<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
[CAPTION]
<TABLE>
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>
Preferred stock, $10 par
value per share(2).........
$287,500,000 100%(3) $287,500,000(3) $99,139
Depositary shares repre-
senting preferred
stock(2)...................
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
(2) Such indeterminate number of shares of Preferred Stock or Depositary Shares
representing Preferred Stock as may be issued from time to time at
indeterminate prices.
(3) Plus accrued dividends, if any, from date of original issuance.
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>
PAGE 1
PROSPECTUS
LOGO
JAMES RIVER CORPORATION
OF VIRGINIA
PREFERRED STOCK
(CONVERTIBLE OR NON-CONVERTIBLE)
($10 PAR VALUE)
DEPOSITARY SHARES REPRESENTING PREFERRED STOCK
James River Corporation of Virginia ("James River" or the "Company") may
from time to time offer shares of its Preferred Stock, par value $10 per share
(the "Preferred Stock"), in one or more series. The accompanying Prospectus
Supplement (the "Prospectus Supplement") sets forth, as applicable, the
specific designation, voting powers, preferences and relative rights and
qualifications, limitations and restrictions thereof, including dividend rate
(or manner of calculation thereof), time of payment of dividends, liquidation
value, terms for mandatory or optional conversion, listing on a securities
exchange, terms for mandatory or optional redemption, aggregate number of
shares sold, purchase price, public offering price, names of any underwriters
or agents, compensation of such underwriters or agents and other terms in
connection with the offering and sale of the series of Preferred Stock in
respect of which this Prospectus is being delivered. If so specified in the
Prospectus Supplement, the Preferred Stock may be represented by Depositary
Shares, each of which may represent the percentage interest so specified in
each share of Preferred Stock described in the Prospectus Supplement
("Depositary Shares").
The Company may sell shares of Preferred Stock or Depositary Shares
representing Preferred Stock to or through underwriters or dealers, directly
to other purchasers or through agents. See "Plan of Distribution."
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 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;
(c) the Current Reports on Form 8-K dated January 25, 1994, February 22,
1994, April 21, 1994, and April 27, 1994; and
(d) the description of Common Stock included in Form 8-A filed January 3,
1980 incorporating by reference the description included in Amendment No 1. to
Registration Statement No. 2-63209, as amended by Amendment No. 4 to Application
or Report on Form 8 dated July 28, 1992, and the description of the Rights
included in Form 8-A dated March 3, 1989, as amended by Amendment No. 1 to
Application or Report on Form 8 dated July 28, 1992.
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.
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
4
<PAGE>
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.
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," and " -- Recent James River
Financial Performance." 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.
5
<PAGE>
USE OF PROCEEDS
The proceeds from the sale of Preferred Stock to be offered hereby may be
used 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. The Company estimates that
approximately $250 million of the proceeds from the sale of Preferred Stock 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. Pending application of the proceeds, they may be
temporarily invested or applied to the reduction of short-term borrowings. It is
anticipated that the balance of the purchase price for the remaining Jamont
Holdings interest, or approximately $325 million, will be funded with the
proceeds from the sale of James River debt securites ("Debt Securities").
Concurrent with the filing of the Registration Statement of which this
Prospectus is a part, the Company has filed a Registration Statement on Form S-3
for the issuance of up to $600 million of Debt Securities 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.
6
<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.
7
<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.
8
<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.
9
<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.
10
<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.
11
<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
12
<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 PREFERRED STOCK
GENERAL
The Company is authorized to issue five million shares of Preferred Stock,
par value $10 per share, in series. As of April 29, 1994, the Company had
outstanding the following series of Preferred Stock:
<TABLE>
<CAPTION>
SHARES
OUTSTANDING
<S> <C>
Series D Cumulative Preferred Stock............................................................... 12,400
Series K $3.375 Cumulative Convertible Exchangeable Preferred Stock............................... 1,999,995
Series L $14.00 Cumulative Convertible Exchangeable Preferred Stock............................... 1,000,000
Series N $14.00 Cumulative Convertible Exchangeable Preferred Stock............................... 264,042
Series O 8 1/4% Cumulative Preferred Stock........................................................ 200,000
Total...................................................................................... 3,476,437
</TABLE>
In addition, in connection with its Shareholder Rights Plan, the Company
has reserved 150,000 shares of Preferred Stock for the issuance of Series M
Cumulative Participating Preferred Stock (the "Series M Preferred Stock"). When
exercisable, each share purchase right (a "Right") entitles its holder to
purchase one one-thousandth of a share of Series M Preferred Stock at an
exercise price of $150 per share, subject to adjustment. The Rights will be
exercisable only if a person or group acquires, has the right to acquire, or has
commenced a tender offer for 15% or more of the outstanding common stock of the
Company (the "Common Stock").
The Board of Directors of the Company is authorized by the Company's
Articles of Incorporation to provide, without further shareholder action, for
the issuance of one or more additional series of Preferred Stock. The Board of
Directors, or a duly authorized committee thereof, has the power to fix various
terms with respect to each series, including voting powers, designations,
preferences, dividend rates, conversion and exchange provisions, redemption
provisions, and the amounts which holders are entitled to receive upon any
liquidation, dissolution or winding up of James River. The Preferred Stock of
each series shall rank on a parity with the Preferred Stock of every other
series as to dividends and assets according to the respective dividend rates and
series, and without the preference or priority of any series over any other
series. However, all shares of the Preferred Stock shall be preferred over the
Common Stock, to the extent provided for in any series of Preferred Stock, as to
both dividends and amounts distributable upon any voluntary or involuntary
liquidation of James River. The applicable Prospectus Supplement or Prospectus
Supplements set forth the particular designation, preferences, and rights of the
series of Preferred Stock in respect of which this Prospectus is delivered.
DESCRIPTION OF DEPOSITARY SHARES
Each Depositary Share will represent a fraction of a share of Preferred
Stock deposited under the Deposit Agreement ("Deposit Agreement"), among James
River, Wachovia Bank & Trust Company, N.A., as Depositary ("Depositary") and the
holders from time to time of Depositary Receipts issued thereunder. Subject to
the terms of the Deposit Agreement, each owner of a Depositary Share will be
entitled, proportionately, to all of the rights and preferences of the Preferred
Stock represented thereby contained in James River's Articles of Incorporation
and the Articles of Amendment creating the Preferred Stock. James River does not
expect that there will be any public trading market for the Preferred Stock
except as represented by the Depositary Shares.
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). The above description
of the Depositary Shares is not complete and is subject to, and qualified in its
entirety by, the description in the applicable Prospectus Supplement and the
provisions of the Deposit Agreement (which contains the form of Depositary
Receipt), a copy of which has been filed with the Commission as an exhibit to
the Registration Statement of which this Prospectus is a part.
13
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Preferred Stock and Depositary Shares representing
Preferred Stock being offered hereby in any of four ways: (i) directly to
purchasers, (ii) through agents, (iii) through underwriters and (iv) through
dealers.
Offers to purchase Preferred Stock or Depositary Shares representing
Preferred Stock may be solicited directly by the Company or by agents designated
by the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act of 1933, involved in
the offer or sale of the Preferred Stock or Depositary Shares representing
Preferred Stock in respect of which this Prospectus is delivered is named and
any commissions payable by the Company to such agent are set forth in the
Prospectus Supplement. Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment (ordinarily five business days or less). Agents may be customers of,
engage in transactions with or perform services for, the Company in the ordinary
course of business.
If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting agreement with such underwriters at the time of
sale to them, and the names of the underwriters and the terms of the transaction
are set forth in the Prospectus Supplement, which will be used by the
underwriters to make resales of the Preferred Stock or Depositary Shares
representing Preferred Stock in respect of which this Prospectus is delivered to
the public.
If a dealer is utilized in the sale of the Preferred Stock or Depositary
Shares representing Preferred Stock in respect of which this Prospectus is
delivered, the Company will sell such Preferred Stock or Depositary Shares
representing Preferred Stock to the dealer, as principal. The dealer may then
resell such Preferred Stock or Depositary Shares representing Preferred Stock to
the public at varying prices to be determined by such dealer at the time of
resale.
