENVIRONMENTAL CONSIDERATIONS
Like its competitors, James River is subject to extensive regulation by
various federal, state, provincial, and local agencies concerning compliance
with environmental control statutes and regulations. These regulations impose
limitations on the discharge of materials into the environment, including
effluent and emission limitations, as well as require the Company to obtain and
operate in compliance with the conditions of permits and other governmental
authorizations. Future regulations could materially increase the Company's
capital requirements in future years. In addition, James River has been
identified as a potentially responsible party and is involved in remedial
investigations and actions under federal and state laws. There can be no
assurance that the Company will not be named as a potentially responsible party
at additional sites in the future or that the costs associated with such
additional sites would not be material. For a further discussion of these
matters, see "Environmental Matters" herein.
ISSUANCE OF OTHER INDEBTEDNESS
The Indenture pursuant to which the Debt Securities are to be issued does
not limit the aggregate principal amount of securities which may be issued
thereunder or of other indebtedness ranking pari passu to the Debt Securities,
nor does the Indenture restrict the purposes for which the Company may incur
such indebtedness. The Indenture provides that securities may be issued
thereunder from time to time in one or more series. The Indenture does not
contain any provisions which may afford the holders of securities of any series
protection in the event of any highly leveraged transaction or other transaction
which may occur in connection with a takeover attempt resulting in a decline in
the credit rating of the securities. Any such provisions, if applicable to the
Debt
5
<PAGE>
Securities of any series, will be described in the Prospectus Supplement or
Prospectus Supplements relating thereto. See "Description of Debt Securities"
herein.
LEVEL OF INDEBTEDNESS
As of December 26, 1993, James River's outstanding long-term debt totalled
$1.9 billion and the current portion of long-term debt totalled $97 million. The
Company's ratio of total debt to total capitalization was 50.9% as of this date.
For purposes of this ratio, James River defines total capitalization as the sum
of current and long-term debt and equity accounts. See "Ratios," "Investment
Considerations -- Recent Industry Conditions," " -- Recent James River Financial
Performance," and " -- Ranking of Debt Securities" herein.
FLUCTUATING PRICES OF RAW MATERIALS AND ENERGY
James River obtains its wood, resin, and energy requirements through
periodic purchases reflecting fluctuating market prices. There can be no
assurance that any raw materials and energy price increases experienced by James
River could be passed on to James River's customers.
FOREIGN CURRENCY DEBT SECURITIES
Debt Securities denominated or payable in foreign currencies or currency
units may entail significant risks. See the applicable Prospectus Supplement, if
any, and "Foreign Currency Risks" herein.
RANKING OF DEBT SECURITIES
The Debt Securities will be unsecured and will rank equally with all other
unsecured and unsubordinated indebtedness of the Company, but will rank behind
the Company's secured indebtedness, which as of March 27, 1994, aggregated
approximately $2.0 million. See "Description of Debt Securities" herein.
ORIGINAL ISSUE DISCOUNT DEBT SECURITIES
For a discussion of certain considerations which may apply to any series of
Debt Securities which constitute original issue discount securities, see "United
States Taxation-Original Issue Discount" herein and the further discussion in
any applicable Prospectus Supplement.
NO EXCHANGE LISTING
Unless otherwise disclosed in the applicable Prospectus Supplement, James
River does not intend to seek the exchange listing of Debt Securities of any
series. No assurance can be given as to the liquidity of or trading market for
Debt Securities of any series. For further information concerning the nature of
the market for Debt Securities of any series not to be listed on an exchange,
see the applicable Prospectus Supplement.
USE OF PROCEEDS
At least $275 million of the net proceeds from the sale of the Debt
Securities offered hereby will be used to repay floating rate notes or a portion
of the Company's borrowings under its long-term revolving credit agreements, its
commercial paper borrowings, or other short-term borrowings or for general
corporate purposes, which may include capital expenditures, acquisitions, and
working capital requirements. Except as described under "Recent Developments,"
the Company has not entered into any agreement with a third party with respect
to any acquisition. As of December 26, 1993, the Company had $250 million of
outstanding floating rate notes with an average interest rate of 4.02%. Of such
notes, $75 million mature in December 1994 and the remaining $175 million mature
in December 1995. On December 26, 1993, the Company also had a total of $287.1
million of outstanding commercial paper or other short-term borrowings supported
by revolving credit facilities with a weighted average interest rate of 3.6% per
annum and a weighted average maturity of 17 days. The Company estimates that
approximately $325 million of the net proceeds from the sale of the Debt
Securities to be offered hereby may be applied toward James River's purchase of
the remaining 50% ownership interest in Jamont Holdings from Montedison S.p.A.
and Rayne for approximately $575 million during the third quarter of 1994. See
"Recent Developments" herein. It is anticipated that the balance of the purchase
price for the remaining Jamont Holdings interest, or approximately $250 million,
will be funded with the proceeds from the sale of shares of James River
preferred stock ("Preferred Stock"). Concurrent with the filing of the
Registration Statement of
6
<PAGE>
which this Prospectus is a part, the Company has filed a Registration Statement
on Form S-3 for the issuance of up to $287.5 million of Preferred Stock to be
offered from time to time.
UNAUDITED PRO FORMA JAMES RIVER AND JAMONT HOLDINGS FINANCIAL INFORMATION
The following pro forma consolidated capitalization and condensed balance
sheet as of December 26, 1993, and the pro forma consolidated statement of
operations for the year then ended give effect to the following transactions:
(a) the acquisition by James River of the remaining 50% ownership interest
in Jamont Holdings for a purchase price of $575 million in cash;
(b) the assumed financing of such acquisition with the proceeds from the
issuance of $325 million of Debt Securities and $250 million of
Preferred Stock.
Prior to the proposed acquisition, James River owned 50% of Jamont
Holdings, which was accounted for using the equity method of accounting. James
River's additional 50% investment in Jamont Holdings has been accounted for
using the purchase method of accounting and will result in the consolidation of
Jamont Holdings.
The unaudited pro forma consolidated condensed financial information is
presented as if these transactions had been consummated as of December 26, 1993,
for the pro forma consolidated capitalization and condensed balance sheet and as
of the first day of the year for the pro forma consolidated statement of
operations.
The pro forma financial information does not purport to be indicative of
the actual financial position as it is finally recorded, or the results of
operations which would actually have been reported if the transactions had
occurred on the dates or for the periods indicated, or which may be reported in
the future. The pro forma financial information should be read in conjunction
with the separate historical consolidated financial statements and the related
notes to such financial statements of James River and of Jamont Holdings,
incorporated by reference herein.
The pro forma effect of the issuance of the remaining Debt Securities
registered in the Registration Statement of which this Prospectus is a part is
described in the Prospectus Supplement relating to such issuance.
7
<PAGE>
JAMES RIVER AND JAMONT HOLDINGS
AND CONSOLIDATED SUBSIDIARIES
PRO FORMA CONSOLIDATED CAPITALIZATION
(UNAUDITED)
DECEMBER 26, 1993
(IN MILLIONS)
<TABLE>
<CAPTION>
PRO FORMA
ADJUSTMENTS
HISTORICAL INCREASE PRO FORMA
JAMES RIVER JAMONT HOLDINGS (DECREASE) CONSOLIDATED
<S> <C> <C> <C> <C>
(NOTE)2
Current portion of long-term debt $ 97.3 $ 69.7 $ 167.0
Long-term debt:
Commercial paper and borrowings
supported by revolving credit
facilities 287.1 423.4 $ 11.4(c) 721.9
Notes and debentures 1,655.7 263.6 325.0(d) 2,244.3
Total long-term debt (net of
current portion) 1,942.8 687.0 336.4 2,966.2
Minority interests 7.0 158.8 165.8
Shareholders' equity:
Preferred stock 454.1 250.0(d) 704.1
Common shareholders' equity 1,514.1 843.0 (843.0)(e) 1,506.1
(8.0)(c)
Total shareholders' equity 1,968.2 843.0 (601.0) 2,210.2
Total capitalization $ 4,015.3 $ 1,758.5 $(264.6) $5,509.2
</TABLE>
The accompanying notes are an integral part of this pro forma information.
8
<PAGE>
JAMES RIVER AND JAMONT HOLDINGS
AND CONSOLIDATED SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
(UNAUDITED)
DECEMBER 26, 1993
(IN MILLIONS)
<TABLE>
<CAPTION>
PRO FORMA
ADJUSTMENTS
HISTORICAL INCREASE PRO FORMA
JAMES RIVER JAMONT HOLDINGS (DECREASE) CONSOLIDATED
<S> <C> <C> <C> <C>
(NOTE)2
ASSETS
Current assets:
Cash and short-term securities $ 23.6 $ 81.4 $ 105.0
Accounts receivable 422.9 396.2 819.1
Inventories 666.5 176.0 842.5
Other current assets 169.3 5.7 175.0
Total current assets 1,282.3 659.3 1,941.6
Property, plant, and equipment 5,400.8 1,378.6 6,779.4
Less accumulated depreciation and
cost of timber harvested 1,829.3 267.5 2,096.8
Net property, plant, and
equipment 3,571.5 1,111.1 4,682.6
Investments in affiliates 519.5 18.5 $(423.5)(a) 114.5
Other assets 324.7 39.2 3.0(c) 366.9
Goodwill 153.3 451.3 155.9(b) 760.5
Total assets $ 5,851.3 $ 2,279.4 $(264.6) $7,866.1
LIABILITIES AND SHAREHOLDERS'
EQUITY
Current liabilities:
Current portion of long-term
debt $ 97.3 $ 69.7 $ 167.0
Other current liabilities 683.8 396.5 1,080.3
Total current liabilities 781.1 466.2 1,247.3
Long-term debt 1,942.8 687.0 $ 325.0(d) 2,966.2
11.4(c)
Other long-term liabilities 721.8 34.8 756.6
Deferred income taxes 430.4 89.6 520.0
Minority interests 7.0 158.8 165.8
Shareholders' equity:
Preferred stock 454.1 250.0(d) 704.1
Common shareholders' equity 1,514.1 843.0 (843.0)(e) 1,506.1
(8.0)(c)
Total shareholders' equity 1,968.2 843.0 (601.0) 2,210.2
Total liabilities and
shareholders' equity $ 5,851.3 $ 2,279.4 $(264.6) $7,866.1
</TABLE>
The accompanying notes are an integral part of this pro forma information.
9
<PAGE>
JAMES RIVER AND JAMONT HOLDINGS
AND CONSOLIDATED SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
(UNAUDITED)
FOR THE YEAR ENDED DECEMBER 26, 1993
(IN MILLIONS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA
ADJUSTMENTS
HISTORICAL INCREASE PRO FORMA
JAMES RIVER JAMONT HOLDINGS (DECREASE) CONSOLIDATED
<S> <C> <C> <C> <C>
(NOTE)3
Net sales $ 4,650.2 $ 1,482.1 $6,132.3
Cost of goods sold 3,858.6 947.9 $ 3.9(a) 4,810.4
Selling and administrative
expenses 677.6 466.1 1,143.7
Income from operations 114.0 68.1 (3.9) 178.2
Interest expense 137.5 72.3 22.8(b) 232.6
Other income, net 40.0 17.6 (2.4)(c) 55.2
Income before income taxes and
minority interest 16.5 13.4 (29.1) 0.8
Income tax expense (benefit) 18.9 15.7 (8.9)(d) 25.7
Loss before minority interest (2.4) (2.3) (20.2) (24.9)
Minority interest 2.1 2.0 4.1
Net loss $ (0.3) $ (0.3) $ (20.2) $ (20.8)
Preferred dividend requirements (32.8) (18.8)(e) (51.6)
Net loss applicable to common
shares $ (33.1) $ (0.3) $ (39.0) $ (72.4)
Net loss per common share and
common share equivalent $ (0.40) $ (0.88)
Weighted average number of common
shares and common share
equivalents 81.9 81.9
</TABLE>
The accompanying notes are an integral part of this pro forma information.
10
<PAGE>
JAMES RIVER AND JAMONT HOLDINGS
AND CONSOLIDATED SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
(UNAUDITED)
1. BASIS OF REPORTING
The accompanying pro forma consolidated capitalization and condensed
balance sheet as of December 26, 1993, and the pro forma consolidated statement
of operations for the year then ended give effect to the acquisition of the
remaining 50% interest in Jamont Holdings using the purchase method of
accounting. The aggregate purchase price to be paid for the additional interest
in Jamont Holdings is approximately $575 million, excluding estimated
acquisition and financing costs of $11.4 million. The accompanying pro forma
consolidated financial statements give effect to the expected issuances of
approximately $325 million of Debt Securities and approximately $250 million of
Preferred Stock, the proceeds of which will be used to finance the Jamont
Holdings acquisition.
The values assigned to the net assets acquired will be based upon the
determination, after the consummation of the transaction, of the fair values of
the assets acquired and liabilities assumed. Jamont Holdings was originally
formed in 1990, at which time its assets and liabilities were adjusted to then
fair values. In 1991, Jamont Holdings commenced a $600 million capital expansion
program which was completed in 1993. Accordingly, based on the relatively recent
valuations of Jamont Holdings' assets and liabilities, for the purpose of these
pro forma consolidated financial statements, the excess of the purchase price
over such estimated fair value of the net assets acquired, approximating $156
million, has been allocated to goodwill.
Historical financial information on Jamont Holdings contained in the pro
forma consolidated financial statements has been derived from the audited
financial statements of Jamont Holdings as of December 31, 1993, and for the
year then ended, prepared in accordance with accounting standards generally
accepted in The Netherlands and measured in European Currency Units. Such
financial information has been adjusted to conform to U.S. generally accepted
accounting principles and translated into U.S. dollars.
2. PRO FORMA BALANCE SHEET AND CAPITALIZATION ADJUSTMENTS
The pro forma consolidated capitalization and condensed balance sheet give
effect to the adjustments described below.
(a) To eliminate James River's existing investment in Jamont Holdings
as of December 26, 1993, previously accounted for using the equity
method.
(b) To record estimated goodwill, representing the excess of James
River's purchase price over the estimated fair value of Jamont
Holdings' net equity.
(c) To record $11.4 million of estimated acquisition and financing
costs, assumed to be funded through borrowings under the Company's
revolving credit facility, detailed as follows:
(i) $0.4 million related to the acquisition of Jamont Holdings,
excluding financing-related costs;
(ii) $3.0 million related to the issuance of $325 million of Debt
Securities; and
(iii) $8.0 million related to the issuance of $250 million of
Preferred Stock.
