EXHIBIT 1
September 1995
UNION CARBIDE CORPORATION
DEBT SECURITIES
STANDARD UNDERWRITING AGREEMENT PROVISIONS
1. Introductory. Union Carbide Corporation, a New York corporation
(the "Company"), proposes to issue and sell from time to time certain of its
debt securities registered under the registration statement referred to in
Section 2(a) ("Registered Securities"). The Registered Securities will be
issued under an indenture, dated as of [date] (such indenture as amended or
supplemented is herein referred to as the "Indenture"), between the Company
and [Name of Bank], as Trustee (the "Trustee"), in one or more series, which
series may vary as to interest rates, maturities, redemption provisions,
selling prices and other terms, with all such terms for any particular series
of the Registered Securities being determined at the time of sale. Particular
series of the Registered Securities will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms of offering
determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities." The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives," as used in this Agreement (other
than in clause 2 of the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on
such Form (the file number of which is set forth in the Terms
Agreement), which has become effective, for the registration under the
Act of the Registered Securities. Such registration statement, as
amended at the date of any Terms Agreement, meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies in all other
material respects with said Rule. Such registration statement, including
the exhibits thereto, as amended at the date of any Terms Agreement, is
hereinafter called the "Registration Statement" and the prospectus
included in the Registration Statement, supplemented as contemplated by
Section 3 to reflect the terms of the Securities and the plan of
distribution thereof, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b), is hereinafter called the
"Prospectus." Any reference herein to the Registration Statement or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on or before
the date of any Terms Agreement or the date of the Prospectus, as the
case may be, and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement or the
Prospectus shall include the filing of any document under the Exchange
Act after the date of this Agreement or the date of the Prospectus, as
the case may be, deemed to be incorporated therein by reference.
(b) As of the date of any Terms Agreement, when the Prospectus is
first filed pursuant to Rule 424(b) under the Act, when, prior to the
Closing Date (as defined in Section 3), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement) and at
the Closing Date, (i) the Registration Statement, as amended as of any
such time, and the Prospectus, as amended or supplemented as of any such
time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement, as amended as of
any such time, nor the Prospectus, as amended or supplemented as of any
such time, will contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; provided, however,
that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter specifically
for use in connection with the preparation of the Registration Statement
and the Prospectus.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of New York, and has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus, as amended or supplemented.
(d) Each significant subsidiary (as defined in Regulation S-X of
the Commission) 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 its property and to conduct its business as described in the
Prospectus, as amended or supplemented.
(e) The applicable Terms Agreement has been duly authorized,
executed and delivered by the Company.
(f) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by fraudulent transfer,
bankruptcy, insolvency or similar laws 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 Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the Indenture and
delivered to and duly paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited
by fraudulent transfer, bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The Delayed Delivery Contracts (as defined below), if any,
have been duly authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in accordance
with their respective terms except as (i) the enforceability thereof may
be limited by fraudulent transfer, bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the applicable
Terms Agreement, the Indenture, the Securities and any Delayed Delivery
Contract does not and will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or 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 any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of its
subsidiaries, 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 the applicable Terms
Agreement, the Securities, the Indenture or any Delayed Delivery
Contract, except such as may be required by the securities or Blue Sky
laws of the various states in connection with offer and sale of the
Securities.
(j) There has not been any 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.
(k) The Company is not 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.
(l) 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 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.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
written communications ("Terms Agreement") at the time the Company determines
to sell the Securities. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify (1) the firm or firms which will be Underwriters, (2) the names of any
Representatives, (3) the principal amount of Securities to be purchased by
each Underwriter and the purchase price to be paid by the Underwriters, (4)
the terms of the Securities not already specified in the Indenture, (5)
whether any of the Securities may be sold to institutional investors pursuant
to Delayed Delivery Contracts (as defined below), (6) the time and date on
which delivery of the Securities will be made to the Representatives for the
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price in New York
Clearing House funds (such time and date, or such other time and date not
later than seven full business days thereafter as the Representatives and the
Company agree to as to time and date for payment and delivery, being herein
and in the Terms Agreement referred to as the "Closing Date") and (7) the
place of delivery and payment.