Agents, underwriters and dealers may be entitled under the relevant
agreements to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act of 1933.
The place and time of delivery for the Preferred Stock or Depositary Shares
representing Preferred Stock in respect of which this Prospectus is delivered
are set forth in the Prospectus Supplement.
LEGAL OPINIONS
The legality of the Preferred Stock or the Depositary Shares representing
Preferred Stock in respect of which this Prospectus is being delivered will be
passed on 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 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.
14
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee.............................................................................. $ 99,139
Accountants' fees and expenses.................................................................... 30,000
Attorneys' fees and expenses...................................................................... 75,000
Printing and engraving expenses................................................................... 40,000
NYSE listing fee.................................................................................. 80,000
Depositary fees and expenses...................................................................... 5,000
State qualification fees and expenses............................................................. 10,000
Rating agencies' fees............................................................................. 135,000
Miscellaneous..................................................................................... 861
Total........................................................................................ $475,000*
</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>
<C> <S>
1.1 Form of Underwriting Agreement, filed herewith
3.1 Amended and Restated Articles of Incorporation, as amended effective January 4, 1990 (incorporated by
reference to Exhibit 3(a) to the Company's Annual Report on Form 10-K for the year ended December 26,
1993)
3.2 Articles of Amendment to the Amended and Restated Articles of Incorporation designating the Series O
8- 1/4% Cumulative Preferred Stock ($10.00 par value), effective October 1, 1992 (incorporated by
reference to Exhibit 3(b) to the Company's Annual Report on Form 10-K for the year ended December 26,
1993)
3.3 Bylaws of James River, amended as of April 28, 1994 (incorporated by reference to Exhibit 3(c) to the
Company's Annual Report on Form 10-K for the year ended December 26, 1993)
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
4.1 Amended and Restated Rights Agreement dated May 12, 1992, between James River and NationsBank of
Virginia, N.A., as Rights Agent, and Amendment No. 1 to such Agreement, dated June 8, 1992
(incorporated by reference to Exhibits 2 and 3, respectively, to the Company's filing of Amendment
No. 1 dated July 28, 1992 to its Form 8-A dated March 3, 1989)
4.2 Form of Deposit Agreement relating to Preferred Stock, filed herewith
5.1 Opinion and consent of McGuire, Woods, Battle & Boothe as to the validity of the Preferred Stock, 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 Consent of McGuire, Woods, Battle & Boothe (included as part of Exhibit 5.1)
24.1 Powers of attorney from officers and directors of the Company signing by an attorney-in-fact, 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
3.1 Amended and Restated Articles of Incorporation, as amended effective January 4, 1990
(incorporated by reference to Exhibit 3(a) to the Company's Annual Report on Form 10-K
for the year ended December 26, 1993)
3.2 Articles of Amendment to the Amended and Restated Articles of Incorporation designating the
Series O 8- 1/4% Cumulative Preferred Stock ($10.00 par value), effective October 1, 1992
(incorporated by reference to Exhibit 3(b) to the Company's Annual Report on Form 10-K
for the year ended December 26, 1993)
3.3 Bylaws of James River amended as of April 28, 1994 (incorporated by reference to Exhibit
3(c) to the Company's Annual Report on Form 10-K for the year ended December 26, 1993)
4.1 Amended and Restated Rights Agreement dated May 12, 1992, between James River and
NationsBank of Virginia, N.A., as Rights Agent, and Amendment No. 1 to such Agreement,
dated June 8, 1992 (incorporated by reference to Exhibits 2 and 3, respectively, to the
Company's filing of Amendment No. 1 dated July 28, 1992 to its Form 8-A dated March 3,
1989)
4.2 Form of Deposit Agreement relating to Preferred Stock, filed herewith
5.1 Opinion and consent of McGuire, Woods, Battle & Boothe as to the validity of the Preferred
Stock, 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 Consent of McGuire, Woods, Battle & Boothe (included as part of Exhibit 5.1)
24.1 Powers of attorney from officers and directors of the Company signing by an attorney-
in-fact, 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 respective
number of Depositary Shares ("Shares") representing a ____ interest
in a share of the Company's Preferred Stock, par value $10 per
share, identified in Schedule I hereto (the "Preferred Shares").
The Preferred Shares are to be deposited by or on behalf of the
several Underwriters against delivery of Depositary Receipts
("Depositary Receipts") to be issued under a Deposit Agreement (the
"Deposit Agreement") dated as of _________, 199__ among the
Company, Wachovia Bank of North Carolina, N.A., as Depositary (the
"Depositary"), and the holders from time to time of Depositary
Receipts issued thereunder. The Depositary Receipts issued upon
such deposit of the Preferred Shares will evidence up to an
aggregate of _________ Shares. 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 Shares is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is
applicable and, if the offering of the Shares 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 Shares 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 Shares. 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 Shares is a Delayed Offering and,
although the Basic Prospectus may not include all the
information with respect to the Shares 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 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 Shares and the offering thereof.
As filed, such final prospectus supplement shall include
all required material information with respect to the
Shares 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 Shares. 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
Shares 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
Shares and the offering thereof; provided, however, that
the Company makes no representations or warranties as to
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 Shares
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
and the Securities Exchange Act of 1934, as amended (the "Exchange
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; 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 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 Shares and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Shares 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 Shares, 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 Shares 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 Shares 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
number of Shares set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides for
the sale of Shares pursuant to delayed delivery arrangements, the
respective number of Shares to be purchased by the Underwriters
shall be as set forth in Schedule II hereto less the respective
amounts of Contract Shares determined as provided below. Shares to
be purchased by the Underwriters are herein sometimes called the
"Underwriters' Shares" and Shares to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein
called "Contract Shares."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Shares 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 fee
set forth in Schedule I hereto with respect to Shares 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 Shares 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 number set forth in Schedule I hereto and the aggregate
number of Contract Shares may not exceed the maximum number 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 number of Shares to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by
a number which shall bear the same proportion to the total number
of Contract Shares as the number of Shares set forth opposite the
name of such Underwriter bears to the aggregate number 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
number of Shares to be purchased by all Underwriters shall be the
aggregate number set forth in Schedule II hereto less the aggregate
number of Contract Shares.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Shares 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' Shares being herein called the
"Closing Date"). Delivery of the Underwriters' Shares 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 Shares 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'
Shares 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 Shares shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters'
Shares 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' Shares
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) Prior to the termination of the offering of the
Shares, 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
Shares, 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 Shares 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
Shares 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 earnings 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
Shares 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 Shares, 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 Shares 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 equity securities
issued by the Company (other than the Shares 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'
Shares 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
Preferred Shares, the Depositary Shares, the Depositary
Receipts, the Underlying Shares and the Deposit Agreement
conform to the description thereof contained in the Final
Prospectus;
(iii) The Preferred Shares have been duly
authorized and, when issued and delivered to and paid for
by the Underwriters pursuant to this Agreement, will have
been validly issued and will be fully paid and
nonassessable and not subject to any preemptive or other
right to subscribe for or purchase the Preferred Shares;
((iv) The shares of the Company's Common Stock,
$.10 par value per share, initially reserved for issuance
upon conversion of the Preferred Shares (the "Underlying
Shares") have been duly authorized and reserved for
issuance and, when issued upon conversion of the
Preferred Shares in accordance with the terms of the
Articles of Amendment creating the Preferred Shares, will
be validly issued, fully paid and nonassessable and will
not be subject to any preemptive or similar rights;)*
*Delete as appropriate
(v) The Articles of Amendment creating the
Preferred Shares have been duly filed with and made
effective by the State Corporation Commission of the
Commonwealth of Virginia;
(vi) The Depositary Receipts, assuming that
they have been duly executed and delivered by the
Depositary against the deposit of the Preferred Shares
and in accordance with the provisions of the Deposit
Agreement, will be validly issued and will entitle the
holders thereof to rights specified therein and in the
Deposit Agreement, subject as to enforcement to general
equity principles;
(vii) 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;
(viii) 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;
(ix) 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 and
the rules and regulations of the Commission thereunder;
(x) 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;
(xi) This Agreement, the Deposit Agreement or
any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company; the performance of
this Agreement, the Deposit Agreement or any Delayed
Delivery Contracts 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, the Deposit
Agreement or in any Delayed Delivery Contract, except
such as have been obtained under the Act and such as may
be required under state securities laws in connection
with the purchase and distribution of such Shares 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; 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 Shares, 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 Representatives shall have received the opinion,
dated the Closing Date, of counsel for the Depositary, to the
effect that:
(i) The Deposit Agreement has been duly
authorized, executed and delivered by the Depositary and
is a valid and binding agreement of the Depositary; and
(ii) The Depositary Receipts have been duly
executed and delivered by the Depositary in accordance
with the provisions of the Deposit Agreement.