(d) To record the assumed issuances of the following James River
securities:
(i) $325 million of Debt Securities issued in connection with the
acquisition of Jamont Holdings; and
(ii) $250 million of Preferred Stock issued in connection with the
acquisition of Jamont Holdings.
(e) To eliminate the Jamont Holdings historical shareholders' equity
balances.
11
<PAGE>
JAMES RIVER AND JAMONT HOLDINGS
AND CONSOLIDATED SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED FINANCIAL INFORMATION, CONTINUED
(UNAUDITED)
3. PRO FORMA STATEMENT OF OPERATIONS ADJUSTMENTS
The pro forma consolidated statement of operations gives effect to the
adjustments described below.
(a) To record amortization of the incremental goodwill, using the
straight-line method over an assumed life of 40 years.
(b) To record interest expense on the $325 million of incremental
long-term debt, at an assumed interest rate of 7.0%.
(c) To reverse James River's share of the earnings of Jamont Holdings
associated with its existing 50% ownership interest, previously
accounted for using the equity method.
(d) To record income tax benefits related to the incremental interest
expense.
(e) To reflect increased preferred dividend requirements related to
the issuance of the $250 million of additional Preferred Stock, at
an estimated dividend yield of 7.5%.
4. LENDER CONSENTS
For purposes of these pro forma consolidated financial statements, it has
been assumed that any necessary consents or waivers which may be required for
the consummation of the acquisition of the remaining interest in Jamont Holdings
have been obtained by James River and that no incremental costs will be incurred
in obtaining such consents or waivers.
5. PRO FORMA CONSOLIDATED SEGMENT INFORMATION
Following the consummation of the acquisition of the remaining interest in
Jamont Holdings, James River intends to continue to report its operations in its
existing three business segments. These segments are: Consumer Products, which
includes the manufacture and marketing of towel and tissue and disposable
foodservice products; Food and Consumer Packaging, which includes the
manufacture of folding cartons, flexible packaging, and packaging papers used in
packaging food and other retail consumer goods; and Communications Papers, which
includes the manufacture and marketing of a variety of uncoated business and
printing papers, coated groundwood printing papers, and premium printing papers.
Upon its consolidation, James River intends to report the results of Jamont
Holdings as part of its Consumer Products segment.
6. PRO FORMA RATIOS
On a pro forma basis after reflecting the assumed acquisition and financing
of Jamont Holdings, James River's earnings were inadequate to cover both fixed
charges and combined fixed charges and preferred stock dividends for the year
ended December 26, 1993. The amount of the deficiency of pro forma earnings
compared to pro forma fixed charges was $13.3 million, and the amount of the
deficiency of pro forma earnings compared to pro forma combined fixed charges
and preferred stock dividends was $97.8 million for this year. See "Ratios"
herein.
12
<PAGE>
ENVIRONMENTAL MATTERS
Like its competitors, James River is subject to extensive regulation by
various federal, state, provincial, and local agencies concerning compliance
with environmental control statutes and regulations. These regulations impose
limitations on the discharge of materials into the environment, including
effluent and emission limitations, as well as require the Company to obtain and
operate in compliance with the conditions of permits and other governmental
authorizations.
James River has made and will continue to make substantial capital
investments and operating expenditures, as well as production adjustments, in
connection with compliance with environmental laws and regulations, including
the Clean Air Act Amendments of 1990 (the "Clean Air Act"), the Clean Water Act,
the Resource Conservation and Recovery Act, and others. During 1993, capital
expenditures totalling approximately $58 million were made by James River for
pollution control facilities and equipment. Estimates of costs for future
environmental compliance are necessarily imprecise due to, among other things,
the continuing emergence of new environmental laws and regulations and
environmental control or process technology developments. While the Company
believes that its environmental control costs are likely to increase as
environmental regulations become broader and more stringent, James River is
unable to predict, except as described below, the amount or timing of such
increases, or the extent to which the impact of any future regulations on James
River would be proportional to the impact on its competitors. Such future
regulations could materially increase the Company's capital requirements in
future years.
In December 1993, the U.S. Environmental Protection Agency (the "EPA")
published draft rules, informally referred to as the "cluster rules", which
contain proposed revisions to the effluent guidelines under the Clean Water Act
in conjunction with new regulations relating to the discharge of certain
substances under the Clean Air Act. The final rules are scheduled to be issued
in late 1995, with a nominal compliance date of 1998. The new rules may require
significant changes in the pulping and/or bleaching process presently used in
some U.S. pulp mills, including several of James River's mills, necessitating
additional capital expenditures to achieve compliance by approximately 1998.
Based on preliminary estimates, the Company anticipates that such capital
expenditures could be at least $300 million for James River. This estimate could
change, depending on several factors, including, among others, (i) the ability
of the Company and other pulp manufacturers to convince the EPA that the
proposed regulations are unnecessarily complex, burdensome, and environmentally
unjustified; (ii) the outcome of potential administrative and judicial
challenges; (iii) new developments in control and process technology; and (iv)
any unfavorable revisions to the proposed cluster rules based on public comment.
In addition, James River has been identified as a potentially responsible
party ("PRP") and is involved in remedial investigations and actions under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, or similar
state laws regarding the past disposal of wastes at approximately 45 sites in
the United States. Such statutes may impose joint and several liability for the
costs of remedial investigations and actions on the entities that arranged for
disposal of the wastes, the waste generators, the waste transporters, and the
owners and operators of waste sites. Responsible parties (or any one of them,
including the Company) may be required to bear all of such costs regardless of
fault, legality of the original disposal, or ownership of the disposal site. The
Company has settled or resolved actions related to certain sites at minimal cost
and has determined that it has no responsibility with regard to certain other
sites for which it has received notification. In most cases, James River is one
of many PRP's, and its relative contributions of waste materials have been
minor. However, at the Solvent Recovery Services of New England site in
Connecticut, James River has been notified by the EPA that, based on records
available at this time, the Company appears to be one of the largest
"potentially responsible parties". As is the case with most manufacturing and
many other entities, there can be no assurance that the Company will not be
named as a PRP at additional sites in the future or that the costs associated
with such additional sites would not be material.
In accordance with financial reporting requirements, including Statement of
Financial Accounting Standards No. 5, James River's policy is to accrue
remediation costs when it is probable that such costs will be incurred and when
they can be reasonably estimated. As of December 26, 1993, James River's accrued
environmental remediation liabilities totalled $22.2 million. This amount
reflects management's best estimate of James River's ultimate liability for such
costs. On a quarterly basis, the Company reviews the status of all significant
existing or potential environmental issues and adjusts its accrual as necessary.
Estimates of costs for future remediation are
13
<PAGE>
necessarily imprecise due to, among other things, the identification of
presently unknown remediation sites and the allocation of costs among PRP's. The
Company believes that its share of the ultimate costs of cleanup for its current
remediation sites will not have a material adverse impact on its financial
condition.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated as of November
1, 1991 (the "Indenture") between the Company and The Bank of New York, as
Trustee (the "Trustee"). A copy of the Indenture is incorporated by reference as
an exhibit to the Registration Statement to which this Prospectus relates. The
statements under this caption, as modified or superseded by the applicable
Prospectus Supplement, are brief summaries of certain provisions of the
Indenture, do not purport to be complete, and are subject to, and are qualified
in their entirety by reference to, all of the provisions of the Indenture.
Wherever particular Sections or defined terms of the Indenture are referred to,
such Sections or defined terms are incorporated herein by reference.
The term "Securities," as used in this Prospectus, refers to all Securities
issued under the Indenture and includes the Debt Securities. Unless otherwise
indicated, currency amounts in this Prospectus and any Prospectus Supplement are
stated in United States dollars ("$" or "dollars").
The Securities may be issued from time to time in one or more series. The
particular terms of each series of Securities offered by a Prospectus Supplement
or Prospectus Supplements will be described in such Prospectus Supplement or
Prospectus Supplements relating to such series.
The Indenture limits the ability of the Company to incur certain secured
indebtedness and to engage in certain sale and leaseback transactions. See
"Certain Covenants" below.
GENERAL
The Indenture provides that, in addition to Securities previously issued
thereunder, additional Securities may be issued in separate series thereunder
without limitation as to aggregate principal amount. The terms of each series of
Securities will be established by or pursuant to a resolution of the Board of
Directors of the Company and set forth or determined in the manner provided in
an Officers' Certificate or by a supplemental indenture. (Section 301)
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the Securities of each series: (1) the title of
the Securities; (2) any limit on the aggregate principal amount of the
Securities; (3) whether the Securities are to be issuable as Registered
Securities or Bearer Securities or both, whether any of the Securities are to be
issuable initially in temporary global form, and whether any of the Securities
are to be issuable in permanent global form; (4) the price or prices (expressed
as a percentage of the aggregate principal amount thereof) at which the
Securities will be issued; (5) the date or dates on which the Securities will
mature; (6) the rate or rates per annum at which the Securities will bear
interest, if any, or the formula pursuant to which such rate or rates will be
determined, and the date or dates from which any such interest will accrue; (7)
the Interest Payment Dates on which any such interest on the Securities will be
payable and the Regular Record Date for any interest payable on any Registered
Securities on any Interest Payment Date; (8) the Person to whom any Registered
Securities of such series will be payable, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of such series
will be payable, if otherwise than upon presentation and surrender of the
coupons appertaining thereto, and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest Payment Date
will be paid if other than in the manner described under "Temporary Global
Securities" below and the extent to which, or the manner in which, any interest
payable on a permanent global Security on an Interest Payment Date will be paid;
(9) each office or agency where, subject to the terms of the Indenture as
described below under "Payment and Paying Agents," the principal of and any
premium and interest on the Securities will be payable and each office or agency
where, subject to the terms of the Indenture as described below under "Form,
Exchange, Registration and Transfer," the Securities may be presented for
registration of transfer or exchange; (10) the period or periods within which
and the price or prices at which the Securities may, pursuant to any optional
redemption provisions, be redeemed, in whole or in part, and the other detailed
terms and provisions of any such optional redemption provisions; (11) the
obligation, if any, of the Company to redeem or purchase
14
<PAGE>
the Securities pursuant to any sinking fund or analogous provisions or at the
option of the Holder thereof and the period or periods within which and the
price or prices at which the Securities will be redeemed or purchased, in whole
or in part, pursuant to such obligation, and the other detailed terms and
provisions of such obligation; (12) the denominations in which any Registered
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which Bearer
Securities will be issuable, if other than denominations of $5,000; (13) the
currency or currency units of payment of principal of and any premium and
interest on the Securities; (14) any index used to determine the amount of
payments of principal of and any premium and interest on the Securities; (15) if
other than the principal amount thereof, the portion of the principal amount of
the Securities which shall be payable upon declaration of acceleration of the
Maturity thereof; (16) any limitation on the application of the terms of the
Indenture described below under "Defeasance and Covenant Defeasance;" and (17)
any other terms of the Securities not inconsistent with the provisions of the
Indenture. (Section 301) Any such Prospectus Supplement or Prospectus
Supplements will also describe any special provisions for the payment of
additional amounts relating to specified taxes, assessments or other
governmental charges in respect of the Securities of such series and whether the
Company has the option to redeem the affected Securities rather than pay such
additional amounts.
Securities may be issued as Original Issue Discount Securities. An Original
Issue Discount Security is a Security, including any zero-coupon Security, which
is issued at a price lower than the amount payable upon the Stated Maturity
thereof, and which provides that, upon redemption or acceleration of the
Maturity thereof, an amount less than the amount payable upon the Stated
Maturity thereof and determined in accordance with the terms of such Security
shall become due and payable. Special United States federal income tax
considerations applicable to Securities issued at an original issue discount,
including Original Issue Discount Securities, and special United States tax
considerations applicable to any Securities which are denominated in a currency
or currency unit other than United States dollars, are described below under
"United States Taxation-Original Issue Discount."
The Securities of each series will be unsecured and will rank pari passu
with all other unsecured and unsubordinated indebtedness of the Company.
The Indenture does not contain any provisions which may afford the Holders
of Securities of any series protection in the event of a highly leveraged
transaction or other transaction which may occur in connection with a takeover
attempt resulting in a decline in the credit rating of the Securities. Any such
provisions, if applicable to the Securities of any series, will be described in
the Prospectus Supplement or Prospectus Supplements relating thereto.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in an applicable
Prospectus Supplement or Prospectus Supplements, Bearer Securities will have
interest coupons attached. The Indenture also provides that Securities of a
series may be issuable in temporary or permanent global form. (Section 201) See
"Temporary Global Securities" and "Permanent Global Securities."
In connection with its sale during the Restricted Period (as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no
Euro-Security shall be delivered to any location in the United States or its
possessions. Except as may otherwise be provided in the applicable Prospectus
Supplement, a Euro-Security (not including a Security in temporary global form)
may be delivered in connection with its sale during the Restricted Period only
if the person entitled to physical delivery of such Euro-Security furnishes
written certification, in the form required by the Indenture, to the effect that
(i) such Euro-Security is not owned or being acquired by or on behalf of a
United States person (as defined under "Limitations on Issuance of
Euro-Securities"), (ii) such Euro-Security is owned or being acquired by or on
behalf of (A) the foreign branch of a United States person that is a financial
institution within the meaning of Section 1.165-12(c)(1)(v) of the United States
Treasury Regulations (a "Financial Institution") purchasing for its own account
or for resale or (B) a United States person who acquired such Euro-Security
through the foreign branch of a United States Financial Institution and who
holds such Euro-Security through such Financial Institution on the date of such
written certification (and, in either case (A) or (B), the Financial Institution
has agreed to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"),
and
15
<PAGE>
the regulations thereunder), or (iii) such Euro-Security is owned or is being
acquired by a Financial Institution for the purpose of resale during the
Restricted Period. A Financial Institution described in clause (iii) above,
whether or not also described in clause (i) or (ii) above, must certify that it
has not acquired the Euro-Security for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions. In the case of a Euro-Security in permanent global form, such
certification must be given in connection with the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security. (Section 303) See
"Temporary Global Securities" and "Limitations on Issuance of Euro-Securities."
