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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
May 14, 1999
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Date of Report (Date of earliest event reported)
ARMSTRONG WORLD INDUSTRIES, INC.
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(Exact Name of Registrant as Specified in its Charter)
Pennsylvania 1-2116 23-0366390
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(State of Organization) (Commission File Number) (IRS Employer
Identification No.)
2500 Columbia Avenue
Lancaster, Pennsylvania 17603
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(Address of Registrant's Principal Executive Office) (Zip Code)
(717) 397-0611
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(Registrant's telephone number, including area code)
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Item 5. Other Events.
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On May 19, 1999, Armstrong World Industries, Inc. (the "Company")
completed an underwritten public offering (the "Offering") under its existing
shelf registration statement (File No. 333-74501) of $200 million aggregate
principal amount of 7.45% Senior Notes due 2029 (the "Senior Notes"). Net
proceeds from the Offering will be used to repay short-term indebtedness of the
Company.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(a) Financial Statements
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None.
(b) Pro Forma Financial Information
-------------------------------
None.
(c) Exhibits
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Exhibit No. Description of Document
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1.1 Underwriting Agreement, dated as of May 14, 1999, by and among
Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Banc One
Capital Markets, Inc., Barclays Capital Inc., HSBC Securities, Inc.
and the Company.
1.2 Underwriting Agreement Standard Provisions - Debt Securities and
Preferred Stock.
4.1 Indenture, dated December 23, 1998, between the Company and The First
National Bank of Chicago, as Trustee (incorporated by reference to
the Company's Registration Statement on Form S-3 (File No. 333-
74501), as filed with the Securities and Exchange Commission on March
16, 1999).
4.2 Global Note representing $200 million of 7.45% Senior Notes due 2029.
5.1 Opinion of Rogers & Wells LLP.
5.2 Opinion of Douglas S. Brossman
23.1 Consent of Rogers & Wells LLP (included as part of Exhibit 5.1).
23.2 Consent of Douglas S. Brossman (included as part of Exhibit 5.2).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
ARMSTRONG WORLD INDUSTRIES, INC.
By: /s/ Walter T. Gangl
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Name: Walter T. Gangl
Title: Deputy General Counsel Corporate and
Assistant Secretary
Date: May 20, 1999
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EXHIBIT INDEX
Exhibit No. Exhibit
- ----------- -------
1.1 Underwriting Agreement, dated as of May 14, 1999, by and among
Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Banc One
Capital Markets, Inc., Barclays Capital Inc., HSBC Securities,
Inc. and the Company.
1.2 Underwriting Agreement Standard Provisions - Debt Securities and
Preferred Stock.
4.1 Indenture, dated December 23, 1998, between the Company and The
First National Bank of Chicago, as Trustee (incorporated by
reference to the Company's Registration Statement on Form S-3
(File No. 333-74501), as filed with the Securities and Exchange
Commission on March 16, 1999).
4.2 Global Note representing $200 million of 7.45% Senior Notes due
2029.
5.1 Opinion of Rogers & Wells LLP.
5.2 Opinion of Douglas S. Brossman.
23.1 Consent of Rogers & Wells LLP (included as part of Exhibit 5.1).
23.2 Consent of Douglas S. Brossman (included as part of Exhibit 5.2).
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EXHIBIT 1.1
UNDERWRITING AGREEMENT
May 14, 1999
Armstrong World Industries, Inc.
2500 Columbia Avenue
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
$200,000,000 aggregate initial offering price of 7.45% Senior Notes due May 15,
2029 (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 December 23, 1998 (the "Indenture")
between the Company and The First National Bank of Chicago, 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 99.007% of the principal amount of Debt Securities, plus
accrued interest, if any, from May 19, 1999 to the date of payment and delivery:
---- -----------------------------------
Name Principal Amount of Debt Securities
Salomon Smith Barney Inc............................... $ 80,000,000
J.P. Morgan Securities Inc............................. 80,000,000
BancOne Capital Markets, Inc........................... 13,334,000
Barclays Capital....................................... 13,333,000
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HSBC Securities, Inc................................... 13,333,000
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Total............................................. $200,000,000
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 May 19, 1999 , or at such other time,
not later than 5:00 p.m. New York time on May 26, 1999, as shall be designated
by the Manager. The time and date of such payment and delivery are hereinafter
referred to as the Closing Date.
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The Offered Securities shall have the terms set forth in the Prospectus
dated March 16, 1999 and the Prospectus Supplement dated May 14, 1999, including
the following:
Terms of Debt Securities
Maturity Date: May 15, 2029
Interest Rate: 7.45%
Redemption Provisions: Not redeemable prior to maturity
Interest Payment Dates: May 15 and November 15, commencing
November 15, 1999.
Interest accrues from
May 19, 1999.
Form and Denomination: Registered form in minimum denominations
of $1,000.
Price to Public: 99.882%
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 May 14, 1999, 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.
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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.
Very truly yours,
SALOMON SMITH BARNEY INC.
Acting severally on behalf of itself
and the several Underwriters named herein
/s/ Christina Mohr
By:_________________________
Name: Christina Mohr
Title: Managing Director
Accepted:
Armstrong World Industries, Inc.
