SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
February 4, 1997
Date of Report (Date of earliest event reported)
THE MEAD CORPORATION
(Exact name of Registrant as specified in its charter)
Ohio 1-2267 31-0535759
(State of Commission (IRS Employer
Incorporation) File Identification
Number)
Mead World Headquarters, Courthouse Plaza, Northeast
Dayton, Ohio 45463
(Address of principal executive offices)
937-495-6323
(Registrant's telephone No.)
Not Applicable
(Former name or former address, if changed since last report)
ITEM I. CHANGES IN CONTROL OF REGISTRANT
Not applicable.
ITEM II. ACQUISITION OR DISPOSITION OF ASSETS
Not applicable.
ITEM III. BANKRUPTCY OR RECEIVERSHIP
Not applicable.
ITEM IV. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
ITEM V. OTHER EVENTS
On February 4, 1997, The Mead Corporation (the "Company")
entered into a Pricing Agreement, dated February 4, 1997, with
Goldman, Sachs & Co. and J.P. Morgan Securities Inc., which
incorporates the provisions of the Mead Corporation
Underwriting Agreement, dated February 4, 1997, in connection
with the proposed issuance and sale of the Company's 6.60%
Notes due March 1, 2002, 7.35% Debentures due March 1, 2017,
6.84% Debentures due March 1, 2037, 7.55% Debentures due March
1, 2047.
ITEM VI. RESIGNATIONS OF REGISTRANT'S DIRECTORS
Not applicable.
ITEM VII. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements:
Not applicable.
(b) Pro Forma Financial Information:
Not applicable.
(c) Exhibits:
1.1(a) The Mead Corporation Underwriting
Agreement, dated February 4, 1997.
1.1(b) Pricing Agreement, dated February 4,
1997, between The Mead Corporation and
Goldman, Sachs & Co. and J.P. Morgan
Securities Inc.
5(a) Opinion of David L. Santez, Assistant
Secretary and Associate General Counsel.
5(b) Opinion of Skadden, Arps, Slate, Meagher & Flom
LLP, special counsel to the Registrant.
ITEM VIII. CHANGES IN FISCAL YEAR
Not applicable.
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
The Mead Corporation
(Registrant)
Date: February 6, 1997 /s/ David L. Santez
Dayton, Ohio David L. Santez, Esq.
Assistant Secretary and
Associate General Counsel
EXHIBIT INDEX
Page
1.1(a) The Mead Corporation Underwriting Agree-
ment, dated February 4, 1997.
1.1(b) Pricing Agreement, dated February 4,
1997, between The Mead Corporation and
Goldman, Sachs & Co. and J.P. Morgan Securities
Inc.
5(a) Opinion of David L. Santez, Assistant
Secretary and Associate General Counsel.
5(b) Opinion of Skadden, Arps, Slate, Meagher
& Flom LLP, special counsel to the Registrant.
Exhibit 1.1(a)
THE MEAD CORPORATION
Debt Securities
Underwriting Agreement
February 4, 1997
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time The Mead Corporation, an Ohio corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities"), less the
principal amount of Designated Securities covered by Delayed Delivery
Contracts, if any, as provided in Section 3 hereof and as may be specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, any Designated Securities to be covered by Delayed Delivery
Contracts are herein sometimes referred to as "Contract Securities" and the
Designated Securities to be purchased by the Underwriters (after giving
effect to the deduction, if any, for Contract Securities) are herein
sometimes referred to as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of
the Company to issue and sell any of the Securities and the obligation of
any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and whether any
of such Designated Securities shall be covered by Delayed Delivery
Contracts (as defined in Section 3 hereof) and shall set forth the date,
time and manner of delivery of such Designated Securities and payment
therefor. The Pricing Agreement shall also specify (to the extent not set
forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) Three registration statements on Form S-3 (File No.
333-16135, 33-51337 and 33-43994) in respect of the Securities have
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statements and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statements, but including all documents incorporated by
reference in the prospectus contained in the latest registration
statement, to the Representatives for each of the other Underwriters,
have been declared effective by the Commission in such form; no other
document with respect to such registration statements or document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to
the Representatives (other than pricing supplements relating to the
issuance of medium-term notes)); and no stop order suspending the
effectiveness of any such registration statements has been issued and
no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the latest
registration statement or filed with the Commission pursuant to Rule
424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"); the various parts of the latest registration statement,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in such registration statement
at the time such part of such registration statement became
effective, but excluding the two Form T-1s filed as an exhibit to the
latest registration statement, each as amended at the time such part
of such registration statement became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Sections 13(a) or
15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder, and the Registration Statement and any
further amendment thereto and the Prospectus do not and will not, as
of the effective date of the Registration Statement and any further
amendment thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus and any further amendment or supplement thereto, as of its
date, does not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries or Material
Affiliates (as hereinafter defined) has sustained since the date of
the latest audited financial statements of the Company included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any incurrence by
the Company or its subsidiaries or its Material Affiliates of any
material liabilities or obligations, direct or contingent, any
material change in the capital stock or long-term debt of the Company
or any of its subsidiaries or Material Affiliates or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries as a whole or any of its Material
Affiliates, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Ohio, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and the Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which the conduct of its business or the
ownership of its property requires such qualification;
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable, and all of the issued shares of
capital stock of each subsidiary and the capital stock of each
Material Affiliate owned by the Company have been duly and validly
authorized and issued and are fully paid and non-assessable, and
(except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims other than agreements relating to joint venture
companies;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered against payment
therefor pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities and, in the case of any
Contract Securities pursuant to Delayed Delivery Contracts with
respect to such Contract Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered and will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles, and entitled to the benefits
provided by the Indenture under which such Designated Securities are
issued, which will be substantially in the form filed as an exhibit
to the Registration Statement (the "Indenture"); the Indenture has
been duly authorized and qualified under the Trust Indenture Act and,
at the Time of Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a valid and binding
instrument of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the Designated Securities
will conform, to the descriptions thereof contained in the Prospectus
as amended or supplemented with respect to such Designated
Securities;
(h) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture, each of the Delayed Delivery Contracts, this Agreement and
any Pricing Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any
of its subsidiaries or Material Affiliates pursuant to the terms of,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries or Material Affiliates is a party or by which the
Company or any of its subsidiaries or Material Affiliates is bound or
to which any of the property or assets of the Company or any of its
subsidiaries or Material Affiliates is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or Regulations of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
Material Affiliates or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or any
Pricing Agreement, the Indenture or any Delayed Delivery Contract,
except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws or under
the laws of foreign jurisdictions in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts
has been duly authorized by the Company and, when executed and
delivered by the Company and the purchaser named therein, will
constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and any Delayed Delivery Contracts conform
to the description thereof in the Prospectus;
(j) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent
public accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(k) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries or Material Affiliates
is a party or of which any property of the Company or any of its
subsidiaries or Material Affiliates is the subject required to be
described in the Registration Statement or the Prospectus which is
not described as required; the legal or governmental proceedings not
so described are proceedings incident to the kind of business
conducted by the Company and its subsidiaries and Material Affiliates
which will not individually or in the aggregate have a material
adverse effect on the financial position, shareholders' equity or
results of operations of the Company and its subsidiaries as a whole
or of any of its Material Affiliates; and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
there is no material contract or other material document of a
character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required.