At the option of the Holder, subject to the terms of the Indenture,
Registered Securities of any series will be exchangeable for other Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor. In addition, if Securities of any series
are issuable as both Registered Securities and Bearer Securities, at the option
of the Holder, subject to the terms of the Indenture, Bearer Securities (with
all unmatured coupons, except as provided below, and with all matured coupons in
default) of such series will be exchangeable for Registered Securities of the
same series of any authorized denominations and of a like aggregate principal
amount and tenor. Bearer Securities surrendered in exchange for Registered
Securities between a Regular Record Date or a Special Record Date and the
relevant date for payment of interest shall be surrendered without the coupon
relating to such date for payment of interest and interest will not be payable
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the terms of the Indenture. Registered Securities, including
Registered Securities received in exchange for Bearer Securities, may not be
exchanged for Bearer Securities. (Section 305) Each Bearer Security and coupon
will bear a legend to the following effect: "Any United States person who holds
this obligation will be subject to limitations under the United States income
tax laws, including the limitations provided in Sections 165(j) and 1287(a) of
the Internal Revenue Code." (Section 201)
Securities may be presented for exchange as provided above, and Registered
Securities may be presented for registration of transfer (with the form of
transfer endorsed thereon duly executed), at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose with respect to any series of Securities and referred to in an
applicable Prospectus Supplement or Prospectus Supplements, without a service
charge and upon payment of any taxes and other governmental charges as described
in the Indenture. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
has appointed the Trustee as Security Registrar. (Section 305) If a Prospectus
Supplement or Prospectus Supplements refer to any transfer agents (in addition
to the Security Registrar) initially designated by the Company with respect to
any series of Securities, the Company may at any time rescind the designation of
any such transfer agent or approve a change in the location through which any
such transfer agent acts, except that, if Securities of a series are issuable
solely as Registered Securities, the Company will be required to maintain a
transfer agent in each Place of Payment for such series and, if Securities of a
series are issuable as Bearer Securities, the Company will be required to
maintain (in addition to the Security Registrar) a transfer agent in a Place of
Payment for such series located outside the United States and its possessions.
The Company may at any time designate additional transfer agents with respect to
any series of Securities. (Section 1002)
In the event of any redemption in part, the Company shall not be required
(i) to issue, register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before any selection for redemption
of Securities of like tenor and of the series of which such Security is a part,
and ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of Securities
of like tenor and of such series to be redeemed; (ii) to register the transfer
of or exchange any Registered Security so selected for redemption, in whole or
in part, except the unredeemed portion of any Security being redeemed in part;
or (iii) to exchange any Bearer Security so selected for redemption, except to
exchange such Bearer Security for a Registered Security of that series and like
tenor which is immediately surrendered for redemption. (Section 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement or
Prospectus Supplements, principal of and any premium and interest on Bearer
Securities will be payable, subject to any applicable laws and regulations, at
the offices of such Paying Agents outside the United States and its possessions
as the Company may
16
<PAGE>
designate from time to time or, at the option of the Holder, by check or by
transfer to an account maintained by the payee with a financial institution
located outside the United States and its possessions. Unless otherwise
indicated in an applicable Prospectus Supplement or Prospectus Supplements,
payment of interest on a Bearer Security on any Interest Payment Date will be
made only against surrender to the Paying Agent of the coupon relating to such
Interest Payment Date. (Section 1001) No payment with respect to any Bearer
Security will be made at any office or agency of the Company in the United
States or its possessions or by check mailed to any address in the United States
or its possessions or by transfer to any account maintained with a financial
institution located in the United States or its possessions. Notwithstanding the
foregoing, payments of principal of and any premium and interest on Bearer
Securities denominated and payable in U.S. dollars will be made at the office of
the Paying Agent in the Borough of Manhattan, The City of New York, if (but only
if) payment of the full amount thereof in U.S. dollars at all offices or
agencies outside the United States and its possessions is illegal or effectively
precluded by exchange controls or other similar restrictions. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement or
Prospectus Supplements, principal of and any premium and interest on Registered
Securities will be payable, subject to any applicable laws and regulations, at
the office of such Paying Agent or Paying Agents as the Company may designate
from time to time, except that at the option of the Company payment of any
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Unless otherwise
indicated in an applicable Prospectus Supplement or Prospectus Supplements,
payment of interest on a Registered Security on any Interest Payment Date will
be made to the Person in whose name such Registered Security (or Predecessor
Security) is registered at the close of business on the Regular Record Date for
such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement or
Prospectus Supplements, the Corporate Trust Office of the Trustee in The City of
New York will be designated as a Paying Agent for the Company for payments with
respect to Securities of each series which are issuable solely as Registered
Securities and as a Paying Agent for payments with respect to Securities of each
series (subject to the limitations described above in the case of Bearer
Securities) which are issuable solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Any Paying Agents outside the United States
and its possessions and any other Paying Agents in the United States or its
possessions initially designated by the Company for the Securities of each
series will be named in an applicable Prospectus Supplement or Prospectus
Supplements. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that if Securities of a series are
issuable solely as Registered Securities, the Company will be required to
maintain a Paying Agent in each Place of Payment for such series and, if
Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain (i) a Paying Agent in the Borough of Manhattan, The City of
New York for payments with respect to any Registered Securities of the series
(and for payments with respect to Bearer Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States and its possessions where
Securities of such series and any coupons appertaining thereto may be presented
and surrendered for payment; PROVIDED, HOWEVER, that if the Securities of such
series are listed on The International Stock Exchange of the United Kingdom and
the Republic of Ireland, Limited (the "London Stock Exchange"), the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
its possessions and such stock exchange shall so require, the Company will
maintain a Paying Agent in London, Luxembourg or any other required city located
outside the United States and its possessions, as the case may be, for the
Securities of such series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of the
principal of and any premium or interest on any Security of any series which
remain unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will be repaid to the Company and the
Holder of such Security or any coupon appertaining thereto will thereafter look
only to the Company for payment thereof. (Section 1003)
TEMPORARY GLOBAL SECURITIES
If so specified in an applicable Prospectus Supplement or Prospectus
Supplements, all or any portion of the Securities of a series issuable as Bearer
Securities will initially be represented by one or more temporary global
Securities, without interest coupons, to be deposited with Morgan Guaranty Trust
Company of New York, Brussels Office, as the operator of the Euroclear System
(the "Euroclear Operator") and Cedel S.A. ("CEDEL") for
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credit to the designated accounts. On and after the date determined as provided
in any such temporary global Security and described in an applicable Prospectus
Supplement or Prospectus Supplements (the "Exchange Date"), each such temporary
global Security will be exchanged for definitive Bearer Securities, definitive
Registered Securities or all or a portion of a permanent global Security, or any
combination thereof, as specified in an applicable Prospectus Supplement or
Prospectus Supplements, but, unless otherwise specified in an applicable
Prospectus Supplement or Prospectus Supplements, only upon receipt by the
Company of written certification in the form and to the effect described above
under "Form, Exchange, Registration and Transfer." No Security delivered in
exchange for any portion of a temporary global Security shall be delivered to
any location in the United States or its possessions in connection with such
exchange. (Section 304)
Unless otherwise specified in an applicable Prospectus Supplement or
Prospectus Supplements, interest in respect of any portion of a temporary global
Security payable in respect of an Interest Payment Date occurring prior to the
issuance of definitive Securities (including a permanent global Security) will
be paid to each of the Euroclear Operator and CEDEL with respect to the portion
of the temporary global Security held for its account for which it provides
certification in the form described in the Indenture. Each of the Euroclear
Operator and CEDEL will undertake in such circumstances to credit such interest
received by it in respect of a temporary global Security to the respective
accounts for which it holds such temporary global Security, and for which it has
received written certification that, as of the relevant Interest Payment Date,
is in the form and to the effect described above under "Form, Exchange,
Registration and Transfer." Receipt of such certification shall be deemed to be
a request for an interest in a permanent global Security (unless the account
holder requests that such portion be exchanged for a definitive Registered
Security or Securities or a definitive Bearer Security or Securities). If an
Interest Payment Date occurs prior to the issuance of definitive Securities
(including a permanent global Security) but on or after the Exchange Date,
written certification in the form and to the effect described above under "Form,
Exchange, Registration and Transfer" will also be required to obtain an interest
payment, and upon receipt of such certificate the Euroclear Operator or CEDEL,
as the case may be, will exchange the portion of the temporary global Security
relating to such certification for an interest in a permanent global Security
(unless the account holder requests that such portion be exchanged for a
definitive Registered Security or Securities or a definitive Bearer Security or
Securities).
PERMANENT GLOBAL SECURITIES
If any Securities of a series are issuable in permanent global form, the
applicable Prospectus Supplement or Prospectus Supplements will describe the
circumstances, if any, under which beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of such
series and of like tenor and principal amount in any authorized form and
denomination. No Bearer Security delivered in exchange for any portion of a
permanent global Security shall be delivered to any location in the United
States or its possessions in connection with such exchange. (Section 305)
Principal of and any premium and interest on any permanent global Security will
be payable in the manner described in the applicable Prospectus Supplement or
Prospectus Supplements.
CERTAIN COVENANTS
LIENS. The Indenture provides that the Company will not create or assume,
and will not permit any Restricted Subsidiary (as defined) to create or assume,
any mortgage, security interest, pledge or lien (hereinafter, collectively,
"lien") on any Principal Property (as defined) or shares of capital stock or
indebtedness of any Restricted Subsidiary, whether owned at the date of the
Indenture or thereafter acquired, without effectively providing that the
Outstanding Securities shall be secured by such lien equally and ratably with
any and all other indebtedness or obligations thereby secured. The foregoing
restrictions, however, shall not apply to, among others, (i) liens on any
Principal Property acquired, constructed or improved by the Company or any
Restricted Subsidiary after the date of the Indenture to secure indebtedness
incurred for the purpose of financing all or any part of the purchase price or
construction costs of such Principal Property or the improvements thereon or
liens on any Principal Property at the time of its acquisition; (ii) liens on
property or shares of capital stock or indebtedness of a corporation existing at
the time such corporation is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease or other disposition of
the properties of a corporation as an entirety or substantially as an entirety
to the Company or a Restricted Subsidiary; (iii) liens on property or shares of
capital stock or indebtedness of a corporation existing at the time such
corporation becomes a Restricted
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Subsidiary; (iv) liens to secure indebtedness of any Restricted Subsidiary to
the Company or another Restricted Subsidiary but only so long as such
indebtedness is held by the Company or a Restricted Subsidiary; (v) liens in
favor of the United States of America or any state thereof, or any department,
agency or political subdivision of the United States of America or any state
thereof, to secure partial, progress, advance or other payments pursuant to any
contract or statute including, without limitation, liens to secure indebtedness
represented by pollution control or industrial revenue bonds, or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of constructing or improving the portion of the
property subject to such liens; (vi) certain liens in favor of a customer in
respect of payments for goods produced for or services rendered to such
customer; (vii) liens existing at the date of the Indenture; (viii) mechanics'
or other similar liens arising in the ordinary course of business; (ix) certain
pledges or deposits, liens resulting from litigation or judgments, taxes or
other governmental charges or landlord or tenant rights and other liens
incidental to the conduct of the business or the ownership of the property and
assets of the Company or a Restricted Subsidiary which were not incurred in
connection with borrowing of money or the obtaining of advances or credit, and
which do not, in the opinion of the Company, materially detract from the value
of the property or assets or materially impair the use thereof in the operation
of the business of the Company and its Restricted Subsidiaries, taken as a
whole; and (x) liens for the sole purpose of extending, renewing or replacing in
whole or in part any lien referred to in the foregoing clauses (i) to (ix),
inclusive, or in this clause (x), provided that the principal amount of
indebtedness secured thereby shall not exceed the principal amount of
indebtedness so secured at the time of such extension, renewal or replacement
and that such extension, renewal or replacement shall be limited to all or a
part of the property subject to the lien so extended, renewed or replaced (plus
improvements on such property) (Section 1006). Long-term indebtedness of a
Restricted Subsidiary is generally not permitted to be incurred unless such
indebtedness could be secured by a lien. (Section 1009)
SALE AND LEASE-BACK TRANSACTIONS. The Indenture provides that the Company
will not, nor will it permit any Restricted Subsidiary to, enter into any
arrangement with any Person providing for the leasing by the Company or any
Restricted Subsidiary of any Principal Property (except for leases of not more
than three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries), which property has been owned
and operated by the Company or any Restricted Subsidiary for more than 180 days
and has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person (a "Sale and Lease-Back Transaction"), unless either
(a) the Company or such Restricted Subsidiary would be entitled to incur
indebtedness secured by a lien on such property without equally and ratably
securing the Securities pursuant to the Indenture or (b) the Company shall apply
an amount equal to the Attributable Debt (as defined) of such Sale and
Lease-Back Transaction to (i) the acquisition of another Principal Property of
equal or greater fair market value, (ii) the retirement of indebtedness for
borrowed money, including the Securities, incurred or assumed by the Company or
any Restricted Subsidiary (other than indebtedness for borrowed money owed to
the Company or any Restricted Subsidiary) or (iii) any combination of the
foregoing; provided that the amount to be applied to the retirement of such
indebtedness of the Company or any Restricted Subsidiary shall be reduced by (a)
the principal amount of any Securities delivered within 180 days after such sale
to the Trustee for retirement and cancellation and (b) the principal amount of
such indebtedness, other than Securities, voluntarily retired by the Company or
any Restricted Subsidiary within 180 days after such sale. (Section 1007)
EXEMPTION FROM LIMITATIONS. Notwithstanding the restrictions outlined
above, the Company or any Restricted Subsidiary may, without equally and ratably
securing the Outstanding Securities, create or assume liens and enter into Sale
and Lease-Back Transactions which would otherwise be restricted by the foregoing
provisions, provided that at such time (and after giving effect to the
transactions, to the receipt and application of the net proceeds thereof and to
the retirement of any indebtedness which is concurrently being retired out of
such proceeds) the sum of the aggregate indebtedness secured by such liens plus
the Attributable Debt of all Sale and Lease-Back Transactions shall not exceed
10% of Consolidated Net Assets (as defined) as determined in accordance with the
most recent published consolidated balance sheet of the Company. (Section 1008)
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof, excluding renewals,
discounted at a rate per annum equal to the prevailing market interest rate, at
the time such lease was entered into, on United States Treasury obligations
having a maturity substantially the same as the average term of such lease, plus
3%. The net amount of rent required to be paid under any such lease for any such
period shall be the amount of the rent payable by the
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lessee with respect to such period, after excluding amounts required to be paid
on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges and contingent rents such as those based on sales. In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
"Consolidated Net Assets" means the total of all assets after deducting all
current liabilities appearing on a consolidated balance sheet of the Company and
its consolidated subsidiaries, prepared in accordance with generally accepted
accounting principles, at their net book values (after deducting related
depreciation, depletion, amortization and all other valuation reserves which, in
accordance with such principles, should be set aside in connection with the
business conducted).