The obligations of the Underwriters to purchase the Securities
will be several and not joint. The Securities delivered to the Underwriters
on the Closing Date will be in definitive fully registered form, in such
denominations and registered in such names as the Representatives may request.
Certificates for the Securities shall be registered in such names
and in such denominations as the Representatives may request not less than
three full Business Days in advance of the Closing Date.
If the Terms Agreement provides for sales of Securities pursuant
to Delayed Delivery Contracts, the Company authorizes the Underwriters to
solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date
the Company will pay, as compensation, to the Representatives for the accounts
of the Underwriters, the fee set forth in such Terms Agreement in respect of
the principal amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of any Delayed
Delivery Contract. If the Company executes and delivers a Delayed Delivery
Contract, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Securities to be purchased by each Underwriter will be reduced pro rata in
proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company. The Company will advise the Representatives not
later than the business day prior to the Closing Date of the principal amount
of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters,
without charge, one signed copy of the Registration Statement, including all
exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Securities:
(a) At any time when a prospectus relating to the Securities is
required to be delivered under the Act, before amending or supplementing
the Registration Statement or the Prospectus with respect to the
Securities, the Company will furnish to the Representatives a copy of
such proposed amendment or supplement and will not file any such
proposed amendment or supplement to which the Representatives reasonably
object. The Company will also advise the Representatives promptly of
the filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs or a condition
exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made
when the Prospectus was delivered, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the Act, the Company
promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(c) As soon as practicable after the date of each Terms Agreement,
the Company will make generally available to their security holders an
earnings statement that satisfies the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as are reasonably
requested.
(e) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution; provided that the Company shall not be
required to qualify to do business in any jurisdiction where it is not
now qualified or to file a general consent to service of process in any
jurisdiction.
(f) The Company will pay all expenses incident to the performance
of its obligations under this Agreement and will reimburse the
Underwriters for any reasonable expenses (including the fees and
disbursement of counsel) incurred by them in connection with
qualification of the Registered Securities for sale and determination of
their eligibility for investment under the laws of such jurisdictions as
the Representatives may designate, the printing of memoranda relating
thereto, any filing fees of the National Association of Securities
Dealers, Inc., relating to the Securities and for reasonable expenses
incurred in distributing the Prospectus, any preliminary prospectuses
and any prospectus supplements to Underwriters.
(g) Between the date of any Terms Agreement and the Closing Date
specified in such agreement, the Company will not, without the
Representatives' prior consent, offer, sell, contract to sell or
otherwise dispose of debt securities of the Company pursuant to the
Registration Statement or any other registration statement filed by the
Company under the Act, which debt securities have a maturity of more
than one year from the date of issue, except that the Company may offer,
sell, contract to sell or otherwise dispose of obligations of the
Company in respect of industrial revenue bonds or similar securities
exempt from federal income taxes.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of officers of
the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of KPMG Peat Marwick, in form and substance reasonably
satisfactory to the Representatives containing statements and
information of the type customarily included in accountants "comfort
letters" with respect to the financial statements and certain financial
information contained or incorporated by reference in the Prospectus.
(b) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any 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, which is material and adverse; (ii) any downgrading in, or
notice of any proposal to downgrade, the rating of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any public announcement that any such organization has under
surveillance or review with negative implications or without indicating
the direction of the possible change the rating of the Company's debt
securities; (iii) any suspension or limitation of trading in securities
generally on or by the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, or any setting of minimum prices for trading on
such exchange; or (iv) any suspension of trading of any securities of
the Company on any exchange; (v) any banking moratorium declared by
Federal or New York authorities; or (vi) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
set forth in (i) through (vi), in the judgment of the Representatives,
makes it impractical or inadvisable to proceed with the public offering
or the delivery of the Securities on the terms and in the manner
contemplated by the Prospectus.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of [Name], General Counsel of the Company, or other
counsel to the Company acceptable to the Representatives substantially
in the form of Exhibit A.
