<PAGE>
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
OCTOBER 20, 1998
----------------
Date of Report (Date of earliest event reported)
ARMSTRONG WORLD INDUSTRIES, INC.
--------------------------------
(Exact Name of Registrant as Specified in its Charter)
PENNSYLVANIA 1-2116 23-0366390
------------ ------ ----------
(State of Organization) (Commission File Number) (IRS Employer
Identification No.)
P.O. BOX 3001
LANCASTER, PENNSYLVANIA 17604
-----------------------------
(Address of Registrant's Principal Executive Office) (Zip Code)
(717) 397-0611
--------------
(Registrant's telephone number, including area code)
<PAGE>
Item 5. Other Events.
------------
On October 20, 1998, Armstrong World Industries, Inc., a Pennsylvania
corporation (the "Company"), announced its third quarter earnings results. A
copy of the Company's press release, dated October 20, 1998 is attached hereto
as Exhibit 99.1 and is incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
------------------------------------------------------------------
Financial Statements.
None.
Pro Forma Financial Information.
None.
Exhibits.
99.1 Press Release, dated October 20, 1998.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
ARMSTRONG WORLD INDUSTRIES, INC.
By: /s/ Deborah K. Owen
--------------------------------
Deborah K. Owen
Senior Vice President, Secretary and
General Counsel
Date: October 20, 1998
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
- ---------- -------
99.1 Press Release, dated October 20, 1998.
4
<PAGE>
Exhibit 1.1
UNDERWRITING AGREEMENT
October 21, 1998
Armstrong World Industries, Inc.
313 West Liberty Street
Lancaster, Pennsylvania 17603
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "Underwriters"), and we understand that Armstrong World Industries,
Inc., a Pennsylvania corporation (the "Company"), proposes to issue and sell
$180,000,000 aggregate initial offering price of 7.45% Senior Quarterly Interest
Bonds due October 15, 2038 (the "Debt Securities"). The Debt Securities are
also referred to herein as the Offered Securities. The Debt Securities will be
issued pursuant to the provisions of an Indenture dated as of August 6, 1996
(the "Indenture") between the Company and The Chase Manhattan Bank, formerly
known as Chemical Bank, as successor to Mellon Bank, N.A., as Trustee (the
"Trustee"), as amended.
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
principal amount of Debt Securities set forth below opposite their names at a
purchase price of 96.85% of the principal amount of Debt Securities, plus
accrued interest, if any, from October 28, 1998 to the date of payment and
delivery:
<TABLE>
<CAPTION>
Principal Amount of
Name Debt Securities
---- ---------------
<S> <C>
Morgan Stanley & Co. Incorporated.......................... $ 24,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated......... 24,000,000
PaineWebber Incorporated................................... 24,000,000
Prudential Securities Incorporated......................... 24,000,000
Salomon Smith Barney Inc................................... 24,000,000
SG Cowen Securities Corporation............................ 24,000,000
Bank of New York Capital Markets, Inc...................... 1,200,000
Bear, Stearns & Co. Inc.................................... 1,200,000
BT Alex Brown Incorporated................................. 1,200,000
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Principal Amount of
Name Debt Securities
---- ---------------
<S> <C>
Chase Securities Inc....................................... 1,200,000
CIBC Oppenheimer Corp...................................... 1,200,000
Donaldson, Lufkin & Jenrette Securities Corporation........ 1,200,000
A.G. Edwards & Sons, Inc................................... 1,200,000
First Chicago Capital Markets, Inc......................... 1,200,000
Friedman, Billings, Ramsey & Co., Inc...................... 1,200,000
J.P. Morgan Securities Inc................................. 1,200,000
Nationsbanc Montgomery Securities LLC...................... 1,200,000
Schroder & Co. Inc......................................... 1,200,000
Wheat First Securities, Inc................................ 1,200,000
Advest, Inc................................................ 600,000
Robert W. Baird & Co. Incorporated......................... 600,000
William Blair & Company, L.L.C............................. 600,000
J.C. Bradford & Co......................................... 600,000
Craigie Incorporated....................................... 600,000
Cromwell, Weedon & Co...................................... 600,000
Dain Rauscher Wessels...................................... 600,000
Davenport & Company LLC.................................... 600,000
Fahnestock & Co. Inc....................................... 600,000
Ferris, Baker Watts, Incorporated.......................... 600,000
Fidelity Capital Markets
A Division of National Financial Services Corporation... 600,000
Fifth Third/The Ohio Company................................ 600,000
First Albany Corporation.................................... 600,000
First of Michigan Corporation............................... 600,000
Fleet Securities, Inc....................................... 600,000
Gibraltar Securities Co..................................... 600,000
J.J.B. Hilliard, W.L. Lyons, Inc............................ 600,000
Interstate/Johnson Lane Corporation......................... 600,000
Janney Montgomery Scott Inc................................. 600,000
Legg Mason Wood Walker, Incorporated........................ 600,000
McDonald & Company Securities, Inc.......................... 600,000
Mesirow Financial, Inc...................................... 600,000
Morgan Keegan & Company, Inc................................ 600,000
Olde Discount Corporation................................... 600,000
Piper Jaffray Inc........................................... 600,000
Raymond James & Associates, Inc............................. 600,000
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Principal Amount of
Name Debt Securities
---- ---------------
<S> <C>
The Robinson-Humphrey Company, LLC.......................... 600,000
Roney Capital Markets A Division of First Chicago........... 600,000
Scott & Stringfellow, Inc................................... 600,000
Southwest Securities, Inc................................... 600,000
Sterne, Agee & Leach, Inc................................... 600,000
Stifel, Nicolaus & Company, Incorporated.................... 600,000
Tucker Anthony Incorporated................................. 600,000
Wedbush Morgan Securities................................... 600,000
------------
Total.................................................. $180,000,000
============
</TABLE>
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New
York, 10017 at 10:00 a.m. New York time on October 28, 1998 , or at such other
time, not later than 5:00 p.m. New York time on November 5, 1998, as shall be
designated by the Manager. The time and date of such payment and delivery are
hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated November 1, 1996, and the Prospectus Supplement dated October 21, 1998,
including the following:
Terms of Debt Securities
Maturity Date: October 15, 2038
Interest Rate: 7.45%
Redemption Provisions: If there is a substantial likelihood that the
Company will not be entitled to deduct currently
for United States federal income tax purposes the
full amount of interest accrued in respect of the
Bonds, the Company, at its option may redeem the
Bonds in whole but not in part, at any time at a
redemption price equal to 100% of the principal
amount of the Bonds, together with interest
accrued and unpaid to the date fixed for
redemption. Notice of such redemption of the Bonds
will be given to the
3
<PAGE>
holders of the Bonds not more than 60 nor fewer
than 30 days prior to the date fixed for
redemption.