(e) 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).
(f) 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 (f)
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.
(g) 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 (f) 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 Shares as contemplated
by the Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement thereto).
(h) 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.
(i) 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.
(j) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Shares arranged by
the Underwriters have been approved by the Company.
((k) At the Closing Time, the Shares shall have been
approved for listing on the New York Stock Exchange.)*
*Delete as appropriate
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 Shares 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 9 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 Shares.
7. 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 Shares 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 7 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 7, 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 7 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 Shares; 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 Shares) be responsible
for any amount in excess of the underwriting discount or commission
applicable to the Shares 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 7, 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).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Shares
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
number of Shares set forth opposite their names in Schedule II
hereto bears to the aggregate number of Shares set forth opposite
the names of all the remaining Underwriters) the Shares which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate
number of Shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
number of Shares 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 Shares, and if such
nondefaulting Underwriters do not purchase all the Shares, 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 8, 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.
9. 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 Shares, 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 Shares
as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
10. 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 7 hereof, and will survive delivery of and payment for the
Shares. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement.
11. 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.
12. 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 7 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.
13. 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.
(REPRESENTATIVES)
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 of Preferred Stock: ____________________________
Number of Depositary Shares: _____________
Purchase Price per Depositary Share: $_____________
Certain Terms of the Preferred Stock:
Redemption Provisions: __________________________
Conversion Provisions: __________________________
Dividend Rate: __________________________________
Dividend payment Dates: _________________________
The Shares are to be offered to the public at the Public Offering
Price specified below, and to dealers at prices which represent
concessions not in excess of the Dealer Concession set forth below,
and any Underwriter may allow and such dealers may reallow
concessions not in excess of the Reallowance Concession set forth
below.
Public Offering Price:
Dealer Concession:
Reallowance Concession:
Closing Date, Time and Location:
(i) Office for Checking Shares: 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 Shares: 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 number of Shares of each contract:
Maximum number of Shares 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(f) at the Execution Time:
SCHEDULE II
UNDERWRITERS NUMBER OF DEPOSITARY
SHARES 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"), _______________ number of the Company's (the
"Shares") 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
$_________ per share and on the further terms and conditions set
forth in this contract.
Payment for the Shares 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 Shares 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 Shares will be registered in
the name of the undersigned and issued in a denomination equal to
the aggregate number of shares of Shares to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of
and make payment for Shares on the Delivery Date, and the
obligation of the Company to sell and deliver Shares 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 Shares 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 number of shares of
the Shares 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 Shares,
and the obligation of the Company to cause the Shares to be sold
and delivered, shall not be affected by the failure of any
purchaser to take delivery of and make payment for the Shares
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 4.2
JAMES RIVER CORPORATION OF VIRGINIA
and
WACHOVIA BANK OF NORTH CAROLINA, N.A.
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of _________ __, 199_
TABLE OF CONTENTS
Page
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. . . . . . . . . . . . . . . . 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts . . . 2
Section 2.2. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof . . . . . . 3
Section 2.3. Optional Redemption of Stock for Cash. . . 5
Section 2.4. Transfer of Receipts . . . . . . . . . . . 6
Section 2.5. Combinations and Split-ups of Receipts . . 6
Section 2.6. Surrender of Receipts and Withdrawal of
Stock. . . . . . . . . . . . . . . . . . . 6
Section 2.7. Limitations on Execution and Delivery,
Transfer, Split-Up, Combination and
Surrender of Receipts. . . . . . . . . . . 7
Section 2.8. Lost Receipts, etc . . . . . . . . . . . . 8
Section 2.9. Cancellation and Destruction of
Surrendered Receipts . . . . . . . . . . . 8
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other
Information. . . . . . . . . . . . . . . . 9
Section 3.2. Payment of Taxes or Other Governmental
Charges. . . . . . . . . . . . . . . . . . 9
Section 3.3. Representations and Warranties as to
Stock. . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1. Cash Distributions . . . . . . . . . . . . 10
Section 4.2. Distributions Other Than Cash. . . . . . . 10
Section 4.3. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . . . . 10
Section 4.4. Notice of Dividends, Fixing of Record
Date for Holders of Receipts . . . . . . . 12
Section 4.5. Voting Rights. . . . . . . . . . . . . . . 12
Section 4.6. Changes Affecting Deposited Securities
and Reclassifications, Recapitalizations,
etc. . . . . . . . . . . . . . . . . . . . 13
Section 4.7. Reports. . . . . . . . . . . . . . . . . . 13
Section 4.8. Lists of Receipt Holders . . . . . . . . . 13
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies,
Transfer Books by the Depositary
Registrar. . . . . . . . . . . . . . . . . 14
Section 5.2. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or
the Company. . . . . . . . . . . . . . . . 14
Section 5.3. Obligations of the Depositary, the
Depositary's Agents and the Company. . . . 15
Section 5.4. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary . . . . . . . . . . . . . . . . 15
Section 5.5. Corporate Notices and Reports. . . . . . . 16
Section 5.6. Deposit of Stock by the Company. . . . . . 16
Section 5.7. Indemnification by the Company . . . . . . 17
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment. . . . . . . . . . . . . . . . . 17
Section 6.2. Termination. . . . . . . . . . . . . . . . 18
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts . . . . . . . . . . . . . . . 19
Section 7.2. Exclusive Benefits of Parties. . . . . . . 19
Section 7.3. Invalidity of Provisions . . . . . . . . . 19
Section 7.4. Notices. . . . . . . . . . . . . . . . . . 19
Section 7.5. Depositary's Agents. . . . . . . . . . . . 20
Section 7.6. Holders of Receipts are Parties. . . . . . 20
Section 7.7. Governing Law. . . . . . . . . . . . . . . 20
Section 7.8. Headings . . . . . . . . . . . . . . . . . 20
EXHIBIT A - Depositary Receipt
DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT is dated as of _________ __, 199_
and is among JAMES RIVER CORPORATION OF VIRGINIA, a Virginia
corporation (the "Company"), WACHOVIA BANK OF NORTH CAROLINA,
N.A., a national banking association, as depositary ("the
Depositary"), and all holders from time to time of Depositary
Receipts issued hereunder.
WITNESSETH
Whereas, the Company desires to provide for the deposit
of shares of Series __ _______ Preferred Stock, par value
$_________ per share, of the Company with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance
of Depositary Receipts evidencing Depositary Shares in respect of
the Stock so deposited, all on the terms and conditions set forth
in this Agreement; and
Whereas, the Depositary Receipts are to be substantially
in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided
in this Deposit Agreement;
Now therefore, in consideration of the mutual premises,
it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following definitions
shall for all purposes, unless otherwise clearly indicated, apply
to the respective terms used in this Agreement and the Depositary
Receipts:
"Authorizing Resolution" means the resolution adopted by
the Company's Board of Directors establishing and setting forth
the rights, preferences and privileges of the Stock.
"Articles of Incorporation" means the Amended and
Restated Articles of Incorporation, as amended from time to time,
of the Company.
"Company" means James River Corporation of Virginia, a
Virginia corporation having its principal office at 120 Tredegar
Street, Richmond, Virginia 23219, and its successors.
"Common Stock" means the Common Stock, $.10 par value,
of the Company.
"Corporate Trust Office" means the principal office of
the Depositary in Winston-Salem, North Carolina, at which at any
particular time its corporate trust business shall be
administered.
"Deposit Agreement" means this Agreement, as the same
may be amended or supplemented from time to time.
"Depositary" means Wachovia Bank of North Carolina,
N.A., a national banking association and any successor as
depositary hereunder.