(e) The Representatives shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, substantially in the form of Exhibit B, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received certificates, dated the
Closing Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers,
to the best of their knowledge, shall state that (i) the representations
and warranties of the Company in this Agreement are true and correct,
that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, (ii) no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission and (iii) subsequent to the date of
the most recent financial statements in the Prospectus, and there has
been no 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 except as set forth in or contemplated
by the Prospectus or as described in such certificate.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or in any
amendment thereof 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 misleading,
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 relating to any Underwriter furnished in writing to the
Company by such Underwriter expressly for use therein.
(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 Act or Section 20 of the
Exchange Act and each other Underwriter and any person controlling such
Underwriter within the meaning of either Section 15 of the 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 relating
to such Underwriter furnished to the Company by such Underwriter in writing
expressly for use in the Registration Statement or 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) above, such
person (the "indemnified party") shall promptly notify each person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the 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 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 Representatives, 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 in respect of which the indemnified party
is entitled to indemnification pursuant to paragraph (a) or (b) above effected
without its written consent (which consent shall not be unreasonably
withheld), 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. An indemnifying party shall not without the prior written consent
of the indemnified party (which consent shall not be unreasonably withheld)
effect any settlement releasing the indemnifying party from any pending or
threatened litigation, proceeding or claim in respect of which any indemnified
party is or could have been a party and for which such indemnified party would
have been entitled to indemnity hereunder, unless such settlement includes an
unconditional release of all indemnified parties from all liability with
respect to claims which are the subject matter of such litigation, proceeding
or claim or which relate to or arise out of the same or substantially similar
facts or circumstances.
(d) If the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Securities, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and each Underwriter on the other from the offering of such
Securities or (ii) if the allocation provided by clause (i) 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 each Underwriter on the other 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 in connection with the offering of such
Securities shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Securities (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by the Underwriters. The relative fault of the Company on the one
hand and of each Underwriter on the other shall be determined by reference to,
among other things, whether the untrue or allegedly 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 such Underwriter 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 6(d) are several in
proportion to the respective principal amounts of Securities purchased by each
Underwriter and not joint.
(e) The Company and each Underwriter agree that it would not be
just or equitable if contribution pursuant to this Section 6 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) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth in paragraph (c)
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities referred to in paragraph (d) above that were
purchased through such Underwriter 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6
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.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities
by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
under such Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of the Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of the Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, such Terms Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 8. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter
under this Section. Nothing herein will relieve a defaulting Underwriter
from liability for its default. The respective commitments of the several
Underwriters for the purposes of this Section shall be determined without
regard to reduction in the respective Underwriters' obligations to purchase
the principal amount of the Securities set forth opposite their names in the
Terms Agreement as a result of Delayed Delivery Contracts entered into by the
Company.
The agreements set forth in this Section will not apply if the
Terms Agreement specifies that such agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, its officers and of the several Underwriters set
forth in or made pursuant to any Terms Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the result
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Securities by the Underwriters under the Terms Agreement is
not consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 4 and the respective obligations
of the Company and the Underwriters pursuant to Section 6 shall remain in
effect. If the purchase of the Securities by the Underwriters is not
consummated for any reason other than the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event specified in clause
(iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursement of counsel) reasonably incurred by them in connection with the
offering of the Securities.
9. Notices. All communications hereunder will be in writing, may be
sent by mail, facsimile, telegraphed and confirmed or otherwise delivered, if
to the Underwriters, at their addresses furnished to the Company in writing
for the purpose of communications hereunder, and if to the Company, at Union
Carbide Corporation, 39 Old Ridgebury Road, Danbury, Connecticut 06817-0001,
Attention: Treasurer.
10. Successors. Any Terms Agreement will inure to the benefit of and
be binding upon the Company and such Underwriters as are identified therein
and their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right or
obligation hereunder.
11. Applicable Law. The Terms Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
ANNEX I
DELAYED DELIVERY CONTRACT
__________, 199_
Union Carbide Corporation
39 Old Ridgebury Road
Danbury, Connecticut 06817-0001
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from Union Carbide
Corporation, a New York corporation (the "Company"), and the Company agrees to
sell to the undersigned,
$_________________
principal amount of the Company's [Insert title of securities] (the
"Securities") offered by the Company's Prospectus dated ___________, 199_ and
a Prospectus Supplement dated ___________, 199_ relating thereto, receipt of
copies of which is hereby acknowledged, at ___% of the principal amount
thereof plus accrued interest, if any, from ___________, 199_, and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
Delivery Date Principal Amount
Each of such delivery dates is hereinafter referred to as a "Delivery Date."