Other than for the tax reasons described in the
preceding paragraph, the Bonds will not be
redeemable prior to October 28, 2003. Thereafter
the Bonds will be subject to redemption on any
date at the option of the Company, as a whole or
from time to time in part, upon not less than 30
nor more than 60 days' notice, at a redemption
price equal to 100% of the principal amount
redeemed plus accrued and unpaid interest to the
date of redemption.
Interest Payment Dates: Payable quarterly on January 15, April 15, July 15
and October 15 of each year, commencing January
15, 1999. Interest accrues from October 28, 1998.
Form and Denomination: Registered form in minimum denominations
of $25 and integral multiples thereof.
Price to Public: 100%
Settlement and Trading: Book-entry only through DTC. The Offered
Securities will trade in DTC's same day funds
settlement system
Other Terms: N/A
All provisions contained in the document entitled Armstrong World
Industries, Inc. Underwriting Agreement Standard Provisions (Debt Securities and
Preferred Stock) dated October 21, 1998, a copy of which is attached hereto, are
herein incorporated by reference in their 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, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement, (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement and (iv) all costs and expenses incident to the
printing and delivery to the Underwriters of any preliminary prospectus and the
Prospectus and any amendments or supplements thereto shall be borne by the
Underwriters.
4
<PAGE>
The Company and the Underwriters agree that the only information furnished
by the Underwriters to the Company for inclusion in the Registration Statement
and the Prospectus consists of (i) the first sentence of the last paragraph of
text on the cover page of the Prospectus Supplement and (ii) the third
paragraph, the second, third and fourth sentences of the fifth paragraph and the
sixth paragraph under the caption "Underwriters".
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
5
<PAGE>
Very truly yours,
MORGAN STANLEY & CO.
INCORPORATED
Acting severally on behalf of itself and the
several Underwriters named herein
/s/ Michael Fusco
By:_________________________________
Name: Michael Fusco
Title: Vice President
Accepted:
Armstrong World Industries, Inc.
/s/ E. Follin Smith
By:_____________________________
Name: E. Follin Smith
Title: Vice President and Treasurer
6
<PAGE>
Exhibit 1.3
ARMSTRONG WORLD INDUSTRIES, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES AND PREFERRED STOCK)
October 21, 1998
From time to time, Armstrong World Industries, Inc., a Pennsylvania
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities (the "Offered Securities") to
the several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to,
among other securities, the Debt Securities and Preferred Stock and the Company
has filed with, or transmitted for filing to, or shall promptly hereafter file
with or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Offered Securities
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"). The term "Registration Statement" means the registration
statement, as amended to the date of this Agreement and the related Underwriting
Agreement; provided, that if the Company files a registration statement with the
Commission pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then, after such filing, all references to the
Registration Statement shall be deemed to include the Rule 462 Registration
Statement. The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein.
<PAGE>
The terms "supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities that are Debt
Securities to be purchased pursuant to the delayed delivery contracts
substantially in the form of Schedule I hereto, with such changes therein as the
Company may approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
The term "Indenture" means the Indentures dated August 6, 1996 by and
between the Company and The Chase Manhattan Bank, formerly known as Chemical
Bank, as successor to Mellon Bank, N.A., as Trustee (the "Trustee"), as may be
supplemented from time to time, said Indenture governing the terms of the Senior
Debt Securities and the Subordinated Debt Securities, respectively. As used
herein, the term "Indenture" will apply to each Indenture both individually and
collectively.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the requirements of
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain, any 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, (iii)
the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the
2
<PAGE>
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section
1(b) do not apply (A) to statements in or omissions from the Registration
Statement or the Prospectus based upon information furnished to the Company
in writing by or on behalf of any such Underwriter through the Manager, if
any, expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the condition, financial or otherwise, or
on the earnings, business or operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(d) Each "significant subsidiary" (as that term is used in Rule 1-
02(w) of Regulation S-X under the Securities Act) (a "Material Subsidiary")
of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect. Except as otherwise described in the
Registration Statement and the Prospectus, all of the issued shares of
capital stock of each Material Subsidiary of the Company have been duly
authorized and validly issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
3
<PAGE>
and is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer or similar laws relating to or affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Delayed Delivery Contracts on the date of delivery of such
Delayed Delivery Contracts, will have been duly authorized, executed and
delivered by the Company and will constitute valid and binding agreements
of the Company, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer or similar laws relating to
or affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) If the Offered Securities are Debt Securities, such Debt
Securities have been duly authorized and, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement, in the case of the Underwriters' Securities, or by
institutional investors in accordance with the terms of the Delayed
Delivery Contracts, in the case of the Contract Securities, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company in accordance
with their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer or similar laws
relating to or affecting creditors' rights generally and (ii) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(i) If the Offered Securities are Preferred Stock, such Preferred
Stock has been, or at the date of the applicable Underwriting Agreement
will have been, duly authorized and, when delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement,
will have been validly issued, fully paid and nonassessable and the
shareholders of the Company have no preemptive rights with respect to the
Preferred Stock.