"Depositary Shares" means the Series __ _______
Preferred Stock, evidenced by the Depositary Receipts issued
hereunder and constituted by the interests in Stock deposited with
the Depositary hereunder represented by such Receipts. Each
Depositary Share shall, as provided herein, represent an interest
in _____________ (____) (as such fraction may from time to time be
adjusted in the event of certain amendments to the Company's
Articles of Incorporation) of one share of Stock.
"Depositary's Agent" means an agent appointed by the
Depositary as provided, and for the purposes specified, in Section
7.5.
"Receipt" means one or more of the Depositary Receipts
issued hereunder.
"Record Holder" as applied to a Receipt means the person
in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" means any bank or trust company which shall
be appointed to register Receipts as herein provided.
"Securities Act of 1933" means the Act of May 27, 1933
(15 U.S. Code, Secs. 77a-77aa), as from time to time amended.
"Stock" means shares of the Company's Series __ ______
Preferred Stock, par value $_______ per share, heretofore validly
issued, fully paid and nonassessable.
"Stockholders" means holders of the Stock.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts.
Receipts shall be engraved or printed or lithographed on steel-
engraved borders and shall be substantially in the form set forth
in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized representative of the Depositary,
provided that such signature may be a facsimile if a Registrar for
the Receipts (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly
authorized representative of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid
or obligatory for any purpose, unless it shall have been executed
manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a
duly authorized representative of the Depositary and, if executed
by facsimile signature of the Depositary, shall have been
countersigned manually by a duly authorized representative of such
Registrar. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of
whole Depositary Shares, unless otherwise directed by the Company.
Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may
be required by the Depositary at the direction of the Company or
required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities
exchange upon which the Stock, the Depositary Shares or the
Receipts, may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of
issuance of the Stock or otherwise.
Title to Depositary Shares evidenced by a Receipt which
is properly endorsed or accompanied by a properly executed
instrument of transfer, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided,
however, that until a Receipt shall be transferred on the books of
the Depositary as provided in Section 2.4, the Depositary may,
notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in
this Deposit Agreement and for all other purposes.
Section 2.2. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement any holder of Stock may
deposit such Stock under this Deposit Agreement by delivery to the
Depositary at its Corporate Trust Office (or at such other place
as may be agreeable to the Depositary) of a certificate or
certificates for the Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of
this Deposit Agreement, and together with a written order
directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a
Receipt for the number of Depositary Shares representing such
deposited Stock.
The Depositary shall require, at the direction of the
Company, that Stock presented for deposit at any time, whether or
not the register of Stockholders of the Company is closed, shall
also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for
the prompt transfer to the Depositary or its nominee of any
dividend or right to subscribe for additional Stock or to receive
other property which any person in whose name the Stock is or has
been recorded may thereafter receive upon or in respect of such
deposited Stock, or in lieu thereof such agreement of indemnity or
other agreement as shall be satisfactory to the Depositary.
Subject to the terms and conditions of this Deposit
Agreement, Stock may also be deposited hereunder in connection
with the delivery of Receipts to represent distributions under
Section 4.2 and upon exercise of the rights to subscribe referred
to in Section 4.3.
Upon each delivery to the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents above specified, the Depositary shall, as soon
as transfer and recordation can be accomplished, present such
certificate or certificates to the Registrar and transfer agent of
the Stock for transfer and recordation in the name of the
Depositary or its nominee of the Stock being deposited. Deposited
Stock shall be held by the Depositary, at the Depositary's
Corporate Trust Office, or at such other place or places as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions
of this Section, together with the other documents required as
above specified, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver to
or upon the order of the person or persons named in the written
order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt for the number of Depositary
Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt at its Corporate
Trust Office and at such other offices, if any, as it may
designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery. However, in each
case, such delivery will be made only upon payment to the
Depositary of the fee of the Depositary for the execution and
delivery of such Receipt by the Company (unless payable by the
holder), as provided in Section 5.8, and of all taxes and
governmental charges and fees payable in connection with such
deposit and the transfer of the deposited Stock.
Section 2.3. Optional Redemption of Stock for Cash.
Whenever the Company shall elect to redeem shares of Stock for
cash pursuant to the terms of the Stock, it shall (unless
otherwise agreed in writing with the Depositary) give the
Depositary not less than 60 days' notice of the date of such
proposed redemption of Stock and of the number of shares held by
the Depositary to be so redeemed. On the date of such redemption,
provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed, the
Depositary shall redeem the number of Depositary Shares
representing such Stock. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number
of Depositary Shares representing the Stock to be redeemed, first
class postage prepaid, not less than 30 and not more than 60 days
prior to the date fixed for redemption of such Stock and
Depositary Shares (the "cash redemption date"), to the holders of
record on the record date for such redemption (determined pursuant
to Section 4.4) of the Receipts evidencing the Depositary Shares
to be so redeemed, at the addresses of such holders as the same
appear on the records of the Depositary; but neither failure to
mail any such notice to one or more such holders nor any defect in
any notice shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice shall state the
record date for the purposes of such redemption; the cash
redemption date; the number of Depositary Shares to be redeemed
and, if less than all the Depositary Shares held by any such
holder are to be redeemed, the number of such Depositary Shares
held by such holder to be so redeemed; the redemption price; the
place or places where Receipts evidencing Depositary Shares are to
be surrendered for payment of the redemption price, and that
dividends in respect of the Stock represented by the Depositary
Shares to be redeemed will cease to accrue at the close of
business on such cash redemption date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata (as
nearly as may be) or in any other equitable manner determined by
the Depositary.
Notice having been mailed by the Depositary as
aforesaid, from and after the redemption date (unless the Company
shall have failed to redeem the shares of Stock to be redeemed by
it as set forth in the Company's notice provided for in the
preceding paragraph), all dividends in respect of the shares of
Stock so called for redemption shall cease to accrue, the
Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate and, upon surrender in
accordance with said notice of the Receipts evidencing any such
Depositary Shares (properly endorsed or assigned for transfer, if
the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary
Share equal to _____________ (____) (as such fraction may from
time to time be adjusted, in certain events, so as to equal at all
times the fraction of an interest represented by one Depositary
Share in one share of Stock) of the redemption price per share
paid in respect of the shares of Stock plus all money and other
property, if any, represented by such Depositary Shares, including
all amounts paid by the Company in respect of dividends which on
the redemption date have accrued on the shares of Stock to be so
redeemed and have not theretofore been paid. The foregoing shall
further be subject to the terms and conditions of the Authorizing
Resolution.
If less than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary,
together with the redemption payment, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called
for redemption.
Section 2.4. Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary
shall make transfers on its books from time to time of Receipts
upon any surrender thereof at the Depositary's Corporate Trust
Office by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument
of transfer, and duly stamped as may be required by law.
Thereupon the Depositary shall execute a new Receipt or Receipts
and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares
as those evidenced by the Receipt or Receipts surrendered.
Section 2.5. Combinations and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts at the Depositary's
Corporate Trust Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination
of such Receipt or Receipts, and subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute
and deliver a new Receipt or Receipts in the authorized
denominations requested, evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Section 2.6. Surrender of Receipts and Withdrawal of
Stock. Any holder of a Receipt or Receipts representing any
number of whole shares of Stock may withdraw the Stock and all
money and other property, if any, represented thereby by
surrendering such Receipt or Receipts, at the Depositary's
Corporate Trust Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder,
or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal. If the Receipt delivered
by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and
such money and other property, if any, to be so withdrawn, deliver
to such holder, or upon his order, a new Receipt evidencing such
excess number of Depositary Shares. In no event will fractional
shares of Stock (or cash in lieu thereof) be distributed by the
Depositary. Delivery of the Stock and money and other property
being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may
deem appropriate, which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of
transfer.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than
the Record Holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts surrendered by
such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property,
if any, represented by Receipts surrendered for withdrawal shall
be made at the Depositary at its Corporate Trust Office, except
that, at the request, risk and expense of the holder surrendering
such Receipt or Receipts and for the account of the holder
thereof, such delivery may be made at such other place as may be
designated by such holder.