As used in this Agreement (i) the term "Material Affiliate" means
each of the following corporations: Northwood Forest Industries Ltd.
and Northwood Panelboard Company and (ii) the term "subsidiary" means
Escanaba Paper Company, Forest Kraft Company, M-B Pulp Company, MCB
Woodlands and Services, Inc., Mead Coated Board, Inc., Mead Foreign
Holdings, Inc., Mead Holdings S.A. and Mead Packaging International,
Inc.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Underwriters' Securities, the several Underwriters propose
to offer such Underwriters' Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are
authorized to solicit offers to purchase Designated Securities from the
Company pursuant to delayed delivery contracts (herein called "Delayed
Delivery Contracts"), substantially in the form of Annex III attached
hereto but with such changes therein as the Representatives and the Company
may authorize or approve. If so specified, the Underwriters will endeavor
to make such arrangements, and as compensation therefor the Company will
pay to the Representatives, for the accounts of the Underwriters, at the
Time of Delivery (as defined in Section 4 hereof), such commission, if any,
as may be set forth in such Pricing Agreement. Delayed Delivery Contracts,
if any, are to be with investors of the types described in the Prospectus
and subject to other conditions therein set forth. The Underwriters will
not have any responsibility with respect to the validity or performance of
any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each
Underwriter as set forth in Schedule I to the Pricing Agreement applicable
to such Designated Securities shall be, in each case, the principal amount
of Contract Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if
the Company has not been so advised, the amount of Contract Securities to
be so deducted shall be, in each case, that proportion of Contract
Securities which the principal amount of Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set
forth in Schedule I to such Pricing Agreement less the principal amount of
the Contract Securities. The Company will deliver to the Representatives
not later than 3:30 p.m., New York City time, on the third business day
preceding the Time of Delivery specified in the applicable Pricing
Agreement (or such other time and date as the Representatives and the
Company may agree upon in writing), a written notice setting forth the
principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified
in such Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer or certified or official bank
check or checks, payable to the order of the Company in same-day funds, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives
and the Company may agree upon in writing, such time and date being herein
called the "Time of Delivery" for such Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the
accounts of the Underwriters a check payable to the order of the party
designated in the Pricing Agreement relating to such Securities in the
amount of any compensation payable by the Company to the Underwriters in
respect of any Delayed Delivery Contracts as provided in Section 3 hereof
and the Pricing Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and
delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities
which shall be reasonably disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; as long as a
prospectus is required to be delivered in connection with
transactions in Designated Securities, to advise the Representatives
promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order
or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to service of process, other than service of process
arising out of the offer or sale of such Designated Securities, in
any jurisdiction where it is not now so subject;
(c) Prior to 3:00 p.m., New York City time, on the New York
Business Day next succeeding the date of any Pricing Agreement and
from time to time for as long as delivery of a prospectus is required
in connection with transactions in Designated Securities to furnish
the Underwriters with copies of the Prospectus in New York City as
amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required
at any time in connection with the offering or sale of the Securities
and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to
such Designated Securities, without the prior written consent of the
Representatives; and
(f) So long as any of such Designated Securities are outstanding,
the Company will furnish to the Representatives (i) as soon as
available, a copy of each report of the Company mailed to
shareholders or filed with the Commission and (ii) from time to time
such other information concerning the Company as the Representatives
may reasonably request.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing
or producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Delayed Delivery Contracts, any Blue Sky and
Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase,
sale and delivery of the Securities; (iii) all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment
Surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements
of counsel for the Underwriters in connection with, any required review by
the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; (viii) the fees and expenses in connection
with any listing of the Designated Securities and registration of the
Designated Securities under the Exchange Act and (ix) all other costs and
expenses incident to the performance of its obligations hereunder and under
any Delayed Delivery Contracts which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that
all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Company
shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Company, the
validity of the Designated Securities being delivered at such Time of
Delivery, the Registration Statement, the Prospectus and such related
matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) Counsel for the Company satisfactory to the Representatives
(it being understood that David L. Santez, Assistant General Counsel,
by virtue thereof, shall be deemed to be reasonably satisfactory to
the Representatives) shall have furnished to the Representatives
their written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) To the best of such counsel's knowledge there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject
required to be described in the Registration Statement or the
Prospectus which is not described as required; the legal or
governmental proceedings not so described are proceedings
incident to the kind of business conducted by the Company and
its subsidiaries which individually and in the aggregate are not