(j) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Offered Securities, and the Delayed Delivery Contracts will not contravene
(i) any provision of applicable law; (ii) the articles of
4
<PAGE>
incorporation or by-laws of the Company; (iii) any agreement or other
instrument binding upon the Company or (iv) any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary except in the case of clauses (iii) or (iv) where
such contravention would not have a Material Adverse Effect, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under any Underwriting Agreement, the Indenture, the
Offered Securities, or the Delayed Delivery Contracts, except such as have
been obtained under the Securities Act, the Exchange Act and the rules and
regulations thereunder, the bylaws and rules of the National Association of
Securities Dealers, Inc. or as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Offered Securities.
(k) There has not occurred any material adverse change, or to the
Company's knowledge, any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(l) (i) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described and (ii)
there are no contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated as required.
(m) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(n) Except as disclosed in the Registration Statement and the
Prospectus, the Company and its subsidiaries are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), have received all material permits, licenses or
5
<PAGE>
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and are in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a Material Adverse Effect.
(o) The Company is not aware of any costs or liabilities to the
Company imposed by any Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, or any related constraints on operating activities) which would,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(p) The Company is not, and after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus will not be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(q) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to disclosure of doing business with the
Government of Cuba or with any person or affiliate located in Cuba or is
exempt therefrom.
2. Delayed Delivery Contracts. If the Prospectus and the Underwriting
Agreement provide for sales of Offered Securities pursuant to Delayed Delivery
Contracts, the Company hereby authorizes the Underwriters to solicit offers to
purchase Contract Securities on the terms and subject to the conditions set
forth in the Prospectus and the Underwriting Agreement pursuant to Delayed
Delivery Contracts substantially in the form of Schedule I hereto with such
changes therein as the Company may authorize or approve. Delayed Delivery
Contracts may be entered into only with institutional investors approved by the
Company of the types set forth in the Prospectus. On the Closing Date, the
Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility
in respect of the validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract
6
<PAGE>
Securities; such reduction shall be applied to the commitment of each
Underwriter pro rata in proportion to the amount of Offered Securities set forth
opposite such Underwriter's name in the Underwriting Agreement, except to the
extent that the Manager determines that such reduction shall be applied in other
proportions and so advises the Company; provided, however, that the total amount
of Offered Securities to be purchased by all Underwriters shall be the aggregate
amount set forth above, less the aggregate amount of Contract Securities.
3. Terms of Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Underwriters' Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public offering
of the Underwriters' Securities will be as set forth in the Prospectus.
The obligation of the Underwriters to purchase the Offered Securities will
be evidenced by an Underwriting Agreement at the time the Company determines to
sell the Offered Securities and the Underwriters determine to purchase such
Offered Securities. The Underwriting Agreement will incorporate by reference
the provisions of this Agreement, except as otherwise provided therein, and will
specify the firm or firms which will be Underwriters, the names of any Managers,
the principal amount to be purchased by each Underwriter, the purchase price to
be paid by the Underwriters and the terms of the Offered Securities not already
specified in the Indenture, including but not limited to, maturity, any
redemption provisions and sinking fund requirements and whether any of the
Offered Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts. The Underwriting Agreement will also specify the time and
date of delivery and payment (such time and date, or such other time not later
than seven full business days thereafter as the Manager and the Company agree as
the time for payment and delivery (being herein and in the Underwriting
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of such offering that should be reflected in the
prospectus supplement relating to the offering of the Offered Securities.
4. Payment and Delivery. Except as otherwise provided in this Section 4,
payment for the Underwriters' Securities shall be made to the Company by wire
transfer of Federal or other funds immediately available in New York City
against delivery to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities at the time and place set forth in
the Underwriting Agreement. Certificates for the Underwriters' Securities
shall be in definitive form and registered in such names and in such
denominations as the Manager shall request in writing not less than one full
business day prior to the date of delivery. The certificates evidencing the
Underwriters' Securities shall be delivered to the Manager on the date of
delivery for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the
7
<PAGE>
transfer of the Underwriters' Securities to the Underwriters duly paid, against
payment of the purchase price therefor.
5. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters to purchase and pay for the Offered Securities are subject
to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that indicates a potential downgrading, in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in the reasonable judgment of the Manager, is
material and adverse and that makes it, in the reasonable judgment of the
Manager, impracticable to market the Offered Securities on the terms and in
the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct in all material respects as of the
Closing Date and that the Company has complied in all material respects
with all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date. The
officer signing and delivering such certificate may rely upon the best of
his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Rogers & Wells LLP, outside counsel for the Company, dated the
Closing Date, substantially to the effect that:
8
<PAGE>
(i) the Company is validly existing as a corporation in good
standing under the laws of the Commonwealth of Pennsylvania, has the
corporate power and authority to own or lease its property and to conduct
its business as described in the Prospectus.
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and, assuming due execution and delivery by the Trustee, is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms except as (a) the enforceability thereof may be
limited by bankruptcy, reorganization, moratorium, fraudulent conveyance,
insolvency or similar laws affecting creditors' rights generally, including
without limitation concepts of materiality, reasonableness, good-faith and
fair dealing and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether the enforceability of such rights or
the availability of such remedies is considered in a proceeding in equity
or at law);
(iv) if the Offered Securities are Contract Securities and
Delayed Delivery Contracts have been executed, the Delayed Delivery
Contracts have been duly authorized, executed and delivered by the Company
and are valid and binding agreements of the Company, enforceable against
the Company in accordance with their respective terms except as (a) the
enforceability thereof may be limited by bankruptcy, reorganization,
moratorium, fraudulent conveyance, insolvency or similar laws affecting
creditors' rights generally, including, without limitation, concepts of
materiality, reasonableness, good-faith and fair dealing and (b) the
availability of equitable remedies may be limited by equitable principles
of general applicability (regardless of whether the enforceability of such
rights or the availability of such remedies is considered in a proceeding
in equity or at law);
(v) if the Offered Securities are Debt Securities, such Debt
Securities have been duly authorized and, when executed, authenticated,
issued and delivered in accordance with the provisions of the Indenture
against payment therefor by the Underwriters in accordance with the terms
of the Underwriting Agreement, in the case of Underwriters' Securities, or
by
9
<PAGE>
institutional investors in accordance with the terms of the Delayed
Delivery Contracts, in the case of the Contract Securities, will be
entitled to the benefits of the Indenture, will conform in all material
respects as to legal matters to the description thereof contained in the
Prospectus and will be valid and binding obligations of the Company
enforceable against the Company in accordance with their terms except as
(a) the enforceability thereof may be limited by bankruptcy,
reorganization, moratorium, fraudulent conveyance, insolvency or similar
laws affecting creditors' rights generally, including, without limitation,
concepts of materiality, reasonableness, good-faith and fair dealing and
(b) rights of acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of general applicability
(regardless of whether the enforceability of such rights or the
availability of such remedies is considered in a proceeding in equity or at
law);
(vi) if the Offered Securities are Preferred Stock, such
Preferred Stock has been duly authorized and, when issued and delivered to
and paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement, such Preferred Stock will have been validly issued,
fully paid and nonassessable, will conform in all material respects as to
legal matters to the description thereof contained in the Prospectus and
will not be issued in violation of any preemptive rights arising by
operation of law or under the charter and by-laws of the Company or, to
such counsel's knowledge, under any agreement to which the Company is a
party .