"Principal Property" means any manufacturing plant, research facility or
warehouse owned or leased by the Company or any Restricted Subsidiary which is
located within the United States of America and has a net book value exceeding
2.5% of Consolidated Net Assets, but not including (1) any property which in the
opinion of the Company is not of material importance to the total business
conducted by the Company as an entirety or (2) any portion of a particular
property which is similarly found not to be of material importance to the use or
operation of such property.
"Restricted Subsidiary" means a subsidiary of the Company which owns a
Principal Property.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to
Securities of any series: (a) failure to pay principal of or any premium on any
of the Securities of that series when due; (b) failure to pay any interest on
any Security of that series when due, continued for 30 days; (c) failure to
deposit any sinking fund payment when due in respect of any Security of that
series; (d) failure to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture solely for the
benefit of a series of Securities other than that series) continued for 90 days
after written notice as provided in the Indenture; (e) certain events of
bankruptcy, insolvency or reorganization of the Company; (f) a default under any
other indenture or instrument evidencing or under which the Company has
outstanding any indebtedness for borrowed money in an aggregate principal amount
in excess of $10 million, as a result of which such indebtedness shall have been
accelerated without such indebtedness having been discharged or such
acceleration having been annulled within 10 days after written notice thereof
shall first have been received by the Company from the Trustee or by such
Trustee and the Company from the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities, provided that if such default shall be
cured or waived pursuant to such other indenture or instrument, it shall cease
to be an Event of Default under the Indenture and any acceleration of the
Securities shall be automatically rescinded and annulled without action by the
Trustee or the Holders of the Securities; and (g) any other Event of Default
provided with respect to Securities of that series. (Section 501) Subject to the
provisions of the Indenture, the Trustee will be under no obligation to exercise
any of its rights or powers under the Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons unless
such Holders shall have offered to the Trustee reasonable indemnity. (Sections
601, 603) Subject to such provisions for the indemnification of the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to
Securities of that series. (Section 512)
If an Event of Default with respect to Securities of any series at the time
Outstanding shall occur and be continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any such Securities are Original
Issue Discount Securities, such lesser amount as may be described in an
applicable Prospectus Supplement or Prospectus Supplements) of all the
Securities of that series to be due and payable immediately. At any time after a
declaration of acceleration with respect to Securities of any series has been
made but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of Outstanding Securities of that series may rescind any declaration of
acceleration and its consequences, if all payments due (other than those due as
a result of acceleration) have been made and all other Events of Default with
respect to Securities of that series have been cured or waived. (Section 502)
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No Holder of any Securities of any series or any related coupons will have
any right to institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Securities of
that series, the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. However, such limitations do not apply to a suit
instituted by a Holder of an Outstanding Security of that series for enforcement
of payment of the principal of, or any premium or interest on, such Security on
or after the respective due dates expressed in such Security. (Sections 507,
508)
The Company is required to furnish to the Trustee annually a statement as
to performance or fulfillment of covenants, agreements or conditions in the
Indenture and as to the absence of default. (Section 1004)
MODIFICATION AND WAIVER; MEETINGS
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such modification or amendment; PROVIDED, HOWEVER, that no such modification
or amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on any Security, (b) reduce the
principal amount of, or premium or interest on, any Security, (c) change any
obligation of the Company to pay certain additional amounts, (d) reduce the
amount of principal of an Original Issue Discount Security payable upon
acceleration of the Maturity thereof, (e) change any Place of Payment where, or
change the coin, currency or currency unit in which any Security or any premium
or interest thereon is payable, (f) impair the right to institute suit for the
enforcement of any payment on or with respect to any Security, (g) reduce the
percentage in principal amount of Outstanding Securities of any series, the
consent of whose Holders is required for modification or amendment of the
Indenture or for waiver of compliance with certain provisions of the Indenture
or for waiver of certain defaults, (h) reduce the requirements contained in the
Indenture for quorum or voting, (i) change any obligation of the Company to
maintain an office or agency in the places and for the purposes required by the
Indenture, or (j) modify any of the above provisions. (Section 902)
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of a series may, on behalf of all Holders of
Securities of that series and any coupons appertaining thereto, waive any past
default under the Indenture with respect to Securities of that series, except a
default (a) in the payment of principal of or any premium or interest on any
Security of such series or (b) in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver thereunder or are
present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof, and (ii) the principal amount of a Security denominated in a
foreign currency or currency unit shall be the U.S. dollar equivalent,
determined as of the date of original issuance of such Security, of the
principal amount of such Security or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent, determined as of the date of original
issuance of such Security, of the amount determined as provided in (i) above.
(Section 101)
The Indenture contains provisions for convening meetings of the Holders of
Securities of any or all series. (Article Thirteen) A meeting may be called at
any time by the Trustee, and also, upon request, by the Company or the Holders
of at least 10% in aggregate principal amount of the Outstanding Securities of
such series, in any such case upon notice given in accordance with "Notices"
below. (Section 1302) Except for any consent which must be given by the Holder
of each Outstanding Security affected thereby, as described above, any
resolution presented at a meeting at which a quorum is present may be adopted by
the affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; PROVIDED, HOWEVER, that, except for any
consent which must be given by the Holder of each Outstanding Security affected
thereby, as described above,
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any resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series may be adopted at a meeting at which a quorum is present
only by the affirmative vote of the Holders of not less than such specified
percentage in principal amount of the Outstanding Securities of that series. Any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with the Indenture will be binding on all
Holders of Securities of that series and the related coupons. The quorum at any
meeting called to adopt a resolution will be Persons holding or representing a
majority in principal amount of the Outstanding Securities of a series;
PROVIDED, HOWEVER, that if any action is to be taken at such meeting with
respect to a consent, waiver, request, demand, notice, authorization, direction
or other action which may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series, the
Persons holding or representing such specified percentage in principal amount of
the Outstanding Securities of such series will constitute a quorum for that
purpose. (Section 1304)
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER OF ASSETS
The Company may, without the consent of the Holders of any of the
Outstanding Securities of a series, consolidate with, merge into or convey or
transfer its assets substantially as an entirety to any corporation organized
under the laws of any domestic or foreign jurisdiction, provided that (i) the
successor corporation assumes the Company's obligations on the Securities of
each series and under the Indenture, (ii) after giving effect thereto, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing, and (iii)
certain other conditions are met. (Sections 801, 802)
NOTICES
Except as otherwise provided in the Indenture, notices to Holders of Bearer
Securities will be given by publication at least twice in a daily newspaper of
general circulation in The City of New York and in such other city or cities as
may be specified in such Securities. Notices to Holders of Registered Securities
will be given by mail to the addresses of such Holders as they appear in the
Security Register. (Sections 101, 106)
TITLE
Title to any Bearer Securities (including Bearer Securities in temporary
global form and in permanent global form) and any coupons appertaining thereto
will pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon and the registered owner of any Registered Security as the absolute owner
thereof (whether or not such Security or coupon shall be overdue and
notwithstanding any notice to the contrary) for the purpose of making payment
and for all other purposes. (Section 308)
REPLACEMENT OF SECURITIES AND COUPONS
Any mutilated Security or a Security with a mutilated coupon appertaining
thereto will be replaced by the Company at the expense of the Holder upon
surrender of such Security to the Trustee. Securities or coupons that become
destroyed, lost or stolen will be replaced by the Company at the expense of the
Holder upon delivery to the Trustee of evidence of the destruction, loss or
theft thereof satisfactory to the Company and the Trustee; in the case of any
coupon which becomes destroyed, lost or stolen, such coupon will be replaced by
issuance of a new Security in exchange for the Security to which such coupon
appertains. In the case of a destroyed, lost or stolen Security or coupon, an
indemnity satisfactory to the Trustee and the Company may be required at the
expense of the Holder of such Security or coupon before a replacement Security
will be issued. (Section 306)
DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company may elect either (i) to defease and be discharged from any and all
obligations with respect to the Securities of any series (except as otherwise
provided in the Indenture) ("defeasance") or (ii) to be released from its
obligations with respect to certain covenants applicable to such Securities,
including its obligations described above under "Certain Covenants" ("covenant
defeasance"), upon the deposit with the Trustee (or other qualifying trustee),
in trust for such purpose, of money and/or U.S. Government Obligations which
through the payment of principal and interest in
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accordance with their terms will provide money in an amount sufficient, without
reinvestment, to pay the principal of and any premium or interest on such
Securities to Maturity or redemption, as the case may be, and any mandatory
sinking fund or analogous payments thereon. As a condition to defeasance or
covenant defeasance, the Company must deliver to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance or covenant defeasance had not
occurred. Such Opinion of Counsel, in the case of defeasance under clause (i)
above, must refer to and be based upon a ruling of the Internal Revenue Service
or a change in applicable United States federal income tax law occurring after
the date of the Indenture. (Article Fourteen)
The Company may exercise its defeasance option with respect to such
Securities notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its defeasance option, payment of such Securities may
not be accelerated because of an Event of Default. If the Company exercises its
covenant defeasance option, payment of such Securities may not be accelerated by
reference to the released covenant or covenants noted under clause (ii) above.
However, if acceleration were to occur, the realizable value at the acceleration
date of the money and U.S. Government Obligations in the defeasance trust could
be less than the principal and interest then due on such Securities, in that the
required deposit in the defeasance trust is based upon scheduled cash flows
rather than market value, which will vary depending upon interest rates and
other factors.
GOVERNING LAW
The Indenture is, and the Securities and the coupons will be, governed by
and construed in accordance with the laws of the State of New York. (Section
113)
CONCERNING THE TRUSTEE
The Company and certain of its subsidiaries may from time to time maintain
lines of credit, and have other customary banking relationships, with The Bank
of New York, the Trustee under the Indenture.
LIMITATIONS ON ISSUANCE OF EURO-SECURITIES
United States tax laws and regulations impose certain restrictions on the
issuance of any securities in bearer form. Except as may otherwise be provided
in the Prospectus Supplement applicable thereto, in accordance with the federal
tax laws and regulations of the United States, Euro-Securities may not, in
connection with their offer or sale during the Restricted Period (as defined
above under "Description of Debt Securities -- Form, Exchange, Registration and
Transfer"), be offered or sold, directly or indirectly, (i) to any person in the
United States or its possessions, or (ii) to any United States person (as
defined below) other than (x) a foreign branch of a United States Financial
Institution (as defined above under "Description of Debt Securities -- Form,
Exchange, Registration and Transfer") purchasing for its own account or for the
account of a customer, provided that such Financial Institution agrees in
writing to comply with the requirements of Section 165(j)(3)(A), (B), or (C) of
the Code and the regulations thereunder or (y) otherwise as permitted by United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D). In addition,
Euro-Securities may not, in connection with their sale, at any time during the
Restricted Period be delivered in definitive form within the United States or
its possessions. Any underwriters, agents and dealers participating in the
offering of Debt Securities must covenant that they will not offer or sell
during the Restricted Period any Euro-Securities to any person in the United
States or its possessions or to any United States person (other than (x) a
foreign branch of a United States Financial Institution or (y) otherwise as
permitted by United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)).
In addition, any such underwriters, agents and dealers must have in effect
procedures reasonably designed to ensure that their employees or agents who are
directly engaged in selling Euro-Securities are aware of the above restrictions
on the offer or sale of Euro-Securities. Moreover, Bearer Securities (including
a permanent global Debt Security) and any coupons appertaining thereto will not
be delivered in definitive form or, if prior to delivery in definitive form,
interest will not be paid on any Euro-Securities, unless the Company has
received a signed certificate in writing (or an electronic certificate described
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(ii)) in the
form and to the effect described above under "Description of Debt
Securities -- Form,
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Exchange, Registration and Transfer." Bearer Securities (including a permanent
global Debt Security) and coupons will bear a legend to the following effect:
"Any United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code." The
sections referred to in such legend provide that a United States person (other
than a Financial Institution or a United States person holding through a
Financial Institution) who holds a Bearer Security or coupon will not be allowed
to deduct any loss realized on the sale, exchange or redemption of such Bearer
Security or coupon and any gain (which might otherwise be characterized as
capital gain) recognized on such sale, exchange or redemption will be treated as
ordinary income.
As used herein, "United States person" means a citizen of the United
States, a resident of the United States for United States federal income tax
purposes, a corporation, partnership or other entity created or organized in or
under the laws of the United States or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and "possessions" of the United States include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands.
FOREIGN CURRENCY RISKS
Debt Securities denominated or payable in foreign currencies or currency
units may entail significant risks. These risks include, without limitation, the
possibility of significant fluctuations in the foreign currency markets. These
risks will vary depending upon the currency or currencies involved and will be
more fully described in the Prospectus Supplement relating thereto.
UNITED STATES TAXATION
The following summary of the principal United States federal income tax
consequences of the ownership and disposition of Debt Securities is based upon
the opinion of McGuire, Woods, Battle & Boothe, counsel for the Company. It
deals only with Debt Securities held as capital assets within the meaning of
Section 1221 of the Code and does not deal with special classes of Holders, such
as dealers in securities or currencies, life insurance companies, tax-exempt
organizations, persons holding Debt Securities as a hedge against currency
risks, or United States Holders whose functional currency (as defined in Section
985 of the Code) is not the U.S. dollar. It also does not deal with Holders
other than original purchasers and thus does not deal with the "market discount
rules." This summary is based on the Code, judicial decisions, and
administrative regulations and rulings in effect on the date of this Prospectus,
all of which are subject to change at any time, possibly with retroactive
effect. Persons considering the purchase of Debt Securities should consult their
own tax advisors concerning the application of the United States federal income
tax laws to their particular situations, as well as the application of state or
local laws or the laws of any other taxing jurisdiction.
UNITED STATES HOLDERS
The following discussion pertains to a Holder of a Debt Security who or
which is a United States person as defined above under "Limitations on Issuance
of Euro-Securities" (a "United States Holder").
PAYMENTS OF INTEREST
Interest on a Debt Security (including payments received on the sale,
exchange or retirement of a Note attributable to accrued but unpaid interest)
will be taxable to a United States Holder as ordinary interest income at the
time it is accrued or received (or is made available for payment, if earlier),
depending on such Holder's method of accounting for federal income tax purposes.