Section 2.7. Limitations on Execution and Delivery,
Transfer, Split-Up, Combination and Surrender of Receipts. As a
condition precedent to the execution and delivery, transfer,
split-up, combination or surrender of any Receipt, the Depositary,
or any of the Depositary's Agents, or the Company, may require
payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such
payment, the reimbursement to it) of any tax or other governmental
charge with respect thereto (including any such tax or charge with
respect to Stock being deposited or withdrawn), may require the
production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary or the Company may
establish consistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, or the delivery of
Receipts against Stock may be suspended or the transfer of
Receipts may be refused, or the transfer, split-up, combination or
surrender of outstanding Receipts may be suspended (a) during any
period when the register of Stockholders of the Company is closed,
or (b) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any
time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any
provision of this Deposit Agreement or, with the approval of the
Company, for any other reason. Without limitation of the
foregoing, the Depositary shall not accept for deposit under this
Deposit Agreement any shares of Stock as to which it has actual
knowledge that such shares are required to be registered under the
Securities Act of 1933, unless a registration statement under such
Act is in effect as to such shares of Stock, provided; however,
the Depositary shall have no affirmative duty to determine whether
such shares of Stock are required to be registered under the
Securities Act of 1933 or whether the effectiveness of any
registration statement has been suspended.
Section 2.8. Lost Receipts, etc. In case any Receipt
shall be mutilated or destroyed or lost or stolen, the Depositary
in its discretion may execute and deliver a Receipt of like form
and tenor in exchange and substitution for such mutilated Receipt,
or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (a) the filing by the holder thereof with the
Depositary evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity
thereof and of his ownership thereof and (b) the furnishing of
the Depositary with an indemnity bond or other reasonable
indemnification satisfactory to it.
Section 2.9. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the Depositary
or any Depositary's Agent shall be cancelled by the Depositary.
Except as prohibited by applicable law or regulation, the
Depositary shall, unless otherwise directed by the Company, hold
on behalf of the Company such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any
holder of a Receipt may be required from time to time to file such
proof of residence, or other matters or other information, to
execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem
necessary or proper. The Depositary or the Company may withhold
the delivery or delay the transfer, redemption or exchange of any
Receipt or the withdrawal of the Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of
any dividend or other distribution or the sale of any rights or of
the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations
and warranties are made.
Section 3.2. Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall become
payable by or on behalf of the Depositary with respect to any
Receipt evidencing Depositary Shares or with respect to the
Depositary Shares evidenced by such Receipt or with respect to the
Stock (or any fractional interest therein) represented by such
Depositary Shares, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder of such
Receipt, subject to certain exceptions set forth in Section 5.8.
Transfer of any Receipt or any withdrawal of Stock and all money
or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused until such payment is
made, and any dividends, interest payments or other distributions
may be withheld, or any part or all of the Stock or other property
represented by the Depositary Shares evidenced by such Receipt and
not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments
or other distributions or the proceeds of any such sale may be
applied to any payment of such tax or other governmental charge,
the holder of such Receipt remaining liable for any deficiency.
Section 3.3. Representations and Warranties as to
Stock. In the case of the initial deposit of the Stock, the
Company and, in the case of subsequent deposits thereof, each
person so depositing Stock under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Stock and each
certificate therefore are valid and that the person making such
deposit is duly authorized so to do. The Company hereby further
represents and warrants that the Stock, when issued, will be
validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the
Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on Stock, the Depositary shall, subject to Section
3.2, distribute to Record Holders of Receipts on the record date
fixed pursuant to Section 4.4 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary
shall be required to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part
of the next sum received by the Depositary for distribution to
Record Holders of Receipts then outstanding.
Section 4.2. Distributions Other Than Cash. Whenever
the Depositary shall receive any distribution other than cash upon
Stock, the Depositary shall, subject to Section 3.2, distribute to
Record Holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of other securities or property received
by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts
held by such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If
in the opinion of the Company, after consultation with the
Depositary, such distribution cannot be made proportionately among
such Record Holders, or if for any reason (including any
requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with
the Company, such distribution not to be feasible, the Depositary
may, at the direction of the Company, adopt such method as the
Company deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or
private sale) of the other securities or property thus received,
or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall,
subject to Section 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to Record
Holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash.
Section 4.3. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be
offered to the persons in whose names Stock is recorded on the
books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the Record Holders of Receipts in
such manner as the Company may determine, either by the issue to
such Record Holders of warrants representing such rights,
preferences or privileges or by such other method as may be
approved by the Company in its discretion with the approval of the
Depositary; provided, however, that (a) if at the time of issue or
offer of any such rights, preferences or privileges the Company
determines that it is not lawful or (after consultation with the
Depositary) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of
warrants or otherwise, or (b) if and to the extent so instructed
by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, then the Company, in its discretion
(with the approval of the Depositary, in any case where the
Company has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at
public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale
shall be distributed by the Depositary to the Record Holders of
Receipts entitled thereto as provided by Section 4.1 in the case
of a distribution received in cash.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate
is required in order for holders of Receipts to be offered or sold
the securities to which such rights, preferences or privileges
relate, the Company agrees with the Depositary that it will
promptly file a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities
and use its best efforts and take all steps available to it to
cause such registration statement to become effective sufficiently
in advance of the expiration of such rights, preferences or
privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until the
Company provides to the Depositary an opinion of counsel stating
that the securities to which such rights, preferences or
privileges relate have been registered under the Securities Act of
1933 or do not need to be registered under such Act.
If any other action under the laws of any jurisdiction
or any governmental or administrative authorization, consent or
permit is required in order for such rights, preferences or
privileges to be made available to holders of Receipts, the
Company agrees with the Depositary that the Company will use its
best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
Section 4.4. Notice of Dividends, Fixing of Record
Date for Holders of Receipts. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other
than cash shall be made, or if rights, preferences or privileges
shall at any time be offered, with respect to Stock, or whenever
the Depositary shall receive notice of (a) any meeting at which
holders of Stock are entitled to vote or of which holders of Stock
are entitled to notice or (b) any election on the part of the
Company to redeem any shares of Stock for cash, the Depositary
shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts who
shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof,
or to give instructions for the exercise of voting rights at any
such meeting, or who shall be entitled to notice of such meeting,
or whose Depositary Shares are to be redeemed.
Section 4.5. Voting Rights. Upon receipt of notice of
any meeting at which the holders of Stock are entitled to vote,
the Depositary shall, as soon as practicable thereafter, mail to
the Record Holders of Receipts a notice which shall contain (a)
such information as is contained in such notice of meeting, and
(b) a statement that the holders of Receipts at the close of
business on a specified record date determined pursuant to Section
4.4 will be entitled, subject to any applicable provision of law
and of the Company's Articles of Incorporation or the Authorizing
Resolution, to instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock represented by
their respective Depositary Shares, and a brief statement as to
the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the
Depositary shall endeavor insofar as practicable to vote or cause
to be voted the amount of Stock represented by the Depositary
Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. To the extent any such
instructions request the voting of a fraction of a share of Stock,
the Depositary shall aggregate such fraction with all other
fractions resulting from requests with the same voting
instructions and shall vote the number of whole shares resulting
from such aggregation in accordance with the instructions received
in such requests. The Company hereby agrees to take all
reasonable action which may be deemed necessary by the Depositary
in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific written
instructions from the holder of a Receipt, the Depositary will
abstain from voting to the extent of the Stock represented by the
Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities
and Reclassifications, Recapitalizations, etc. Upon any change in
par or stated value, split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation or sale of
all or substantially all of the Company's assets affecting the
Company or to which it is a party, the Depositary shall, upon the
instructions of the Company and in such manner as the Company may
deem equitable, (a) make such adjustments in (i) the fraction of
an interest represented by one Depositary Share in one share of
Stock and (ii) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Stock in each case as
may be necessary to fully reflect the effects of such change in
par or stated value, split-up, consolidation or other
reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or such consolidation or sale
and (b) treat any securities which shall be received by the
Depositary in exchange for or upon conversion of or otherwise in
respect of the Stock as new deposited securities under this
Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the new deposited securities so received. In any such
case the Company may in its discretion, direct the Depositary to
execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Section 4.7. Reports. The Depositary shall make
available for inspection by holders of Receipts at its Corporate
Trust Office, and at such other places as it may from time to time
deem advisable, any reports and communications received from the
Company which are received by the Depositary as the holder of
Stock unless at the time of or prior to receipt the Company
advises the Depositary that such reports or communications have
not been generally available to the holders of Stock of the
Company.