(vii) the statements in the Basic Prospectus set forth under the
captions "Description of Debt Securities," "Description of Capital
Stock,""Description of Depositary Shares," and "Description of Preferred
Stock", insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, provide in all
material respects a fair summary of such legal matters, documents and
proceedings;
(viii) the statements in the Prospectus under the caption "United
States Tax Considerations," insofar as such statements constitute a summary of
the United States federal tax laws referred to therein, are accurate in all
material respects and fairly summarize in all material respects the United
States federal tax laws referred to therein.
10
<PAGE>
(ix) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Underwriting
Agreement, the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not result in a violation or breach of any provision of any
U.S. federal or state statute, rule or regulation or order of any
governmental agency or body (other than foreign or state securities laws as
to which such counsel expresses no opinion), except to the extent that the
federal securities laws may limit or restrict any indemnification
provisions set forth in this Agreement, or the articles of incorporation or
by-laws of the Company, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement, the
Indenture, the Offered Securities or the Delayed Delivery Contract, except
such as have been obtained under the Securities Act, the Exchange Act and
the rules and regulations thereunder, the bylaws and rules of the National
Association of Securities Dealers, Inc. or as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Securities;
(x) the Company is not, and after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company", as such term is defined in the Investment Company Act of 1940, as
amended; and
(xi) such counsel is of the opinion that (i) each document filed
by the Company pursuant to the Exchange Act since January 1, 1998 and
incorporated by reference into the Prospectus (except for financial
statements, financial schedules and financial information and operating
data included in or incorporated by reference therein or omitted therefrom)
complied as to form when filed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder
and (ii) the Registration Statement, as of the date of the Underwriting
Agreement, and the Prospectus as of its date (in each case excluding (A)
except as set forth in clause (i) above, the documents incorporated by
reference therein, (B) financial statements, financial schedules and
financial information and operating data included or incorporated by
reference therein or omitted therefrom and (C) the Form T-1, in each case
as to which such counsel expresses no view) comply as to form in all
material respects with the 1933 Act and the rules and regulations
thereunder.
11
<PAGE>
Such counsel shall also state that nothing has come to the attention of
such counsel that leads it to believe that the Registration Statement, at the
date of the Underwriting Agreement, 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 the Prospectus
(including the documents incorporated by reference and described in clause (i)
above) at the date of the Underwriting Agreement or at the Closing Date,
included or includes 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 (it being
understood that such counsel expresses no belief with respect to the financial
statements, financial schedules and financial information and operating data
included or incorporated by reference in the Prospectus or omitted therefrom).
The foregoing statement may be qualified by a statement to the effect that such
counsel does not pass upon or otherwise assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the Prospectus
and that such counsel has not participated in the preparation of the
Registration Statement or the documents incorporated by reference therein.
In rendering its opinion, Rogers & Wells LLP may rely (i) as to matters of
Pennsylvania law, on the opinion of David Wilson, Associate General Counsel of
the Company, referred to in Section 5(d) hereof, and (ii) as to factual matters,
on certificates of officers of the Company and its subsidiaries and on
certificates of public officials. With respect to the subparagraph (xi) of
paragraph (c) above, Rogers & Wells LLP may state that their opinion and belief
are based upon their participation in the preparation of the Prospectus
Supplement (it being understood that such counsel has not participated in the
preparation of the Registration Statement or the documents incorporated by
reference therein) and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as specified.
The opinion of Rogers & Wells LLP described in paragraph (c) above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(d) The Underwriters shall have received on the Closing Date an
opinion of David Wilson, Associate General Counsel of the Company, dated
the Closing Date, to the effect that:
(i) each Material Subsidiary is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease its
property and to conduct its business as described in the
12
<PAGE>
Prospectus; and each of the Company and each of its Material Subsidiaries
is duly qualified to transact business and is in good standing as a foreign
corporation in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a Material Adverse Effect;
(ii) the statements (A) in the Registration Statement under Item
15, (B) in "Item 3 - Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the Prospectus and (C) in
"Item 1 - Legal Proceedings" of Part II of the Company's quarterly reports
on Form 10-Q, if any, filed since such annual report, in each case insofar
as such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, and, in each case, as modified by any
subsequently filed Current Report on Form 8-K, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(iii) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company or
any of its Material Subsidiaries is a party or to which any of the
properties of the Company or any of its Material Subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required;
(iv) to the best of such counsel's knowledge, the Company and its
Material Subsidiaries (i) are in compliance with any and all
applicable Environmental Laws, (ii) have received all material
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or
13
<PAGE>
approvals would not, singly or in the aggregate, have a Material
Adverse Effect;
(v) such counsel is not aware of any costs or liabilities
associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities)
which would, singly or in the aggregate, in such counsel's judgment
reasonably be expected to have a Material Adverse Effect, and which
have not been previously disclosed in the Registration Statement; and
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not violate or conflict with any provision of the
articles of incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any Material Subsidiary.