material to the Company and its subsidiaries, taken as a whole,
and to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others (such counsel being entitled to rely, in
respect of the opinion in this clause relating to subsidiaries,
upon opinions of other legal counsel, it being understood that
such counsel has made no independent check of such proceedings
but believes that both you and such counsel are justified in
relying upon such opinions and that, with respect to proceedings
that are threatened or contemplated, counsel's opinion will be
limited to matters of which they have actual knowledge);
(iii) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed
and delivered by the Company;
(iv) The issuance and sale of the Designated Securities have
been duly authorized by the Company; the Underwriters'
Securities have been duly executed, issued and delivered by the
Company and when authenticated in accordance with the terms of
the Indenture and paid for by the Underwriters in accordance
with the terms of this Agreement, will be valid and binding
obligations of the Company enforceable in accordance with their
terms and entitled to the benefits of the Indenture, except (a)
to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (b) that
such counsel expresses no opinion as to Section 515 of the
Indenture; the Contract Securities, if any, when executed,
authenticated, issued and delivered in accordance with the terms
of the Indenture and delivered and paid for in accordance with
the terms of the Delayed Delivery Contracts, if any, will be
valid and binding obligations of the Company and entitled to the
benefits provided by the Indenture, enforceable against the
Company in accordance with their terms, except (a) to the extent
that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) that such counsel
expresses no opinion as to Section 515 of the Indenture;
(v) The Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with
its terms, except (a) to the extent that enforcement thereof may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity) and (b) that such counsel expresses no opinion as to
Section 515 of the Indenture; and the Indenture has been
qualified under the Trust Indenture Act;
(vi) The issuance and sale of the Designated Securities and
the compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, each of the Delayed
Delivery Contracts, if any, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company is a party or by
which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the Articles of Incorporation or
Regulations of the Company or any statute 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 subsidiaries or any of their properties, except that counsel
expresses no opinion with respect to the State securities or
Blue Sky laws or with respects to the rights to indemnity and
contribution under the Underwriting Agreement (such counsel
being entitled to rely in respect of the opinion in this
paragraph relating to subsidiaries upon opinions of other legal
counsel provided that such counsel shall state that both you and
such counsel are justified in relying upon such opinions);
(vii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the Company
of the transactions contemplated by this Agreement or such
Pricing Agreement or the Indenture, or any of such Delayed
Delivery Contracts except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws or under the
laws of foreign jurisdictions in connection with the purchase
and distribution of the Designated Securities by the
Underwriters;
(viii) The statements set forth in the Prospectus under the
caption "Description of Securities" and under the caption
"Description of Designated Securities" (or comparable caption)
in the Prospectus as amended or supplemented in respect of the
Designated Securities, insofar as they purport to summarize
certain provisions of the laws and documents referred to
therein, fairly summarize such provisions in all material
respects (except as to summaries of laws or proposed laws
concerning changes in federal tax laws, as to which such counsel
expresses no opinion or belief);
(ix) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contract has been duly authorized, executed and
delivered by the Company and, assuming such Delayed Delivery
Contract has been duly executed and delivered by the purchaser
named therein, constitutes a valid and binding agreement of the
Company enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity); and each Delayed Delivery Contract conforms to the
description thereof in the Prospectus as amended or
supplemented;
(x) The documents incorporated by reference in the
Prospectus as amended or supplemented, when they were filed with
the Commission appeared on their face to be appropriately
responsive in all material respects to the requirements of the
Exchange Act and the rules and regulations thereunder, except
that such counsel expresses no opinion as to the financial
statements, related schedules and other financial data, and such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
documents incorporated by reference in the Prospectus as amended
or supplemented; and
(xi) The Registration Statement, as of its effective date,
and the Prospectus as amended or supplemented, as of its date,
and any further amendments and supplements thereto made by the
Company prior to the Time of Delivery for the Designated
Securities, appeared on their face to be appropriately
responsive in all material respects to the requirements of the
Act and the Trust Indenture Act and the rules and regulations
thereunder, except that in each case, such counsel expresses no
opinion as to the financial statements, schedules and other
financial data, and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the
Prospectus, except for those referred to in the opinion in
paragraph (viii) and the last clause of paragraph (ix) of this
Section 7(c);
In addition, such counsel shall state that, although they
are not passing upon and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and
have made no independent check or verification thereof, except
for those referred to in the opinion in paragraph (viii) and the
last clause of paragraph (ix) of this Section 7(c), no facts
have come to their attention that have led them to believe that
the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its
date and the Time of Delivery, the Prospectus as amended or
supplemented, or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading, except that such counsel
expresses no opinion or belief with respect to the financial
statements, schedules and other financial data; and such counsel
does not know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
described as required.