If interest is payable in a currency or currency unit other than U.S. dollars (a
"Specified Currency"), the amount of income will be the U.S. dollar value of the
Specified Currency determined on the date such payment is received or is made
available for payment, if earlier (in the case of a cash basis United States
Holder), or translated at the average exchange rate for the interest accrual
period or, with respect to an accrual period that spans two taxable years, at
the average rate for the partial period within the taxable year, or, if so
elected, at the spot rate on the applicable date, as provided in Section
1.988-2(b)(iii)(B) of the United States Treasury Regulations (in the case of an
accrual basis United States Holder or a cash basis United States Holder accruing
original issue discount), in all cases regardless of whether the payment is in
fact converted to U.S. dollars. In general, upon the receipt of an interest
payment (including a payment attributable to
24
<PAGE>
accrued but unpaid interest upon the sale or retirement of a Debt Security) in
the Specified Currency, an accrual basis United States Holder will recognize
foreign currency gain or loss to the extent of the difference, if any, between
the U.S. dollar value of the accrued interest with respect to which payment is
being made (determined as described in the preceding sentence), and the U.S.
dollar value of the interest payments received (determined on the date such
payment is received). Such gain or loss generally will be treated as ordinary
income or loss.
ORIGINAL ISSUE DISCOUNT
GENERAL. For United States federal income tax purposes, a Debt Security
will be treated as having been issued at an original issue discount (a "Discount
Security") if the excess of its "stated redemption price at maturity" over its
issue price (defined, generally, as the initial offering price to the public at
which a substantial amount of the Discount Securities have been sold for money)
equals or exceeds 1/4 of 1 percent of such Debt Security's "stated redemption
price at maturity," multiplied by the number of complete years to its maturity.
The stated redemption price at maturity of a Debt Security is the total of all
payments provided by the Debt Security that are not "qualified stated interest
payments." Stated generally, qualified stated interest is stated interest that
is unconditionally payable in cash or in property (other than debt instruments
of the issuer) at least annually over the term of the Debt Security at (i) a
single fixed rate of interest, (ii) one or more qualified floating rates, (iii)
a single fixed rate and one or more qualified floating rates, (iv) a single
fixed rate and a single objective rate that is a qualified inverse floating
rate, or (v) a single objective rate.
For federal income tax purposes, a United States Holder (including a cash
basis Holder) of a Discount Security will be required to include original issue
discount ("Discount") in income as it accrues, generally before the receipt of
cash attributable to such income. The amount of Discount includable in income is
the sum of the daily portions of Discount with respect to the Discount Security
determined for each day during the taxable year in which a United States Holder
holds such Debt Security. The daily portion is determined by allocating to each
day in any "accrual period" a pro rata portion of the Discount allocable to such
accrual period. The amount of Discount allocable to any accrual period is an
amount equal to the excess of (a) the product of the Discount Security's
adjusted issue price at the beginning of such accrual period and the yield to
maturity of the Discount Security (determined by compounding at the close of
each accrual period and adjusted for the length of such period) over (b) the
qualified stated interest payments, if any, allocable to the accrual period. In
general, unless otherwise specified the accrual period is each period between
Interest Payment Dates (including (i) the period from the issue date to the
first Interest Payment Date and (ii) the period from the final Interest Payment
Date to Stated Maturity). In the case of a non-interest-bearing Debt Security,
an accrual period is any interval of time (of no more than one year) prescribed
for the measurement of accrued Discount, provided that each payment of principal
must occur at the end of an accrual period. The adjusted issue price of the
Discount Security at the start of any accrual period is the sum of the issue
price of such Debt Security, increased by the amount of Discount previously
includable by the Holder for each prior accrual period, and decreased by any
prior payments on the Discount Security that were not qualified stated interest
payments.
Under existing United States Treasury Regulations, it is possible that Debt
Securities that (i) do not provide for payments of stated interest at least
annually; (ii) bear interest pursuant to an interest rate formula subject to a
restriction or restrictions on the maximum stated interest rate, on the minimum
stated interest rate, on the amount of increase or decrease in the stated
interest rate, or subject to other similar restrictions; or (iii) bear interest
at a base rate that is not based on either changes in the price of actively
traded personal property or on one or more floating market interest rates would
be subject to the original issue discount rules of the Code as Discount
Securities (regardless of whether such Debt Securities are Original Issue
Discount Securities (as defined above in "Description of Debt
Securities -- General")). Accordingly, United States Holders (including cash
basis Holders) may be required to report income in respect of such Debt
Securities before the receipt of cash attributable thereto.
SHORT-TERM SECURITIES. In general, a cash method United States Holder of a
Discount Security the maturity date of which is one year or less from the date
of issuance (a "short-term Discount Security") is not required to accrue
Discount for United States federal income tax purposes unless the Holder elects
to do so. Holders who make such an election, Holders who report income for
federal income tax purposes on the accrual method, and certain other Holders,
including banks and dealers in securities, are required to include in income any
Discount on a short-term Discount Security as it accrues. Generally, such
Discount must be included on a straight-line basis unless the Holder makes an
election to accrue such Discount according to a constant yield method based on
daily compounding.
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In the case of a Holder of a short-term Discount Security who is not
required and who does not elect to include such Discount in income currently,
any gain realized on the sale, exchange or retirement of the short-term Discount
Security will be treated as interest income to the extent of the accrued
Discount, determined on a straight-line basis (or, if elected, according to a
constant yield method based on daily compounding) through the date of such sale,
exchange or retirement. In addition, such a Holder must defer deductions for any
interest paid on indebtedness incurred to purchase a short-term Discount
Security in an amount not exceeding the amount of accrued Discount or interest
income on such Security until such Discount or interest income is included in
the Holder's gross income for federal income tax purposes.
OTHER CONSIDERATIONS. The preceding discussion sets forth the general
structure of the federal income tax rules applicable to Discount Securities. The
precise application of these rules will be affected by the terms of the
particular Discount Security, including the existence of any optional redemption
rights exercisable by the Company, the denomination of the Debt Security in a
Specified Currency, and the term of the Debt Security. The impact of such terms,
if any, on the application of these rules will be discussed in the applicable
Prospectus Supplement.
REPORTING. The Company is required to report to the Internal Revenue
Service the amount of Discount accrued on Discount Securities held of record by
United States persons other than corporations and other exempt Holders. The
amount required to be reported by the Company may not be equal to the amount of
original issue discount required to be reported as taxable income by a Holder of
such Debt Security.
DEBT SECURITIES ISSUED AT A PREMIUM
A United States Holder that purchases a Debt Security for an amount in
excess of its principal amount may elect to treat such excess as "amortizable
bond premium," in which case the amount required to be included in such Holder's
income each year with respect to interest on the Debt Security will be reduced
by the amount of amortizable bond premium allocable to such year (based on the
Debt Security's yield to maturity). Any such election shall apply to all bonds
(other than bonds the interest on which is excludable from gross income) held by
the United States Holder at the beginning of the first taxable year to which the
election applies or thereafter acquired by such Holder, and is irrevocable
without the consent of the Internal Revenue Service.
INDEXED DEBT SECURITIES
The applicable Prospectus Supplement or Prospectus Supplements will contain
a discussion of special United States federal income tax rules with respect to
the Debt Securities, payments on which are determined by reference to any index
(other than a single objective index of market interest rates).
PURCHASE, SALE AND RETIREMENT OF DEBT SECURITIES
A United States Holder's adjusted tax basis in a Debt Security generally
will be its U.S. dollar cost to such Holder (which, in the case of a Debt
Security denominated in a Specified Currency, will be the U.S. dollar value (on
the date of the purchase of the Debt Security) of the Specified Currency paid
for the Debt Security), increased by the amount of any Discount previously
included in the United States Holder's income with respect to the Debt Security,
and reduced by the amount of any payments on the Debt Security that are not
qualified stated interest payments and by the amount of any amortizable bond
premium applied to reduce interest on the Debt Security. A United States Holder
will recognize gain or loss upon the sale or retirement of a Debt Security equal
to the difference between the amount realized upon the sale, exchange or
retirement (which, in the case of an amount received in other than U.S. dollars,
will be the U.S. dollar value of the amount realized on the date of sale or
retirement), except to the extent such amount is attributable to accrued
interest, and such Holder's tax basis in the Debt Security. Such gain or loss
generally will be long-term capital gain or loss if, at the time of sale or
retirement, such Holder has held such Debt Security for more than one year;
however, such gain or loss generally will be ordinary income or loss to the
extent that it is attributable to changes in exchange rates.
SPECIFIED CURRENCY
A United States Holder's tax basis in Specified Currency purchased by such
Holder generally will be the U.S. dollar value thereof at the spot rate on the
date such Specified Currency is purchased. A United States Holder's tax basis in
Specified Currency received as interest on, or on the sale, exchange or
retirement of, a Debt
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Security will be the U.S. dollar value thereof at the spot rate at the time such
Specified Currency is received. The amount of gain or loss recognized by a
United States Holder on a sale, exchange or other disposition of Specified
Currency will be equal to the difference between (i) the amount of U.S. dollars,
the U.S. dollar value at the spot rate of Specified Currency, or the fair market
value in U.S. dollars of any other property received by the Holder in the sale,
exchange or other disposition, and (ii) the Holder's tax basis in the Specified
Currency.
Accordingly, a United States Holder that purchases a Debt Security with
Specified Currency will recognize gain or loss in an amount equal to the
difference, if any, between such Holder's tax basis in the Specified Currency
and the U.S. dollar value at the spot rate of the Specified Currency on the date
of purchase. Generally, any such gain or loss will be ordinary income or loss
and will not be treated as interest income or expense, except to the extent
provided by administrative pronouncements of the Internal Revenue Service.
BEARER SECURITIES
Under Sections 165(j) and 1287(a) of the Code, a United States Holder
generally will not be entitled to deduct any loss on Bearer Securities
(including for purposes of this paragraph Debt Securities in global form
exchangeable for Bearer Securities) or coupons (other than Bearer Securities
having a maturity of one year or less from their date of issuance) and must
treat as ordinary income any gain realized on the sale or other disposition
(including the receipt of principal) of Bearer Securities or coupons (other than
Bearer Securities having a maturity of one year or less from their date of
issue).
UNITED STATES ALIEN HOLDERS
Under present United States federal income and estate tax law and subject
to the discussion of backup withholding below:
(1) payments of principal (including any Discount) and any premium and
interest on a Debt Security by the Company or any of its Paying Agents to
any Holder that is a United States Alien Holder (as defined below)
generally will not be subject to United States federal withholding tax,
provided that in the case of such Debt Security, (i) the Holder does not
actually or constructively own 10% or more of the total combined voting
power of all classes of stock of the Company, (ii) if the Debt Security is
a Bearer Security, the Company and any underwriters, agents, and dealers
participating in the offering of such Debt Security have complied with
certain requirements described in "Limitations on Issuance of
Euro-Securities," (iii) the Debt Security does not provide for any payment
of contingent interest, and (iv) if the Debt Security is a Registered
Security (including such Debt Securities which were received in exchange
for Bearer Securities), either (x) the beneficial owner of the Debt
Securities certifies to the Company or its agent, under penalties of
perjury, that such Owner is not a United States person (as defined under
"Limitations on Issuance of Euro-Securities") and provides such Owner's
name and address, or (y) a securities clearing organization, bank or other
financial institution that holds customers' securities in the ordinary
course of its trade or business (a "financial institution") and holds the
Debt Securities on behalf of a beneficial owner certifies to the Company or
its Paying Agent, under penalties of perjury, that such statement has been
received from the beneficial owner by it or by a financial institution
between it and the beneficial owner and furnishes the payor with a copy
thereof;
(2) a United States Alien Holder generally will not be subject to
United States federal income tax on gain realized on the sale, exchange or
redemption of a Debt Security, unless (i) in the case of an individual
Holder, such Holder is present in the United States for a period of 183
days or more during the taxable year in which gain is realized and certain
other conditions are met, or (ii) such gain is effectively connected with
the conduct by such Holder of a trade or business within the United States;
and
(3) a Debt Security or coupon held by an individual who at the time of
death is not a citizen or resident (as defined for federal estate tax
purposes) of the United States (as defined under "Limitations on Issuance
of Euro-Securities") will not be subject to United States federal estate
tax as a result of such individual's death if (i) the individual does not
actually or constructively own 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote, (ii) the
Debt Security does not provide for any payment of contingent interest, and
(iii) the income on the Debt Securities would not have been effectively
connected with the conduct of a trade or business by the individual in the
United States.
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A United States Alien Holder will be subject to United States federal
income tax on any interest income (including Discount) and on any gain realized
on the sale, exchange or other disposition of a Debt Security in the same manner
as a United States Holder, if interest (including Discount) on such Debt
Security is effectively connected with the conduct by the United States Alien
Holder of a trade or business within the United States. See "United States
Holders" above. Such a Holder generally will be exempt from withholding tax with
respect to such income, provided that it provides the Company with a properly
executed Internal Revenue Service Form 4224.
As used herein, a "United States Alien Holder" is a Holder who, for United
States federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust,
or a foreign partnership to the extent that one or more of its members is, for
United States federal income tax purposes, a foreign corporation, a non-resident
alien individual or a non-resident alien fiduciary of a foreign trust or estate.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, payments of principal and any premium and interest (including
Discount, if any) made within the United States by the Company or any of its
Paying Agents are subject to information reporting and, in certain cases, to
"backup withholding" at a rate of 31%. Similarly, payment of the proceeds from
the sale of a Debt Security to or through the United States office of a broker
will be subject to information reporting and backup withholding unless the
Holder or beneficial owner provides a certification that it is not a United
States person or otherwise establishes its entitlement to an exemption from the
information reporting and backup withholding rules.
Information reporting and backup withholding ordinarily do not apply to
payments made outside the United States by the Company or a Paying Agent on a
Bearer Security described in clause (1)(ii) under "United States Alien Holders"
or on a Registered Security described in clause (1)(iv) under "United States
Alien Holders," provided that the payor does not know or have reason to know
that the Holder is a United States person. Payments made outside the United
States will be subject to information reporting, however, if collected by a
custodian, nominee, or other agent that is either a United States person, a
controlled foreign corporation for United States tax purposes, or a foreign
person 50% or more of whose gross income over a specified three-year period is
effectively connected with the conduct of a trade or business within the United
States, unless such custodian, nominee, or other agent has documentary evidence
of the beneficial owner's foreign status and has no actual knowledge to the
contrary, or unless the owner otherwise establishes entitlement to an exemption.