(e) The Underwriters shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in subparagraphs (ii),
(iii), (iv), (v), (vi), (vii) (but only as to the statements in the
Prospectus under "Description of Debt Securities," "Description of
Preferred Stock" and "Plan of Distribution") and subparagraph (xi) (except
for clause (i) of such subparagraph) of paragraph (c) above. In rendering
such opinion, Davis Polk & Wardwell may rely as to the incorporation of the
Company and all other matters of Pennsylvania law upon the opinion of David
Wilson, Associate General Counsel of the Company referred to in paragraph
(d) above.
With respect to subparagraph (xi) of paragraph (c) above, Davis Polk &
Wardwell may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (but not including
14
<PAGE>
documents incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein by reference), but
are without independent check or verification, except as specified.
(f) The Underwriters shall have received on the Closing Date a letter
dated the Closing Date in form and substance satisfactory to the
Underwriters, from the independent public accountants of the Company
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, 3 conformed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects, except to the extent such filing is necessary in the
opinion of counsel to the Company in order to comply with the requirements
of the Act, the Exchange Act and the rules and regulations thereunder.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, but in any event not
later than 270 days after the date of the relevant Underwriting Agreement,
any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Company, it is necessary to amend or supplement the
Prospectus to comply with applicable law, as soon as practicable to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers
15
<PAGE>
(whose names and addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable law.
(d) To cooperate with Underwriter's counsel to qualify the Offered
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to maintain such
qualification for as long as the Manager shall reasonably request; provided
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or as a dealer in securities or file a general
consent to service of process in any jurisdiction or subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject, or make any change in its certificate of
incorporation, by-laws or other governing documents.
(e) To make generally available (in the form and manner contemplated
by Rule 158 under the Securities Act) to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a
twelve-month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder. If such fiscal quarter is
the last fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days after the close of
the period covered thereby and in all other cases shall be made available
not later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any preferred stock of the
Company (if the Offered Securities are preferred stock) or debt securities
of the Company (if the Offered Securities are Debt Securities) or warrants
to purchase preferred stock or debt securities of the Company, as the case
may be, substantially similar to the Offered Securities (other than (i) the
Offered Securities, (ii) commercial paper issued in the ordinary course of
business, and (iii) the Company's ESOP Preferred Stock and the Series One
Preferred Stock issuable pursuant to the Company's Rights Plan, as
defined), without the prior written consent of the Manager.
16
<PAGE>
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto; (ii) the preparation, issuance and delivery of the
Offered Securities to the Underwriters, including any transfer or other
taxes payable thereon; (iii) the fees and disbursements of the Company's
counsel and accountants and of the Trustee and its counsel; (iv) the
qualification of the Offered Securities under state securities or Blue Sky
laws in accordance with the provisions of Section 6(d), including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda; (v) the printing
and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement and all amendments thereto and of any
preliminary prospectus and the Prospectus and any amendments or
supplements thereto; (vi) the printing and delivery to the Underwriters of
copies of any Blue Sky or Legal Investment Memoranda; (vii) any fees
charged by rating agencies for the rating of the Offered Securities; (viii)
the filing fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc. made in
connection with the Offered Securities; (ix) all document production
charges and expenses of counsel to the Underwriters incurred in connection
with the preparation of this Agreement and the Indenture; and (x) all other
costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 7 and Section 9, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel,
transfer taxes payable on resale of any Offered Securities by them and any
advertising expenses connected with any offers they may make.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim), as
incurred, caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
17
<PAGE>
required to be stated therein or necessary to make the statements therein not
misleading, (A) except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein, or (B) except that
the Company shall not be liable to any Underwriter or any person controlling
such Underwriter under this Section 7 to the extent that any such loss, claim,
liability or judgment results solely from an untrue statement of a material fact
contained in, or the omission of a material fact from, a preliminary Prospectus
if such untrue statement or omission was completely corrected in the applicable
Prospectus Supplement prior to the written confirmation of the sale of the
Offered Securities giving rise to such loss, claim, liability or judgment if the
Company shall sustain the burden of proving (x) that such Underwriter sold the
Offered Securities to the person alleging such loss, claim, damage or liability
without sending or giving the applicable Prospectus Supplement at or prior to
the time of written confirmation of the sale of the Offered Securities giving
rise to such loss, claim, liability or judgment, (y) that the Company had
furnished copies of the applicable Prospectus Supplement to such Underwriter
reasonably prior to the written confirmation of such sale, and (z) such
Underwriter would not have been subject to such liability if it had delivered
the applicable Prospectus Supplement to such person at or prior to the time of
written confirmation of such sale.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information furnished to the Company in writing by
such Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 7, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
18
<PAGE>
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager, in the case
of parties indemnified pursuant to paragraph (a) above, and by the Company, in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on
19
<PAGE>
the cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 7. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
8. Termination. The Underwriting Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
20
<PAGE>
Date (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the- counter
market on which securities of the Company are listed or quoted, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the reasonable judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the reasonable judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Underwriters' Securities that
it has or they have agreed to purchase hereunder on such date, and the aggregate
principal amount (if Debt Securities) or number of shares (if Preferred Stock)
of Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount (if Debt Securities) or number of shares (if
Preferred Stock) of the Underwriters' Securities to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
principal amount (if Debt Securities) or number of shares (if Preferred Stock)
of Underwriters' Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate principal amount (if Debt
Securities) or number of shares (if Preferred Stock) of Underwriters' Securities
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Underwriters'
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Underwriters' Securities and
the aggregate principal amount (if Debt Securities) or number of shares (if
Preferred Stock) of Underwriters' Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount (if Debt
Securities) or number of shares (if Preferred Stock) of Underwriters' Securities
to be purchased on such date, and arrangements satisfactory to the Manager and
the Company for the purchase of such Underwriters' Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 6(g) and 7. In any such case either the Manager or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any
21
<PAGE>
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement. The respective commitments of the several Underwriters for the
purposes of this Section shall be determined without regard to reduction in the
respective Underwriters' obligations to purchase the principal amounts of the
Offered Securities set forth opposite their names in the Underwriting Agreement
as a result of Delayed Delivery Contracts entered into by the Company.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement (in each case other than because of termination pursuant to the
immediately preceding paragraph or pursuant to Section 8), the Company will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the reasonable fees and disbursements of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
22
<PAGE>
UNDERWRITING AGREEMENT
August __, 1998
Armstrong World Industries, Inc.