Section 4.8. Lists of Receipt Holders. Upon request
from time to time by the Company, the Depositary shall, without
unreasonable delay, furnish to the Company a list, as of a recent
date, of the names, addresses and holdings of Stock by all persons
in whose names Receipts are registered on the books of the
Depositary.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies,
Transfer Books by the Depositary Registrar. Upon execution of
this Deposit Agreement in accordance with its terms, the
Depositary shall maintain at its Corporate Trust Office facilities
for the execution and delivery, transfer, surrender and exchange
of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, transfer, surrender and exchange
of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at its Corporate Trust
Office for the transfer of Receipts, which books at all reasonable
times shall be open for inspection by the Record Holders of
Receipts, unless the Company advises the Depositary in a
particular instance that such inspection is not for a proper
purpose reasonably related to such person's interest as an owner
of Depositary Shares evidenced by the Receipts. The Depositary
may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall
be listed on the New York Stock Exchange, the Company may, upon
consultation with the Depositary, appoint a Registrar for registry
of such Receipts or Depositary Shares in accordance with the
requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange)
may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company.
If the Receipts of such Depositary Shares or such Stock are listed
on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery,
transfer, surrender and exchange of such Receipts or such
Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulation.
Section 5.2. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or the Company. Neither the
Depositary nor any Depositary's Agent nor the Company shall incur
any liability to any holder of any Receipt, if by reason of any
provision of any present or future law, or regulation thereunder,
of the United States of America, or of any other governmental
authority or, in the case of the Depositary or the Depositary's
Agent, by reason of any provision, present or future, of the
Company's Articles of Incorporation or the Authorizing Resolution
or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, any
Depositary's Agent or the Company shall be prevented or forbidden
from doing or performing any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement.
Section 5.3. Obligations of the Depositary, the
Depositary's Agents and the Company. Neither the Depositary nor
any Depositary's Agent nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to
holders of Receipts other than that each of them agrees to use its
best judgment and good faith in the performance of such duties as
are specifically set forth in this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor
the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor
the Company shall be liable for any action or any failure to act
by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Stock for deposit, any
holder of a Receipt or any other person believed by it in good
faith to be competent to give such advice or information. The
Depositary, any Depositary's Agent and the Company may each rely
and shall each be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine
and to have been signed or presented by the proper party or
parties.
The Depositary and the Depositary's Agents may own and
deal in any class of securities of the Company and its affiliates
and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its
affiliates.
Section 5.4. Resignation and Removal of the
Depositary; Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary hereunder by notice of its
election to do so delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
The Depository may at any time be removed by the Company
by notice of such removal delivered to the Depositary, such
removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder
shall resign or be removed, the Company shall, within 60 days
after the delivery of the notice of resignation or removal, as the
case may be, appoint a successor depositary, which shall be a bank
or trust company having its principal office in the United States
of America and having a combined capital and surplus of at least
$50,000,000. Every successor depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under
this Deposit Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Company, shall
promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all rights, title and
interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the
Record Holders of all outstanding Receipts. Any successor
depositary shall promptly mail notice of its appointment to the
Record Holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act. Such successor depositary may authenticate the
Receipts in the name of the predecessor depositary or in the name
of the successor depositary.
Section 5.5. Corporate Notices and Reports. The
Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, transmit to the
Record Holders of Receipts, in each case at the address recorded
in the Depositary's books, copies of all notices and reports
(including, without limitation, financial statements) required by
law, by the rules of any national securities exchange upon which
the Stock, the Depositary Shares or the Receipts are listed or by
the Company's Articles of Incorporation and the Authorizing
Resolution to be furnished by the Company to holders of Stock.
Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition,
the Depositary will transmit to the holders of Receipts (at the
Company's expense) such other documents as may be requested by the
Company.
Section 5.6. Deposit of Stock by the Company. The
Company agrees with the Depositary that neither the Company nor
any company controlled by the Company will at any time deposit any
Stock, if such Stock is required to be registered under the
provisions of the Securities Act of 1933 and no registration
statement is at such time in effect as to such Stock.
Section 5.7. Indemnification by the Company. The
Company agrees to indemnify the Depositary, any Depositary's Agent
and any Registrar against, and hold each of them harmless from,
any loss, liability or expense (including reasonable costs of
investigation, court costs, and attorneys fees and disbursements)
which may arise out of acts performed or omitted in accordance
with the provisions of this Deposit Agreement, as the same may be
amended, modified or supplemented from time to time, and the
Receipts (a) by the Depositary, any Registrar or any of their
respective officers, employees or agents (including any
Depositary's Agent), except for any loss, liability or expense
arising out of negligence, bad faith or willful misconduct on the
part of any such person or persons, or (b) by the Company or any
of its agents.
Section 5.8. Charges and Expenses. The Company shall
pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. The
Company shall pay any and all fees of the Depositary as shall be
agreed to between the Company and the Depositary, all charges of
the Depositary in connection with the initial deposit of the Stock
and the initial issuance of the Depositary Receipts and any
redemption of the Stock which is redeemed at the option of the
Company. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs
charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and
expenses. All other reasonable charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses
of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature
of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the
Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment. The form of the Receipts and
any provision of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose any fees, taxes or
charges (other than fees and charges provided for herein), or
which shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the Record Holders of
outstanding Receipts. Every holder of an outstanding Receipt at
the time any such amendment so becomes effective shall be deemed,
by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended
thereby. In no event shall any amendment impair the right,
subject to the provisions of Sections 2.6 and 2.7 and Article III,
of any owner of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the Stock and all money and
other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law.
Section 6.2. Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by
mailing notice of such termination to the Record Holders of all
Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4.
If any Receipts shall remain outstanding after the date
of termination of this Deposit Agreement, the Depositary
thereafter shall discontinue the transfer of Receipts, shall
suspend the distribution of dividends to the holders thereof, and
shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit
Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Stock, shall sell
rights, preferences or privileges as provided in this Deposit
Agreement and shall continue to deliver the Stock and any money
and other property represented by Receipts upon surrender thereof
by the holders thereof. At any time after the expiration of two
years from the date of termination, the Depositary shall, at the
direction of the Company, sell Stock then held hereunder at public
or private sale, at such places and upon such terms as the Company
deems proper and may thereafter hold the net proceeds of any such
sale, together with any money and other property held by it
hereunder, without liability for interest, for the benefit, pro
rata in accordance with their holdings, of the holders of Receipts
which have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net
proceeds and money and other property. Upon the termination of
this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any
Registrar under Sections 5.7 and 5.8. In the event this Deposit
Agreement is terminated, the Company hereby agrees to use its best
efforts to list the underlying Stock on the New York Stock
Exchange.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts. This Deposit Agreement may
be executed in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall
constitute one and the same instrument. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at
the Depositary's Corporate Trust Office and the respective offices
of the Depositary's Agents, if any, by any holder of a Receipt.
Section 7.2. Exclusive Benefits of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim to
any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any
one or more of the provisions contained in this Deposit Agreement
or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
Section 7.4. Notices. Any and all notices to be given
to the Company hereunder or under the Depositary Receipts shall be
in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telecopy confirmed by
letter, addressed to the Company at Tredegar Street, Richmond,
Virginia 23219, Attention: Secretary, or at any other place to
which the Company may have transferred its principal executive
office.
Any and all notice to be given to the Depositary
hereunder or under the Depositary Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail or by telecopy confirmed by letter, addressed to the
Depositary at its Corporate Trust Office.
Any and all notices given to a Record Holder of a
Receipt hereunder or under the Depositary Receipts shall be in
writing and shall be deemed to have been duly given if personally
delivered or sent by mail or by telecopy confirmed by letter,
addressed to such Record Holder at the address of such Record
Holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail or by telecopy shall
be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation, thereof in the case of a
telecopy message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon
any telecopy message received by it from the other or from any
holder of a Receipt, notwithstanding that such telecopy message
shall not subsequently be confirmed by letter or as aforesaid.