In general, payment of the proceeds from the sale of a Debt Security to or
through the foreign office of a broker will not be subject to information
reporting or backup reporting; however, if the broker is a United States person,
a controlled foreign corporation for United States tax purposes, or a foreign
person 50% or more of whose gross income over a specified three-year period is
effectively connected with the conduct of a trade or business within the United
States, such payments will be subject to information reporting unless such
broker has documentary evidence in its files of the owner's foreign status and
has no actual knowledge to the contrary, or unless the owner otherwise
establishes entitlement to an exemption.
With respect to United States Holders, backup withholding ordinarily
applies only to certain noncorporate Holders who fail to supply accurate
taxpayer identification numbers or who fail to report all interest and dividend
income required to be shown on their federal income tax returns.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of the following ways: (i)
through underwriters or dealers, (ii) directly to a limited number of
institutional purchasers or to a single institutional purchaser, (iii) through
agents and (iv) a combination of any of the foregoing. Any such underwriter,
dealer or agent may be deemed to be an underwriter within the meaning of the
Securities Act. The Prospectus Supplement or Prospectus Supplements with respect
to the Debt Securities of a particular series will set forth the terms of the
offering of such Debt Securities, including the name or names of any
underwriters or agents, the public offering or purchase price and
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the proceeds to the Company from such sale, any discounts and commissions to be
allowed or paid to the underwriters or agents, all other items constituting
underwriting compensation, the discounts and commissions to be allowed or paid
to dealers, if any, and the securities exchanges, if any, on which the Debt
Securities will be listed.
If so indicated in the applicable Prospectus Supplement or Prospectus
Supplements, the Company will authorize underwriters, dealers or agents to
solicit offers by certain institutions to purchase Debt Securities from the
Company pursuant to Delayed Delivery Contracts providing for payment and
delivery on the date stated in the applicable Prospectus Supplement or
Prospectus Supplements. Each such contract will be for an amount not less than
the amount specified in the applicable Prospectus Supplement or Prospectus
Supplements and unless the Company otherwise agrees, the aggregate principal
amount of Debt Securities sold pursuant to such contracts shall not be more than
the respective amounts stated in the applicable Prospectus Supplement or
Prospectus Supplements. Institutions with whom such contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions, but
shall in all cases be subject to the approval of the Company. Delayed Delivery
Contracts will not be subject to any conditions except that the purchase by an
institution of the Debt Securities covered thereby shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject.
Under the agreements that may be entered into with the Company, the
underwriters, dealers and agents may be entitled to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which the
underwriters, dealers or agents may be required to make in respect thereof.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, the Company in the ordinary course of business.
Each underwriter and agent participating in the distribution of any Debt
Securities which are issuable in bearer form will agree that it will not offer,
sell or deliver, directly or indirectly, Debt Securities in bearer form in the
United States or to United States persons (other than qualifying financial
institutions) in connection with the original issuance of Debt Securities.
VALIDITY OF DEBT SECURITIES
The validity of the Debt Securities will be passed upon for the Company by
McGuire, Woods, Battle & Boothe, Richmond, Virginia. Anne M. Whittemore, a
director of the Company, is a Partner in the law firm of McGuire, Woods, Battle
& Boothe. Lawyers of such firm own an aggregate of approximately 33,000 shares
of the Common Stock of the Company.
EXPERTS
The consolidated financial statements of James River and Subsidiaries
incorporated by reference into its Annual Report on Form 10-K for the year ended
December 26, 1993, and the related financial statement schedules included in
such Form 10-K, have been audited by Coopers & Lybrand, independent accountants,
as set forth in their reports dated January 25, 1994, included therein and
incorporated herein by reference. These consolidated financial statements are
incorporated herein by reference in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
The consolidated balance sheet of Jamont Holdings and Subsidiaries as of
December 31, 1993, and the related consolidated profit and loss account for the
year then ended, included in James River's Current Report on Form 8-K dated
April 27, 1994, have been audited by Coopers & Lybrand, independent accountants,
as set forth in their report dated March 14, 1994, included therein and
incorporated herein by reference. The aforementioned financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee.............................................................................. $206,898
Accountants' fees and expenses.................................................................... 40,000
Attorneys' fees and expenses...................................................................... 60,000
Printing and engraving expenses................................................................... 25,000
Fees and expenses of trustee...................................................................... 5,000
State qualification fees and expenses............................................................. 10,000
Rating agencies' fees............................................................................. 270,000
Miscellaneous..................................................................................... 3,102
Total........................................................................................ $620,000*
</TABLE>
*All fees and expenses other than the SEC registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 10 of the Virginia Stock Corporation Act allows, in general, for
indemnification, in certain circumstances, by a corporation of any person
threatened with or made a party to any action, suit or proceeding by reason of
the fact that he or she is, or was, a director, officer, employee or agent of
such corporation. Indemnification is also authorized with respect to a criminal
action or proceeding where the person had no reasonable cause to believe that
his conduct was unlawful. Article 9 of the Virginia Stock Corporation Act
provides limitations on damages payable by officers and directors, except in
cases of willful misconduct or knowing violation of criminal law or any federal
or state securities law.
Article VI of the Company's Amended and Restated Articles of Incorporation
provide for mandatory indemnification of any director or officer of the Company
who is, was, or is threatened to be made a party to a proceeding (including a
proceeding by or in right of the Company) because he is or was a director or
officer of the Company or because he is or was serving the Company or other
legal entity in any capacity at the request of the Company while a director or
officer of the Company, against all liabilities and reasonable expenses incurred
in the proceeding, except such liabilities and expenses as are incurred because
of such director's or officer's willful misconduct or knowing violation of the
criminal law.
The Company's Amended and Restated Articles of Incorporation also provide
that in every instance permitted under Virginia corporate law in effect from
time to time, the liability of a director or officer of the Company to the
Company or its shareholders arising out of a single transaction, occurrence or
course of conduct shall not exceed one dollar.
The Company maintains a standard policy of officers' and directors'
liability insurance.
In the Underwriting Agreement, a proposed form of which is filed as Exhibit
1.1 hereto, the Underwriters will agree to indemnify, under certain conditions,
the Company, its directors, certain of its officers and persons who control the
Company within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), against certain liabilities.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement, filed herewith
4.1 Indenture dated as of November 1, 1991, between the Company and The Bank of New York, as Trustee
(incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-3
(Registration No. 33-43335))
5.1 Opinion and consent of McGuire, Woods, Battle & Boothe as to the validity of the Debt Securities, filed
herewith
8.1 Opinion and consent of McGuire, Woods, Battle & Boothe as to certain tax matters, filed herewith
</TABLE>
II-1
<PAGE>
<TABLE>
<S> <C>
12.1 Computation of ratios of earnings to fixed charges (incorporated by reference to Exhibit 12 to the
Company's Annual Report on Form 10-K for the year ended December 26, 1993)
12.2 Computation of ratios of earnings to combined fixed charges and preferred stock dividends, filed
herewith
23.1 Consent of Coopers & Lybrand, with respect to the audited financial statements of James River, filed
herewith
23.2 Consent of Coopers & Lybrand, with respect to the audited financial statements of Jamont Holdings,
filed herewith
23.3 Consents of McGuire, Woods, Battle & Boothe (included as part of Exhibits 5.1 and 8.1)
24.1 Powers of attorney from officers and directors of the Company signing by an attorney-in-fact, filed
herewith
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee,
filed herewith
</TABLE>
ITEM 17. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(b) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond and Commonwealth of Virginia, on April 29,
1994.
JAMES RIVER CORPORATION OF VIRGINIA
By: /S/ STEPHEN E. HARE
Stephen E. Hare
Senior Vice President, Corporate
Finance and Chief Financial
Officer
Pursuant to the requirements of the Securities Act, this amendment to the
registration statement has been signed below by the following persons on April
29, 1994, in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
ROBERT C. WILLIAMS* Chairman of the Board of Directors, President, and
Chief Executive Officer (Principal Executive
Robert C. Williams Officer)
/S/ STEPHEN E. HARE Senior Vice President, Corporate Finance and Chief
Financial Officer (Principal Financial and
Stephen E. Hare Accounting Officer)
FITZGERALD BEMISS* Director
FitzGerald Bemiss
WILLIAM T. BURGIN* Director
William T. Burgin
WORLEY H. CLARK, JR.* Director
Worley H. Clark, Jr.
WILLIAM T. COMFORT, JR.* Director
William T. Comfort, Jr.
WILLIAM V. DANIEL* Director
William V. Daniel
BRUCE C. GOTTWALD* Director
Bruce C. Gottwald
ROBERT M. O'NEIL* Director
Robert M. O'Neil
JOSEPH T. PIEMONT* Director
Joseph T. Piemont
ANNE M. WHITTEMORE* Director
Anne M. Whittemore
</TABLE>
*By: /s/ STEPHEN E. HARE
Stephen E. Hare
Attorney-in-fact
II-3
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
<S> <C> <C>
1.1 Form of Underwriting Agreement, filed herewith
4.1 Indenture dated as of November 1, 1991, between the Company and The Bank of New York, as
Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement
on Form S-3 (Registration No. 33-43335))
5.1 Opinion and consent of McGuire, Woods, Battle & Boothe as to the validity of the Debt
Securities, filed herewith
8.1 Opinion and consent of McGuire, Woods, Battle & Boothe as to certain tax matters, filed
herewith
12.1 Computation of ratios of earnings to fixed charges, (incorporated by reference to Exhibit
12 to the Company's Annual Report on Form 10-K for the year ended December 26, 1993)
12.2 Computation of ratios of earnings to combined fixed charges and preferred stock dividends,
filed herewith
23.1 Consent of Coopers & Lybrand, with respect to the audited financial statements of James
River, filed herewith
23.2 Consent of Coopers & Lybrand, with respect to the audited financial statements of Jamont
Holdings, filed herewith
23.3 Consents of McGuire, Woods, Battle & Boothe (included as part of Exhibits 5.1 and 8.1)
24.1 Powers of attorney from officers and directors of the Company signing by an attorney-
in-fact, filed herewith
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the
Trustee, filed herewith
</TABLE>
Exhibit 1.1
JAMES RIVER CORPORATION OF VIRGINIA
UNDERWRITING AGREEMENT
New York, New York
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
James River Corporation of Virginia, a Virginia
corporation (the "Company"), proposes to sell to the underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture (the "Indenture")
dated as of November 1, 1991, between the Company and The Bank of
New York, as trustee (the "Trustee"). If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to
such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed
Offering (as specified in Schedule I hereto), paragraph (i) below
is applicable and, if the offering of the Securities is a Non-
Delayed Offering (as so specified), paragraph (ii) below is
applicable.
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933, as
amended (the "Act"), and has filed with the Securities
and Exchange Commission (the "Commission") a registration
statement (file number 33-_____) on such Form, including
a basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may have
used a Preliminary Final Prospectus, each of which has
previously been furnished to you. The registration
statement, as so amended, has become effective. The
offering of the Securities is a Delayed Offering and,
although the Basic Prospectus may not include all the
information with respect to the Securities and the
offering thereof required by the Act and the rules and
regulations of the Commission thereunder to be included
in the Final Prospectus, the Basic Prospectus includes
all such material information required by the Act and the
rules and regulations of the Commission thereunder to be
included therein as of the Effective Date; provided,
however, that the Company makes no representations or
warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically
for use in connection with the preparation of the
Registration Statement or the Final Prospectus (or any
supplement thereto). The Company will next file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5) a
final supplement to the form of prospectus included in
Registration Statement No. 33-_____ relating to the
Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
material information with respect to the Securities and
the offering thereof.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration statement (file number 33-
_____) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished
to you. The Company will next file with the Commission
either (x) a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b)(1) or
(4), or (y) prior to the effectiveness of the
registration statement, an amendment to such registration
statement, including the form of final prospectus
supplement. In the case of clause (x), the Company has
included in such registration statement, as amended at
the Effective Date, all material information (other than
Rule 430A Information) required by the Act and the rules
and regulations of the Commission thereunder to be
included in the Final Prospectus with respect to the
Securities and the offering thereof; provided, however,
that the Company makes no representations or warranties
as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of
the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection
with the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto). As filed,
such final prospectus supplement or such amendment and
form of final prospectus supplement shall contain all
Rule 430A Information, together with all other such
required material information, with respect to the
Securities and the offering thereof.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date,
the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the respective rules and regulations of the
Commission thereunder; on the Effective Date and on the Closing
Date, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein not misleading; on the Effective Date and on
the Closing Date the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture Act and the
rules of the Commission thereunder; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any 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 Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that Registration Statement No. 33-_____ and
any post-effective amendment or amendments thereto became or become
effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a)
above contained in Registration Statement No. 33-_____ at its
Effective Date. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior
to filing of the Final Prospectus. "Final Prospectus" shall mean
the prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time, together
with the Basic Prospectus or, if, in the case of a Non-Delayed
Offering, no filing pursuant to Rule 424(b) is required, shall mean
the form of final prospectus relating to the Securities, including
the Basic Prospectus, included in the Registration Statement at the
Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective
at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so
amended. Such term shall include any Rule 430A Information deemed
to be included therein at the Effective Date as provided by Rule
430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K"
refer to such rules or regulations of the Commission under the Act.
"Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to
Rule 430A. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before any Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act on or
before any Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after any Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with
the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities
so offered is required under the rules and regulations of the
Commission under the Act to be included in such registration
statement at the effective date thereof. A "Delayed Offering"
shall mean an offering of securities pursuant to Rule 415 which
does not commence promptly after the effective date of a
registration statement, with the result that only information
required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is
a Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
(d) The Company confirms as of the date hereof that the
Company is in compliance with all provisions of Section 1 of Laws
of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba, and the Company further agrees that if it
commences engaging in business with the government of Cuba or with
any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the
Commission or with the Florida Department of Banking and Finance
(the "Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba
changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a
form acceptable to the Department.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto the
principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule
I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as set
forth in Schedule II hereto less the respective amounts of Contract
Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant
to Delayed Delivery Contracts as hereinafter provided are herein
called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or approve.