Payment for the Securities that the undersigned has agreed to purchase
for delivery on each Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day)
funds at the office of ____________________________ at 10:00 A.M. on such
Delivery Date upon delivery to the undersigned of the Securities to be
purchased by the undersigned on such Delivery Date in definitive fully
registered form and in such denominations and registered in such names as the
undersigned shall designate by written or telegraphic communication addressed
to the Company not less than five business days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract subject to the first paragraph hereof with respect
to the accrual of interest; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on each Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at such Delivery Date be prohibited under the laws of any jurisdiction in
the United States to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the principal amount of the Securities
less the principal amount thereof covered by this and other similar Contracts.
The undersigned represents that its investment in the Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on
a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
______________________________
(NAME OF PURCHASER)
By___________________________
Name:
Title:
______________________________
______________________________
(Address of Purchaser)
Accepted, as of the above date
UNION CARBIDE CORPORATION
By __________________________
Name:
Title:
UNION CARBIDE CORPORATION
DEBT SECURITIES
TERMS AGREEMENT
____________, 199_
Union Carbide Corporation
39 Old Ridgebury Road
Danbury, Connecticut 06817-0001
Attention:
Referring to the Debt Securities of Union Carbide Corporation (the
"Company") covered by the Company's Registration Statement on Form S-3 (No.
33-___________) (the "Registration Statement"), on the basis of the
representations, warranties and agreements contained in this Agreement, and
subject to the terms and conditions herein set forth, the Underwriters named
on Schedule A hereto ("Underwriters") agree to purchase, severally but not
jointly, and the Company agrees to sell to the Underwriters, $_____________
aggregate principal amount of ___% ____________ Due ____________ (the
"Securities") in the respective principal amounts set forth opposite the names
of the Underwriters on Schedule A hereto.
The price at which the Securities shall be purchased from the Company
by the Underwriters shall be ___% of the principal amount thereof [plus
accrued interest from _________, 199_]. The Securities will be offered as set
forth in the Prospectus Supplement relating thereto.
The Securities will have the following terms:
Title: _______________________
Interest Rate: ___% per annum
Interest Payment Dates: ____________ and _____________
commencing ___________, 199_
Maturity: _____________________
Other Provisions: as set forth in the Prospectus Supplement
relating to the Securities
Closing: __:__ A.M. on ___________, 199_, _______________, in New York
Clearing House ________________ (next day) funds.
Name[s] and Address[es] of Representative[s]:
The provisions contained in the Union Carbide Corporation Standard
Underwriting Agreement Provisions (May 1994 Edition), a copy of which has been
filed as Exhibit 1 to the Registration Statement, are incorporated herein by
reference, [except that the obligations and agreements set forth in Section 7
("Default of Underwriters") of the Underwriting Agreement shall not apply to
the obligations of the Underwriters to purchase the above Securities.]
The Securities will be made available for checking and packaging at
the office of ___________________________ at least 24 hours prior to the
Closing Date.
We represent that we are authorized to act for the several
Underwriters named in Schedule A hereto in connection with this financing and
any action under this agreement by any of us will be binding upon all the
Underwriters.
This Terms Agreement may be executed in one or more counterparts, all
of which counterparts shall constitute one and the same instrument.
If the foregoing is in accordance with your under- standing of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
[NAMES OF REPRESENTATIVES
On behalf of themselves and
as Representatives of the
Several Underwriters
By: ___________________________
By: ___________________________
Name:
Title:
The foregoing Terms Agreement
is hereby confirmed as of the
date first above written
UNION CARBIDE CORPORATION
By: _________________________
Name:
Title:
SCHEDULE A
Principal
Underwriter Amount
. . . . . . . . . . . . . $
________
Total . . . . . . . . . . . .$_______
EXHIBIT A
[FORM OF OPINION OF COMPANY COUNSEL]
[Dated the Closing Date]
[Names and Addresses of Representatives]
Dear Sirs:
I have acted as counsel for Union Carbide Corporation, a New York
corporation (the "Company") in connection with the sale by the Company of
$______________ principal amount of its ___% _____________ Due ____________
(the "Securities") pursuant to the Terms Agreement dated _________, 199_ (such
agreement, together with the Standard Underwriting Agreement Provisions (May
1994 Edition) incorporated therein, is referred to herein as the "Terms
Agreement") between you and the Company. The Securities are to be issued under
an Indenture dated as of [Date] (the "Indenture") among the Company and [Name
of Bank], Trustee (the "Trustee").