313 West Liberty Street
Lancaster, Pennsylvania 17603
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being herein
called the "Underwriters"), and we understand that Armstrong World Industries,
Inc., a Pennsylvania corporation (the "Company"), proposes to issue and sell
[[Currency and Principal Amount] aggregate initial offering price of [Full title
of Debt Securities]] [No. of Shares of [Full Title of Preferred Stock
("Preferred Stock")]] the "Offered Securities.") [The Debt Securities will be
issued pursuant to the provisions of an Indenture dated as of ____________, 199_
(the "Indenture") between the Company and [NAME OF TRUSTEE], as Trustee (the
"Trustee").]
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
principal amount of Debt Securities set forth below opposite their names at a
purchase price of [___% of the principal amount of Debt Securities] [___, plus
accrued interest, if any, from [Date of Offered Securities] to the date of
payment and delivery]/*/ [the number of shares of Preferred Stock set forth
below opposite their names at a purchase price of _____ per share]:
- ------------------------
/*/ To be added only if the transaction does not close "flat" (i.e., when the
purchaser pays accrued interest on the debt security at closing). Unless
otherwise provided in the Debt Securities, accrued interest, if any, will be
computed on the basis of a 360-day year of twelve 30-day months
23
<PAGE>
Name [Principal Amount of Debt Securities]
- ------------------------------------ [Number of Shares of Preferred Stock]
- ---------------------------------------------------------------------------
Morgan Stanley & Co.
Incorporated
- ---------------------------------------------------------------------------
Morgan Stanley & Co. International
Limited
[Insert syndicate list]
- ---------------------------------------------------------------------------
Total
- ---------------------------------------------------------------------------
[The principal amount of Debt Securities to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.]/*/
The Underwriters will pay for the Offered Securities [(less any Offered
Securities sold pursuant to delayed delivery contracts)] upon delivery thereof
at [office] at ____ a.m. (New York time) on ___________, 199_ , or at such other
time, not later than 5:00 p.m. (New York time) on __________, 199_, as shall be
designated by the Manager. The time and date of such payment and delivery are
hereinafter referred to as the Closing Date./**/
The Offered Securities shall have the terms set forth in the Prospectus
dated _________, 199_, and the Prospectus Supplement dated ____________, 199_,
including the following:
[Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
- ----------------------------------
/*/ To be added only if delayed delivery contracts are contemplated in the
case of Debt Securities.
/**/ This paragraph would have to be modified for any Offered Securities that
are to be issued in bearer form.
24
<PAGE>
Interest Payment Dates: _____________ and
_____________commencing
_____________ __, ____
[(Interest accrues from
______________, ____ )]/*/
Form and Denomination:
[Other Terms:]]
[Terms of Preferred Stock
Title:
Number of Shares:
Dividend Rate:
Optional Redemption:
Sinking Fund:
Listing: [None.] [ Stock Exchange.]]
[The commission to be paid to the Underwriters in respect of the Offered
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be ___% of the principal amount of the Debt Securities so
purchased.]/**/
All provisions contained in the document entitled Armstrong World
Industries, Inc. Underwriting Agreement Standard Provisions
(Debt Securities and Preferred Stock) dated _______, 1996, a copy of which is
attached hereto, are herein incorporated by reference in their 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, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control, (ii) all references in such document to a type of security
that is not an Offered Security shall not be deemed to be a part of this
Agreement, and (iii) all references in such document to a type of agreement that
has not been entered into in connection with
- -------------------------------------
/*/ To be added only if the transaction does not close flat.
/**/ To be added only if delayed delivery contracts are contemplated.
25
<PAGE>
the transactions contemplated hereby shall not be deemed to be a part of this
Agreement.
[SIGNATURE PAGE WHERE MORGAN STANLEY & CO.
INCORPORATED OR MORGAN STANLEY & CO.
INTERNATIONAL LIMITED IS A CO-LEAD MANAGER]
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY & CO. INCORPORATED]
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
[Name of Other Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
By: [MORGAN STANLEY & CO. INCORPORATED]
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
By:_________________________
Name:
Title:
Accepted:
Armstrong World Industries, Inc.
By:________________________
Name:
Title:
26
<PAGE>
SIGNATURE PAGE WHERE MORGAN STANLEY & CO. INCORPORATED
OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED
IS SOLE MANAGER]
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY & CO. INCORPORATED]
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
Acting severally on behalf of itself
and the several Underwriters named herein
By: ___________________________
Name:
Title:
Accepted:
Armstrong World Industries, Inc.
By: __________________________
Name:
Title:
27
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
__________, 199__
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Armstrong World Industries,
Inc., a Pennsylvania corporation (the "Company"), and the Company agrees to sell
to the undersigned the Company's securities described in Schedule A annexed
hereto (the "Securities"), offered by the Company's Prospectus dated __________,
19__ and Prospectus Supplement dated __________, 19__, receipt of copies of
which are hereby acknowledged, at a purchase price stated in Schedule A and on
the further terms and conditions set forth in this Agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amount and numbers on the delivery dates set forth in Schedule A. Each such date
on which Securities are to be purchased hereunder is hereinafter referred to as
a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of ________,
New York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the undersigned
on the Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned as 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.
28
<PAGE>
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement 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.
If this Agreement 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 agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Yours very truly,
_____________________
(Purchaser)
By___________________
___________________
(Title)
___________________
(Address)
Accepted:
Armstrong World Industries, Inc.