In rendering such opinion, (A) such counsel may state that
such opinion is limited solely to the laws of the State of Ohio
as applied by courts located in Ohio, the laws of the State of
New York with respect to the opinions in paragraphs (iii), (iv),
(v) and (ix) and the federal laws of the United States and (B)
such counsel may rely, as to all matters of law of the State of
New York, on an opinion of local counsel;
(d) Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the
Company, shall have furnished to the Representatives their written
opinion, dated on the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the
Representatives, to the effect of paragraphs (iii), (iv), (v), (viii)
(including summaries of laws or proposed laws concerning changes in
the federal tax laws), (ix) and (xi) (including the last paragraph
thereof, but excluding the last clause of such paragraph) of
paragraph (c); in rendering such opinion, (A) Skadden, Arps, Slate,
Meagher & Flom may state that such opinion is limited solely to the
laws of the State of New York as applied by courts located in New
York and the federal laws of the United States and (B) such counsel
shall be entitled to make certain assumptions with respect to matters
of Ohio law opined upon by Ohio counsel with respect to the opinions
in paragraphs (iii), (iv), (v) and (ix);
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of
Delivery for such Designated Securities, the independent accountants
of the Company who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the
Registration Statement or the date of the most recent report filed
with the Commission containing financial statements and incorporated
by reference in the Registration Statement, if the date of such
report is later than such effective date, and a letter dated such
Time of Delivery, respectively, to the effect set forth in Annex II
hereto, and with respect to such letter dated such Time of Delivery,
as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives
(the executed copy of the letter delivered prior to the execution of
this Agreement is attached as Annex I(a) hereto and a draft of the
form of letter to be delivered on the effective date or any
post-effective amendment to the Registration Statement and as of each
Time of Delivery is attached as Annex I(b) hereto);
(f) (i) Neither the Company nor any of its subsidiaries or
Material Affiliates shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities any loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to
the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented
prior to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any incurrence by the Company or
its subsidiaries or its Material Affiliates of any material
liabilities or obligations, direct or contingent, any material change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the
Pricing Agreement relating to the Designated Securities, the effect
of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Underwriters' Securities on the terms and in the
manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred stock by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New
York State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, or other international
or domestic calamity, crisis or change in political, financial or
economic conditions, if the effect of any such event specified in
this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Underwriters' Securities on the terms and in the
manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities; and
(i) The Company (i) shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of the Pricing
Agreement;
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of
such Time of Delivery, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities (but only if such other prospectus
was approved in writing by the Company), or any amendment 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 will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall 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 an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus approved in writing by the Company relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities; and provided, further, that the Company shall not be liable to
any Underwriter under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus or preliminary prospectus supplement
to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold Securities to
a person as to whom it shall be established that there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required by
the Act if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission
of a material fact contained in the Preliminary Prospectus or preliminary
prospectus supplement which was identified in writing prior to the date of
the Pricing Agreement to such Underwriter and corrected in the Prospectus
(excluding documents incorporated by reference) or in the Prospectus as
then amended or supplemented (excluding documents incorporated by
reference).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; provided that,
where the omission so to notify the indemnifying party shall have
prejudiced such party in any material respect, such party shall be relieved
from any liability which it may have to any indemnified party under such
subsection (a) or (b). In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
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 such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement relating to such Underwriters' Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Underwriters' Securities on the
terms contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such
Underwriters' Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Underwriters' Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of
such Underwriters' Securities, the Representatives or the Company shall
have the right to postpone the Time of Delivery for such Underwriters'
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Underwriters' Securities which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the principal amount
of Underwriters' Securities which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Securities and, in
addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the principal amount of Designated Securities which
such Underwriter agreed to purchase under such Pricing Agreement) of the
Underwriters' Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Underwriters' Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Underwriters' Securities of
a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Designated Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements
in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such
Pricing Agreement except as provided in Sections 6 and 8 hereof; but, if
for any other reason Underwriters' Securities are not delivered by or on
behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided
in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters,
and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made
or given by such Representatives jointly or by such of the Representatives,
if any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any
of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and for each of the Representatives
plus one for each counsel counterparts hereof.
Very truly yours,
THE MEAD CORPORATION
By: /s/William S. Graber
Name: William S. Graber
Title: Vice President and Chief
Financial Officer
ANNEX I
Pricing Agreement
Goldman, Sachs & Co.,
J.P. Morgan Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
February __, 1997
Ladies and Gentlemen:
The Mead Corporation, an Ohio corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated February __, 1997 (the "Underwriting Agreement"), to issue
and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus as
amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated
by reference shall be deemed to refer to you. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the
address of the Representatives referred to in such Section 12 are set forth
at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the
principal amount of Designated Securities covered by Delayed Delivery
Contracts, if any, as may be specified in Schedule II.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and each of the Representatives plus
one for each counsel counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of
the Underwriters and the Company. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form
of which shall be submitted to the Company for examination upon request,
but without warranty on the part of the Representatives as to the authority
of the signers thereof.
Very truly yours,
The Mead Corporation
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
By:________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
Goldman, Sachs & Co. $
J.P. Morgan Securities Inc.
[Names of other Underwriters]
Total $
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus
accrued interest from
to [and accrued amortization[, if any,]
from to ]
Form of Designated Securities:
[Definitive form to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery at the office of
[The Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
Specified funds for payment of purchase price:
[New York] Clearing House (next day) funds
Time of Delivery:
a.m. (New York City time), , 19
Indenture:
Indenture dated , 19 , between the Company
and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 19..]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part, at the option of the Company, in
the amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning ,
Redemption
Year Price
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities
on in each of the years through
at 100% of their principal amount plus accrued interest[,
together with [cumulative] [noncumulative] redemptions at the option
of the Company to retire an additional [$ ] principal amount of
Designated Securities in the years through at 100% of their
principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
Extendable provisions:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on , and to
a rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert date
15 days prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through [and thereafter
will be adjusted [monthly] [on each , , and ] [to an
nnual rate of % above the average rate for -year [month][securities]
[certificates of deposit] issued by and [insert names
of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly average
per annum market discount rate for -month Treasury bills plus % of
Interest Differential (the excess, if any, of (i) the then current weekly
average per annum secondary market yield for -month certificates of
deposit over (ii) the then current interest yield equivalent of the
weekly average per annum market discount rate for -month Treasury
bills); [from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
Defeasance provisions:
Closing location for delivery of Designated Securities:
Delayed Delivery:
[none] [Underwriters' commission shall be ...% of the principal amount
of Designated Securities for which Delayed Delivery Contracts have
been entered into. Such commission shall be payable to the order of
...]
Additional Closing Conditions:
Paragraph 7(g) of the Underwriting Agreement should be modified in the
event that the Securities are denominated in, indexed to, or principal
or interest are paid in, a currency other than the U.S. dollar, more
than one currency or in a composite currency. The country or countries
issuing such currency should be added to the banking moratorium and
hostilities clauses and the following additional clause should be
added to the paragraph (the entire paragraph should be restated, as
amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing
such currency, currencies or composite currency]".
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]* :
- --------
* A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Designated
Securities should be set forth, or referenced to an attached and
accompanying description, if necessary, to ensure agreement as to the terms
of the Designated Securities to be purchased and sold. Such a description
might appropriately be in the form in which such features will be described
in the Prospectus Supplement for the offering.