Section 7.5. Depositary's Agents. The Depositary may
from time to time appoint Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's
Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such
action.
Section 7.6. Holders of Receipts are Parties. The
holders of Receipts from time to time shall be deemed to be
parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
Section 7.7. Governing Law. The Deposit Agreement and
the Receipts and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Virginia.
Section 7.8. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as a part of this Deposit
Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, James River Corporation of Virginia
and Wachovia Bank of North Carolina, N.A. have duly executed this
Agreement as of the day and year first above set forth and all
holders of receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance
with the terms hereof.
JAMES RIVER CORPORATION OF VIRGINIA
Attest:__________________ By_________________________________
Authorized Officer
Assistant Secretary
WACHOVIA BANK OF NORTH CAROLINA,
N.A.
Attest:__________________ By_________________________________
Authorized Officer
Assistant Secretary
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A _____________
INTEREST IN A SHARE OF SERIES __ _______
PREFERRED STOCK
$_____ Par Value
OF
JAMES RIVER CORPORATION OF VIRGINIA
(Incorporated under the Laws of the Commonwealth of Virginia)
No. . . . . . . . . . . . Depositary Shares
(each Depositary Share representing
a _____________ interest in a share
of Series __ _____ Preferred Stock
($____ par value))
1. Wachovia Bank of North Carolina, N.A., a national
banking association with its principal office at the time of the
execution of the Deposit Agreement (as defined below) at Winston-
Salem, North Carolina, as Depositary (the "Depositary"), hereby
certifies that is the registered owner of ______
Depositary Shares ("Depositary Shares"), each Depositary Share
representing a _____________ (____) interest in a share of Series
__ _______ Preferred Stock, par value $________ per share (the
"Stock"), of James River Corporation of Virginia, a corporation
duly organized and existing under the laws of the Commonwealth of
Virginia (the "Company"). The rights, preferences and limitations
of the Stock are set forth in the Company's Amended and Restated
Articles of Incorporation (the "Articles of Incorporation"), as
amended by the Articles of Amendment adopted by the Company's
Board of Directors establishing the Stock as a series of preferred
stock of the Company (the "Articles of Amendment"), copies of
which are on file at the Depositary's Corporate Trust Office.
2. The Deposit Agreement. Depositary receipts (the
"Receipts"), of which this Receipt is one, are made available upon
the terms and conditions set forth in the Deposit Agreement, dated
as of _________ __, 199_ (the "Deposit Agreement"), among the
Company, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at
the Depositary's Corporate Trust Office) sets forth the rights of
holders of Receipts and the rights and duties of the Depositary in
respect of the Stock deposited, and any and all other property and
cash from time to time, thereunder. The statements made on the
face and the reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made.
Unless otherwise expressly herein provided, all defined terms used
herein shall have the meaning ascribed thereto in the Deposit
Agreement.
3. Optional Redemption of Stock for Cash. Whenever
the Company shall elect to redeem shares of Stock for cash
pursuant to the terms of the Stock, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary not
less than 60 days' notice of the date of such proposed redemption
of Stock and of the number of shares held by the Depositary to be
redeemed. The Depositary shall mail notice of such redemption and
the proposed simultaneous redemption of a corresponding number of
Depositary Shares from the proceeds of such redemption of Stock
not less than 30 and not more than 60 days prior to the date fixed
for redemption of such Stock and Depositary Shares to the holders
of record on the record date for such redemption (determined as
provided in Paragraph 14 below) of the Depositary Shares to be so
redeemed. In case less than all the outstanding Depositary Shares
are to be so redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata (as nearly as may be) or in
any other equitable manner determined by the Depositary. Notice
having been mailed as aforesaid, from and after the date set for
redemption (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it on such date), all dividends
in respect of the Stock so called for redemption shall cease to
accrue, the Depositary Shares so called for redemption shall be
deemed no longer to be outstanding, all rights of holders of
Depositary Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the extent of
such Depositary Shares, cease and terminate and, upon surrender in
accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if
the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at the redemption price therefor
specified in said notice, plus all money and other property, if
any, represented by such Depositary Shares, including all amounts
paid by the Company in respect of dividends which on the cash
redemption date have accrued on the shares of Stock to be so
redeemed and have not theretofore been paid. If less than all of
the Depositary Shares evidenced by this Receipt are called for
redemption, the Depositary will deliver to the holder of this
Receipt upon its surrender to the Depositary, together with the
redemption payment, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
The foregoing shall further be subject to the terms and conditions
of the Articles of Incorporation and Articles of Amendment.
4. Surrender of Receipts and Withdrawal of Stock.
Upon surrender of this Receipt to the Depositary at its Corporate
Trust Office, or at such other offices as it may designate, and
subject to the provisions of the Deposit Agreement (unless the
Depositary Shares evidenced hereby have been theretofore called
for redemption or exchange), the holder hereof is entitled to
withdraw, and to obtain delivery, to or upon the order of such
holder, of the Stock and all money and other property, if any, at
the time represented hereby; provided, however, that the holder
hereof is not entitled to withdraw less than a whole share of
Stock and therefore, this Receipt, alone or in the aggregate with
other Receipts, must evidence at least a whole share of Stock; and
provided further, that in the event this Receipt shall evidence a
number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole shares of Stock to be so
withdrawn, the Depositary shall, in addition to such number of
whole shares of Stock and the money and other property, if any, to
be so withdrawn, deliver, to or upon the order of such holder, a
new Receipt evidencing such excess number of Depositary Shares.
5. Transfers, Split-ups, Combinations. This Receipt
is transferable on the books of the Depositary upon surrender of
this Receipt to the Depositary, properly endorsed or accompanied
by a properly executed instrument of transfer, and upon such
transfer the Depositary shall sign and deliver a Receipt to or
upon the order of the person entitled thereto, as provided in the
Deposit Agreement. This Receipt may be split into other Receipts
or combined with other Receipts into one Receipt, evidencing the
same aggregate number of Depositary Shares as evidenced by the
Receipt or Receipts surrendered.
6. Conditions to Signing and Delivery, Transfer, etc.,
of Receipts. Prior to the execution and delivery, transfer,
split-up, combination, delivery for purposes of surrender or
exchange of this Receipt, the Depositary, or any of the
Depositary's Agents, or the Company, may require payment to it of
a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with
respect thereto (including any such tax or charge with respect to
Stock being deposited or withdrawn), may require proof
satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations,
if any, as it may establish pursuant to the Deposit Agreement.
Any person representing Stock for deposit, or any holder of this
Receipt, may be required to file such information, and to execute
such certificates, as the Depositary or the Company may reasonably
deem necessary or proper.
7. Suspension of Delivery, Transfer, etc. The deposit
of Stock, the delivery of this Receipt against Stock, the
transfer, split-up, combination, surrender or exchange of this
Receipt may be suspended (a) during any period when the register
of stockholders of the Company is closed, or (b) if any such
action is deemed necessary or advisable by the Depositary, any of
the Depositary's Agents or the Company at any time or from time to
time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the
Deposit Agreement or, with the approval of the Company, for any
other reason.
8. Payment of Taxes or Other Governmental Charges. If
any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to this Receipt or with
respect to the Depositary Shares evidenced hereby or with respect
to the Stock (or any fractional interest therein) represented by
such Depositary Shares, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder hereof,
subject to certain exceptions in the Deposit Agreement. Transfer
of this Receipt or any withdrawal of the Stock and all money and
other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused until such payment is
made, and any dividends, interest payments or other distributions
may be withheld, or any part or all of the Stock or other property
represented by the Depositary Shares evidenced by this Receipt and
not theretofore sold may be sold for the account of the holder
hereof, and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to
any payment of such tax or other governmental charge, the holder
of this Receipt remaining liable for any deficiency.