By________________________
29
<PAGE>
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
- ------ -------------------- ----------
- -----------------------------------------
- -----------------------------------------
- -----------------------------------------
- -----------------------------------------
30
<PAGE>
SCHEDULE A
----------
Securities:
----------
Principal Amounts or Numbers to be Purchased:
- --------------------------------------------
Purchase Price:
- --------------
Delivery
- --------
31
<PAGE>
Exhibit 4.4
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
7.45% Senior Quarterly Interest Bonds
No. A-1 $180,000,000
Armstrong World Industries, Inc., a corporation duly organized and existing
under the laws of Pennsylvania (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of one hundred eighty million dollars ($180,000,000) on October
15, 2038, and to pay interest thereon from October 28, 1998 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, on January 15, April 15, July 15 and October 15 in each year, commencing
January 15, 1999, at the rate of 7.45% per
1
<PAGE>
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the date 15 days prior to such Interest Payment Date, referred to as the
"Regular Record Date," (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the City of New York or such other designated office, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
2
<PAGE>
Security Register.
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: October 28, 1998
ARMSTRONG WORLD INDUSTRIES, INC.
By: /s/ Frank A. Riddick
Name: Frank A. Riddick
Title: Senior Vice President and
Chief Financial Officer
Attest:
By: /s/ David D. Wilson
Name: David D. Wilson
Title: Assistant Secretary and
Associate General Counsel
3
<PAGE>
By:
Name:
Title:
[SEAL]
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of August 6, 1996 (as amended and supplemented from
time to time, the "Indenture," which term shall have the meaning assigned to it
in such instrument), between the Company and The Chase Manhattan Bank, formerly
known as Chemical Bank, as successor to Mellon Bank, N.A., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to one
hundred eighty million dollars ($180,000,000).
The Securities of this series are subject to redemption upon not less than 30
nor more than 60 days' notice at any time on or
4
<PAGE>
after October 28, 2003, as a whole or from time to time in part, at the election
of the Company, at a redemption price equal to 100% of the principal amount
redeemed plus accrued and unpaid interest to the date of redemption.
If as a result of: (a) any actual or proposed change in or amendment to the
laws (or any regulations or rulings promulgated thereunder) of the United
States, or any change in the application, official interpretation or enforcement
of such laws, regulations or rulings; (b) any action taken by a taxing
authority, which action is generally applied or is taken with respect to the
Company; (c) a decision rendered by a court of competent jurisdiction in the
United States, whether or not such decision was rendered with respect to the
Company; or (d) a technical advice memorandum or letter ruling or other
administrative pronouncement issued by the National Office of the United States
Internal Revenue Service, on substantially the same facts as those pertaining to
the Company, which change, amendment, action, decision, memorandum, letter
ruling or pronouncement becomes effective or is issued on or after October 28,
1998, there is a substantial likelihood that the Company will not be entitled to
deduct currently for United States federal income tax purposes the full amount
of interest accrued in respect of the Securities of this series, the Company, at
its option, may redeem these Securities, in whole but not in part, at any time
at a redemption price equal to 100% of the principal amount, together with
interest accrued and unpaid to the date of redemption. Notice of such
redemption will be given to the Holders of these Securities not more than 60 nor
fewer than 30 days prior to the date fixed for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the
5
<PAGE>
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exception as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of more than 50% in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
6
<PAGE>
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company
7
<PAGE>
in any place where the principal of any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or its attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may required payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
8
<PAGE>
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This is one of the Securities of the series designated herein referred to in the
within mentioned Indenture.
THE CHASE MANHATTAN BANK
By: /s/ Elaine Renn
-------------------
Authorized Officer
9
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF ROGERS & WELLS LLP]
October 21, 1998
Armstrong World Industries, Inc.
313 West Liberty Street
P.O. Box 3001
Lancaster, Pennsylvania 17604-3001
Re:Armstrong World Industries, Inc.
Registration Statement on Form S-3 (File No. 333-6333)
- ------------------------------------------------------
Ladies and Gentlemen:
We have acted as special New York counsel to Armstrong World Industries, Inc., a
Pennsylvania corporation (the "Company"), in connection with the issuance and
sale by the Company to the Underwriters (as defined below) of $180,000,000
million aggregate principal amount of the Company's 7.45% Senior Quarterly
Interest Bonds due 2038 (the "Bonds"). The offering of the Bonds is being made
pursuant to the Company's Registration Statement on Form S-3 (as amended, and
including (i) a Registration Statement filed pursuant to Rule 462(b) of the
Securities Act of 1933, as amended (the "Act"), increasing the aggregate
principal amount of securities which may be offered and sold pursuant thereto by
$30,000,000 and (ii) a prospectus supplement filed pursuant to Rule 424(b) of
the Act collectively, the "Registration Statement") which relates to the offer
and sale by the Company from time to time of up to $250,000,000 aggregate
principal amount of debt securities and $280,000,000 aggregate principal amount
of debt securities, common stock, $1.00 par value per share, shares of Class A
preferred stock, no par value per share, and depositary shares.
The Bonds are being sold pursuant to that certain Underwriting Agreement (the
"Underwriting Agreement"), dated October 21, 1998, by and among, Morgan Stanley
& Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
PaineWebber Incorporated, Prudential Securities Incorporated, Salomon Smith
Barney Inc., SG Cowen Securities Corporation (collectively, the "Underwriters")
and the Company. The Underwriting
<PAGE>
Armstrong World Industries, Inc. 2 October 21, 1998
Agreement incorporate the terms and conditions of the "Underwriting Agreement
Standard Provisions - Debt Securities and Preferred Stock," and relates to the
purchase by the Underwriters, severally and not jointly, from the Company of the
Bonds. It is contemplated that the Bonds will be issued pursuant to an indenture
(the "Indenture"), dated August 6, 1996, between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), as successor to Mellon Bank,
as trustee.
We have examined such documents, records, and matters of law as we have deemed
necessary for purposes of this opinion. In examining all such documents, we
have assumed the genuineness of all signatures, the authenticity of all
documents purporting to be originals, and the conformity to the respective
originals of all documents purported to be copies. In rendering the foregoing
opinions, we have relied as to certain factual matters upon certificates of
officers of the Company, and we have not independently verified the accuracy of
the statements contained therein.