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements of the Company for
the periods specified in such letter;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus;
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest
available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments, if any, have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net sales, gross profit,
earnings from operations, earnings from continuing operations or
the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit
in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the
letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
ANNEX III
DELAYED DELIVERY CONTRACT
The Mead Corporation,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Attention: ..................... ..............,
19..
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from The Mead Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$.........
principal amount of the Company's [Title of Designated Securities]
(hereinafter called the "Designated Securities"), offered by the Company's
Prospectus, dated .............., 19.., as amended or supplemented, receipt
of a copy of which is hereby acknowledged, at a purchase price of .....% of
the principal amount thereof, plus accrued interest from the date from
which interest accrues as set forth below, and on the further terms and
conditions set forth below.
The undersigned will purchase the Designated Securities from the
Company on .............., 19.. (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from .............., 19...
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or
amounts set forth below:
Principal Date from Which
Delivery Date Amount Interest Accrues
------------- ------ ----------------
...................19.. $............. ....................., 19..
...................19.. $............. ....................., 19..
Each such date on which Designated Securities are to be purchased hereunder
is hereinafter referred to as a "Delivery Date."]
Payment for the Designated Securities which the undersigned has
agreed to purchase on [the] [each] Delivery Date shall be made to the
Company or its order by certified or official bank check in Federal (same
day) Clearing House funds at the office of .........., .........,
.........., or by wire transfer to a bank account specified by the Company,
on [the] [such] Delivery Date upon delivery to the undersigned of the
Designated Securities then to be purchased by the undersigned in definitive
fully registered form and in such denominations and registered in such
names as the undersigned may designate by written, telex or facsimile
communication addressed to the Company not less than five full business
days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [the] [each] Delivery Date shall be
subject to the condition that the purchase of Designated Securities to be
made by the undersigned shall not on [the] [such] Delivery Date be
prohibited under the laws of the jurisdiction to which the undersigned is
subject. The obligation of the undersigned to take delivery of and make
payment for Designated Securities shall not be affected by the failure of
any purchaser to take delivery of and make payment for Designated
Securities pursuant to other contracts similar to this contract.
[The undersigned understands that Underwriters (the "Underwriters")
are also purchasing Designated Securities from the Company, but that the
obligations of the Undersigned hereunder are not contingent on such
purchases]. Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the Opinion of
Counsel for the Company delivered to the Underwriters in connection
therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
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.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole
discretion and that, without limiting the foregoing, acceptances of such
contracts need not be on a first-come, first-served basis. If this contract
is acceptable to the Company, it is requested that the Company sign the
form of acceptance 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 when such
counterpart is so mailed or delivered by the Company.
Yours very truly,
.................................
By: .............................
(Authorized Signature)
Name:
Title:
.................................
(Address)
Accepted: ....................., 19..
The Mead Corporation
By: ................................
Name:
Title:
EXHIBIT 1.1(b)
Pricing Agreement
Goldman, Sachs & Co.,
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
February 4, 1997
Ladies and Gentlemen:
The Mead Corporation, an Ohio corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated February 4, 1997 (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall
be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement
in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant
to Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto, less the principal amount of Designated Securities
covered by Delayed Delivery Contracts, if any, as may be specified in
Schedule II.
If the foregoing is in accordance with your understanding, please
sign and return to us five (5) counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company.
Very truly yours,
The Mead Corporation
By: /s/ William Graber
Name: William Graber
Title: Vice President and
Chief Financial
Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
By: /s/ David A. Olsen
Name: David A. Olsen
Title: Vice President
SCHEDULE I
Principal Principal Principal
Principal Amount of Amount of Amount of
Amount Debentures Debentures Debentures
Underwriter of Notes due 2017 due 2037 due 2047
----------- --------- ---------- ---------- ----------
Goldman, Sachs & Co. . . $ 50,000,000 75,000,000 75,000,000 75,000,000
J.P. Morgan
Securities Inc.. . . . 50,000,000 75,000,000 75,000,000 75,000,000
----------- ---------- ---------- -----------
Total . . . . . $100,000,000 $150,000,000 $150,000,000 $150,000,000
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
6.60% Notes due March 1, 2002
7.35% Debentures due March 1, 2017
6.84% Debentures due March 1, 2037
7.55% Debentures due March 1, 2047
AGGREGATE PRINCIPAL AMOUNT:
$100,000,000
6.60% Notes due March 1, 2002
$150,000,000
7.35% Debentures due March 1, 2017
$150,000,000
6.84% Debentures due March 1, 2037
$150,000,000
7.55% Debentures due March 1, 2047
PRICE TO PUBLIC:
100% of the principal amount of the 6.60% Notes due March 1, 2002
99.888% of the principal amount of the 7.35% Debentures due March 1, 2017
99.986% of the principal amount of the 6.84% Debentures due March 1, 2037
99.605% of the principal amount of the 7.55% Debentures due March 1, 2047,
plus in each case accrued interest, if any, from February 7, 1997.
PURCHASE PRICE BY UNDERWRITERS:
99.40% of the principal amount of the 6.60% Notes due March 1, 2002
99.013% of the principal amount of the 7.35% Debentures due March 1, 2017
99.336% of the principal amount of the 6.84% Debentures due March 1, 2037
98.605% of the principal amount of the 7.55% Debentures due March 1, 2047,
plus in each case accrued interest, if any, from February 7, 1997.
FORM OF DESIGNATED SECURITIES:
Each series of Designated Securities will be in book-entry only form
represented by one or more global securities deposited with The
Depository Trust Company ("DTC") or its designated custodian, to be made
available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
By wire transfer in same-day funds.
TIME OF DELIVERY:
10 a.m. (New York City time), February 7, 1997.
INDENTURE:
Indenture dated February 1, 1993, between the Company and The First
National Bank of Chicago, as Trustee.