The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives,
for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount
of the Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged
by the Underwriters have been approved by the Company but, except
as the Company may otherwise agree, each such Delayed Delivery
Contract must be for not less than the minimum principal amount set
forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal
amount set forth in Schedule I hereto. The Underwriters will not
have any responsibility in respect of the validity or performance
of Delayed Delivery Contracts. The principal amount of Securities
to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as
the principal amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate principal amount set forth
in Schedule II hereto, except to the extent that you determine that
such reduction shall be otherwise than in such proportion and so
advise the Company in writing; provided, however, that the total
principal amount of Securities to be purchased by all Underwriters
shall be the aggregate principal amount set forth in Schedule II
hereto less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery
and payment for the Underwriters' Securities being herein called
the "Closing Date"). Delivery of the Underwriters' Securities
shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by certified or
official bank check or checks drawn on or by a New York Clearing
House bank and payable in next day funds; provided, however, that
payment of the purchase price for the Underwriter's Securities will
be made, at the option and expense of the Company, by the
Representatives on the Closing Date in immediately available funds.
Delivery of the Underwriters' Securities shall be made at such
location as the Representatives shall reasonably request at least
one business day in advance of the Closing Date and payment for the
Securities shall be made at the office specified in Schedule I
hereto. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the
Representatives may request not less than three full business days
in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on
the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to qualify the
Indenture under the Trust Indenture Act and to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the
termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus (other than, subject to Section
4(f), any prospectus supplement relating to the offering of other
securities registered under the Registration Statement and other
than any document required to be filed under the Exchange Act that
upon filing is deemed to be incorporated by reference therein)
unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
reasonably satisfactory to the Representatives of such timely
filing. The Company will advise the Representatives promptly after
it shall receive notice or obtain knowledge thereof (i) when the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, shall have become effective, (ii) when the
Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective,
(iv) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Final Prospectus or for
any additional information, (v) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules and
regulations of the Commission thereunder, the Company promptly will
prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect
such compliance.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earning statement or statements of the Company
and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, five copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents
relating to the offering.
(e) The Company will use its best efforts to qualify the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution
of the Securities, except that the Company shall not be required in
connection therewith to qualify as a foreign corporation, to
execute a general consent to service of process in any state or to
otherwise subject itself to taxation (other than stock transfer
taxes) in connection with any such qualification, and will arrange
for the determination of the legality of the Securities for
purchase by institutional investors.
(f) Except to the extent specified on Schedule I hereto,
until the business date set forth on Schedule I hereto, the Company
will not, without the consent of the Representatives, offer, sell
or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued
or guaranteed by the Company (other than the Securities or other
securities issued in the ordinary course of business).
5. Conditions to the Obligations of the Underwriters. The
obligations of the underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the representations
and warranties on the part of the Company contained herein as of
the Execution Time and Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time, on
the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 12:00 Noon on the business day following the day
on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any
such supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the
Representatives the opinion of McGuire, Woods, Battle & Boothe,
counsel for the Company, dated the Closing Date, to the effect
that:
(i) The Company has been duly organized and is
validly existing and in good standing under the laws of
the Commonwealth of Virginia; James River Paper Company,
Inc., a Virginia corporation and a subsidiary of the
Company ("Paper"), has been duly organized and is validly
existing and in good standing under the laws of the
Commonwealth of Virginia; each of the Company and Paper
has corporate power and authority to conduct its business
as described in the Final Prospectus; and each of the
Company and Paper is duly qualified to do business and is
in good standing in each jurisdiction in which it owns or
leases a material amount of real property.
(ii) The authorized capital stock of the
Company is as set forth in the Final Prospectus; and the
Securities conform to the description thereof contained
in the Final Prospectus;
(iii) The Indenture and the Securities have been
duly authorized; the Indenture has been duly qualified
under the Trust Indenture Act, executed and delivered by
the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with
its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and when the Securities have been duly
executed, authenticated and issued as provided for in the
Company's Articles of Incorporation, as amended to date,
and in the Indenture and delivered and paid for by the
Underwriters pursuant to this Agreement, in the case of
Underwriters Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of
any Contract Securities, the Securities will constitute
valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and enforceable
in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights
and to general equity principles;
(iv) All of the outstanding shares of capital
stock of Paper have been duly authorized and validly
issued, are fully paid and non-assessable and are owned
beneficially (except as otherwise stated in the Final
Prospectus) by the Company subject to no perfected
mortgage, pledge, lien, encumbrance, charge or adverse
claim and, to the knowledge of such counsel, any other
mortgage, pledge, lien, encumbrance, charge or adverse
claim;
(v) The Registration Statement has become
effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the
Final Prospectus, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); and to the best
knowledge of such counsel no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been issued
and no proceeding for that purpose has been instituted
or, to the knowledge of such counsel, threatened under
the Act;
(vi) The Registration Statement and the Final
Prospectus, and any amendment or supplement thereto
(other than the financial statements and other financial
and statistical data therein, as to which such counsel
need express no opinion), comply as to form in all
material respects with the requirements of the Act, the
rules and regulations of the Commission thereunder and
the Trust Indenture Act and the rules of the Commission
thereunder;
(vii) The descriptions in the Registration
Statement and the Final Prospectus of statutes, legal and
governmental proceedings, contracts and other documents
are accurate in all material respects and fairly present
the information required to be shown; and such counsel do
not know of any statutes or legal or governmental
proceedings required to be described in the Final
Prospectus that are not described as required, or of any
contracts or documents of a character required to be
described in the Registration Statement or Final
Prospectus (or required to be filed under the Exchange
Act if upon such filing they would be incorporated, in
whole or in part, by reference therein) or to be filed as
exhibits to the Registration Statement that are not
described and filed as required;
(viii) This Agreement, any Delayed Delivery
Contracts and the Indenture have been duly authorized,
executed and delivered by the Company; the performance of
this Agreement, any Delayed Delivery Contracts or the
Indenture, or the consummation of the transactions herein
contemplated, will not result in a breach or violation of
any of the terms and provisions of, or constitute a
default under, any statute, any agreement or instrument
known to such counsel to which the Company is a party or
by which it is bound or to which any of the property of
the Company is subject, the Company's Articles of
Incorporation, as amended to date, or by-laws, or any
order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction
over the Company or any of its properties; and no
consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is
required for the consummation of the transactions
contemplated by this Agreement or in any Delayed Delivery
Contract, except such as have been obtained under the Act
or the Trust Indenture Act and such as may be required
under state securities laws in connection with the
purchase and distribution of such Securities by the
Underwriters; provided that no opinion is called for with
respect to any such consent, approval, authorization or
order required to be obtained by any Underwriters. The
form of the Indenture filed as an exhibit to the
Registration Statement conforms to the descriptions
thereof contained in the Prospectus in all material
respects; and
Such counsel shall also state that they have no reason to
believe that at the Effective Date the Registration
Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or omits
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; the documents from which
information is incorporated by reference in the Final
Prospectus, when they became effective or were filed with
the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act
and of the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; it being
understood that such counsel need express no opinion as
to the financial statements or other financial and
statistical information included in any of the documents
mentioned in this sentence.
References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from counsel
for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and such counsel shall have received such
papers and information as they request for the purpose of enabling
them to pass upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman, Chief Executive Officer, an Executive Vice President, a
Senior Vice President or a Vice President and by the principal
financial or accounting officer or treasurer, dated the Closing
Date, to the effect that, to the best of their knowledge, based
upon reasonable investigation:
(i) the representations and warranties of the
Company in this Agreement are true and correct, as if
made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or is
threatened, by the Commission; and
(iii) since the date of the most recent
financial statements included in the Final Prospectus
(exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or
other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) At the Closing Date, Coopers & Lybrand shall have
furnished to the Representatives a letter or letters (which may
refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they
are independent certified public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder and stating in effect that:
(i) in their opinion, the consolidated
financial statements and schedules audited by them and
incorporated by reference in the Registration Statement
comply in form in all material respects with the
applicable accounting requirements of the Act, the
Exchange Act and the related published rules and
regulations.
(ii) on the basis of procedures referred to in
such letter, including a reading of the latest available
interim financial statements of the Company, if any, and
inquiries of officials of the Company responsible for
financial and accounting matters, nothing caused them to
believe that:
(1) the unaudited consolidated financial
statements included in any Quarterly Reports
on Form 10-Q which are incorporated by
reference in the Registration Statement, do
not comply in form in all material respects
with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q
and the related published rules and
regulations, and that such unaudited
consolidated financial statements are not in
conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited
consolidated financial statements incorporated
by reference in the Registration Statement,
and
(2) except in all instances for changes
or decreases that the Registration Statement
or documents incorporated by reference therein
discloses have occurred or may occur, except
as otherwise specified in such letter or
letters, (i) there was either any material
change or any change other than items
occurring in the ordinary course of business
at April ___, 1994 in the common stock,
consolidated long-term debt, current portion
of such long-term debt, consolidated short-
term debt, consolidated net current assets or
consolidated net assets as compared with
amounts shown in the Company's audited
consolidated balance sheet as of December 26,
1993, and (ii) for the period from December
27, 1993 to April ___, 1994, there were any
material decreases, as compared with the
corresponding period in the preceding year, in
consolidated net sales or in the total or per-
share amounts of income before extraordinary
items or of net income.
(iii) in addition to their audit referred to in
their reports incorporated by reference in the
Registration Statement and Final Prospectus and the
procedures referred to in (ii) above, they have performed
additional procedures, not constituting an audit, with
respect to certain specified dollar amounts, percentages
and other financial information (in each case to the
extent that such dollar amounts, percentages and other
financial information, either directly or by analysis or
computation, are derived from the general accounting
records of the Company and its subsidiaries) which are
included or incorporated by reference in the Registration
Statement and appear in the Registration Statement or
incorporated documents and have found such specified
dollar amounts, percentages and other financial
information to be in agreement with the general
accounting records of the Company and its subsidiaries.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at
the Execution Time, Coopers & Lybrand shall have furnished to the
Representatives a letter or letters, dated as of the Execution
Time, in form and substance satisfactory to the Representatives, to
the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(i) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged
by the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by
the Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination
pursuant to Section 10 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement
herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Company will reimburse
the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
7. Covenants of the Underwriters. Each of the several
Underwriters represents and agrees with the Company that:
(a) except to the extent permitted under U.S. Treas.
Reg. Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not
offered or sold, and during the restricted period will not offer or
sell, Debt Securities in bearer form (including any Debt Security
in global form that is exchangeable for Debt Securities in bearer
form) to a person who is within the United States or its
possessions or to a United States person and (ii) it has not
delivered and will not deliver within the United States or its
possessions definitive Debt Securities in bearer form that are sold
during the restricted period;
(b) it has, and throughout the restricted period will
have, in effect procedures reasonably designed to ensure that its
employees or agents who are directly engaged in selling Debt
Securities in bearer form are aware that such Debt Securities may
not be offered or sold during the restricted period to a person who
is within the United States or its possessions or to a United
States person, except as permitted by the D Rules;
(c) if it is a United States person, it is acquiring the
Debt Securities in bearer form for purposes of resale in connection
with their original issuance and if it retains Debt Securities in
bearer form for its own account, it will only do so in accordance
with the requirements of U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in
bearer form for the purpose of offering or selling such Debt
Securities during the restricted period, it will either (i) obtain
from such affiliate for the benefit of the Company the
representations and agreements contained in clauses (a), (b) and
(c) or (ii) repeat and confirm the representations and agreements
contained in clauses (a), (b) and (c) on such affiliate's behalf
and obtain from such affiliate the authority to so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c)
and (d) from any person other than its affiliate with whom it
enters into a written contract, as defined in U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D)(4) for the offer or sale during the
restricted period of Debt Securities in bearer form; and
(f) it will comply with or observe any other
restrictions or limitations set forth in the Prospectus on persons
to whom, or the jurisdictions in which, or the manner in which, the
Debt Securities may be offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the
meaning given to them by the U.S. Internal Revenue Code and
regulations thereunder, including the D Rules. The restricted
period is defined at U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(7).
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the
registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation thereof. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who
controls the company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in connection with the preparation of the
documents referred to in the foregoing indemnity, and agrees to
reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability
or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof, but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification and reimbursement obligations
provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including not more than two
local counsels), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize in writing the
indemnified party to employ separate counsel at the expense of the
indemnifying party. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written
consent, but if settled with such consent, the indemnifying party
agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement. An indemnifying party
will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party for any reason,
the Company and the Underwriters agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which
the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Company and by the Underwriters from the offering
of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and of the Underwriters in
connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses),
and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus.
Relative fault 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 untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Any party entitled to
contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or
parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder (other than under this paragraph (d)) or otherwise.
Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution
as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in
Schedule II hereto bears to the aggregate amount of Securities set
forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that
the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Agreement will terminate without liability
to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and
any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Securities, if after the Execution Time and prior to such time
(i) trading in the Company's Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established
on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or material escalation of
hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it,
in the judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telecopied and confirmed to them, at
the address specified in Schedule I hereto; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to
it at 120 Tredegar Street, Richmond, Virginia 23219, telefax
number: (804) 649-4317, attention of the Senior Vice President,
Corporate Finance and Chief Financial Officer.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
In all dealings with the Company under this Agreement,
you shall act on behalf of each of the several Underwriters, and
any action under this Agreement taken by you or by any one of you
designated in Schedule II hereto will be binding upon all the
Underwriters.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with 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 the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent
a binding agreement among the Company and the several Underwriters.
Alternatively, the execution of this Agreement by the Company and
its acceptance by or on behalf of the Underwriters may be evidenced
by an exchange of telecopied or other written communications.