9. Amendment. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time
to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable. Any amendment which imposes any fees, taxes or charges
(other than fees and charges provided for herein), or which shall
otherwise prejudice any substantial existing right of holders of
Receipts, shall not become effective as to outstanding Receipts
until the expiration of 90 days after notice of such amendment
shall have been given to the Record Holders of outstanding
Receipts. The holder of this Receipt at the time any such
amendment so becomes effective shall be deemed, by continuing to
hold this Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event
shall any amendment impair the right, subject to the provisions of
Paragraphs 7 and 8 hereof and of Sections 2.6 and 2.7 and Article
III of the Deposit Agreement, of the owner of the Depositary
Shares evidenced by this Receipt to surrender this Receipt with
instructions to the Depositary to deliver to the holder the number
of whole shares of Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory
provisions of applicable law.
10. Charges of Depositary. The Company will pay all
transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements and all charges
of the Depositary in connection with the initial deposit of the
Stock and the initial issuance of the Receipts and any redemption
of the Stock at the option of the Company. Holders of Depositary
Shares will pay transfer and other taxes and governmental charges
and certain other charges as are provided in the Deposit Agreement
to be for their account.
11. Title to Receipts. It is a condition of this
Receipt, and every successive holder thereof by accepting or
holding the same consents and agrees, that title to this Receipt
(and to the Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a properly executed instrument of
transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until
this Receipt shall be transferred on the books of the Depositary
as provided in Section 2.4 of the Deposit Agreement, the
Depositary may, notwithstanding any notice to the contrary, treat
the Record Holder hereof at such time as the absolute owner hereof
for the purpose of determining the person entitled to distribution
of dividends or other distribution or to any notice provided for
in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the
Depositary receives any cash dividend or other cash distribution
on the Stock, the Depositary will, subject to the provisions of
the Deposit Agreement, make such distribution to the holders of
Receipts as nearly as practicable in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that the amount distributed will
be reduced by any amounts required to be withheld by the Company
or the Depositary on account of taxes. Other distributions
received on the Stock may be distributed to such holders of
Receipts as provided in the Deposit Agreement.
13. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer to the Record Holders of the
Stock any rights, preferences or privileges to subscribe for or to
purchase any securities of any other nature, such rights,
preferences or privileges shall in each such instance, subject to
the provisions of the Deposit Agreement, be made available by the
Depositary to the Record Holders of Receipts in such manner as the
Depositary may determine.
14. Fixing of Record Date. Whenever any cash dividend
or other cash distribution shall become payable or any
distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with
respect to the Stock, or whenever the Depositary shall receive
notice of (a) any meeting at which holders of Stock are entitled
to vote or of which holders of Stock are entitled to notice or (b)
any election on the part of the Company to redeem any shares of
Stock, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the
holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the
exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting, or whose Depositary Shares are
to be redeemed.
15. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable, mail to the Record
Holders of Receipts a notice which shall contain (a) such
information as is contained in such notice of meeting, and (b) a
statement that the holders of Receipts at the close of business on
a specified record date determined as provided in Paragraph 14
will be entitled, subject to any applicable provisions of law and
of the Articles of Incorporation or the Articles of Amendment, to
instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by the Depositary
Shares evidenced by their respective Receipts, and a brief
statement as to the manner in which such instructions may be
given. Upon the written request of a holder of a Receipt on such
record date the Depositary shall endeavor insofar as practicable
to vote or cause to be voted the amount of Stock represented by
the Depositary Shares evidenced by such Receipt in accordance with
the instructions set forth in such request. To the extent any
such instructions request the voting of a fraction of a share of
Stock, the Depositary shall aggregate such faction with all other
fractions resulting from requests with the same voting
instructions and shall vote the number of whole shares resulting
from such aggregation in accordance with the instructions received
in such requests. In the absence of specific written instructions
from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary
Shares evidenced by such Receipt.
16. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at its Corporate Trust Office and at such other places as
it may from time to time deem advisable any reports and
communications received from the Company which are received by the
Depositary as the holder of Stock and unless at the time of or
prior to the receipt the Company advises the Depositary that such
reports or communications have not been generally available to the
holders of Stock by the Company. The Depositary shall also send
to Record Holders of Receipts copies of such notices, reports and
other financial statements to the extent provided in the Deposit
Agreement when furnished by the Company. The Depositary shall
keep books for the transfer of Receipts, which at all reasonable
times will be open for inspection by the Record Holders of
Receipts, provided that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner
of Depositary Shares evidenced by the Receipts.
17. Liability of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any
Depositary's Agent nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any
present or future law or regulations of any governmental authority
or, in the case of the Depositary or the Depositary's Agent, by
reason of any provision, present or future, of the Articles of
Incorporation or Articles of Amendment or by reason of any act of
God or war or other circumstances beyond the control of the
relevant party, the Depositary, any Depositary's Agent or the
Company shall be prevented or forbidden from doing or performing
any act or thing which the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any
Depositary's Agent or the Company incur any liability to any
holder of a Receipt by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing which
the terms of the Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement.
18. Obligations of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any
Depositary's Agent nor the Company assumes any obligation or shall
be subject to any liability under the Deposit Agreement to holders
of Receipts other than that each of them agrees to use its best
judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor
the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of
Stock, Depositary Shares or Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor
the Company will be liable for any action or failure to act by it
in reliance on documents believed by it to be genuine or upon the
advice of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of a Receipt or
any other person believed by it in good faith to be competent to
give such advice or information.
19. Termination of Deposit Agreement. Whenever so
directed by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the Record
Holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any
time 60 days shall have expired after the Depositary shall have
delivered to the Company a notice of its election to resign and a
successor depositary shall not have been appointed and accepted
its appointment. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's
Agent and any Registrar with respect to indemnification, charges
and expenses.
If any Receipts remain outstanding after the date of
termination, the Depositary thereafter shall discontinue all
functions and be discharged from all obligations as provided in
the Deposit Agreement, except as specifically provided therein.
20. Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and provisions
thereof and hereof shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Virginia.
This Receipt shall not be entitled to any benefits under
the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed on behalf of the
Company by the manual or facsimile signature of a duly authorized
officer and executed manually or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by
facsimile by the Depositary by the signature of a duly authorized
representative and, if executed by facsimile signature of the
Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized representative.
The following abbreviations, when used in the
inscription on the face of this certificate, shall be construed as
though they were written out in full according to applicable laws
or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - a joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ___________ Custodian ________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act _________________
(State)
Dated:
WACHOVIA BANK OF NORTH CAROLINA, N.A.
Depositary and Registrar
By
Authorized Signature
JAMES RIVER CORPORATION OF VIRGINIA
By
Authorized Officer
(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto the within
Receipt and all rights and interests represented by the
Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints his attorney, to transfer the
same on the books of the within named Depositary, with full power
of substitution in the premises.
Dated: Signature:
NOTE: The above signature
should correspond exactly
with the name on the face
of this Receipt.
Signature Guarantee
Exhibit 5.1
April 14, 1994
James River Corporation
of Virginia
120 Tredegar Street
Richmond, Virginia 23219
James River Corporation of Virginia
(Registration Statement on Form S-3)
for Equity 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 shares of Preferred Stock, par value $10 per
share (the "Preferred Shares") and Depositary Receipts representing
Preferred Stock ("Depositary Receipts") on terms to be determined
at the time of sale. In addition to the Preferred Shares, the
Registration Statement also registers Common Stock of the Company,
par value $.10 per share (the "Conversion Shares") that may be
issued upon conversion of convertible Preferred Shares.
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:
1. When the issuance of the Preferred Shares has been
duly authorized by appropriate corporate action, including the
filing of Articles of Amendment to the Company's Articles of
Incorporation creating such Preferred Shares, and the Preferred
Shares have been duly issued and sold as described in the
Registration Statement, including the Prospectuses and Prospectus
Supplements relating to the Preferred Shares, the Preferred Shares
will be legally issued, fully paid and nonassessable; and
2. When the issuance of the Conversion Shares issuable
upon conversion of convertible Preferred Shares has been duly
authorized by appropriate corporate action and when the Conversion
Shares have been issued upon conversion of the Preferred Shares
pursuant to the Articles of Amendment creating such Preferred
Shares and as described in the Registration Statement, including
the Prospectuses and Prospectus Supplements relating to such
convertible Preferred Shares, the Conversion Shares will be legally
issued, fully paid and nonassessable.
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 "Legal
Opinions" 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 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