MATURITY:
6.60% Notes due 2002 - March 1, 2002
7.35% Debentures due 2017 - March 1, 2017
6.84% Debentures due 2037 - March 1, 2037
7.55% Debentures due 2047 - March 1, 2047
INTEREST RATE:
6.60% per annum on the 6.60% Notes due March 1, 2002
7.35% per annum on the 7.35% Debentures due March 1, 2017
6.84% per annum on the 6.84% Debentures due March 1, 2037
7.55% per annum on the 7.55% Debentures due March 1, 2047,
from, and including, in each case, February 7.
INTEREST PAYMENT DATES:
Interest payments on each series of Designated Securities shall be made
on March 1 and September 1, commencing September 1, 1997.
REDEMPTION PROVISIONS:
The Designated Securities are not redeemable at the option of the
Company.
SINKING FUND PROVISIONS:
The Designated Securities are not entitled to the benefits of a sinking
fund.
REPAYMENT PROVISIONS:
The 6.84% Debentures due March 1, 2037 are repayable on March 1, 2007, at
the option of the holder, as a whole or in part, at 100% of the principal
amount to be repaid thereof, together with accrued and unpaid interest to
the date of such repayment. In order for the holders to exercise this
option, the Company must receive at its office or agency in New York, New
York, during the period beginning on January 1, 2007 and ending at 5:00
p.m. (New York City time) on February 1, 2007 (or, if February 1, 2007 is
not a Business Day, the next succeeding Business Day), the 6.84%
Debentures due March 1, 2037 to be repaid with the form entitled "Option
to Elect Repayment on March 1, 2007" on the reverse of such Debentures
duly completed. Any such notice received by the Company during the period
beginning on January 1, 2007 and ending at 5:00 p.m. (New York City Time)
on February 1, 2007 will be irrevocable. The repayment option may be
exercised by a holder of the 6.84% Debentures due March 1, 2037 for less
than the entire principal amount of such Debentures held by such holder,
so long as the principal amount to be repaid is equal to $1,000 or an
integral multiple of $1,000.
CONDITIONAL RIGHT TO SHORTEN MATURITY:
Upon the occurrence of a Tax Event, as defined below, the Company, at its
option, will have the right to shorten the maturity of the 7.55%
Debentures due March 1, 2047 to the longest maturity within the original
maturity date that, in the opinion of a nationally recognized independent
tax counsel, would permit the Company, after such shortening of the
maturity, to continue to deduct the interest paid on the 7.55% Debentures
due March 1, 2047 for Federal income tax purposes. In the event that the
Company elects to exercise its rights to shorten the maturity of the
7.55% Debentures due March 1, 2047 on the occurrence of a Tax Event, the
Company will mail a notice of shortened maturity to each holder of record
of the 7.55% Debentures due March 1, 2047 by first-class mail not more
than 60 days after the occurrence of such Tax Event, stating the new
maturity date of the 7.55% Debentures due March 1, 2047. Such notice
shall be effective immediately upon mailing. "Tax Event" means that the
Company shall have received an opinion of a nationally recognized
independent tax counsel to the effect that on or after the date of the
issuance of the 7.55% Debentures due March 1, 2047, as a result of (a)
any amendment to, clarification of, or change (including any announced
prospective change) in laws, or any regulations thereunder, of the United
States, (b) any judicial decision, official administrative pronouncement,
ruling, regulatory procedure, notice or announcement, including any
notice or announcement of intent to adopt such procedures or regulations
(an "Administrative Action"), or (c) any amendment to, clarification of,
or change in the official position or the interpretation of such
Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, on or after, the
date of the issuance of the 7.55% Debentures due March 1, 2047, such
change in tax law creates a more than insubstantial risk that interest
paid by the Company on the 7.55% Debentures due March 1, 2047 is not, or
will not be, deductible, in whole or in part, by the Company for purposes
of United States Federal income tax.
DEFEASANCE PROVISIONS:
The provisions described under the caption "Description of Securities -
Defeasance and Covenant Defeasance" in the Prospectus, dated January 22,
1997, will apply to the Designated Securities.
EVENTS OF DEFAULT:
The Designated Securities will be subject to the "Events of Default" set
forth in the Indenture, except that, with respect to an Event of Default
(as defined in the Indenture) resulting from a default by the Company in
the payment of any indebtedness for borrowed money as set forth in
Section 501(5) of the Indenture, such default will constitute an Event of
Default only if the outstanding principal amount of such indebtedness at
the time of such default is equal to or in excess of $25,000,000.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Sullivan & Cromwell,
125 Broad Street,
New York, New York 10004.
DELAYED DELIVERY CONTRACTS:
None
ADDITIONAL CLOSING CONDITIONS:
None
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Address for Notices, etc.: c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Exhibit 5(a)
February 4, 1997
The Mead Corporation
Mead World Headquarters
Courthouse Plaza Northeast
Dayton, Ohio 45463
Re: The Mead Corporation $100,000,000 6.60% Notes
due March 1, 2002, $150,000,000 7.35%
Debentures due March 1, 2017, $150,000,000
6.84% Debentures due March 1, 2037, and
$150,000,000 7.55% Debentures due March 1, 2047
Ladies and Gentlemen:
I am Assistant Secretary and Associate General
Counsel of The Mead Corporation, an Ohio corporation (the
"Company"), and, as such, I have acted as counsel to the
Company in connection with the Pricing Agreement, dated
February 4, 1997 (the "Pricing Agreement"), between Goldman,
Sachs & Co. and J.P. Morgan Securities Inc. (the
"Underwriters") and the Company, which Pricing Agreement
incorporates in its entirety all the provisions of The Mead
Corporation Underwriting Agreement, dated February 4, 1997
(the "Basic Provisions Agreement" and, together with the
Pricing Agreement, the "Underwriting Agreement"), relating
to the sale by the Company of $100,000,000 aggregate
principal amount of the Company's 6.60% Notes due March 1,
2002, $150,000,000 aggregate principal amount of the
Company's 7.35% Debentures due March 1, 2017, $150,000,000
aggregate principal amount of the Company's 6.84% Debentures
due March 1, 2037 and $150,000,000 aggregate principal amount
of the Company's 7.55% Debentures due March 1, 2047
(collectively, the "Securities"). The Securities are
to be issued under the Indenture, dated as of February 1,
1993, between the Company and The First National Bank of
Chicago as trustee (the "Trustee"), and as supplemented by
the officer's certificate, dated February 4, 1997 (the
"Officer's Certificate"), establishing the terms of each
series of Securities (such Indenture, as so supplemented,
being hereinafter referred to as the "Indenture").