/s/ Edward R. Case
By:________________________
Name: Edward R. Case
Title: Vice President
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EXHIBIT 1.2
ARMSTRONG WORLD INDUSTRIES, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES AND PREFERRED STOCK)
May 14, 1999
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.
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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 as of December 23, 1998 by
and between the Company and The First National Bank of Chicago, 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 light of the circumstances under which
they were made, not misleading,
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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 and
is a valid and binding agreement of the Company,
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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
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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 or
incorporated by reference 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
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("Environmental Laws"), have received all material permits, licenses or
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) Except as disclosed in the Registration Statement and the
Prospectus, or incorporated by reference therein, 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.
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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 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
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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
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.
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(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:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) 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);
(iii) 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);
(iv) 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
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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);
(v) 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 .
(vi) 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;
(vii) 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.
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(viii) 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 and the bylaws and rules of the National Association
of Securities Dealers, Inc. 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;
(ix) 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
(x) such counsel is of the opinion that each document filed by
the Company pursuant to the Exchange Act 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 the
Registration Statement, as of the date of the Underwriting Agreement,
and the Prospectus as of its date (in each case excluding (A)
financial statements, financial schedules and financial information
and operating data included or incorporated by reference therein or
omitted therefrom and (B) 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.
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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
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or the Prospectus as of its date or
on the date hereof, 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 (i) the financial statements, financial schedules and financial
information and operating data included or incorporated by reference in the
Prospectus or the Registration Statement or omitted therefrom and (ii) that part
of the Registration Statement that constitutes the Form T-1). 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 or any
amendment or supplement thereto and that such counsel has not participated in
the preparation of the documents incorporated by reference in the Registration
Statement.
In rendering its opinion, Rogers & Wells LLP may rely (i) as to matters of
Pennsylvania law, on the opinion of internal legal counsel to the Company, or
such other Pennsylvania counsel, 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 (x) of paragraph (c) above, Rogers & Wells LLP may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement, the Prospectus and the Prospectus Supplement (it being
understood that such counsel has not participated in the preparation of 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 internal legal counsel to the Company, or such other
Pennsylvania counsel as is chosen by the Company, dated the Closing Date,
to the effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the Commonwealth of Pennsylvania and has
the corporate power and authority to own or
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<PAGE>
lease its property and to conduct its business as described in the
Prospectus;
(ii) each Material Subsidiary (or such other subsidiaries as
agreed by the Company and the Underwriters) 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 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;
(iii) 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;
(iv) 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;
(v) 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
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<PAGE>
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 approvals would not, singly or in the
aggregate, have a Material Adverse Effect;
(vi) 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
(vii) 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
(i), (ii), (iii), (iv), (v), (vi) (but only as to the statements in
the Prospectus under "Description of Debt Securities," "Description of
Preferred Stock" and "Plan of
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<PAGE>
Distribution") and subparagraph (x) (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 or opinions of
internal legal counsel to the Company, or such other Pennsylvania
counsel, referred to in paragraph (d) above.
With respect to subparagraph (x) 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
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
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<PAGE>
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 (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
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<PAGE>
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.
(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
17
<PAGE>
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 required to be stated
therein or necessary to make the statements therein not
18
<PAGE>
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
19
<PAGE>
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 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
20
<PAGE>
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 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
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<PAGE>
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 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
22
<PAGE>
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 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
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<PAGE>
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.
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UNDERWRITING AGREEMENT
_______ __, ____
Armstrong World Industries, Inc.
2500 Columbia Avenue
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
- ---------------------------
/*/ 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
25
<PAGE>
Preferred Stock set forth below opposite their names at a purchase price of
_____ per share]:
26
<PAGE>
- ----------------------------------------------------------------
Name [Principal Amount of Debt Securities]
---- [Number of Shares of Preferred Stock]
-----------------------------------
- ----------------------------------------------------------------
.........................
- ----------------------------------------------------------------
[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
- ------------------------
/*/ 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.
27
<PAGE>
Maturity Date:
Interest Rate:
Redemption Provisions:
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.]/**/
- -----------------------
/*/ To be added only if the transaction does not close flat.
/**/ To be added only if delayed delivery contracts are contemplated.
28
<PAGE>
All provisions contained in the document entitled Armstrong World
Industries, Inc. Underwriting Agreement Standard Provisions
(Debt Securities and Preferred Stock) dated May __, 1999, 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 the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
[SIGNATURE PAGE WHERE THERE IS MORE THAN ONE 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,
[MANAGER]
[Names of Other Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
By: [MANAGER]
By:_________________________
Name:
Title:
Accepted:
Armstrong World Industries, Inc.
By:________________________
Name:
Title:
29
<PAGE>
SIGNATURE PAGE WHERE ONLY ONE 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,
[MANAGER]
Acting severally on behalf of itself
and the several Underwriters named herein
By: ___________________________
Name:
Title:
Accepted:
Armstrong World Industries, Inc.
By: __________________________
Name:
Title:
30
<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 in immediately available funds
in New York City, 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.
31
<PAGE>
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.