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as I have deemed necessary for the
purpose of rendering this opinion.
I have participated in the preparation of the registration statement
on Form S-3 (Registration No. 33-_________) filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the
provisions of the Securities Act of 1933 (the "Act"), registering
$[_____________] aggregate initial offering price of debt securities to be
issued from time to time by the Company. In addition, I have examined
evidence that the Registration Statement was declared effective under the Act
and the Indenture was qualified under the Trust Indenture Act of 1939 (the
"Trust Indenture Act"), on ___________, 199_. Such registration statement as
amended at the date hereof (including the documents incorporated by reference
therein) is herein referred to as the Registration Statement and the related
prospectus (including the documents incorporated by reference therein)
together with the prospectus supplement dated ________, 199_ specifically
relating to the Securities, as filed with the Commission pursuant to Rule
424(b) under the Act, is herein referred to as the "Prospectus."
Based upon the foregoing, I am of the opinion that:
(A) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of New York,
and has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, as amended or
supplemented.
(B) The Terms Agreement has been duly authorized, executed and
delivered by the Company [and any Delayed Delivery Contract has been
duly authorized, executed and delivered by the Company].
(C) 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, enforceable in
accordance with its terms.
(D) The Securities have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly
paid for by you, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, enforceable in
accordance with their terms.
(E) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Terms
Agreement, the Securities and the Indenture [and any Delayed Delivery
Contract] will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or 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 my knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any of its subsidiaries.
(F) 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 the Terms Agreement,
the Securities or the Indenture except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Securities.
(G) The statements in the Prospectus, as amended or supplemented,
under the captions "Description of Securities," and "Description of
[__________]," in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein.
(H) The documents filed pursuant to the Securities Exchange Act of
1934 and incorporated by reference in the Prospectus (other than the
financial statements, related schedules and statistical information of a
financial nature contained or incorporated therein, as to which I have
not been asked to, and do not, express any opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act and the Securities Exchange Act of 1934, as applicable, and the
rules and regulations promulgated thereunder.
(I) The Registration Statement, as of its effective date, and the
Registration Statement and the Prospectus, as of the date hereof (other
than the Statement of Eligibility on Form T-1 of the Trustee, the
financial statements, related schedules and statistical information of a
financial nature contained or incorporated by reference therein, as to
which I have not been asked to, and do not, express any opinion),
complied as to form in all material respects with the requirements of
the Act and the rules and regulations promulgated thereunder.
The opinions set forth in paragraphs (C) and (D) above are qualified
insofar as enforceability may be limited by fraudulent transfer, bankruptcy,
insolvency or similar laws affecting creditors' rights generally and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
I have participated in conferences, by person or by telephone, with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company and your representatives and
your counsel, at which the contents of the Registration Statement and
Prospectus and related matters were discussed, and although I am not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus, I advise you that on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company), no facts have come to my attention which lead
me to believe that at the time the Registration Statement became effective it
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as of the date
hereof contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading (it being
understood that I have not been asked to, and do not, comment on the financial
statements, related schedules or statistical information of a financial nature
contained or incorporated therein or on any of the information contained in
the Statement of Eligibility on Form T-1 of the Trustee).
This opinion is limited to the federal laws of the United States of
America and the laws of the State of New York.