This opinion is delivered in accordance with the
requirements of Items 601(b)(5) of Regulation S-K under the
Securities Act of 1933, as amended (the "Act").
In connection with this opinion, I have examined
originals or copies, certified or otherwise identified to my
satisfaction, of (i) the registration statement on Form S-3
(File No. 333-16135) relating to up to $850,000,000 aggregate
principal amount of debt securities filed with the Securities
and Exchange Commission (the "Commission") on November 14,
1996 under the Act, and Amendment No. 1 thereto filed on
January 10, 1997 (such registration statement, as so amended,
being hereinafter referred to as the "Registration
Statement"), in accordance with procedures of the Commission
permitting a delayed or continuous offering of securities
pursuant to the Registration Statement, the prospectus
included therein and subsequent prospectus supplements which
are to provide information relating to the terms of the
securities which may be offered and sold pursuant to the
Registration Statement and the manner of their distribution;
(ii) the Preliminary Prospectus Supplement, dated January 27,
1997, the Prospectus dated January 22, 1997 and the
Prospectus Supplement relating to the Securities, dated
February 4, 1997, in the respective forms thereof filed with
the Commission pursuant to Rule 424(b) of the General Rules
and Regulations under the Act (the "Rules and Regulations");
(iii) the Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, on Form T-1 of the Trustee; (iv) the
documents incorporated by reference in the Prospectus to the
date of the Prospectus Supplement; (v) an executed copy of
the Indenture; (vi) the forms of the Securities and specimen
certificates thereof; (vii) an executed copy of the
Underwriting Agreement; (viii) the Articles of Incorporation
of the Company, as currently in effect; (ix) the Regulations
of the Company, as currently in effect; (x) resolutions of
the Board of Directors of the Company and the Officer's
Certificate relating to the issuance and sale of the
Securities and related matters; and (xi) the order of the
Commission declaring the Registration Statement effective
under the Act and the Indenture qualified under the Trust
Indenture Act at 5:30 p.m. on January 22, 1997. I have also
examined originals or copies, certified or otherwise
identified to my satisfaction, of such records of the Company
and such agreements, certificates of public officials,
certificates of officers or other representatives of the
Company and others, and such other documents, certificates
and records as I have deemed necessary or appropriate as a
basis for the opinions set forth herein.
In my examination, I have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all
documents submitted to me as certified, photostatic or
facsimile copies and the authenticity of the originals of
such latter documents. In making my examination of documents
executed by parties other than the Company, I have assumed
that such parties had the power, corporate or other, to enter
into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect
thereof.
I am a member of the Bar in the State of Ohio, and
I do not express any opinion as to the laws of any other
jurisdiction other than the laws of the United States of
America to the extent referred to specifically herein.
Insofar as the opinions set forth below relate to the
Indenture and the Securities as valid, binding and
enforceable obligations of the Company, I have relied solely
upon an opinion letter of even date herewith from Skadden,
Arps, Slate, Meagher & Flom LLP, New York, New York, with
respect to all matters of New York law related thereto. This
opinion is limited to the laws, including the rules and
regulations, as in effect on the date hereof.
Based upon and subject to the foregoing, I am of
the opinion that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of Ohio, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus.
2. The issuance and sale of the Securities have
been duly authorized by the Company; the Securities, when
executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, will be valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, except (a) to the extent that enforcement thereof may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity) and (b) I express no opinion as to Section 515 of
the Indenture.
3. The Indenture has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms, except (a) to the
extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity) and (b) I express no opinion as to Section 515 of
the Indenture.
I hereby consent to the filing of this opinion with
the Commission as Exhibit 5(a) to the Form 8-K. In giving
this consent, I do not thereby admit that I am in the
category of persons whose consent is required under Section 7
of the Act or the Rules and Regulations of the Commission
promulgated thereunder. This opinion is expressed as of the
date hereof unless otherwise expressly stated, and I disclaim
any undertaking to advise you of any subsequent changes of
the facts stated or assumed herein or any subsequent changes
in applicable law.
Very truly yours,
/s/ David L. Santez
Exhibit 5(b)
February 4, 1997
The Mead Corporation
Mead World Headquarters
Courthouse Plaza Northeast
Dayton, Ohio 45463
Re: The Mead Corporation $100,000,000 6.60% Notes
due March 1, 2002, $150,000,000 7.35%
Debentures due March 1, 2017, $150,000,000
6.84% Debentures due March 1, 2037, and
$150,000,000 7.55% Debentures due March 1, 2047
Ladies and Gentlemen:
This opinion is furnished by us as special counsel
for The Mead Corporation, an Ohio corporation (the
"Company"), in connection with the issuance and sale of
$100,000,000 aggregate principal amount of the Company's
6.60% Notes due March 1, 2002, $150,000,000 aggregate
principal amount of the Company's 7.35% Debentures due March
1, 2017, $150,000,000 aggregate principal amount of the
Company's 6.84% Debentures due March 1, 2037 and $150,000,000
aggregate principal amount of the Company's 7.55% Debentures
due March 1, 2047 (collectively, the "Securities") pursuant
to the Pricing Agreement, dated February 4, 1997 (the
"Pricing Agreement"), between Goldman, Sachs & Co. and J.P.