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________________________
32
<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
---- ------------------- ----------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
- ------------------------------------------------------------------
33
<PAGE>
SCHEDULE A
----------
Securities:
- ----------
Principal Amounts or Numbers to be Purchased:
- --------------------------------------------
Purchase Price:
- --------------
Delivery
- --------
34
<PAGE>
EXHIBIT 4.2
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.
<PAGE>
7.45% Senior Notes
No. A-1 $200,000,000
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 two hundred million dollars ($200,000,000) on May 15, 2029, and
to pay interest thereon from May 19, 1999 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on May 15 and November 15 in each year, commencing November 15, 1999, at the
rate of 7.45% per 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 May 1 or November 1 (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
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.
<PAGE>
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May 19, 1999
ARMSTRONG WORLD INDUSTRIES, INC.
By: /s/ E. Follin Smith
--------------------------
Name: E. Follin Smith
Title: Treasurer
Attest:
By: /s/ Walter T. Gangl
--------------------------------------
Name: Walter T. Gangl
Title: Deputy General Counsel - Corporate
and Assistant Secretary
[SEAL]
<PAGE>
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 December 23, 1998 (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 First
National Bank of Chicago, 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 two hundred million dollars ($200,000,000).
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.
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
<PAGE>
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 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 $1000 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.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE>
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
/s/ Ruth Fussel
By: _______________________________
Authorized Officer
<PAGE>
EXHIBIT 5.1
May 14, 1999
Armstrong World Industries, Inc.
2500 Columbia Avenue
Lancaster, Pennsylvania 17603
Re: Armstrong World Industries, Inc.
Registration Statement on Form S-3 (File No. 333-74501)
-------------------------------------------------------
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 $200,000,000
aggregate principal amount of the Company's 7.45% Senior Notes due 2029 (the
"Senior Notes"). The offering of the Senior Notes is being made pursuant to the
Company's Registration Statement on Form S-3 (including a prospectus supplement
filed pursuant to Rule 424 of the Securities Act of 1933, as amended, the
"Registration Statement") which relates to the offer and sale by the Company
from time to time of up to $1,000,000,000 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, warrants and depositary shares.
The Senior Notes are being sold pursuant to that certain Underwriting Agreement
(the "Underwriting Agreement"), dated May 14, 1999, by and among Salomon Smith
Barney Inc., J.P. Morgan Securities Inc., Banc One Capital Markets, Inc.,
Barclays Capital Inc. and HSBC Securities, Inc. (collectively, the
"Underwriters"), and the Company. The Underwriting 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 Senior Notes.
It is contemplated that the Senior Notes will be issued pursuant to an indenture
(the "Indenture"), dated December 23, 1998, between the Company and The First
National Bank of Chicago, 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 and subject to the foregoing and such examination of law as we have
deemed necessary, we are of the opinion that the Senior Notes 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
<PAGE>
May 19, 1999
Page 2
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 forth 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 Douglas S. Brossman, Senior Attorney 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, dated May 14, 1999 (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.
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.]
May 14, 1999
Armstrong World Industries, Inc.
2500 Columbia Avenue
Lancaster, Pennsylvania 17603
Re: Armstrong World Industries, Inc.
Registration Statement on Form S-3 (File No. 333-74501)
Ladies and Gentlemen:
I am the Associate 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
$200,000,000 aggregate principal amount of the Company's 7.45% Senior Notes due
2029 (the "Senior Notes"). The offering of the Senior Notes is being made
pursuant to the Company's Registration Statement on Form S-3 (including a
prospectus supplement filed pursuant to Rule 424 of the Securities Act of 1933,
as amended, the "Registration Statement") which relates to the offer and sale by
the Company from time to time of up to $1,000,000,000 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, warrants and depositary shares.
The Senior Notes are being sold pursuant to that certain Underwriting Agreement
(the "Underwriting Agreement") dated May 14, 1999, by and among Salomon Smith
Barney Inc., J.P. Morgan Securities Inc., Banc One Capital Markets, Inc.,
Barclays Capital Inc., HSBC Securities, Inc. (collectively, the "Underwriters")
and the Company. The Underwriting 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 Senior Notes. It is contemplated that
the Senior Notes will be issued pursuant to an indenture (the "Indenture"),
dated December 23, 1998, between the Company and The First National Bank of
Chicago, 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 oral and written information
provided by various officers of the Company, as well as certificates and letters
of public officials, 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 Senior Notes 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
<PAGE>
May 19, 1999 Page 2
bankruptcy, reorganization, moratorium, insolvency or similar laws
affecting creditors' rights generally, including without limitation, applicable
fraudulent transfer laws, and general principals 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. Please note that I undertake no obligation to
update this opinion to reflect any change in law or circumstances as might
affect the foregoing at any time. It is also expressly understood, and by your
acceptance hereof you acknowledge, that you will look solely to the Company with
respect to any claims hereunder, and your only remedies in connection herewith
will be against the Company and its assets and not me personally. This opinion
has been prepared solely for your use in connection with the filing of the Form
8-K on May 24, 1999 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, and subject
to all conditions, qualifications and limitations herein.
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. 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/ Douglas S. Brossman