Very truly yours,
EXHIBIT B
[FORM OF OPINION OF COUNSEL FOR THE UNDERWRITERS]
[Dated the Closing Date]
[Names and Addresses of Representatives]
Dear Sirs:
We have acted as your counsel in connection with the sale by Union
Carbide Corporation, a New York corporation (the "Company"), of $____________
principal amount of its ___% ____________ Due ____________ (the
"Securities") and the purchase of the Securities by you, severally, pursuant
to a Terms Agreement dated _________, 199_ (such agreement, together with the
Union Carbide Corporation Standard Underwriting Agreement Provisions (May 1994
Edition) incorporated therein is referred to herein as the "Terms Agreement").
The Securities will be issued pursuant to the provisions of an indenture dated
as of [Date] (the "Indenture"), between the Company and [Name of Bank],
Trustee (the "Trustee").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for the purpose of rendering this opinion, including
those relating to the authorization, execution and delivery by the Company of
the Indenture and the Terms Agreement, and the authorization of the Securities
by the Company.
We have participated in the preparation of the registration statement
on Form S-3 (Registration No. 33-__________) (other than the documents
incorporated by reference in the prospectus included therein (the
"Incorporated Documents")) filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the provisions of the
Securities Act of 1933, as amended (the "Act"), registering $[__________]
aggregate initial offering price of debt securities to be issued from time to
time by the Company. Although we did not participate in the preparation of
the Incorporated Documents, we have reviewed such documents. In addition, we
have received oral confirmation that the registration statement was declared
effective under the Act and that the Indenture was qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), on ___________,
199_. Such registration statement (including the Incorporated Documents), as
amended at the date hereof, is herein referred to as the "Registration
Statement" and the related prospectus dated _________, 199_ (including the
Incorporated Documents), together with the prospectus supplement dated
__________, 199_ specifically relating to the Securities, as filed with the
Commission pursuant to Rule 424(b) under the Act, is herein referred to as the
"Prospectus."
We have assumed the conformity of the documents filed with the
Commission via the Electronic Data Gathering, Analysis and Retrieval System
("EDGAR"), except for required EDGAR formatting changes, to physical copies of
the documents delivered to the Underwriters and submitted for our examination.
Based upon the foregoing, we are of the opinion that:
(1) 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,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(2) The Securities have been duly authorized and established in
conformity with the provisions of the Indenture and, when the
Securities have been executed by the Company and authenticated by the
Trustee in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof pursuant to
the Terms Agreement, they will be entitled to the benefits of such
Indenture and will be valid and binding obligations of the Company,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability; and
(3) The Terms Agreement has been duly authorized, executed and
delivered by the Company.
We have considered the matters required to be included in the
Registration Statement and Prospectus and the information contained therein.
We are of the opinion that the statements in the Prospectus under the captions
"Description of Securities," "Description of [_________]," "Plan of
Distribution" and "Underwriters," insofar as such statements constitute
summaries of the documents referred to therein, fairly present the information
called for with respect to such documents.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to other matters in
the Registration Statement or the Prospectus, but we have generally reviewed
and discussed with your representatives and with certain officers and
employees of, and counsel and independent public accountants for, the Company
the information furnished, whether or not subject to our check and
verification. On the basis of such consideration, review and discussion, but
without independent check or verification, except as stated, (1) no facts came
to our attention which lead us to believe that (except for financial
statements and schedules as to which we do not express any belief and except
for that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) of the Trustee) each part of the Registration
Statement, when such part became effective contained any 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, (2) we are
of the opinion that the Registration Statement and Prospectus (except for
financial statements and schedules included therein as to which we do not
express any opinion) comply as to form in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder and (3)
no facts came to our attention which lead us to believe that (except as to
financial statements and schedules as to which we do not express any belief)
the Prospectus as of the date hereof contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
We have examined the opinion dated the date hereof of [Name], counsel
for the Company, delivered to you pursuant to Section 5(d) of the Terms
Agreement, and we believe that such opinion is responsive to the requirements
of the Terms Agreement.
We have also examined the letter dated _________, 199_ of KPMG Peat
Marwick, independent certified public accountants, relating to the financial
statements and other information contained or incorporated by reference in the
Registration Statement and the other matters referred to in such letter,
delivered to you pursuant to Section 5(a) of the Terms Agreement. We
participated in discussions with your representatives and representatives of
KPMG Peat Marwick relating to the form of such letter, and we believe that it
is substantially in the form agreed to.
Very truly yours,
3