Morgan Securities Inc. (the "Underwriters") and the Company,
which Pricing Agreement incorporates in its entirety all the
provisions of The Mead Corporation Underwriting Agreement,
dated February 4, 1997 (the "Basic Provisions Agreement" and,
together with the Pricing Agreement, the "Underwriting
Agreement"). The Securities are to be issued under the
Indenture, dated as of February 1, 1993, between the Company
and The First National Bank of Chicago as trustee (the
"Trustee"), and as supplemented by the Officer's Certificate,
dated February 4, 1997 (the "Officer's Certificate"),
establishing the terms of each series of Securities (such
Indenture, as so supplemented, being hereinafter referred to
as the "Indenture").
This opinion is being delivered in accordance with
the requirements of Item 601(b)(5) of Regulation S-K under
Securities Act of 1933, as amended (the "Act").
In connection with this opinion, we have examined
originals or copies, certified or otherwise identified to our
satisfaction, of (i) the registration statement on Form S-3
(File No. 333-16135) relating to up to $850,000,000 aggregate
principal amount of debt securities filed with the Securities
and Exchange Commission (the "Commission") on November 14,
1996 under the Act, and Amendment No. 1 thereto filed on
January 10, 1997 (such registration statement, as so amended,
being hereinafter referred to as the "Registration
Statement"), in accordance with procedures of the Commission
permitting a delayed or continuous offering of securities
pursuant to the Registration Statement, the prospectus
included therein and subsequent prospectus supplements which
provide information relating to the terms of the securities
which may be offered and sold pursuant to the Registration
Statement and the manner of their distribution; (ii) the
Preliminary Prospectus Supplement, dated January 27,
1997, the Prospectus dated January 22, 1997 and the
Prospectus Supplement relating to the Securities, dated
February 4, 1997, in the respective forms thereof filed with
the Commission pursuant to Rule 424(b) of the General Rules
and Regulations under the Act (the "Rules and Regulations");
(iii) the Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, on Form T-1 of the Trustee; (iv) the
documents incorporated by reference in the Prospectus to the
date of the Prospectus Supplement; (v) an executed copy of
the Indenture; (vi) the forms of the Securities and specimen
certificates thereof; (vii) an executed copy of the
Underwriting Agreement; (viii) the Articles of Incorporation
of the Company, as currently in effect; (ix) the Regulations
of the Company, as currently in effect; (x) resolutions of
the Board of Directors of the Company relating to the
issuance and sale of the Securities and related matters; (xi)
an executed copy of the Officer's Certificate; and (xii) the
order of the Commission declaring the Registration Statement
effective under the Act and the Indenture qualified under the
Trust Indenture Act at 5:30 p.m. on January 22, 1997. We
have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of
the Company and such agreements, certificates of public
officials, certificates of officers or other representatives
of the Company and others, and such other documents,
certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all
documents submitted to us as certified, photostatic or
facsimile copies and the authenticity of the originals of
such latter documents. In making our examination of executed
documents, we have assumed that the parties thereto had the
power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other,
and (except as otherwise set forth below) execution and
delivery by such parties of such documents and the validity
and binding effect thereof. As to any facts material to the
opinions expressed herein which we did not independently
establish or verify, we have relied upon oral or written
statements and representations of officers and other
representatives of the Company and others.
Members of our firm are admitted to practice in the
State of New York, and we do not express any opinion as to
the laws of any other jurisdiction other than the laws of the
United States of America to the extent referred to
specifically herein. We have assumed that (i) the Company
has duly authorized the issuance of the Securities and the
filing of the Registration Statement under Ohio law; (ii) the
Indenture and the Securities (collectively, the "Operative
Documents") were duly authorized, executed and delivered by
the Company under Ohio law; (iii) the choice of New York law
in the Indenture is legal and valid under the laws of other
applicable jurisdictions; and (iv) the execution and delivery
by the Company of the Operative Documents and the performance
by the Company of its obligations thereunder do not and will
not violate, conflict with or constitute a default under (A)
any agreement or instrument to which the Company or its
property is subject (except that we do not make the
assumption set forth in this clause (A) with respect to the
Operative Documents), (B) any law, rule or regulation to
which the Company is subject (except that we do not make the
assumption set forth in this clause (B) with respect to those
laws, rules and regulations of the State of New York and the
United States of America which, in our experience, are
normally applicable to transactions of the type contemplated
by the Operative Agreements, but without our having made any
special investigation with respect to other laws, rules or
regulations), (C) any judicial or regulatory order or decree
of any governmental authority or (D) any consent, approval,
license, authorization or validation of, or filing, recording
or registration with, any governmental authority. Reference
is made to the opinion of David L. Santez, Assistant
Secretary and Associate General Counsel of the Company, filed
as Exhibit 5(a) to the Company's Current Report on Form 8-K
dated the date hereof (the "Form 8-K"), with respect to
matters under the laws of the State of Ohio, and our opinions
set forth herein are subject to the same limitations,
qualifications and assumptions set forth in such opinion.
Based upon and subject to the foregoing, we are of
the opinion that:
1. The Indenture has been duly executed and
delivered by the Company under New York law and is a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except (a) to the
extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity) and (b) we express no opinion as to Section 515 of
the Indenture.
2. The Securities, when executed and authenticated
in accordance with the terms of the Indenture and delivered
to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, will be valid and
binding obligations of the Company entitled to the benefits
of the Indenture and enforceable against the Company in
accordance with their terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in
a proceeding at law or in equity) and (b) we express no
opinion as to Section 515 of the Indenture.
David L. Santez, Assistant Secretary and Associate
General Counsel of the Company, is permitted to rely upon
this opinion for the purpose of delivering his opinion to the
Company in its capacity as counsel to the Company in
accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Act. We hereby consent to the
filing of this opinion with the Commission as Exhibit 5(b) to
the Form 8-K. In giving this consent, we do not thereby
admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the Rules
and Regulations of the Commission promulgated thereunder.
This opinion is expressed as of the date hereof unless
otherwise expressly stated, and we disclaim any undertaking
to advise you of any subsequent changes of the facts stated
or assumed herein or any subsequent changes in applicable
law.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
