Exhibit 1
July 1998
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. If the Company has filed
an abbreviated registration statement to register additional
Debt Securities pursuant to Rule 462(b) under the Act, then
any reference herein to the term "Registration Statement"
shall also include such Rule 462(b) registration statement.
(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 immediately available 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 wire transfer of
immediately available (same day) funds to an account
specified by the Company at 10:00 A.M. on such Delivery Date
upon delivery to the undersigned at the offices of
________________ 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_, at the offices of
___________________ against wire transfer of immediately
available (same 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,