Based on such examination and on the assumptions set forth below, we are of the
opinion that the Bonds have been duly authorized by the Company and, when
executed, authenticated, issued and delivered in the manner provided in the
Indenture against payment of the consideration therefor specified in the
Underwriting Agreement, will be entitled to the benefits of the Indenture, and
will be valid and legally binding obligations of the Company, enforceable in
accordance with their terms, except as enforceability may be limited by
bankruptcy, reorganization, moratorium, insolvency or similar laws affecting
creditors' rights generally, including without limitation, applicable fraudulent
transfer laws, and general principles of equity, including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing (regardless
of whether the enforceability of such rights or the availability of such
remedies is considered in a proceeding in equity or at law).
The opinion set fourth in this letter relates only to the federal laws of the
United States of America and the laws of the State of New York. As to matters of
Pennsylvania law relevant to the opinions set forth above, we have relied on the
opinion of David D. Wilson, Associate General Counsel of the Company, dated the
date hereof a copy of which is filed as Exhibit 5.2 to the Company's Current
Report on Form 8-K, and dated October 21, 1998 (the "Form 8-K").
We assume no obligation to advise you of any changes in the foregoing subsequent
to the delivery of this opinion. This opinion has been prepared solely for your
use in connection with the filing of the Form 8-K incorporated by reference into
the Registration Statement, and should not be quoted in whole or in part or
otherwise be referred to, nor otherwise be filed with or furnished to any
governmental agency or other person or entity, without our express prior written
consent.
<PAGE>
Armstrong World Industries, Inc. 3 October 21, 1998
We hereby consent to the filing of this opinion as an exhibit to the Form 8-K
and to the use of our name in the Registration Statement under the caption
"Legal Matters." In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Rogers & Wells LLP
<PAGE>
EXHIBIT 5.2
[LETTERHEAD OF ARMSTRONG WORLD INDUSTRIES, INC.]
October 21, 1998
Armstrong World Industries, Inc.
313 West Liberty Street
P.O. Box 3001
Lancaster, Pennsylvania 17604-3001
Re:Armstrong World Industries, Inc.
Registration Statement on Form S-3 (File No. 333-6333)
- ------------------------------------------------------
Ladies and Gentlemen:
I am the Assistant Secretary and Associate General Counsel of Armstrong World
Industries, Inc., a Pennsylvania corporation (the "Company"). This opinion is
being rendered in connection with the issuance and sale by the Company to the
Underwriters (as defined below) of $180,000,000 aggregate principal amount of
the Company's 7.45% Senior Quarterly Interest Bonds due 2038 (the "Bonds"). The
offering of the Bonds is being made pursuant to the Company's Registration
Statement on Form S-3 (as amended, and including a (i) Registration Statement
filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended (the
"Act") increasing the aggregate principal amount of securities which may be
offered and sold pursuant thereto by $30,000,000 and (ii) a prospectus
supplement filed pursuant to Rule 424 of the Act, collectively, the
"Registration Statement") which relates to the offer and sale by the Company
from time to time of up to $530,000,000 aggregate principal amount of debt
securities, common stock, $1.00 par value per share, shares of Class A preferred
stock, no par value per share, and depositary shares.
The Bonds being sold pursuant to that certain Underwriting Agreement (the
"Underwriting Agreement") dated October 21, 1998, by and among Morgan Stanley &
Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
PaineWebber Incorporated, Prudential Securities Incorporated, Salomon Smith
Barney Inc., SG Cowen Securities Corporation (collectively, the "Underwriters")
and the Company. The Underwriting
<PAGE>
Armstrong World Industries, Inc. 2 October 21, 1998
Agreement incorporates the terms and conditions of the "Underwriting Agreement
Standard Provisions - Debt Securities and Preferred Stock," and relates to the
purchase by the Underwriters, severally and not jointly, from the Company of the
Bonds. It is contemplated that the Bonds will be issued pursuant to an indenture
(the "Indenture"), dated August 6, 1996, between the Company and The Chase
Manhattan Bank, formerly known as Chemical Bank, as successor to Mellon Bank, as
Trustee (the "Trustee").
I have examined such documents, records, and matters of law as I have deemed
necessary for purposes of this opinion. In examining all such documents, I have
assumed the genuineness of all signatures, the authenticity of all documents
purporting to be originals, and the conformity to the respective originals of
all documents purported to be copies. In rendering the foregoing opinions, I
have relied as to certain factual matters upon certificates of officers of the
Company, and I have not independently verified the accuracy of the statements
contained therein. Based on such examination and on the assumptions set forth
below, I am of the opinion that the Bonds have been duly authorized by the
Company and, when executed, authenticated, issued and delivered in the manner
provided in the Indenture against payment of the consideration therefor
specified in the Underwriting Agreement will be entitled to the benefits of the
Indenture, and will be valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as enforceability may be
limited by bankruptcy, reorganization, moratorium, insolvency or similar laws
affecting creditors' rights generally, including without limitation, applicable
fraudulent transfer laws, and general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether the enforceability of such rights or the availability of
such remedies is considered in a proceeding in equity or at law).
In rendering the foregoing opinion, my examination of matters of law has been
limited to the laws of the Commonwealth of Pennsylvania.
I assume no obligation to advise you of any changes in the foregoing subsequent
to the delivery of this opinion. This opinion has been prepared solely for your
use in connection with the filing of the Form 8-K on November 2, 1998 and
incorporation by reference into the Registration Statement, and should not be
quoted in whole or in part or otherwise be referred to, nor otherwise be filed
with or furnished to any governmental agency or other person or entity, without
my express prior written consent, except that Rogers & Wells LLP may rely on
this opinion as if it was addressed to them.
I hereby consent to the filing of this opinion as an exhibit to the Form 8-K and
incorporation by reference into the Registration Statement and to the use of my
name therein under the
<PAGE>
Armstrong World Industries, Inc. 3 October 21, 1998
caption "Legal Matters." In giving this consent, I do not admit that I am
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ David D. Wilson