Very truly yours,
JAMES RIVER CORPORATION
OF VIRGINIA
By:_____________________________________
Title:__________________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
(UNDERWRITERS)
By:___________________________
Title:____________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated ___________________
Registration Statement No. 33-_____
Representatives(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Interest:
Purchase price (include accrued interest, if any):
(i) to Underwriters:
(ii) to Public:
Sinking fund provisions:
Redemption provisions:
Defeasance provisions:
Other provisions:
Closing Date, Time and Location:
(i) Office for Checking Securities: on the business day
prior to the Closing Date at 1:00 PM EST at a location
in New York, New York to be determined by the Company
(ii) Office for Payment of Securities: at the offices of
McGuire, Woods, Battle & Boothe in Richmond, Virginia,
or such other location as the parties may agree in
writing
(iii) Date and Time of Closing: (date) at 10:00 AM EST at
the offices of McGuire, Woods, Battle & Boothe in
Richmond, Virginia, or such other date, time or
location as the parties may agree in writing
Type of offering:
Delayed Delivery arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 4(f) after which the
Company may offer or sell debt securities
issued or guaranteed by the Company without
the consent of the Representative(s):
Modification of Section 4(f): The parties agree that the
term debt securities does not include, among other
items, bank loans, commercial paper, bid notes, money
market notes, any debt securities with a maturity of
less than two years, leveraged sale leasebacks and
letter of credit arrangements
Modification of items to be covered by the letter from
Coopers & Lybrand delivered pursuant to
Section 5(e) at the Execution Time:
SCHEDULE II
UNDERWRITERS PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
TOTAL UNDERWRITERS (__) $
SCHEDULE III
Delayed Delivery Contract
, 19
(Insert name and address
of lead Representative)
Dear Sirs:
The undersigned hereby agrees to purchase from James
River Corporation of Virginia (the "Company"), and the Company
agrees to sell to the undersigned on , 19 , (the "Delivery
Date"), $ principal amount of the Company's (the
"Securities") offered by the Company's Prospectus dated ,
19 , and related Prospectus Supplement dated , 19 ,
receipt of a copy of which is hereby acknowledged, at a purchase
price of % of the principal amount thereof, plus (accrued
interest) (amortization of original issue discount), if any,
thereon from , 19 , to the date of payment and delivery,
and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York City
time, on the Delivery Date to or upon the order of the Company in
New York Clearing House (next day) funds, at your office or at such
other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the Delivery
Date. If no request is received, the Securities will be registered
in the name of the undersigned and issued in a denomination equal
to the aggregate principal amount of Securities to be purchased by
the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of
and make payment for Securities on the Delivery Date, and the
obligation of the Company to sell and deliver Securities on the
Delivery Date, shall be subject to the conditions (and neither
party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the
date hereof, 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 the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such principal amount of
the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such 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. The
obligation of the undersigned to take delivery of and make payment
for the Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for
the Securities pursuant to other contracts similar to this
contract.
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 acceptance of this contract and
other similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first come, first
served basis. If this contract is acceptable to the Company, it is
required that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date
first above written, when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
(Name of Purchaser)
By
(Signature and Title of Officer
(Address)
Accepted:
James River Corporation
of Virginia
By
(Authorized Signature)
Exhibit 5.1
April 12, 1994
James River Corporation
of Virginia
120 Tredegar Street
Richmond, VA 23219
James River Corporation of Virginia
(Registration Statement on Form S-3)
for Debt Securities to be Offered Pursuant to Rule 415
Gentlemen:
We have acted as counsel to James River Corporation of
Virginia, a Virginia corporation (the "Company"), in connection
with the preparation and filing with the Securities and Exchange
Commission of a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as
amended, relating to the proposed issuance and sale from time to
time by the Company of debt securities ("Debt Securities") having
an aggregate issue price of up to $600,000,000, each series of
which will be offered on terms to be determined at the time of
sale.
The Debt Securities are to be issued pursuant to the terms of
the Indenture dated as of November 1, 1991 (the "Indenture")
between the Company and The Bank of New York, as Trustee, and may
be sold directly to purchasers, through agents, to dealers or to
underwriters, as described in the Registration Statement. The
Indenture provides for the issuance of Debt Securities in series
having such terms, conditions and other provisions as may be
authorized and designated in accordance with the procedures set
forth in the Indenture.
We have participated in the preparation of the Registration
Statement and have examined the corporate records and documents,
statements and certificates of officers of the Company and such
other materials as we have deemed necessary to the issuance of this
opinion.
Based upon the foregoing, we are of the opinion that when (a)
the actions required by the Indenture for the authorization and
designation of a series of Debt Securities and the establishment of
the form, terms, conditions and other provisions of debt have been
duly and properly taken, (b) the Debt Securities have been executed
and authenticated in accordance with the provisions of the
Indenture, and (c) the Debt Securities have been issued and
delivered against payment therefor, such Debt Securities will be
validly issued and binding obligations of the Company, subject to
(i) any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and
(ii) general principles of equity, whether considered in a
proceeding in equity or at law.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statement made in reference to
our firm in the related Prospectus under the heading "Validity of
Debt Securities" and in any supplemented versions of the
Prospectus. We do not admit by giving this consent that we are in
the category of persons whose consent is required under Section 7
of the Securities Act.
Very truly yours,
/s/ McGuire, Woods, Battle & Boothe
Exhibit 8.1
April 12, 1994
James River Corporation
of Virginia
120 Tredegar Street
Richmond, VA 23219
Gentlemen:
We have been requested, as counsel, to render federal tax
advice in connection with the Registration Statement on Form S-3
(the "Registration Statement") being filed by James River
Corporation of Virginia, a Virginia corporation (the "Company"),
with the Securities and Exchange Commission for the purpose of
registering under the Securities Act of 1933, as amended (the
"Securities Act"), $600,000,000 of the Company's Debt Securities.
We have reviewed the statements set forth in the Registration
Statement under the heading "United States Taxation" and hereby
advise you that such statements, insofar as they are or refer to
statements of United States law or legal conclusions relating
thereto, are accurate in all material respects.
We hereby consent to the filing of this opinion as an exhibit
the Registration Statement and to the reference to us under the
heading "United States Taxation" in the Registration Statement. We
do not admit by giving this consent that we are in the category of
persons whose consent is required under Section 7 of the Securities
Act.
Very truly yours,
/s/ McGuire, Woods, Battle & Boothe
Exhibit 12.2
<TABLE>
JAMES RIVER CORPORATION of Virginia
and Subsidiaries
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS (a)
(Dollar amounts in 000's)
Fiscal Year Ended
April April December December December December
30, 1989 29, 1990 30, 1990 29, 1991 27, 1992 26, 1993
(53 weeks) (52 weeks) (35 weeks) (52 weeks) (52 weeks) (52 weeks)
(b) (c,d) (d)
<S> <C> <C> <C> <C> <C> <C>
Pretax income (loss) from
continuing operations,
before minority interests $446,954 $371,501 $ 44,352 $115,170 $(182,817) $ 14,115
Add:
Interest charged to
operations 171,964 198,743 133,716 191,344 192,962 183,035
Portion of rental
expense representative
of interest factor
(assumed to be one-third) 19,900 23,400 15,100 19,891 19,426 19,094
Total earnings, as
adjusted $638,818 $593,644 $193,168 $326,405 $ 29,571 $216,244
Fixed charges and preferred
stock dividends:
Interest charged to
operations $171,964 $198,743 $133,716 $191,344 $192,962 $183,035
Capitalized interest 28,793 25,475 10,759 31,740 12,778 5,291
Pretax earnings require-
ment for preferred
dividend coverage 36,727 35,839 27,190 41,735 40,540 57,287
Portion of rental expense
representative of
interest factor
(assumed to be one-third) 19,900 23,400 15,100 19,891 19,426 19,094
Total fixed charges
and preferred stock
dividends $257,384 $283,457 $186,765 $284,710 $265,706 $264,707
Ratio 2.48 2.09 1.03 1.15 -- --
See accompanying footnote explanations.
</TABLE>
Exhibit 12.2 (continued)
JAMES RIVER CORPORATION of Virginia
and Subsidiaries
NOTES
(a) In computing the ratio of earnings to combined fixed charges and
preferred stock dividends, earnings consist of income before income
taxes, minority interests, and fixed charges excluding capitalized
interest. Fixed charges consist of interest expense, capitalized
interest, and that portion of rental expense (one-third) deemed
representative of the interest factor. Fixed charges are increased by
the preferred stock dividend requirements of James River adjusted to
amounts representing the pretax earnings which would be required to cover
such dividend requirements. Earnings and fixed charges also include the
Company's proportionate share of such amounts for unconsolidated
affiliates which are owned 50% or more and distributed income from less
than 50% owned affiliates.
(b) During 1990, the Company changed its fiscal year from one ending on the
last Sunday in April to one ending on the last Sunday in December. During
this period, the Company initiated an operational restructuring program
designed to focus the Company's operations on those businesses in which
it commands a substantial market share and which are less cyclical. In
connection with that program, the Company recorded a $200 million pretax
charge which has been included in the calculation of the ratio of
earnings to combined fixed charges and preferred stock dividends for this
period.
(c) During 1992, the Company initiated a productivity enhancement program and
recorded a $112 million pretax charge which has been included in the
calculation of the ratio of earnings to combined fixed charges and
preferred stock dividends for this year.
(d) For the following years, earnings were inadequate to cover combined fixed
charges and preferred stock dividends, and the amounts of the
deficiencies were: year ended December 27, 1992 - $236.1 million; year
ended December 26, 1993 - $48.5 million.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent: (i) to the reference to our Firm under the caption
"Experts" in this Registration Statement on Form S-3 of James River
Corporation of Virginia; and (ii) to the incorporation by reference
therein of our reports dated January 25, 1994, on our audits of the
consolidated financial statements and financial statement schedules
of James River Corporation of Virginia and Subsidiaries as of
December 26, 1993 and December 27, 1992, and for each of the three
fiscal years in the period ended December 26, 1993, which reports
are included therein or incorporated by reference in the Annual
Report on Form 10-K for the fiscal year ended December 26, 1993.
COOPERS & LYBRAND
Richmond, Virginia
April 29, 1994
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent: (i) to the reference to our Firm under the caption
"Experts" in this Registration Statement on Form S-3 of James River
Corporation of Virginia; and (ii) to the incorporation by reference
therein of our report dated March 14, 1994, on our audit of the
consolidated financial statements of Jamont Holdings, N.V. as of
December 31, 1993 and for the year then ended , which report is
filed on the Form 8-K, dated April 27, 1994.
COOPERS & LYBRAND
Eindhoven, The Netherlands
April 29, 1994
POWER OF ATTORNEY
The undersigned hereby appoints and authorizes Stephen E.
Hare, Clifford A. Cutchins, IV and Michael J. Allan, and each of
them (with full power in granting any of them to act alone) his
true and lawful attorneys-in-fact, granting such attorneys the
authority in his name and on his behalf to execute, individually
and in each capacity stated below, and to file any of the documents
referred to below relating to the registration with the Securities
and Exchange Commission (the "Commission") and listing on the New
York Stock Exchange (the "NYSE") of (i) shares of one or more
additional series of preferred stock of James River Corporation of
Virginia and depositary receipts therefor, if any, and/or (ii) one
or more series of debt securities consisting of debentures, notes
and/or other evidences of indebtedness to be distributed by such
underwriters as may be selected by management, such documents
being: a registration statement to be filed with the Commission;
such statements with, or applications to, the regulatory
authorities of any state in the United States and any foreign
country as may be necessary to permit said shares or debt
securities to be offered in such state and country; any and all
other documents required to be filed with respect thereto with any
regulatory authority; a listing application with the NYSE; and any
and all amendments to any of the foregoing, with all exhibits and
documents required to be filed in connection therewith. The
undersigned further grants unto said attorneys, and each of them,
full power and authority to perform each and every act necessary to
be done in order to accomplish the foregoing registration as fully
as he himself might do.
IN WITNESS WHEREOF, the undersigned have signed this power of
attorney this 18th day of February, 1994, with the exception of
Mrs. Whittemore who signed on April 29, 1994.
/s/ Robert C. Williams /s/ Stephen E. Hare
Robert C. Williams Stephen E. Hare
Chairman of the Board of Senior Vice President,
Directors, President and Corporate Finance and Chief
Chief Executive Officer Financial Officer
(Principal Executive Officer) (Principal Financial and
Accounting Officer)
/s/ FitzGerald Bemiss /s/ William T. Burgin
FitzGerald Bemiss William T. Burgin
Director Director
/s/ Worley H. Clark, Jr. /s/ William V. Daniel
Worley H. Clark, Jr. William V. Daniel
Director Director
/s/ William T. Comfort, Jr. /s/ Bruce C. Gottwald
William T. Comfort, Jr. Bruce C. Gottwald
Director Director
/s/ Robert M. O'Neill /s/ Joseph T. Piemont
Robert M. O'Neill Joseph T. Piemont
Director Director
/s/ Anne M. Whittemore
Anne M. Whittemore
Director
Exhibit 25
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) (__)
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
JAMES RIVER CORPORATION OF VIRGINIA
(Exact name of obligor as specified in its charter)
Commonwealth of Virginia 54-0848173
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
120 Tredegar Street
Richmond, Virginia 23219
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
===============================================================================
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-43429.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the Trustee
of all facts on which to base a responsive answer to Item 2, the answer to said
Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an amendment
to this Form T-1.
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 1st day of April, 1994.
THE BANK OF NEW YORK
By: /s/ KATHLEEN JONES
Name: KATHLEEN JONES
Title: Assistant Vice President
-4-
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1993, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin .................. $ 4,393,393
interest-bearing balances .......... 652,315
Securities ........................... 3,809,834
Federal funds sold in domestic offices
of the bank ........................ 331,075
Loans and lease financing receivables:
Loans and leases, net of unearned
income .................23,708,678
Less Allowance for loan and lease
losses .....................773,597
Less allocated transfer risk
reserve .....................28,427
Loans and leases, net of unearned
income, allowance and reserve .... 22,906,654
Assets held in trading accounts ...... 851,615
Premises and fixed assets (including
capitalized leases) ................ 657,247
Other real estate owned .............. 60,806
Investments in unconsolidated subsi-
diaries and associated companies ... 170,378
Customers liability to this bank on
acceptances outstanding ............ 885,751
Intangible assets .................... 42,689
Other assets 1,326,362
Total assets $36,088,119
LIABILITIES
Deposits:
In domestic offices ................ $19,486,153
Noninterest-bearing .......7,388,636
Interest-bearing .........12,097,517
In foreign offices, Edge and Agree-
ment Subsidiaries, and IBFs ........ 8,230,444
Noninterest-bearing ..........53,571
Interest-bearing ..........8,176,873
<PAGE>
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsi-
diaries, and in IBFs:
Federal funds purchased ............ 1,207,881
Securities sold under agreements to
repurchase ....................... 350,492
Demand notes issued to the U.S.
Treasury ........................... 300,000
Other borrowed money ................. 530,559
Bank's liability on acceptances exe-
cuted and outstanding .............. 897,899
Subordinated notes and debentures .... 1,064,780
Other liabilities .................... 1,139,025
Total liabilities .................... 33,207,233
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ........................... 75,000
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,342,860
Cumulative foreign Currency transla-
tion adjustments .................. ( 4,924)
Total equity capital ................ 2,880,886
Total liabilities, limited-life pre-
ferred stock, and equity capital .. $36,088,119
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
J. Carter Bacot
Alan R. Griffith Directors
Samuel F. Chevalier
